Wednesday, August 28, 2013

Court declines to limit remarriage benefits

Missouri worker's compensation law allows a two-year lump-sum benefit to a surviving spouse who remarries.  The Missouri Court of Appeals addressed  whether a surviving spouse receives the full amount of the remarriage benefit  if the surviving spouse was not entitled to 100% of the death benefits. 

In Ash v Millennium Restoration and Construction, SD 32381 (Mo. Ct. App. August 27, 2013); 2013 Mo App. Lexis 1005,  the court construed 287.240(4) clause "the benefits due for a period of two years" to mean the full weekly compensation rate of $742.72 for remarriage benefits, and not the lower amount of $247.57 that had been allocated to the spouse as survivor benefits.

The statute addresses two separate benefits including periodic death benefits and a remarriage benefit.  The provision addressing death benefits contains a provision regarding allocation. The court declined to construe the same provision to remarriage benefits.

"Section 287.240 does not contain any language which expressly indicates that the remarriage benefit should be calculated based only on the amount of the weekly death benefits attributable to the remarrying spouse."  Applying strict construction, the court concludes the employer's argument would require the court to add a limitation not expressly indicated.   The surviving spouse received more than another $50,000 as a statutory  benefit lump-sum for remarrying. 

The  CDC reports more than half of surviving spouses will remarry within a ten year period, depending on age.  

J. Burrell
Atty:  Platter ,Clinkenbeard



Wednesday, August 14, 2013

Doctor not paid, employer does not have to pay twice

Claimant had an accident in 2007 and his plastic surgeon was not paid for more than $23,000 in billed services.  The doctor was listed as a creditor which was discharged in claimant's bankruptcy in August 2008.  The case proceeded to hearing in 2010 when claimant was awarded benefits and received payment for about $40,000 representing the charges in dispute.  No money was every distributed the medical provider. In November 2012 the provider filed an application for direct benefit to be paid.

The carrier had no obligation to pay the provider twice the disputed charges.  Concannon had waited 22 months after the award, and nearly 5 years after the treatment to pursue payment without clear evidence was it was every authorized in the first place.   Schwab v Lamb Construction, 2013 Mo WCLR Lexis 136 (August 1, 2013). 

It does beg the question why the carrier did not dispute liability for medical bills in the hearing if the debt had already been discharged in the chapter 7 bankruptcy.

Atty:  Bridges, Thompson

Nurse awarded disability for helping difficult child birth

A nurse  held a patient's head for a long time during a difficult child birth and as a result she developed permanent disability in her back.  The Commission agreed, affirming an award of nearly $168,000.  Beatrice v Univ. of Mo., 2013 Mo WCLR Lexis 134 (Aug 2, 2013).

The employer disputed the need for surgery based on normal studies.  Claimant reported pain and underwent a two level anterior fusion although multiple  pre-operative studies showed no evidence of neural compression or disc pathology.  Claimant reported the surgery did little to improve her intractable back pain.   The ALJ noted that claimant reported  improved symptoms with incontinence even though the procedure had incomplete resolution of her back pain and she still required narcotics.

Dr. Highland concluded the claimant had  positive pre-operative discogram  and dismissed a prior "normal" discogram because the prior study did not use  contrast dye.   The employer raised concerns about psychiatric sources of claimant's pain but claimant refused to attend a psychiatric IME. any psychiatric conditions.

The  ALJ in a prior temporary award ordered the employer to provide a discogram to evaluate claimant's condition and treatment.  He  found the employer was not liable for fees because it had reasonable grounds to dispute its liability.  The level of PPD awarded was based on claimant's own expert.  

On appeal, the court of appeals affirmed the award.  Beatrice v Curators of the University of Missouri, 2014 MO App. Lexis 839 (Aug 5, 2014) and indicated  in a case of conflicting medical opinions the Commission was within its discretion to accept the opinion of a surgeon who performed a disputed two level anterior fusion compared to 5 other experts and disregard the employer's argument that the claimant  "was able to fake her bladder symptoms because of her knowledge as a nurse and her prior employment at a law firm and the Litigation Management firm."

ALJ Dierkes
Atty:  Rotts, Cline, Montgomery
Experts:  Highland, Coyle

Friday, August 2, 2013

No civil suit against contractor after comp settlement

Can a worker pursue a civil suit against a contractor when he has settled the comp case against the subcontractor involving the same accident because of statutory requirement of strict construction?  No, according to the court of appeals in Shaw v Mega Industries, No.  75501 (WD Mo. App. July 30, 2013).

Shaw is the sole owner of RLS.  He was hired as a subcontractor by Mega Industries.  In 2009 he settled a case between RLS and himself for injuries one of his employees dropped a phone booth on him.   Claimant/owner settled against his company's work comp carrier and then sued the company that hired his own company to perform the work.   Claimant appeals the summary judgment against him when he filed a civil claim against Mega after settling the comp case. 

The claimant argued contrary to a Supreme Court decision from 1938 involving similar facts.  "A statutory employer was immune from common law actions even if the statutory employer faced no liability for workers' compensation benefits because the injured worker was insured by his immediate supervisor."  The exclusive provisions apply even when the Act did not require payment and that Mega was deemed an employer under the Act even though it pays no compensation.