Friday, December 13, 2013

Business owner proves himself a total with a new back injury

The commission affirmed an award of lifetime benefits for disability for a new back injury despite a tumultuous history of prior back problems, according to the recent  case Laster v Laster, 2013 MO WCLR Lexis 218 (December 5, 2013).

The tale begins in June 2005 when a 43-year old claimant states his back and leg hurt lifting a shop vac out of a van.   Claimant ultimately sought treatment in mid-July and by the end of the summer he was diagnosed with a disc herniation.  By January 2006 claimant had a L3-5 fusion.  In 2007 claimant was back in surgery again for a failed fusion and underwent revision surgery.   He described constant back and hip pain.  His surgeon felt he could work and could not explain claimant’s symptoms from a solid fusion.   Claimant, as the company owner, apparently self-directed care back to his own personal surgeons (Kennedy and Robson) and  pain management with Drs. Barry and Rachael Feinberg.  Claimant’s testimony was unchallenged that he earned $1000 a week despite the lack of any documentation. 
When the last accident was of a magnitude to render claimant disabled by itself  the prior conditions are ignored.   In this case after claimant’s accident in 2005 he treated for several years, underwent two multi-level back surgeries, and the specials approached $400,000.  Claimant described severe symptoms with any activity and a need to lie down frequently for pain relief.    ALJ Kohner noted it was “confusing” that Dr. Poetz alternately appeared to argue that that the Fund was liable, unless it wasn’t, and then the employer was liable.

Dr. Poetz, claimant’s expert, did not testify there was any synergistic effect with prior back disabilities to invoke any Fund liability.     In a different time this type of case was a slam dunk for fund liability with claimant's   7 year history of back pain, previous settlements for disability, a prior two-level fusion, and  an incapacity to work for most of the 4 ½ years before his latest accident.  The ALJ found Dr. Poetz’ opinions the last accident alone rendered claimant PTD was the only “clear forensic evaluation on this issue.”   The ALJ noted the testimony was apparently admitted without objection to Dr. Poetz’ qualifications and that he “appears” to be a licensed physician to render such opinions.
The ALJ awarded open medical and concluded expert testimony from Dr. Robson that he had nothing further to offer orthopedically could not be construed that claimant did not require any future care.  The ALJ accepted that claimant may require imaging studies and additional conservative treatment.  Claimant testified he treated his intractable back pain with Aleve and felt stronger medications impaired his ability to interact with his children. 

These facts beg the question whether claimant was not already an odd-lot total even before the latest accident if the only way he could work was by being his own boss.   The fact that claimant failed attempts to return to work after the 2005 accident appears to only reinforce that issue.  The ALJ noted claimant started his own firm because he could not find any job in the labor market with his restrictions and as the owner he had the unique ability to control his own accommodations and avoid activities.  Claimant had been out of work because of chronic back pain and had operated the business for only a few months before asserting he had a new injury. 

Commission finds worker a total for back strain despite reading problems

A claimant with reading difficulties was awarded total disability for a back strain.  Barker v Laclede County, 2013 MO WCLR Lexis 219 (December 9, 2013). The ALJ concluded the incapacity to work flowed from the last accident alone even though learning difficulties further impaired the worker's capacity to work or obtain vocational retraining.

Claimant, 62,  described disabling back symptoms  following a 2010 accident for a back strain superimposed on degenerative changes.  An FCE indicated he was limited to handling 14 pounds.  An annular tear was suspected but never confirmed on MRI.   Claimant obtained a report from Dr. Volarich who felt he had permanent partial disability and imposed various  restrictions.  Claimant's vocational expert concluded claimant was unemployable.    The employer contends claimant was able to return to driving a truck, an expert found he could work without restrictions, and claimant on his own  had a 35-head cattle farm.

The Commission affirmed the decision, without a separate opinion.  The decision contained a detailed discussion of the employer defense that any inability to work was not  the last accident alone because claimant's reading difficulties combined with his primary injury to limit his ability to work.  

