Wednesday, May 29, 2013

Reform didn't stop aggravation of pre-existing conditions

Claimant was a 63-year old career employee for City of DeSoto with a history of remote neck problems and states he hurt his neck in 2007 after moving heavy pieces of stone.   He went back to work on modified duty for about  1 1/2 years and states he retired prematurely. Maness v City of Desoto, DOLIR 5-24-2013.

The employer's expert, Dr. DeGrange, concluded that claimant only strained his neck and his multi-level cervical fusion flowed from prior degenerative conditions.  Dr. Rutz had diagnosed claimant with a disc herniation and ultimately proceeded with a c4-c7 fusion.  The surgeon never rendered any opinion regarding the cause of the disc herniation.   Claimant relied upon Dr. Kennedy who concluded the disc abnormalities were acute and Dr. Volarich who concluded the arthritic changes "became symptomatic" after the accident.   Claimant's vocational expert, Lalk, concluded claimant's need to recline made him unemployable.  

The parties disputed whether claimant's activities occurred on a the pled date. The ALJ resolved the dispute by finding the accident occurred on the pled date or the following date.  The ALJ awarded medical bills, but reduced the actual charges based on affidavit evidence that claimant was not responsible for any additional balances.  The  ALJ found the employer liable for 40% PPD and denied PTD benefits against the Fund.

On appeal, the Commission reversed. 

It affirmed a finding of 40% PPD and open medical against the employer.  It specifically rejected the defense as a matter of law that aggravation of a pre-existing condition was not compensable.  The Commission concluded that claimant had been asymptomatic for years prior to the most recent accident although it conceded claimant's testimony was not a model of clarity on this issue. In an unusual interpretation it concluded that claimant under statutory reform merely had to show  prevailing factor of a medical condition but it concluded that the statute never expressly excluded aggravation, and that aggravation  alone could be considered a medical factor. "We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287. We note also that the Court in Gordon regarded "aggravation" as shorthand for "something less than a prevailing factor." But as used by Dr. Volarich in this case, the word "aggravation" describes a medical condition, not a type of factor."

The Commission enhanced the award of medical bills even though claimant had no personal liability to pay the additional amount.   The Commission concluded that claimant was entitled to the original billed amount as reimbursement and that the ALJ erred reducing liability based on evidence that claimant was no longer liable for the difference between the billed amount and the paid amount.   The claimant was not required to interpret the medical bills, he was required only to indicate that he received them.    The decision never discusses Farmer-Cummings or its new novel interpretation on this issue.

"We conclude that the administrative law judge erred to the extent he reduced employee’s past medical award in reliance on testimony or an affidavit describing employee’s liability having been reduced in connection with payments by "insurance of the injured employee."

The commission further characterizes claimant's return to work as essentially a failed return to work because the employer accommodated him by letting other employees perform more strenuous tasks and it would be wrong to "penalize" claimant for trying to work.   This issue is part of  recurring theme in some recent cases from this Commission  that suggests  "working" is not "working in the open labor market" if the long-term  employer is provides accommodation in some fashion that might not be available from a potential new employer.   Such a position seems to run contrary to a public  policy to help career employees  instead of firing someone instantly they cannot produce a full, unrestricted release. 

ALJ  Robbins
Atty:  Christiansen, Tierney
Experts:  Volarich, DeGrange
Treaters:  Rutz