Wednesday, October 9, 2013

SIF recovery fizzles from accident during a failed attempt to return to work

The typical SIF case involves recoveries where a pre-existing permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability.   227.220.1  What if the claimant is not "really" working in the open labor market at the time of the primary injury and  he doesn't have a prior permanent partial disability but a prior permanent total disability?  Hembree v Jerry Bennett Masonry, 2013 MO WCLR Lexis 199 (October, 3, 2013) deals just with that problem.    One can be working full-time but still deemed unable to work for purposes of being totally disabled under the Missouri comp statute.

In this case Mr. Hembree, a former bricklayer,  went back to work after a major 2006 accident as a tuck pointer and as a clean up man. He went back in work in January 2007 and continued until October 2008 about the time he developed a cyst on his non-dominant left hand.  Contrary to claimant's own position, the commission finds for 1 1/2 years he engaged in a failed return to work and he really wasn't working after all in the open labor market.     Since claimant was already totally disabled at the time of his October 2008 claim he couldn't access the second injury fund because he didn't have prior partial disability.  As a result, the Commission reversed an award of life-time benefits to the 61-year old claimant  against the fund.

Claimant's experts  revised their opinions to support a claim that the 2008 un-operated ganglion cyst combined with prior conditions to render claimant totally disabled, even though their earlier opinions attributed total disability to an 2006 accident.  Claimant had settled with the employer for both the 2006 and 2008 accidents. What is unclear from the opinion is whether or not claimant had a second injury fund recovery also in the 2006 accident based on allegations of total disability. That would make the decision of the Commission even clearer if claimant had already had one bite at the SIF apple. 

The court of appeals affirmed the decision on July 2, 2014 MO Lexis App. 747,and rejected the assertion that the denial  cannot be based on a credibility determination when the claimant offers a vocational expert and the SIF offers no expert. "the SIF was under no obligation to produce any evidence whatsoever regarding Claimant's workers' compensation claim, including any vocational expert testimony. Claimant cites us to no relevant legal authority holding otherwise." The commission was free to disbelieve  "self-serving testimony regarding the type and intensity of his employment following the 2006 Injury."

ALJ Wilson
Experts:  Koprivica, Lala

Other working total cases:

 In Scott v Treasurer of the State of Missouri, No. WD 76602 (Jan 14, 2014), 2014 MO App. Lexis 32, the Commission  denied benefits for a claim against the second injury fund on the defense that claimant was already a "working" total and not really working when he was hurt at work so he failed to prove his liability against the Fund from a combination of primary and prior impairments.  The proof of PTD is that in the ordinary course of business, no employer reasonably would be expected to hire the injured worker, given his present physical condition.  The court reversed the denial of Fund benefits.

Claimant operated heavy equipment and performed excavation and incorporated his business.  His brother, "wives" or other employees handled the paperwork.  Claimant stopped working in 2009 after a shoulder injury, after having sustained multiple previous injuries.  The court found that the Commission mischaracterized the record that claimant resumed only limited duties following a 2001 accident when he had broader activities of lifting, loading, and vehicle maintenance duties and that he would operate pieces of heavy equipment for as much as eight to twelve hours a day and the finding that claimant was told to stop working was not supported by evidence that claimant may have been to stop working so fast.  The court also noted that vocational testimony that claimant could not find work in the open labor market because of a need to change posture every 1-2 hours based its restrictions on limitations which arose after the primary injury.

The Scott decision is simple, in some respects.  The Commission didn't make findings consistent with the record.  Try again. 

 Claimant needs to prove for Fund liability prior hindrances or obstacles to his employment but not conditions that were so disabling that there was no combination with the primary injury.  Claimant introduced evidence of various prior conditions.  The vocational expert indicated that claimant
 is highly-accommodated and can't be considered really working because no reasonable employer would accommodate  him as much as when he acts as his own boss.  The court essentially noted that claimant is performing duties typical of his profession and hours typical of his profession and that self-accommodation arose after the last accident.

