Friday, December 19, 2014
The Commission in a companion case more than doubled the award from the same judge for a claim involving the back injury from lifting a patient. Claimant had undergone a two level fusion about 3 years after the accident but the employer disputed causation. The ALJ had relied upon an opinion from a neurosurgeon that the accident had caused a lumbar strain. The Commission noted claimant's reports of "significant" back pain after the accident. A therapist appeared questioned the accuracy of the symptoms noting claimant had failed 21 validity indicators.
Atty: Robbins, Temme
Experts: Meyers, Kitchens
Some jobs are wonderful and some are not. Some workers are square pegs in round jobs. The classic source to job stress among workers is the perception of difficult bosses and difficult jobs. The Missouri comp system basically has one answer to these issues: you get what you get and you don’t throw a fit.
Missouri never intended worker’s comp as a remedy because a worker just can’t get no satisfaction. Comp is not a rule of etiquette. There are few easy solutions to toxic people: spritzing them with Neosporin just makes them bark rather than wag.
Poor human resource management is the third rail of comp claims. Employment law has long recognized the toxic impact of bad supervisors or high-stress demands. This is often an indirect cost to orthopedic injuries. This is classic fodder in cases when the medical injury is colored by every perceived wrong about the work place. The Supreme Court seemed so impressed in Missouri’s recent case of Templemire v W&M Welding, No., SC 93132, 2014 Mo WCLR Lexis 111 that it lowered the standard for the claimant to pursue a retaliatory discharge claim. The claimant in that case submitted evidence that he was criticized that "[a]ll you do is sit on your ass and draw my money" and he was "milking" his injury and if he didn't like it he could "sue him for whatever reason, that's what he pays premiums for and the attorneys.” There are too jury panels who have had Ebenezer bosses for employer-defendants to feel good that words can never hurt them.
Friday, August 22, 2014
There may be more to this story. Starwood in January 2008 began cooperating with federal officials in an investigation of the agency for human trafficking and continued to work with the federal agency for another two years. The plaintiff worked at the hotel in April 2008 for only two weeks. The hotel knew it was dealing with an agency under investigation before plaintiff ever cleaned a room at their facility. Starwood has an astute control of its national brand image. It is not clear why Starwood did not abandon its relationship with the agency in January 2008 once it became aware of the investigation for practices if proven true would damage their image or why it was still working with the agency in April 2008 when the plaintiff first reported to clean rooms. This case could the product of paying the price of staying with a questionable vendor. There is another possibility too. Maybe the feds encouraged Starwood to continue the relationship while the feds sorted things out.
Monday, June 30, 2014
Any award of second injury fund liability requires different proof for permanent partial and permanent total according to the Court. In the context of a permanent total award, the court concluded claimant must only show that there is a prior condition that is an obstacle or hindrance to employment. There is no requirement that it reaches a statutory threshold or is measurable. Section 287.220.1 provides: "If all of Claimant's disability is from the work injury, then there is no Fund liability. However, if there is any percentage of Claimant's disability that is not attributable to the work injury, then the Fund becomes liable for the difference." The requirement to show actual and measurable disability enunciated in Messex v Sachs Electric Co., 989 S.W.2d 206 (Mo. App. 1999) applies only in the context of permanent partial awards. The claimant does not require proof a specific percentage of disability, but in this case such ratings supported the finding of a measurable disability. Claimant testified that the employer downgraded his position after 31 years demonstrated his ability to maintain the same production requirements. Claimant testified that he was unable to meet the job requirements or find alternate work.
The court describes several decisions which appear to support the Fund's defense but are distinguished as judicial "oversights" which do not appreciate a distinction between calculation of PPD and PTD.
The employer at the time of the hearing settled the primary case which involved an alleged ganglion cyst. The ALJ found the primary injury in the case resulted in 15% disability to the thumb. The treating physician gave him a full duty release.
Experts: Berkin, Poetz, Volarich, England
Panel: Sullivan, Mooney, Dowd
Friday, June 27, 2014
The ALJ award close to 1/4 million dollars in disability and disputed medical expenses related to a fusion surgery. The claimant was picking up storm debris when he fell down. He was treated by a neurosurgeon and released with a finding a strain and disc protrusion. He sought treatment on his own and obtained a fusion for disputed instability. He saw two psychiatrists: one concluded he had disability from an unrelated major depressive disorder, another concluded he had new post-accident pain and mood disorders.
