Wednesday, December 19, 2012

Editorial: Managing the sexual assault case

The court of appeals recently increased benefits nearly $60,000 to a 27-year old woman who states a co-worker raped her at work. T.H. v. Sonic Drive In of High Ridge, 2012 Mo App Lexis 1585 (December 18, 2012); 2012 Mo WCLR Lexis 102.

The court of appeals awarded benefits based on the maximum compensation rate because the employer did not file an answer on time. The ALJ awarded the maximum rate, but the Commission found claimant failed in her burden of proof on the issue of wages when  she could not remember or offer any evidence such as her hourly wage in the weeks preceding the accident, W2s, time sheets, or check stubs, and ultimately agreed, on cross-examination, that she had no evidence at all as to what she earned while she was working for employer.   What is not clearly identified in the appellate decision is that the disability benefits were never based on claimant’s actual wages and that claimant’s wages may have been lower which otherwise would have resulted in a lower award.  What is also not identified in either decision is that many practitioners allege “maximum” rate as boilerplate pleading, when such pleading may have no reasonable basis.

The takeaway from the case is that procedural lapses such as the failure to dispute rate on a timely basis results in higher exposure to an employer. The case will be an open invitation for claimants to deliberately over-state wages on initial claims to exploit any procedural lapses by the carriers. The case provides opportunities for defense to warn clients of onerous dangers of proceeding without legal representation.

The case is a paradigm of issues involving sexual assaults on the job.

Sexual assaults are not frequently reported in appellate decisions involving work place injuries. This fact may under-represent their occurrence in the work force and the need for training to adjust such cases.  Jones v Washington University, 2005 MOWCLR Lexis 165, involved an older dialysis patient who groped his nurse. The employer’s witnesses in that cases testified that some patients behave “at their worst” and such conduct was not “unusual.”  Some injured workers may not proceed for the same reasons many crime victims never report such  incidents.

Sexual assault  is a  risk for any employer operating in Missouri. Anyone concerned with managing risk needs a protocol to reduce the likelihood of such incidents, how to investigate claims when they occur, and to reduce damages. Any sexual assault case involves unique issues and may require different handling than a typical worker’s compensation  claim.

The risk of assault may arise from internal or external sources. Common security precautions may reduce the risk of external sexual assaults. See Virginia D. v Madesco Investment Corp., 648 S.W.3d 881 (Mo. 1983). Such precautions such as adding brighter lights or locks are less effective in Sonic when the perpetrator is the co-worker. In P.M. v Metromedia Steakhouses, 931 S.W.2d 846 (Mo. App. 1996) the worker was raped in a hotel room by an executive. In Everard v Goodwin Bros., 2000 Mo WCLR Lexis 10, the supervisor was verbally and physically abusive. In Swierk v Fusion Support Services, 2010 MO WCLR Lexis 30, an independent contractor  at the employer's facility  groped the employee.

One solution is to adopt and enforce policies against discrimination and sexual harassment.  Many larger employers may already have such programs.  There is no indication in the award whether Sonic had such a program.   Farragher defenses do not preclude or reduce liability in a no-fault context of worker’s compensation as in employment cases.   The Commission has wide discretion regarding the amount of benefits it can award. The hypothetical employer who has no policy to train  its workers and then asserts a claimant 'crying rape' is lying should not anticipate a favorable award. 

Any risk assessment must consider whether any employees or supervisors are likely to represent a danger to others based on past and current conduct.  The manager who becomes aware than an current employee has a history of past sex cries or is a registered sexual predator must consider what jobs may be appropriate or what level of higher supervision may be required. In Sonic, the perpetrator had committed "numerous" sexual felonies less than a year before the attack  and plead guilty after the accident. There is no indication that Sonic knowingly hired a sexual felon at the time.  Sonic disputed the admission of the criminal history of the rapist. The court concluded claimant proved the rape by her own testimony and the criminal history was irrelevant.

As part of its investigation, an employer should file appropriate legal documents on a timely basis to preserve any defenses.  Prompt investigation is important in any case but is crucial in these types of cases. Sonic made several initial procedural lapses and did not file a report of injury, did not file a timely answer, and did not refer claimant to a carrier or a medical doctor.  The employer offered no evidence regarding wages to rebut claimant's allegations.   Sonic obtained a forensic exam to evaluate claimant’s alleged mental injuries and alleged pre-existing conditions.  The rapist was deposed.  It is not clear who conducted the deposition, but the employer objected to the deposition in evidence. 

 A claim of sexual assault may include significant damages of psychiatric and  physical injuries and medical treatment.  In Sonic the award was for 45% permanent partial disability which is an amount more typically seen with major joint replacements and failed back fusions.  Sexual assault of an injured worker  who already has a tenuous psychiatric condition may represent higher exposure for disability and life-time medical benefits.  Reasonable settlement opportunities should be vigorously explored by both parties not only to facilitate recovery of the injured worker but to stop exposure from cascading.   The Sonic case dragged on through two appeals and nearly 6 years of litigation since the 2006 assault. 

The claimant in Sonic alleged psychiatric injuries resulting in PTSD with panic attacks and chronic major depressive disorder.  Do the symptoms make sense?  Is the period of treatment appropriate?   Sexual assault cases demand close monitoring whether any damages exceed predictive models and whether the damages logically flow from the accident.  A more empathic approach to claims handling in these situations may affect outcomes.   The administrative law judge found claimant's symptoms credible.

Risk management is not limited merely to exposure for physical or mental injuries regarding the employee but has broader implications to the entire company.  Violent crime is not a way to protect workers, to keep employees, to attract customers or to expand community good will.  The entire reputation of the company is at risk regarding safety of its employees and how it responds to claim. The handling of the case, too, is critical to avoid loss of corporate good will from viral news. For example, Accident Fund Insurance denied paying medical bills under an Act of God defense to Missouri employee Mark Lindquist who sustained catastrophic injuries during a Joplin tornado.   Its name was dragged through the mud in editorials throughout the country.  The carrier waived the defense and agreed to pay the bills.

In this case, Sonic asserted various defenses:  claimant was not raped but the act was consensual (‘she asked for it’), she didn’t have physical injuries (‘she wasn’t really hurt’) and she had pre-existing psychiatric conditions (‘she was already crazy’). This is the proverbial hat trick of political incorrectness in a case in which  the court of appeals, the commission and administrative law judge found claimant was raped.   Although such  defenses fundamentally assert that claimant failed to establish her burden of proof,  they inevitably evoke insensitivity in a state that became notorious not long ago around the world for political comments defining  “legitimate" rape.  An employer should consider the risk of such arguments to their branding and corporate reputation.