The better test to determine whether claimant is "really" working needs to depart from the fiction of what a "reasonable" employer would do and return to reality, as the court did in this case, to look at claimant's capacity to perform jobs and the type of schedule claimant worked.     There are  21 million self-employed businesses in this country and more than 237,000 micro business in Missouri with fewer than 10 employees.   A smaller business or self-employment by its nature may provide greater freedom and accommodation which might not be available in a bigger business.  The fact that there may be accommodation available in this setting misapplies the statute.   The suggestion by vocational testimony in so many cases  that running a small business is not really working in the open labor market may be to a shock to hard-working small business owners in Missouri.

In Scott v Scott Excavating, 2014 MO WCLR Lexis 73 (June 10, 2014) the Commission found PPD benefits from the second injury fund and that the primary accident combined synergistically with prior conditions, contrary to the opinion of the ALJ that claimant was not employed in the open labor market because he accommodated his performance through self-employment. 

A claimant who is working but not "really" working cannot have a new claim of disability if he is already disabled, according to a recent Missouri decision.  Archer v City of Cameron, 2014 Mo WCLR Lexis 15, and 2014 Mo WCLR Lexis 16 (Jan 30, 2014).

Archer hurt his back on two occasions while working for City of Cameron.  In 2008 he was driving a skid loader,  struck a manhole, and he hurt his spine.  He returned to  work  with 25-50 pound restrictions for another 2 years performing labor with the help of co-workers.   Claimant worked until 2010 when he had another accident to his back bending over and was placed on 5 pound lifting restrictions while treating for an acute  strain.

The ALJ concluded claimant reported increased symptoms after 2010 so he had a new 7 1/2% permanent disability  contrary to medical opinions.  The ALJ awarded  partial disability in the 2008 and 2010 accidents against the employer and   total disability against the second injury fund from the 2010 accident.

The Commission  reversed the award of  liability in the 2010 case against the employer and the second injury fund.  It relied upon medical opinion that claimant was totally disabled as a result of the 2008 accident  and shifts liability for a total from the financially challenged second injury fund to the employer.  It  found that the ALJ erred finding claimant employable in the open labor market in 2010  contrary to medical opinions that the 2008 accident rendered him totally disabled because claimant had gone back to work for 2 years.  The Commission concluded "We find that during employee's return to work, employee was not performing the usual duties of his employment in the manner that such duties are customarily performed by the average person engaged in such work. Consequently, employee's return to work did not constitute proof that employee could compete for work in the open labor market."  The Commission concludes that the degree of claimant's accommodation (taking breaks, obtaining help, missing days) would not be available to any other applicant in the open labor market in an arms length transaction.

 The Commission reached a similar conclusion in  Ives v Triple Crown Services, 102 Mo WCLR Lexis 26 (December 28, 2012) found a claimant who returned to work for 6 years wasn't really working and disregarded opinions of the ALJ that claimant worked in the open labor market.

  This case demonstrates a stronger exercise of the de novo powers by the Commission. Whether claimant is working or not "really" working based on the level of accommodation is a critical issue. The party facing a claim of total disability  ignores this issue at its peril.    The case  demonstrates the easy burden to show a return to work is a 'failed' return to work even in an economy where most people don't remain employed by the same business for life.  Employers who bring an injured worker back to work may received benefits of their experience but the benefit of returning an injured worker as a shield to a PTD claim may be a very weak one with the current Commission. 