The employer disputed TTD on appeal. The Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum at the beginning of the hearing. The Commission further found the disputed bills to be reasonable, like the ALJ, but found the ALJ based his opinion in part on a medical report that was not part of the evidence. Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)
Experts: Volarich, Stillings, Jarvis
Treaters: Kitchen, Robson
Friday, June 20, 2014
She asserted as a result of the accident she developed constant neck pain, post-concussive syndrome and PTSD, and required daily rest breaks. Dr. Park had performed a multi-level cervical procedure.
Dr. Koprivica was regarded as credible. Dr. Jackson indicated claimant could not return to driving a truck but was employable in the open labor market. The vocational expert indicated at 61-years old claimant was unemployable, that her prior extensive medical experience in nursing was not a transferrable skill, and no one would hire her if she needed to lie down.
Experts: Koprivica, Jackson; Drieling, Sprecke
Treater: Dr. Park
Thursday, June 5, 2014
Medicare regulations provide some interpretative guidance as to what might be reasonably related.
“After an injury or disability”
Medicare prohibits transportation benefits unless the need for transportation relates to Medicare-covered services. It’s one thing to have an air ambulance take a worker to a trauma one center. It is quite another thing to ask a helicopter to drop a worker off at his house. There is an actual federal regulation on this point. Ground transportation may be a reasonable alternative if the distance to the appropriate medical facility is close.
Medicare prohibits transportation benefits beyond the nearest “appropriate” facility. This is clearly defined in Chapter 10.3 of the Medicare Benefit Policy Manual that “transport is covered to the nearest appropriate facility to obtain necessary diagnostic and or therapeutic services.” Transportation to a more remote facility does not flow from medical necessity.
Can fee resolution resolve a $30,000 helicopter bill?
Section 4531 (b) (2) of the Balanced Budget Act (BBA) of 1997 added a new section 1834 (l) to the Social Security Act which mandated the implementation of a national fee schedule for ambulance services.
Fee schedule under Medicare for fixed and rotary wing ambulance
Wednesday, May 21, 2014
The court makes its finding narrow: the Fund gets its depo, but the Fund may or may not be able to offer its depo into evidence. Rule 56.01 has broad application beyond evidence which is admissible. “Merely because the information is discoverable does not mean that such information is admissible….”
Tuesday, May 6, 2014
The Commission found claimant sustained new disabilities of 15% to the neck and 15% of the back based on the findings that claimant aggravated previous disc disease. Claimant had a previous settlement for 20% BAW with a prior employer but reported symptoms worsened, and he had undergone additional treatment including facet blocks and therapy and had a new finding of a lumbar disc herniation. The Commission regarded claimant's expert more credible based on more detailed consideration of the specific job duties.
In a companion case, 2014 Mo WCLR Lexis 61, the commission found claimant's exposure taping boxes aggravated his bilateral carpal tunnel syndrome which had been diagnosed 5 years before his employment. The ALJ had found no causation and that claimant's prior symptoms had never gone away. Claimant had undergone a bilateral carpal tunnel release following a temporary award of benefits and the Commission reversed a denial of benefits and awarded 15% ppd of each wrist.
The commission denied benefits in a third case, 2014 MO WCLR Lexis 59. Several of claimant's own experts provided opinions which did not support the award of new disability allocated to that event.
The commission made its own findings of facts in the cases and criticized the ALJ for not initially making all of the necessary findings and then not doing "something" for a year when the case was remanded. It cited the "needless burden" the Commission incurred by having to make findings of fact and conclusions of law and criticized the ALJ for not disposing of matters "promptly, efficiently and fairly...."
Atty: Stanley, Wenger
Experts: Koprivica, Swaim, Wheeler
Monday, May 5, 2014
Claimant alleged two injuries and asserted he was unemployable. His claim was confounded by inconsistencies, poor histories, and the failure to identify a precipitating event as the cause of his second "accident." He initially fell from a 6-foot stepladder in 2002. He fractured some ribs and caused a pneumothorax and a chronic pain syndrome. Claimant failed to prove a sustained a second accident when he claims he experienced a sudden onset of symptoms sitting at work without any clear precipitating event. "Claimant was looking at a computer with a co-worker when he felt a very severe pain in his head and neck and felt that the left side of his face was paralyzed and also felt pain and weakness on the left side of his body." He ultimately underwent surgery for a herniated cervical disc. Roberts v Charter Communications, 2014 Mo WCLR Lexis 157.
ALJ Dierkes attributed partial disability for claimant's pain complaints but noted they were "grossly inordinate to his injuries," and that "there is a significant component psychologically in terms of the presentation". The employer's expert indicated there was "somatic reactivity and is likely to report subjective physical complaints well beyond those which can be physically or objectively confirmed, and that Claimant is prone to using his physical complaints to manipulate others and to control situations."