In an Illinois case, Dennis v Pace Suburban Bus Services, 2014 IL App (1st) 132397 (September 5, 2014), an employer asserted it was not liable to a bus passenger because its driver who took her home and sexually assaulted her because the driver  was not acting in the scope of his employment and the employer was not responsible what he did at home.  The court reversed a motion to dismiss on tort liability for respondeat superior.  The court noted that sexual assaults are "generally" outside the scope of employment but noted the plaintiff established a duty owed because the defendant was a common carrier.  It was  jury question whether the driver breached the duty by driving her past her stop, not seeking assistance, and directing her in an impaired state back to his apartment to engage in a string of conduct leading up the sexual assault.  The court dismissed a negligence supervision count that plaintiff  failed to assert facts that the employer could have discovered some facts to identify "deviant" tendencies of its employee. 

Wednesday, November 21, 2012

Second Injury Fund Benefits and Common Defenses

Second Injury Fund Benefits

Missouri's second injury fund provides benefits for permanent partial and total disability. In addition, the Fund provides second job wage loss, medical bills for uninsured employers, and rehabilitation benefits.

As of January 1, 2012, there were 28,866 open Missouri SIF claims pending before the Division. In 2011, $29,908,031.01 in permanent total (PTD) benefits (lifetime benefits) was paid to 1,076 recipients. In 2011, the new recipients added were closer to the 2002 to the 2009 average of 70 new injured employees receiving benefits annually. In 2011, 775 injured workers received permanent partial disability (PPD) benefits from the SIF. This is more than twice the number of recipients paid in 2010. The total amount of PPD benefits paid in 2011 was $6.4 million at an average of $8,311 per recipient. The SIF paid approximately $42,000 to injured employees for rehabilitation benefits in 2011. This amount covered weekly benefits for 103 injured workers. Seventeen injured employees received second job wage loss benefits from the SIF in 2011 for second job wage loss. The amount paid in 2011, $88,199.48, more than double what was paid in 2010. The average lump sum payment in 2011 was $4,376.92. The average lump sum medical benefit in 2011 was also about 40 percent less than the average payment in 2010 at $24,310.06.

Fund liability may also include interest on unpaid medicals for uninsured employers. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (applying pre-reform liberal construction), 2012 MO WCLR Lexis 188 (awarding $26,384.01 in interest).

Common Second Injury Fund Defenses

Several recent cases address common and unusual arguments asserted by the Fund.

The injured worker has the burden or proof.  The claimant does not automatically win because the Fund fails to prepare a defense. "The Fund need not establish by medical evidence or otherwise that the injury was caused by something other than the employee's job; rather, the employee has the burden to prove a direct causal link between his injury and his employment. Therefore, the Fund was not required to introduce any medical evidence."  Seifner v Treasurer of Mo., 362 S.W.3d 59 (Mo. App 2012)

Is the "injury" compensable?

The claimant failed to prove a primary compensable injury. The Second Injury Fund can assert defenses available to the employer that claimant failed to prove a compensable primary injury.

Same or similar body parts?  One issue is whether subsequent injuries to the same part of the body are to be regarded as separate “accidents” for fund purposes are part of the same injury. Pace v City of St. Joseph, 2012 Mo. App. Lexis 716; Webb v UPS, 2010 MO WCLR Lexis 3. A related issue is determining what is the medical condition and if a subsequent injury is the same diagnosis or condition to show whether a synergistic effect exists.  In Heston v Rock Hill Mechanical, 2009 MO WCLR 113, for example, claimant had a prior settlement for a spinal injury but reports his new injury caused an "increased herniation" and a small annular tear. 

Is the accident idiopathic?  Claimant rose from a squatted position and fell backwards. Woodruff v Health Mgmt. Assoc., 2012 Mo WCLR Lexis 191 (Nov. 9)(awarding benefits and noting the Fund offered no evidence on the defense.)

When did the disability occur? Fund liability may include conditions which become disabling after the date of a pled accident. Cohu v Earth Grain Breads Co., 2011 Mo WCLR Lexis 202 (the Commission considered the date of a subsequent bilateral knee replacement as the date of disability for purposes of 287.220). This conclusion is similar to Garrone v The Treasurer of the State of Mo., 157 S.W.3d 237 (Mo. App. 2004).

Does Fund liability apply to repetitive trauma? The Fund has liability even though a primary injury may arise from a repetitive trauma or occupational disease because it is a subsequent compensable injury. Peters v Treasurer of Mo, 2012 MO App. Lexis 1394, ED 98300 (Nov. 6, 2012); Magouirk v American Family Ins. Co., 2012 Mo WCLR Lexis 180 (Oct 10, 2012), Treasurer of the State of Mo v Stiers, 2012 MO App Lexis 1273 (Mo App WD Oct 9, 2012), Cassell v Dierbergs, 6-27-2013; Allen v Chrysler, 2-4-13, Clifton v Kupferer, (2-1-13) (hearing loss); Mills v MEMC, 2013 MO WCLR Lexis 16 (Jan 29, 2013) (affirming PTD award against the Fund), Burke v City of St. Louis, 2013 MO. WCLR Lexis 2 (Jan 10, 2013)(affirming award of $25,488.00 against Fund for 20% load); Coleman v Jarrell Contracting, 2013 Mo WCLR Lexis 7;  Morris v Air Hydraulics, 2013 Mo WCLR Lexis 3 (Jan. 10, 2013); Harris v Hutkin Development Co., 2012 Mo WCLR Lexis 193 (Nov. 9, 2012); compare Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012); Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6-2012); Fanny v Ameren, 2012 Mo WCLR Lexis 84 (April 12-2012); Anderson v Anderson, 2012 Mo WCLR Lexis 46 (March 15, 2012), Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012); Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).

Disfigurement from injury.  The claimant is not entitled to a double recovery for disfigurement from the employer and the second injury fund.  Woods v Village Green Management, 2012 Mo WCLR Lexis 214 (December 19, 2012) (Modifying award).

Is Claimant PTD from the last accident alone?

