Thursday, July 25, 2013

Commission reverses future medical award

The Commission reversed an award of open medical and concluded that any need for future medical treatment flowed from the worker's pre-existing COPD because her work-related pneumonia had resolved.   Claimant sprayed hog barns at Premium Stand Farms and states her job exposed her to water spray, manure, urine and afterbirth.  Navis v Premium Standard Farm, 2013 MO WCLR Lexis 128 (July 18, 2013), affirmed WD 76756 (May 20, 2014).

Premium Stand Farms processed 110,000 sows and 18 million pigs a year.  the ALJ found she developed legionella bacteria  which likely arose from her exposure at work, even though she had other risk of infection.  The ALJ found claimant 50% disabled from her work exposure and totally disabled against the Fund due to prior COPD.

Claimant denied prior symptoms. The ALJ noted:   "She wishes to have her total disability assessed against the employer alone. I do not know if the claimant is mistaken or if she is not being truthful and afraid she would not receive compensation due to the current financial condition of the Second Injury Fund."  The ALJ further rejected her allegations of new and old psychiatric injury.  "I also do not believe that she has any psychological problems that combined with her existing disabilities that caused an increase in her disability. All of the conditions causing the claimant to be unable to work are not involved with her psychological condition. I did not find Mr. Schmidt's testimony correct or relevant to this Award."

 The experts disagreed on the correct respiratory diagnosis or whether the employer's use of super-heated hoses essentially eliminated any  risk of exposure.  A dissenting commissioner felt claimant failed to prove work was a substantial factor in her medical condition. 

Carrier owes past benefits despite 3rd party settlement

In Demore v Demore Enterprises, 2013 Mo App. Lexis 834, remanded to Commission by Supreme Court for settlement, SC 93640. (June 2014), claimant received an award for about $91,000 in past medical benefits plus future medical.  The carrier contended that it could take a credit or offset against he award for past benefits because claimant had already received an $80,000 settlement.   The court of appeals affirmed the commission, denying such a credit. 

The Commission construed 287.150 to handle credits differently if the award is limited to past liquidated damages only  or includes past and future damages.  In the second case, a third party settlement applies only to future obligations and excuses an employer's obligation to provide treatment up to the extent of the credit.  At the time of the third party settlement the carrier/employer had not paid any benefits. "By statute and case law, this settlement money is treated as Insurer's "advance payment ... of any future installments of compensation ...."

The court further affirmed that the employer, and not the insurer, has the statutory authority to designate a medical provider.

Many comp cases often involve some degree of future medical exposure either by agreement or by the requirements of Medicare.  In such cases an agreement in the contracts  to "protect subrogation interests" may not reflect the true intent of the parties and best practices should designate how any subrogation applies regarding past obligations. 

Tuesday, July 16, 2013

No waiver of control of future medical care

Claimant was hurt while en route to investigate a vandalism of property owned by her family's business.  The court of appeals affirms an award of benefits to claimant and her parents.   Demore v Demore Enterprises, 2013 Mo App. Lexis 835 (SD July 15, 2013), appealed and argued before supreme court 4-23-2014 (SC 93640).

The primary fight in this case centers on whether the accident arose out of the employment and who makes the decisions regarding future medical treatment.

The Commission found the employer/insurer did not waive a right to control future medical, and the court of appeals deferred to that factual finding.  The court of appeals found the commission incorrectly found that the insurer committed no waiver, when the statutory right to designate a doctor flowed solely from the employer.  This was a point the insurer conceded.   The decision indirectly recognizes the  different role of an injured working while working for her own family business and asks whether the claimant really "seriously questions the medical care offered by her family-owned business."

The court of appeals affirms the Commission's denial of about $40,000 as sanctions for an unreasonable defense, reversing an award of fees by the ALJ.   The Commission noted the defense was not unreasonable because of the unsettled state of law about arising out of defenses produced by statutory reform and application of strict construction.  The court rejects arguments from the carrier and provides several instructions on more effective appellate practice. 

In the original case, 2012 MO WCLR Lexis 171  American First Ins. Co.  asserts that claimant, a bookkeeper,  was running a personal errand. ALJ Wilson sharply noted that the  denial for 2 1/2 years shifted more than $100,000 medical expenses to claimant (and Medicare).

Friday, July 12, 2013

Trip and Fall is "last straw" for lab tech

A broken hip rendered claimant totally disabled  after he tripped  while using crutches at work  for a pre-existing condition.  Short v Mo Baptist Medical Center, 2013 Mo WCLR Lexis 103 (June 28, 2013),  (2-1 decision.)

Claimant indicated after a Feb. 2004 accident he could no longer perform his essential job functions as  a lab tech.  When he previously used crutches, he now relied upon a wheelchair and the employer had to hire additional staff to perform the duties.  Claimant remained employed about another 2 years after his accident but asserts it was only because the employer substantially accommodated him. The ALJ reported claimant "lost the position due to an error in a report that went out with the claimant's initials" and he elected to pursue social security disability rather than pursue other positions.   Claimant used  vicodin, had  disturbed sleep and states he lays down an hour a day.  His expert  defined toxic work restrictions which were unavailable in the job market.
 Claimant states he was also depressed after the accident.   The ALJ noted the employer offered no other medical opinions to contest causation or the diagnosis  even though "a different evaluation would have been welcome."  A dissenting commissioner indicated that the diagnosis of a work related depression was "belied by other evidence in the record" and claimant was diagnosed only after his employment ended. 

Missouri law requires an initial  determination whether the last accident alone renders claimant unemployable before examining  any  pre-existing conditions.  This case is unique as the treating surgeon identifies primary impairment of limited mobility caused by current and pre-existing medical conditions of bilateral polyneuropathy.    The cases demonstrates how little a Missouri  employer can rely upon the Second Injury Fund when a claimant with substantial pre-existing disabilities sustains a new injury at work.  The claimant's own  expert conceded that  claimant had 50% BAW disability due to the pre-existing condition of polyneuropathy , and all of his various pre-existing conditions cumulatively were more than 100% BAW disability.

The 2 member commission was presumably "tied" until the appointment of a third commissioner in June 2013.  The case had been originally decided by the ALJ in Feb. 2012, nearly  1 1/2 years ago. 

ALJ  Kohner
Atty:  Edelman
Experts:  Poetz, Weimholt
Treater:  Johnston

Wednesday, July 3, 2013

Comp rates increased

The new maximum weekly comp  rates effective July 1, 2013  are:

TTD/PTD/DEATH  $853.08
PPD                          $446.85
MILEAGE                       .535

The Department now has now reached out to workers to explain many circumstances why they should hire  lawyers to pursue their benefits such as being "uncomfortable" or "confused" and "not happy."    The Department then goes on to explain not to get too upset with your comp lawyer handling  because they are busy people and can only handle so many things at once.

 "Remember that, while this is your only case, your lawyer has many cases and  clients. After all, you wouldn’t want a lawyer who doesn’t have clients!"

MATA couldn't have written anything better!