 ALJ Mieners
Atty:  Stracke, Kupin, Wiles
Experts: Stuckmeyer, Wheeler, Dreiling, England
Treater:  Middleton

A claimant who is working but is highly accommodated is still "working" based in part on her ability to maintain a full-time schedule. In Breese v SBC, 2014 MO App. Lexis 19 (Feb. 14, 2014) the Commission rejected  a SIF defense that claimant was already a working total before her bilateral carpal tunnel.  Claimant performed data entry but had impaired mobility, she required the use of a scooter, a handicap-equipped van, and required accommodation from co-workers who would file papers, fax items and provide other assistance.  Vocational experts provided conflicting testimony whether claimant's high level of accommodation prior the carpal tunnel condition allowed her to compete in the open labor market.  The ALJ found significant that claimant maintained a full-time schedule before the accident. Claimant's hand weakness after the accident required more assistance to help unloading her scooter.  The ALJ rejected the SIF defense of post-accident worsening based on lack of any medical evidence to support the position. 
ALJ Carlisle
Atty:  Moreland
Experts:  Musich, Wiemholt, England

In a new case, the commission had to decide whether running for local office was equivalent to working in the open labor market when it involved "door to door campaigning, attending parades, attending picnics, attending rallies, putting up a booth and walking and handing out literature.  [and at]picnics he walked around and talked to everyone he could." Robertson v D&S Enterprises, 2014 Mo WCLR Lexis 14 (Jan 23, 2014). 

The Commission concluded that campaigning  was not evidence that claimant was employable.  The commission agreed that  67 year old claimant was entitled to permanent partial  SIF benefits based in part on multiple prior comp settlements but he failed to establish that his current state of disablement flowed from a combination of a primary 2000 accident and pre-existing conditions.    The Commission concluded any PTD claim against the fund was undermined in part due to post-accident worsening of various conditions during the 12 years the case was pending between accident and the hearing.  

A dissent would have awarded total benefits to the claimant and indicated there was insufficient medical evidence to establish post-accident worsening.

The ALJ noted claimant's political activities running for County Commissioner 4 years after his accident were inconsistent with his level of reported symptoms.  He  found his medical experts less persuasive based on exams performed about  five years after the accident.

ALJ Robbins
Atty:  Morgan, Lintner


The Commission rejected the SIF defense that claimant was a "working total" and it had no liability.  Stewart v Subway, 2013 Mo WCLR Lexis 89 (June 14, 2013).

The claimant had sporadic employment for 12 years leading up to her 2009 accident. She had worked only 29 months out of 144 months and was on social security.   She made sandwiches for about 20 hours a week.  She fell in February 2009  on some water, had surgery for a SLAP tear, and was released without restrictions.  The ALJ concluded claimant sustained 20% new disability and concluded she was employed in the open labor market at the time of her accident, even though she was  working part-time.  Essentially she found her previous jobs were "real" and not "make-work" positions, noting they were real jobs defined by the DOT.

The Commission found the Second Injury Fund was available to people who had seriously limiting chronic conditions who worked part-time. The dissent argued that if claimant would be PTD with the same limitations after an accident, the same limitations should disqualify her from accessing the Fund even though claimant may have been tenacious or fortuitous enough to "eke out" a job on occasion.

The court of appeals affirmed, 2014 MO App Lexis 17 (Feb. 10, 2014).  It deferred to the Commission and noted reasonable minds could differ whether claimant was totally disabled before the last accident.  The issue was whether claimant could compete in the open labor market and claimant had competed to obtain jobs (answering job ads, filling applications) and maintained employment (part-time) despite substantial work absences from chronic serious medical conditions. 

 ALJ  Mahon
Atty:  Alberhasty

In Kist v Mo Lime Co., 2013 Mo WCLR Lexis 225 (December 12, 2013) the Commission essentially concluded that claimant was a working total and  affirmed a denial of benefits against the second injury fund for a 2000 accident when it already concluded claimant was already totally disabled from a 1999 accident.   Claimant had prior back discomfort that required pain management and changes in his job activities leading up to a 1999 accident when his vehicle hit a rock and he reinjured his back and then underwent additional spinal surgeries which failed to resolve intractable pain.   The second injury fund's own expert concluded claimant was unemployable in the open labor market.  Claimant had returned to work only briefly leading up to a 2000 accident when his expert alleged "shaking" ultimately caused the need for a disputed cervical fusion. 

ALJ  Robbins
Atty:  Moreland
Treaters:  Mirkin, Weatherington
Experts:  Musich, Bernardi, Robson