Claimant has no compensable claim for SIF benefits when the last accident alone renders claimant unemployable. The Commission has suggested further inquiry about pre-existing conditions after this determination is inappropriate. Wright v Palmentere Bros Cartage Service, 2012 Mo WCLR Lexis 192 (Nov. 9, 2012).  In these circumstances, there is no proof of a synergistic effect required for Fund liability.

This finding may exist in several circumstances: onerous restrictions from the first injury, Smyth v Oscar Wilson Engine and Parts, 2011 MO WCLR Lexis 56, high levels of disability from the first injury, Hill v The Boeing Company, 2010 MO WCLR Lexis 169 (MS). Evidence regarding prior restrictions does not shift liability to the Fund depending on the disabling nature of the primary injury. Carpenter v Trio Masonry, 2009 MO WCLR Lexis 54, affirmed 304 S.W.3d 803 (Mo. App. 2010) (prior career changes and long work medical absences).

Claimant’s prior condition was not “disabling” with or without restrictions

The Commission continues to reject the defense that second injury fund liability does not attach unless there is direct evidence of previous  disability.

In a case involving a claim for pre-existing obesity the commission noted: "We are convinced a cautious employer could reasonably perceive employee's obesity as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition. Accordingly, we conclude employee's obesity was serious enough to constitute a hindrance or obstacle to employment." The commission notes the proper focus is: "not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition." Gillham v Clarendon National Ins. Co., 2012 Mo. WCLR Lexis 139.  Similarly, the Commission has  rejected the argument that no SIF liability attaches because claimant worked full duty at the time of the accident.  Reed v Government Employees Hospital Association, 2010 Mo WCLR Lexis 122 (noting previous FMLA leave and accommodations or bathroom breaks).

The Commission rejected an argument that because claimant had not missed time “recently” he did not have a prior disability, even though he had been off work several years and previously on social security due to permanent restrictions Fielder v NBA, 2010 MO WCLR Lexis 199.
The Commission rejected an argument that claimant’s prior heart condition was “asymptomatic”, despite a history of multiple prior heart surgeries. Lichtinger v Swiss Meats, 2011 Mo WCLR Lexis 127.

Is the disabling condition  "measurable"?  Complaints of shortness of breath did not create evidence of a "measurable" disability, even though claimant was subsequently diagnosed after the accident with cardiomyopathy.  Tombaugh v Chux Trux, 2011 Mo WCLR Lexis 252. Similarly, The Commission denied benefits noting that the alleged prior disabilities of AVN and COPD were “undetectable” by multiple doctors. Peck-Miller v UPS, 2010 MO WCLR Lexis 121.

Does claimant have self-imposed hour restrictions?  The part-time or semi-retired worker raises issues whether or not claimant’s self-imposed work restrictions flow from medical conditions or other reasons. In Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117, a claimant was denied total benefits who did not consider all "gainful" employment but only jobs that paid an "appropriate" salary. This may produce a different result when a claimant is on social security at the time of the accident but limits employment to preserve eligibility for benefits and not for medical reasons. O’Conner v Ozark R-4 School District, 2009 Mo. WCLR Lexis 105; Johnson v Walmart, 2009 Mo WCLR Lexis 46.

Claimant fails to establish a prior disability at certain threshold levels.

The Supreme Court is to address if prior disabilities have to be 12 1/2% BAW or 15% of an extremity but multiple prior conditions or be stacked to reach the threshold even if they do not separately reach statutory thresholds. Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093, Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098; Dyson v Treasurer of the State of Mo., 2012 MO App Lexis 1205, ED 97865 (Mo. App. 2012) Buhlinger v Treasurer of the State of Mo., 2012 Mo. App. Lexis 1212.
Oral arguments were held before the Mo. Supreme Court on December 11,2012 in Witte (SC92834), Salviccio (SC 92842) and Dyson (SC 92850).

In Manning v Hussmann Corp., 4-11-2013, 2013 MO WCLR Lexis 70; the Commission found that a prior settlement below the 15% threshold did not preclude claimant from pursuing second injury fund benefits when he produced new medical evidence from Dr. Volarich that his condition had worsened between the time of the settlement and the new injury.  The Commission modified the finding that  prior disability represented in the  12 1/2% settlement was now really  17 1/2% resulting in about another $2300 in the award.  The SIF offered no medical evidence to contest the findings. 

In Dixon v Jefferson Asphalt, 2013 Mo WCLR Lexis 17 (Jan 29, 2013) the Commission distinguished Witte and found that a prior cardiac condition and a prior heart condition combined together as both BAW conditions  to reach 20% prior disability to combine with a forearm injury.   ALJ Fischer awarded a de minimus load of 2.75%. 

In Allen v Chrysler (Feb. 4, 2013) the Commission affirmed an award that declined to stack a pre-existing 10% settlement below-threshold to a primary injury involving the same body part.   

Post-Accident Worsening and causation disputes

Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits. Rowe v Barnes Jewish Hospital, 2012 Mo WCLR Lexis 66.

Claimant's need to lie down was a factor in finding him a PTD against the second injury fund, according to the Commission. Hilgart v Kabul Nursing Home, 2012 Mo WCLR Lexis 146 (July 25, 2012). The ALJ found claimant's need to lie down flowed from a post-accident fibromyalgia and had awarded only PPD benefits against the Fund.

“Don’t ask, don’t tell”

The SIF has argued that the employer would not regard claimant as disabled if the claimant concealed any prior disabilities when he was hired.

The Fund offered expert testimony that claimant would not be vocationally impaired if she did not fully disclose her condition regarding her need to sleep due to back pain while applying for a job. Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012)

The Commission found that claimant was not capable of competing for employment in the open labor market because of his lack of candor, when he did not disclose debilitating back pain for 7 years before he was hired, his previous qualification for social security disability, and his own admission that he knew he would not be hired if he admitted his back pain and daily narcotic use and being “boogered up.” Cook v Buckley Powder Co., 2011 MO WCLR Lexis 52.

Unjust Enrichment

Claimant is unjustly enriched by an award of medical bills. The Fund argued paying claimant about ¼ million in medical bills might be a windfall if claimant didn’t pay the bills back to the medical providers. Skinner v. Donna Morgan, 306 S.W.3d 146 (Mo. App. 2010) finding strict construction and prior case law of Wilmeth v TMI Inc., 26 S.W.3d 476 (Mo.App. 2000), reject such a defense as unfounded and "conjuring a speculative scenario."


