Wednesday, September 11, 2013

Young woman who won't quit smoking awarded permanent total

The injured worker hurt her back lifting some books, had back surgery  and asserts she  was unable to work due to nonunion and intractable back pain.  The issue in the case was whether the employer owed for life-time benefits when her addiction to smoking prevented her from having another back surgery to improve her condition. Miller v Andersen Merchandisers, 2013 MO WCLR Lexis 163 (August 30, 2013).

An employer does not owe for compensation if it can prove the employee unreasonably refused treatment.  Section 287.140.5 provides:
No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued, or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division nor the commission, inconsiderable in view of the seriousness of the injury.
 The ALJ  concluded the employer failed in its burden to show the claimant's inability to stop smoking was "unreasonable" based on testimony that she had smoked for over a decade and was unable to stop and had attempted nicotine patch, hypnosis and participated in a smoke cessation programs offered by the employer. 

The ALJ further noted  that the employer technically had not "offered" surgery, because the two surgeons declined to offer it in claimant's current state of nicotine addiction.  The employer in the case stipulated claimant  was permanently and totally disabled and stipulated to  open medical. Both of claimant's medical experts concluded she was not at maximum medical improvement.

A dissent argued that claimant's smoking may have been a contributing factor to non-union in the first place and found claimant was not entitled to total disability because she would not quit smoking.  The Commission affirmed the ALJ opinion without comment.  The ALJ noted the statute essentially created bad public policy to reward someone for bad lifestyle choices but deferred to the legislature to address that issue.

The court of appeals has previously found that a claimant who failed to  make lifestyle changes such as losing weight or quit smoking was an unreasonable refusal  to deny benefits under  287.140.    Sutton v Vee Jay Cement Contracting, 37 S.W.3d 803 (Mo. App. 2000), Kern v General Installation, 740 S.W.3d 691 (Mo. App. 1987).   This was not an issue in Miller as the employer stipulated to open medical and claimant demonstrated both a need for surgical treatment and non-surgical pain management with narcotics.

The case is important in several respects.

The employer stipulated it owes for future medical but didn't owe for total disability because claimant did not succeed in smoke cessation programs.   The Commission appears to construe 287.140.5 that if the worker makes a good faith effort (as in this case with use of hypnosis, nicotine patches,  and participating in the smoke cessation program etc.) the refusal is not unreasonable.   Claimant stated she wanted to have the surgery.  Arguably, the result could have been the same even if claimant stated she didn't want the surgery and elected to treat conservatively based on testimony that nearly a third of re-do surgeries fail even in optimal circumstances of a non-smoking patient.

The only issue in Miller was whether the employer owed for total or for partial disability. The Second Injury Fund was not a party and typically has liability in cases in which a prior disability combines with a current injury to render a worker unemployable. 

ALJ Ruth
Atty:  Moreland, Shelledy
Experts: Musich, Woiteshek, Polinsky, Weimholt