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).