Claimant waived any Fund claims by settlement. The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, 298 S.W.3d 907 (Mo. App. 2009).

 Section 287.220 describes the Fund's liability.

287.220. 1. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.

2. In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim. The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal. For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.

3. If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.

4. If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.

5. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.

Wednesday, October 31, 2012

Market tightens for mo worker's comp

The number of reported injuries and claims filed in Missouri continued to dwindle in 2011. There was only 13,577 new filed claims in Missouri.

The industry sector with the highest concentration of claims remains health care, manufacturing and retail. Arm/shoulder injuries remains a source of many claims. The highest percentage of claims originate from St. Louis, Jackson County, and St. Louis City.

Only about 1 in 8 injured workers pursues a claim for compensation from a reported job injury. It is not clear which direction this is trending.   People who want their day in court usually do not get it. There is a backlog of about 26,000 outstanding cases against employers. About 96% of claims are resolved without a hearing. Among resolved claims last year, about 18% of claims against employers and about 80% of claims against the second injury fund were dismissed. One explanation for the high percentage of dismissed Fund claims may be the Fund’s fiscal uncertainty despite its annual revenue of nearly $41,000,000.

Last year the Division issued 587 awards, on  about 20% of the 3125 cases which were set for hearing. The second injury fund had nearly twice as many hearings to resolve cases as it did the previous year. The Fund was found liable in 2011 for about 70 new claims of PTD.
The highest concentration of reported injuries originated from men ages 40-49 and women ages 50-59.  There may be some correlation between age and the high concentration of carpal tunnel claims among occupational diseases.

Friday, October 26, 2012

Does Science Matter in Mo Comp?

Inaccurate histories and exaggerated symptoms did not stop a claimant from receiving permanent total benefits because his expert was “savvy enough” to sort things out, according to the Commission.  Saric v Centaur Building Services, Inc., 2012 Mo WCLR Lexis 168 (Sept. 20, 2012). 

Saric  was a 61-year old immigrant who did not speak or write English and received an award for permanent and total disability benefits for a 4th claim of back injury, when the Commission reversed a denial of benefits by the judge who found the claimant untruthful and routinely exaggered facts.  The Commission noted: "employee's experts relied to some degree on employee's presentation and complaints, the administrative law judge discredited the testimony of each expert. We do not believe the testimony of employee's experts is felled by their reliance upon the history, presentation, or complaints of employee. By their curriculum vitae and testimony, the experts convince us they are experienced enough and savvy enough to adequately account for deficiencies in  employee's ability to recall and properly recount his medical history. We are also convinced they have the skills to appropriately consider any self-limitation or exaggeration when forming their opinions."

The ultimate issue after Saric is whether science really matters.


When it comes to filing a claim the answer is clear:  no.  Unlike medical malpractice claims, there is no statutory requirement in order to pursue compensation under the Missouri Worker’s Compensation Act to produce any expert opinion to support a complaint.  The Commission adopts a very liberal approach to accept any filing even when a claimant failed to include a date of accident, a correct address or an accurate social security number.  Johnson v Kaiser Jewelry, 2009 Mo. WCLR Lexis 137.    From a public policy standpoint this allows claimants at all levels of sophistication and legal experience to access the system. Even Splash Mountain has a height requirement to go forward.  In comp, the door is always open (except after normal business hours and bank holidays).  Mi reclamacion es su reclamacion.

When it comes to pretrial matters  there is no requirement for medical evidence.  There is no summary judgment motion in worker’s compensation to weed out the specious claim.   This is particularly noteworthy in many reported pro se cases which can never attract experienced plaintiff counsel.  Some offices may  impose scheduling orders on older cases or may  suggest a medical report to schedule a mediation. Section  287.250 authorizes sanctions for “any proceedings have been brought, prosecuted or defended without reasonable ground” but the “reasonable ground” has always been loosely applied even in very tenuous cases.   A claimant can go into any local Division office and file anything.  Your boss is a Sith Lord and you choke up every day at work?   Be sure to fill out all three copies. 



A claimant may still have his day in court without medical evidence.  A claimant may not receive some types of compensation due to lack of such evidence.  Glanz v City of St. Louis, 2012 MO WCLR Lexis 50;  Burchfield v Renard Paper Co., 2012 MO WCLR Lexis 172. A claimant bears the burden to prove all elements of the case.  Some cases  not the burden to prove a case.   Requiring a claimant to produce expert testimony in all cases has been criticized as “burdensome.”  Bock v City of Columbia, 2009 Mo WCLR Lexis 39.

A case may be of such a simple nature that medical causation opinions and forensic experts are not required.  Wile E. Coyote holds a suspicious gift wrapped package on a day it is not his birthday and TNT   explodes.  What caused the burn injuries:  The exploding TNT.  There’s no need to retain Dr. Sheldon Cooper  as a consulting expert.

 Section 287.190 now requires disability “shall be demonstrated and certified by a physician.”  There is no definition how the element is demonstrated.    In Bock, a pre-reform case, the Commission affirmed an award of permanent disability when no expert provided an opinion regarding disability for an abrasion to the leg, with subsequent infections.   Section 287.190 applies to permanent and not temporary disability. The Commission has reaffirmed the principle that testimony from a claimant that he was in "unbearable pain" satisfied his burden to establish entitlement to TTD benefits.  Shupe v St. John's Mercy Health Systems, 2012 Mo WCLR Lexis 178 (Oct. 10, 2012), affirmed 2014 Mo App. Lexis 765.  

Even claimant’s complaints of “pain” have been recognized by the Commission as basis to award permanent disability.  Reichardt v Industrial Sheet Metal, 2012 Mo. App. Lexis 758.  Claimant’s testimony regarding prior pain supported second injury fund benefits to establish that the prior condition was a hindrance or obstacle to employment.  Gutting v Campbell, 2010 Mo WCLR Lexis 158.


 The Commission has eschewed FCEs, AMA ratings, NIOSH standards, and over-reliance on scientific journals or research. 

A grocery store cashier developed a work-related carpal tunnel syndrome, according to a recent award affirmed by the Commission that condemned the employer's reliance on an ergonomist as tantamount to a fraudulent defense based on junk science. The case is King v Dierberg's Markets, DOLIR 5-5-10.

