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.