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. 

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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