Claimant worked as a cashier for several years and obtained surgery for carpal tunnel when her employer's expert denied work was a prevailing factor based on other risk factors of age, gender, and smoking history. An ergonomist videotaped claimant's job duties and concluded that claimant did not move her hands hard enough or often enough to create a risk for carpal tunnel and tendonitis. Claimant's contends that the tape did not accurately represent all of her work activities. The administrative law judge found that claimant used her hands at work in a "constant" and "repetitive" fashion, that the ergonomist was not competent to render any causation opinions, and the ALJ concluded that the employer's hand surgeon expert not credible because his conclusions about certain keystroke exposures causing carpal tunnel were not generally accepted in the medical community. The judge opined claimant's expert who supports causation more credible despite a finding that "there is no definitive consensus in the medical community as to causation or a work link." The Commission affirmed the award for past medical, TTD benefits, and disability, although 2 of 3 members commented that the administrative law judge made "unnecessary" comments lambasting the defense expert as "worthless" and a "waste of time and money."

The Commission affirms an award of temporary benefits, and finds the defense expert over-relies on NIOSH standards.

"Those guidelines deal with what constitutes an "ergonomic risk factor" for carpal tunnel syndrome, not whether or not Claimant’s job activities were "the prevailing factor" in causing the condition. "

Claimant is 24 years old, and served 60 to 90 customers daily. Judge Ottenad finds Dr. Crandall less credible and concludes the Dr. Crandall was "intent, from the very beginning, to find the condition not work-related."

Claimant relied upon a March 2007 report from Dr. Schlafly recommended treatment, but did not proceed to a hearing for temporary benefits until more than 2 years later in July 2009.
The Commission affirmed the temporary award in Scott v MidAmerica Hotels, DOLIR 3-10-10.
The Commission reached a similar conclusion in a claim against the same employer in the Kitchen case, 10-14-10, rejecting the same defense expert's opinions on causation for a food server claimant alleging repetitive trauma. Dr. Crandall in the earlier case based his opinions on OSHA standards.

In McIver v Trailliner, DOLIR 6-14-2013, the commission affirmed an award of permanent total disability to a 67 year old truck driver who underwent a 3 level cervical fusion, discounting the results of a FCE which demonstrated a capacity to work as just reflective of "one day's effort" and relying upon claimant's assertion that his return to work was just "make work" and that he needed to lie down often.

In Reichardt v Industrial Sheet Metal Erectors, 2011 MOWCLR 226, the commission criticized an FCE as not a valid assessment of claimant’s capacity because the commission concluded it did not measure ‘pain.’  This conclusion asserted that the statutory reform to consider objective testimony over conflicting subjective testimony did not apply because the FCE did not measure pain.   

In King v Dierbergs Markets, 2010 Mo WCLR Lexis 65, the Commission affirmed without comment an opinion rejecting a causation opinion based on NIOSH ergonomic studies and finds arguments correlating minimum keyboard exposure as a cause of carpal tunnel syndrome as “junk science.”  Similarly, in Scott v MidAmerica Hotels Corp , 2010 Mo WCLR Lexis 45, evidence of ergonomic risk factors was not considered relevant to a dispute regarding causation of carpal tunnel. In Talbert v Lab Corp., 2009 Mo WCLR Lexis 112, doctors who relied upon an ergonomic study for their opinions were found to lack credibility.

In Beckton v AT&T, 2011 MO WCLR Lexis 2011 the ALJ discussed several scientific articles about carpal tunnel.  The ALJ criticized the employer’s expert: he “relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. [He]did not know the work habits  and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture.  In Mace v Cedar Hills Pavilion, 2003 Mo WCLR Lexis 45, this same hand surgeon was the only expert to rely upon outside scientific journals but was deemed less credible because the Commission deemed the expert not credible in previous decisions.  

This disregard is particularly evident regarding criticism of uniform standards to evaluate impairment. Missouri is not an AMA state.    AMA impairment ratings have been criticized as inconsistent with assessing disability. “The AMA guidelines look at impairment, rather than disability, and are generally not favored in the setting of Missouri Workers' Compensation Law.”  Brennell v Patient’s First, 2009 Mo WCLR Lexis 126; and criticized an expert  who “relied on AMA guidelines to impairment, and did not assess disability” Whitt v Warren County Concrete, 2005 Mo WCLR Lexis 157.  
The Commission criticized an expert who relied upon "studies" that questioned the connection between routine repetitive activities and carpal tunnel as evidence of bias and lack of objectivity and disregarded his opinion.    Pogue v Plaza Tire Auto Service, 2015 Mo WCLR Lexis 3( Jan 27 2015)

A worker established entitlement to temporary benefits for carpal and cubital  tunnel syndrome from a repetitive" job at an auto and tire company.  Pogue v Plaza Tire & Auto Service, 2015 Mo WCLR Lexis 3( Jan 27 2015)

An expert who relied upon medical research which found carpal tunnel syndrome could only arise in "extreme work" was not found credible, and the Commission affirmed an award of benefits who found causation based on his own opinion.  Similarly, Harris v Bi State Development Agency, 2013 Mo WCLR Lexis 162, reversed a denial of benefits for carpal tunnel syndrome for a van driver based on a defense expert who found no basis in medical literature to find causation.

In Sproaps v Allied Barton Security Service, 2015 Mo WCLR Lexis 6  the Commission affirmed an award for operated bilateral carpal tunnel and criticized the defense expert who failed to identify medical authority for his conclusions about risk factors.
ALJ  Denigan
Experts:  Volarich, Crandall


Science matters related both to the admissibility of evidence and the weight of the evidence.  

There are few cases which address the admission of expert opinion based  on the issue of scientific reliability.  One rare case that addresses this issues is Moreland v Eagle Picher Technologies, 2011 Mo WCLR Lexis 210, which allowed admission of expert opinion regarding the effects of benzene exposure.  The ALJ found the expert qualified based on his reliance on studies and articles. Admissibility of evidence is based on section 490.065, not Frye, according to the Moreland, citing  McGuire v Seltsam, 138 S.W.3d 718 (Mo. App. 2004). Section 490.065 requires expert opinion based on facts "may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable."

Gov Nixon has refused to sign  Senate bill 591 which would have imposed Daubert standards leaving Missouri as one a small minority of states not to follow the federal rule regarding admission of evidence and instead relies upon 490.065.