The ALJ noted the employer failed in its burden to show that claimant's inability to work flowed from a combination of prior medical conditions.   No one established an inability to read flowed from a medical condition.   The fact that claimant attended special education classes according to school transcripts did not support the inference that he had a learning disability.  A vocational expert declined testify as to the specific diagnosis.  The ALJ further accepted that claimant's illiteracy was not a prior vocational barrier, even though the voc experts indicate the same condition after the accident is toxic to his ability to work or  his ability to retrain..

The employer offered literacy classes for claimant to read which claimant refused to attend.  The ALJ dismissed the offer as it  "occurred in the context of litigation and the employer and insurer defending against a claim of permanent total disability." It is unclear from the opinion whether this offer was a  tender of vocational services under 287.149.   Claimant denies he was offered any classes and the ALJ found he lacked credibility on this issue but his pain complaints were considered credible.    The ALJ  noted that it was "reasonable" for claimant to not pursue  to classes as the employer was not offering to pay claimant TTD at the same time.  It is "understandable" that he "would not be eager or desirous to pursue such a program...." and any failure to refuse could not infer a desire not to work." 

The case visits a familiar theme that if an ALJ believes claimant is in too much pain to work and finds at least one expert to agree the employer buys the claim even though the diagnosis is not typical for total disability or the claimant has a "egg-shell" skin, a weak spine more prone to injury, or only a few arrows in his educational quiver.  The employer was able to obtain only some prior school records (the fact it obtained any at all is somewhat amazing given claimant's age) but hit a profound tactical problem of blaming the Fund when the Fund was not even in the court room and had not been named as  a party. 
   
ALJ  Wilson
Atty:  Murphy, Barnhart
Experts:  Volarich, Eldred, England

Wednesday, December 11, 2013

The 'Urge' for More Disability

The toilet is a big deal when you are little.  It’s the sign being a big kid when your parents no longer get uber-excited about the toilet and  no longer start every trip with the query:  “Gotta go?”

The Supreme Court has just made the toilet a big deal again.  In fact, it may now be the new disability de jore.
Why all the excitement?  The Supreme Court in Treasurer of State Custodian of the Second Injury Fund v Witte,  2013 MO Lexis 298 concluded pre-existing disabilities which do not meet the statutory threshold combine for Fund liability just as long as one prior disability meets the threshold.  This means if you gotta go, the Fund has gotta pay you.

Incontinence is pervasive in Missouri like in most states.    About 1 in 8 seniors have some problem or another.   Visit a senior community and see if you can get through an hour without the topic coming up.     Bladder issues are sometimes neglected as signs of important degenerative or traumatic spinal conditions. 

SIF claims of bladder disability claim are not something new, but the Supreme Court has now opened the door to more SIF claims by allowing claims when a doctor finds any degree of permanent disability related to the condition.   Cardenas v Tyson Poultry,  2013 MO WCLR Lexis 68; Clements v LFI Staffing,  2012 Mo. WCLR Lexis  155;  Reed v Govt Employees Hospital, 2010 MO WCLR LEXIS  122. 

These three cases are interesting as employers were able to accommodate bathroom breaks but vocational experts considered the need to go to the bathroom more than most people (whatever that means) toxic to maintaining or competing for employment.    In Reed the ALJ found the employer let claimant use the bathroom when she wanted but considered the practice an “unacceptable work practice” and uncommon.    In Cardenas a vocational expert testified that “unscheduled” bathroom breaks could prevent claimant from maintaining employment.   In Clements it was noted by a vocational expert that Claimant was able to work years despite the restroom breaks issue, someone who has to use the restroom as frequently as Claimant probably couldn't work anywhere else.

The Witte decision opens the bathroom door on more of these types of claims to allow enhanced compensation for  bladder conditions that are pervasive in the population, that employers have little “control” over the risks, and  may have little meaningful impact on bonafide occupational impairment,  

There may have been a time when Missouri had a lot more manufacturing jobs  that the average worker had more difficulty to answer a call of nature.   It is not clear whether this assumption makes any sense anymore that employers make employees piddle their pants because the break alarm hasn’t rung.    If that is truly the case perhaps we should change our state motto from the “Show Me” state to the “Just Hold It” state. 