Senate bill 490.065 provides:

An expert witness may testify in a court proceeding if the expert has specialized knowledge that will help the trier of fact understand the evidence, the testimony is based on sufficient facts and the product of reliable principles, and if the expert has reliably applied such principles to the facts of the case.
An expert may base an opinion on facts in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts in forming an opinion, the facts need not be admissible for the opinion to be admitted. If the facts would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value outweighs their prejudicial effect. An expert witness shall not testify on the defendant's mental state which constitutes an element of the crime. An expert witness may state an opinion without first testifying to the underlying facts, but may be required to do so on cross-examination.

Nixon criticized the reform  as "misguided"  pretext to get rid of junk science and instead targets injured litigants from being "justly" compensated.

Wright v Palmentere Bros Cartage Service, 2012 Mo WCLR Lexis 192, like Sanic, disregards the evidence relied upon by the expert forming an opinion. In Wright
the ALJ found a psychologist could have conducted a test to diagnose a learning disability, he was qualified to perform a test, and the fact that he didn't perform such a test was incomplete methodology which made his diagnosis of a learning disability  not based on a "reasonable foundation."  The ALJ questions his credibility because of his methodology and not the admissibility of his opinion. The Commission, however, in a separate opinion makes the amazing comment that "the ALJ is in no position to criticize the methods [the expert] utilized in arriving at their expert opinions." 

If an expert applies unreliable methodology, the opinion has been previously discounted or the exhibit may be excluded.  Schaffer v Litton Interconnct Technology, 274 S.W.3d 597 (Mo. App. 2009) (excluding a survey created by a vocational expert). Reliance on non-authoritative sources, such as internet chat rooms,  also supports discounting evidence.  “We find it difficult to accept information obtained through a chat room is recognized as authoritative in the medical field or that simply because a textbook is found in the library at the St. Louis University School of Medicine, it is authoritative. Crowell v Sigma Chemical Co., 2002 Mo WCLR Lexis 108.

The weight given to an expert, and whether the opinion is more credible, depends on the source of information relied upon by the expert and whether it is accurate or complete.  This is often referred to as a lack of foundation, although the issue being addressed is primarily one of credibility and weight of the evidence and not the foundation for its admissibilty.    Goldman v PCI, 2011 Mo WCLR Lexis 110, Brown v Conveo Color Art, 2011 MO WCLR Lexis 67, Hampton v Champion Precert, 2012 Mo WCLR 30 (work environment).  

 There is no requirement that a claimant must absolutely prove a scientific theory of causation when the burden is more likely than not.  When an expert relies upon inaccurate or incomplete information it undermines the statutory directive that such facts must be reasonable reliable even under the "non-technical" comp rules of 287.550. 

Few cases have found that expert opinion based on flawed information is inadmissible.  Many have found such flawed foundations makes the opinions untrustworthy.  Saric does not address the issue whether the entire expert opinion should have been excluded but evaluates the weight of the testimony.  It creates an odd distinction between experienced experts who are savvy and those who are not rather than more closely applying traditional doctrines regarding admissibility or credibility.   The Saric opinion  indicates that not only is the door open, but the screen door is widely open too. 

 The goal to compensate parties with real injuries moves quicker when the system can weed out specious allegations.   A judge's willingness to weigh the admissibility and weight of evidence based on science  may disturb traditions about what is compensable or not. The relaxed evidentiary standard to let everything come into evidence  confuses the judge's role between a gate keeper and  a garbage collector.    

Wednesday, August 1, 2012

No 15% penalty for fund recovery

When an employer was liable for a 15% safety penalty the penalty did not apply to additional compensation  from the Second Injury Fund, according to the Missouri Supreme Court in Hornbeck v Spectra Painting Inc.  No SC 92116 (Mo. July 31, 2012), affirming a decision from the court of appeals.  Payment of such a penalty was inapplicable because it would penalize the employer for conditions it had no control and may deter employers from hiring workers with pre-existing disabilities.

The court  of appeals awarded $11,578.94 in penalties by enhancing the award based on compensation paid in the form of medical and indemnity benefits.   The Supreme Court indicated there was "no reason for this court to explore" what was meant by compensation because the issue was not a matter in controversy.   "Spectra’s counsel conceded at oral arguments that, if the penalty is owed, it should apply to the compensation monies that Spectra voluntarily paid to Hornbeck before the Commission’s decision."  The employer initially disputed whether any penalty applied but abandoned this issue.  Claimant had recovered in addition to benefits against the employer an award of 42.4 weeks of compensation from the second injury fund. 

The court noted the legal issue is whether the work injury was the prevailing factor in the medical condition and the disability and second issue is if the disputed treatment is reasonably required and flows from the a work injury.  The court considered the Commission's findings, in its totality, supported its conclusions but found some of its findings vague and suggested a greater emphasis on the "flows from" prong.  Tillotson v St. Joseph Medical Center, 437 S.W.3d 511 (Mo. App. 2011), which articulated this "flows from" prong, was issued after the Commission's award in Hornbeck.

The court declined to disturb credibility findings of the Commission finding claimant's expert, Dr. Volarich, was less credible despite several errors based on conflicting expert testimony.  Dr. Volarich found claimant totally disabled.  The court consolidated "numerous subpoints" and "allegations of error [that] overlap."  It found the credibility argument   "however, is not persuasive because it was the Commission’s prerogative to discount Dr. Volarich’s MMI testimony in favor of the three physicians whose medical opinions supported that Hornbeck reached MMI in April 2007."

Hon. Mary Russell
Atty:  Bobinette, McDonald, Schute

The Commission found the enhanced rate for a safety penalty violation did not apply against the second injury fund for a  PTD award.  Brandt v Cardinal Scale, 2012 Mo. WCLR Lexis 162  (August 29, 2012), following Hornbeck.

Friday, July 20, 2012

Emerging Issues for Fund Liability

More Missouri workers can claim  benefits against the second injury fund according to several recent decisions which broaden the definition of pre-existing disabilities. 

A claimant may claim benefits even when a prior medical condition may not have caused difficulty in the past but if there is a potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.   Gillham v Clarendon National Ins. Co., 2012 Mo. WCLR Lexis 139 (July 3, 2012) (finding Fund liability for prior obesity).  This decision  departs from several previous cases which have  demonstrated prior medical conditions have actually been an obstacle or hindrance in prior job duties, even in somewhat nebulous ways.  See Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012).

The Supreme Court is to address if prior disabilities  have to be 12 1/2% BAW or 15% of an extremity but multiple prior conditions or be stacked to reach the threshold even if they do not separately reach statutory thresholds.   Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093 (Sept 4, 2012),  Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098 (Sept. 11, 2012); Dyson v Treasurer of the State of Mo., ED 97865 (Mo. App. 2012) (Sept. 18, 2012) Bohlinger v Treasurer of the State of Mo., No. ED 97864 (Oct. 2, 2012).    Compare:  Daniels v Noranda Aluminum, 2012 MO WCLR Lexis 62 (March 21, 2012), Abt v Mississippi Lime Co., 2012 Mo WCLR Lexis 44 (March 13, 2012); Perkins v Mo. Dept. of Corrections, 2011 Mo WCLR Lexis 255 (December 15, 2011), Buhlinger v Sherrell Corp., 2011 Mo WCLR Lexis 241 (December 8, 2011); Calvert v Noranda Aluminum, 2011 Mo. WCLR Lexis 242 (December 8, 2011), Salviccio v Western Supplier Co., 211 Mo WCLR LEXIS 239 (Dec. 8, 2011), Witte v Sho-Me Livestock, 2011 MO WCLR 240 (Dec. 8, 2011).

In Abt the Commission increased the Second Injury fund award.  The claimant appealed the award but the Fund's appeal was dismissed due to lack of timely notice of appeal.  Abt v Mo Lime Co., ED 98282 (Mo App. 12-11-12). 

Fund liability may include conditions which become disabling after the date of a pled accident.   Cohu v Earth Grain Breads Co., 2011 Mo WCLR Lexis 202 (the Commission considered the date of a subsequent bilateral knee replacement as the date of disability for purposes of 287.220.). This conclusion is similar to Garrone v The Treasurer of the State of Mo., 157 S.W.3d 237 (Mo. App. 2004). 

The Fund has liability even though a primary injury may arise from a repetitive trauma or occupational disease because it is a subsequent compensable injury.  Kirkpatrick v Mo  State Treasurer, 2012 MO App. Lexis 1621 (December 20, 2012);  Peters v Treasurer of MO, ED 98300 (Nov. 6, 2012);  Magouirk v American Family Ins. Co., 2012 Mo WCLR Lexis 180 (Oct 10, 2012),   Treasurer of the State of Mo v Stiers, WD 75101 (Mo App WD Oct 9, 2012) Harris v Hutkin Development Co., 2012 Mo WCLR Lexis 193 (Nov. 9, 2012); Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012); Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6-2012); Fanny v Ameren, 2012 Mo WCLR Lexis 84 (April 12-2012);  Anderson v Anderson, 2012 Mo WCLR Lexis 46 (March 15, 2012), Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012);  Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).

Fund liability may include interest on unpaid medicals for uninsured employers. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012)(applying pre-reform liberal construction), 2012 MO WCLR Lexis 188 (awarding $26,384.01 in interest on remand). 

Many cases have awarded Fund benefits based on uncontested medical and vocational evidence.  Seifner v Treasurer of Mo., 362 S.W.3d 59 (Mo. App WD 2012) notes:  "The Fund need not establish by medical evidence or otherwise that the injury was caused by something other than the employee's job; rather, the employee has the burden to prove a direct causal link between his injury and his employment. Therefore, the Fund was not required to introduce any medical evidence."

Tuesday, July 17, 2012

Dealing with claimants and their bad internet habits

A claimant’s experience, knowledge, and representations on the internet are important to investigate claims of disability. 

There has been a lot of commentary lately about hunting down pictures on Facebook and other web pages of claimants acting inconsistent with their claims. In Missouri, for example, an employer used internet evidence that hauling heavy watermelons was inconsistent with a claim of a work place back injury. Such pictures still didn’t stop a judge from awarding benefits. In Dwyer v Federal Express, 2011 MO. WCLR Lexis 98, claimant was awarded disability to his back despite pictures showing him pulling very large watermelons out of the back of pickups and carrying them. The ALJ accepted the explanation that “the pictures were staged for his fans and he was not actually carrying any weight.”

In an interesting form of impeachment, an ALJ noted claimant was untruthful about several things and had a "difficulty telling the truth, even listing himself as 'single' on an internet dating site."
Mountjoy v Curators of the Univ. of MO, 2014 MOWCLR Lexis 118 (Sept. 24, 2014).

Claimants may rely upon inaccurate information about a medical condition or its cause based on internet resources. Many claimants may lack the ability to assess whether internet sources are reliable or relevant to their particular condition.  In Hayden v Ameriwood Industries, 2011 Mo WCLR Lexis 115 claimant failed to prove a claim for disability when he relied in part on evidence of an article from Wikipedia.

Experts, similarly, have also been criticized for relying upon internet sources. In Crowell v Sigma Chemical Co., 2002 MO WCLR Lexis 108 the Commission harshly criticized a defense expert retained shortly before a hearing who disputed causation based on opinions derived from chat rooms: “We find it difficult to accept information obtained through a chat room is recognized as authoritative in the medical field ….” Similarly, an expert was found less credible when he relied upon medical abstracts, internet sources that were not authoritative or contained studies, and websites that were involved in fund-raising. Rufer v Monett Metals, 2008 Mo WCLR Lexis 163.

A claimant who can operate a computer or has internet experience is one factor to consider if the claimant may be more easily retrained or placed.   In Tilley V USF Holland Inc., 325 S.W.3d 487 (Mo. 2010) the claimant was awarded total disability. Claimant “does not have a computer or internet access at his home. Claimant does not use the internet and has never operated a computer.” In Jordan v USF Holland Motor Freight, 2011 MO. WCLR 253, affirmed SD 31824 (October 31, 2012) claimant alleged he was unemployable and stated: “He knows how to get on the internet but does not know how to use it.”