**
The Commission reversed a denial of benefits and awarded life time benefits to a convicted felon with limited education who had "numerous and amorphous" symptoms  following a discectomy and reported poor bladder control made him psychiatrically disabled from leaving his home.  Patterson v Central Freight Lines, 2014 MO WCLR Lexis 51 (April 11, 2014).

The employer paid more than $100,000 for a back surgery after claimant fell cleaning up a truck but then contested causation noting that claimant had a history of previous treatment for its back.  A urologist indicated claimant's  symptoms were unrelated to trauma and a psychiatric expert concluded they flowed from prior psychiatric conditions.  Claimant contends after his accident his life was ruined, he doesn't go in public because of embarrassment of poor urinary control, and that he suffers from PTSD.

The Commission found claimant credible, awarded 45% and open medical for the 45 year old male, and expanded a future medical award to include the urological disorder which the ALJ did not find related.  The commission faulted the employer's vocational expert for 'trivializing the indignities claimant suffers' and the employer's experts for highlighting inconsistencies in claimant's medical hsitories:   "we feel capable of determining employee's credibility without [their] assistance."  The Commission noted no reasonable alternative explanation for claimant's neurogenic bladder:  "Dr. Cantrell does not provide any alternative medical theory to explain why a 40-year-old employee developed a neurogenic bladder following the work injury, but rather has, in essence, appointed himself arbiter of employee's credibility."  The only consolation for the employer is the commission rejected the PTSD claim and affirmed a denial of open psychiatric care for someone who confines himself to a wheelchair.

Claimant was injured in 2008 and has not worked since his employer closed its business later the same year.  Claimant injured his back when he fell while trying to clean up a truck.  He reported complaints of erectile dysfunction and incontinence.  He underwent a back surgery.  Claimant alleged medications after the surgery made him depressed, changed his personality, and altered his life.  A back surgeon advised against a revision surgery. Dr. Bassett treated claimant and concluded he had developed psychotic episodes and was unable to work with the public.  Claimant reports he is confined to his home  and became paranoid around public due to incontinence issues. 

The Commission reported it affirmed an award of 45% PPD but reversed a denial of SIF benefits.    The award finds no synergy to support a Fund award.  The  ALJ award reads in parts  more like  a draft:   "Seems to argue he is ptd b/c of psych. Why has he not  sought treatment, Psychiatric records indicate mych of his discussions and problems surrounded his relationship with his wife...."

Alj  Hart
Atty:  Fikes, Schultz, Daugherty
Tx:  Cantrell, Raskas, Adkins,  Graham
Experts:  Dr. Shands, Dr. Peeples, England, Liss, Stillings, Hammond

 

Monday, December 2, 2013

Commission modifies award to allow total disability

The Commission modified an award of 50% BAW to Permanent Total Disability to a state employee of a prison who hurt her neck when she backed into a dock and found the employer's vocational testimony that jobs were available just wasn't enough that jobs were available for her.  Ketchum v Mo Dept. of Corrections, 2013 Mo. WCLR Lexis 215 (Nov. 22, 2013).

The case involved a 58-year old employee who was diagnosed with multi-level arthritis and a lateralized disc.  The employer's treating physician, Dr. Coyle, went ahead with a three-level fusion and released claimant 6 months after her surgery.  She returned to work for a month and then went on long-term disability.  She told her expert after the surgery she still felt horrible.   ALJ Strange awarded her 50% disability, and rejected opinions from claimant's vocational expert that she was unemployable.  Claimant's expert asserted that she had no prior disability and her neck before the accident was totally asymptomatic.

The Commission, however, modified the award to total disability.  The commission concluded that it was the employer's burden to rebut  a PTD case to show that claimant could work, that positions exist in significant numbers in the open labor market and the claimant could reasonably compete for positions.  The employer's vocational expert indicated claimant was capable of performing jobs such as a cashier, a home health care worker, and security work.  The Commission concluded it could not assume such factors without testimony apparently calling for too much of a leap of faith that Missouri has a lot of cashiers and home health care workers or to make an inference that a claimant can work certain jobs means a claimant can work certain jobs.  The case is a clear warning to prove every statutory defense explicitly instead of relying upon reasonable inference. 



ALJ  Strange
Atty:  Van Camp
Treaters:  Coyle, Guarino
Experts:  Eldred, England