 In Flannery v Breckenridge Material Co., 2006 Mo WCLR Lexis 141: Claimant is noted that “He can access the internet and knows how to send and receive e-mail.” In Elmore v Mo. State Treasurer, 345 S.W.3d 361 (Mo. App. 2011) it is noted that “Claimant is able to use her computer at home to send emails and search the Internet.”  Even persons with no prior internet experience may be able to acquire basic computer skills unless some medical conditions prevent it. The bigger obstacle to learning internet skills is not a capacity to learn but a neoLuddite desire not to learn. 
 The internet will influence  claimants in different ways.  The internet is a tool which could be used to acquire  medical or legal knowledge.  Like most tools, it has a potential for misuse.  The ability to access the internet has even been recognized for its therapeutic value.  In a case involving catastrophic injuries, the Supreme Court of Illinois affirmed an award of a home computer system as medical benefits “to allow a claimant to communicate with friends and family over the Internet.” Beelman Trucking v Il Worker’s Compensation Commission, 909 N.E. 818 (IL 2009).

Wednesday, June 6, 2012

Lay testimony supports benefits

TTD Award

A claimant who testified he was in "unbearable pain" satisfied his burden to establish entitlement to TTD benefits and was not required to introduce expert testimony on the issue.  Shupe v St. John's Mercy Health Systems, 2012 Mo WCLR Lexis 178 (Oct. 10, 2012). 

A claimant who testified he hurts too much to work can collect PTD benefits, because the testimony is not inconsistent with FCE findings which according to the Commission do not assess subjective pain.  Reichardt v Industrial Sheet Metal, 2012 Mo. App. Lexis 758 (June 5, 2012).  Section 287.190.6(2)  requires "objective medical findings shall prevail over subjective medical findings" in cases in which there is inconsistent or conflicting medical opinions. The  Commission considered whether this section prevented an award of PTD benefits based on pain complaints when an FCE found claimant could work based on its "objective findings".   The Commission awarded PTD benefits, noting that the statute did not apply because the FCE  was not an objective finding of pain.  "The results of an FCE or the imposition of more liberal restrictions do not amount to objective medical findings as to pain. Rather, they simply demonstrate what a particular practitioner believes is an appropriate level of work activity for the employee. In fact, a review of the record in this matter reveals no objective medical findings whatsoever as to the extent and severity of employee's pain."

Claimant, 60,  had chronic back pain and a 1999 fusion prior to his 2008 work related back injury. He  testified he had to recline 2-3 hours a day to relieve his back pain.  The Commission in its award does not quote any expert opinion for its conclusion that an FCE does not measure pain or that any expert really discussed the FCE at all or its role to define vocational limits within a claimant's pain tolerance.   There is no  evidence identified in the opinion that any objective medical test exists to measure pain.  The case undermines statutory reform to provide greater evidentiary weight to objective evidence and resumes pre-reform status when a claimant's testimony about pain may trump any other evidence such as an FCE.

 The Court of Appeals  found a separate published opinion had no precedential value.

FCE under-reported claimant's disability
In Underwood v High Road Industries, 369 S.W.3d 59 (Mo. App. 2012)  claimant established he was permanently and totally disabled as a result of a failed back syndrome following a 2005  L5-S1 disc surgery and subsequent implantation of a spinal cord stimulator. Claimant identified substantial limitations on his ability to sit and stand and asserted that medications and pain affected his mental clarity and capacity to drive. The court found claimant's impairment was "more severe" than identified on the FCE and the employer's vocational expert had not fully considered all of the limitations.

Atty:  Ebbert, Wise
Experts:  Cordray, Eldred
Treater:  Olive

Tuesday, April 17, 2012

RICO dismissal reversed against employer for comp claim

Claimants in a Michigan worker's compensation case sued their self-insured Illinois-based employer and its third-party administrator  for violations under RICO.   Plaintiffs allege that the third party administrator fraudulently  used mail or wire and filed a statutory notice of dispute, solicited medical opinions from the same medical expert who was "biased", and "ignored" contrary medical evidence.  The Court reversed the circuit court's dismissal of the suit in a divided opinion.  The case was originally filed nearly 8 years ago in 2004. 

The 6th circuit concluded the plaintiffs established a property interest, essential to RICO claims,  by alleged  "devaluation of either their expectancy of or claim for worker's compensation benefits."  The court indicated one issue on remand to be addressed was whether their expectancy or claim was harmed because the petition was ambiguous.  All of the cases except one had been decided on the merits. The dissent supports the dismissal of the case by the circuit court and  contends that plaintiffs lacked standing because they did not prove an injury to business or property under RICO and their damages of medical expenses, worker's compensation benefits, medical mileage and attorneys fees are wholly derivative of their comp claim. Three similar cases, all brought by one of the attorneys who represents the plaintiffs in this case, have been dismissed by various district judges.  The case is Brown, etal v Cassens Transport Co., No. 10-2334 (6th Cir. April 6, 2012)

Tuesday, March 13, 2012

SIF Loses defense that repetitive trauma is not a "subsequent compensable injury"

The Second Injury Fund denied liability on the ground that the 2005 amendments did not permit fund liability when the primary injury was an occupational disease and offered no other evidence.  The claimant settled a carpal tunnel claim against the employer and received a second injury fund award based on 255 weeks of pre-existing disability to the shoulders and back (prior settlements).  Fanny v Ameren UE, 2012 Mo WCLR Lexis 84 (4-12-12).
ALJ  Gorman
Atty:  Dalton
Expert: Volarich

The Second Injury Fund denied liability on a repetitive trauma claim and asserted it was not a subsequent compensable injury under 287.020.3(5) based on the assertion that Fund liability is limited only to accidents and not occupational diseases.  The Commission found that repetitive trauma claims were subsequent compensable injuries to support Second Injury Fund liability.  Section 287.020.3 provided an exception to include occupational disease "as specifically provided" and 287.067 provides when a repetitive trauma may be compensable.  Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012).
ALJ Murphy 

The Commission rejected an identical argument in Anderson v Anderson, 2012 Mo WCLR Lexis 46  (March 15, 2012), and concluded claimant's bilateral occupational disease to the wrist combined with a prior shoulder injury.  The Commission rejected a similar argument in Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).

The ALJ rejected a similar argument that fund liability did not attach for occupational-trauma related rotator cuff tears.  Skornia v American Mechanical, 2012 Mo., WCLR Lexis 113 (June 6, 2012).
ALJ Boresi

The Commission rejected a similar argument that liability did not attach for occupational trauma to the elbow.  Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012), and found when pre-existing disability did not just involve a single condition involving a major extremity the prior disabilities could be combined. 
ALJ  Kasten
Atty:  Seufert, Johnson
Experts:  Berkin