Atty: Brown, Willer
Expert: Dr. Koprivica , Dr. Pro, Dr. Stillings, Dr. Cantrell
Treater Dr. Oro, Burger
Friday, May 2, 2014
Thursday, May 1, 2014
A patient getsonly an "adequate supply". Leave it to the legislature to define that term: 4 ounces, 3 mature plants, and 4 immature plants. This is just like the 3-1-1- rule at the airports. There is no truth to the “420” rumor that the original proposal allowed 4 ounces, 2 brownies and 0 roach clips.
One can see an entire cottage industry making billions of posters. It's like when Jeff City said everyone could lock and load their guns and every business owner put up a sign that said “not here, please.” Maybe this time the posters could use some black light. The bill even contemplates that prisons, and schools and public parks could be open for the compassionate use of marijuana as long as it’s done “in designated areas.” Really? After all, everyone knows that smokin’ ain’t allowed in school.
In other news a bill has been introduced that jumping jacks will now the official state exercise. It’s a shame no one can do them anymore because everyone has a "serious" medical condition.
New Mexico now requires reimbursement for "medical" marijuana. Vialpando v Ben's Automotive Servs., 2014 N.M. App. Lexis 50, rejected the defense that employer could not be ordered to violate the federal Controlled Substance Act, 21 U.S.C. 811 even though the state decriminalized use through the state's Compassionate Use Act.
Tuesday, April 29, 2014
Monday, April 28, 2014
The Commission disclaimed a finding by a judge that breast cancer caused or worsened a worker's depression because the conclusion was based on the judge's own "lay" opinion. Smith v Dannie Gilder, 2014 MO WCLR Lexis 106 (Aug 26, 2014).
Wednesday, April 9, 2014
The employer argued the surviving spouse lacked standing to enforce the agreement because the commission had not formally ordered the widow to be substituted as a party after a motion had been filed to substitute parties. The court noted the same argument was raised for the first time in oral argument in the first appeal and had also been rejected in post-opinion motions in the first appeal. The law of the case precluded re-examination of the issue. The employer failed to preserve its belated argument that claimant was not a "party." The employer failed to preserve any point to reject the proposed settlement based on the limited criteria of 287.390: undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement. The court rejected a request for sanctions against the employer.
The not so unusual facts of Nance highlight the importance to reflect the intent of the parties how to handle contingencies in the event of unexpected death when dealing with a party with a known life-threatening illness. This case has been in litigation on appeals since claimant died in October 2011 when the settlement for $181,434 was submitted by both parties. The case flowed from a 1989 accident in which the employer had repeatedly sought approval to reduce to a lump sum.
Maxon I, WD 74942 (Nov. 6, 2012).
Atty: Murphy, Reynolds
Wednesday, March 5, 2014
Missouri, in fact, no longer requires an injured worker to disclose a complete social security numbers. It’s only half the fraud when using four fake numbers than nine, right?
The answer to MSA obligations is no where in Chapter 287. The chapter doesn't even define MMI and isn't about to touch MSA.
Medicare’s interests must be considered and the likelihood that some injured workers will be on the Medicare boat if they are not already. Immigration enforcement is for people at much higher pay grades, like the ones in D.C. writing checks to dead people. The employer may not think that is fair, but the word fair is not in chapter 287 either. One cannot assume a fair result under strict construction when the word fair is not used in the statute.
Thursday, February 27, 2014
In the case claimant deposed 7 employees who provided unfavorable testimony. The claimant sought to depose a corporate designee. The ALJ twice quashed claimant's request for a corporate designee deposition and over-ruled claimant's objection when the employer produced an "undisclosed" witness who further impeached claimant regarding the extent of pre-existing symptoms
The Commission concludes any error regarding both issues was not prejudicial and ultimately affirmed the holding. The Commission indicated the ALJ has discretion regarding the scope of discovery, but it did not make unequivocal findings whether it considered there was an abuse of discretion that after 7 depositions enough was enough. In the case the Commission expresses "concern" about not allowing more discovery and that claimant could have been "potentially" prejudiced because "at minimum, employee should have been given an opportunity prior to hearing to discover employer's intended witnesses, verify the general nature of their anticipated testimony, and/or obtain copies of recorded statements." The Commission does not discuss why the goals could not have been achieved in 7 prior depositions and only through a corporate designee deposition under 57.03(b)(4).
Rule 57.03(b)(4) provides "A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.
Claimant arguably sought information regarding anyone with knowledge about the claim. The need for such inquiries under Rule 57.03(b)(4) are probably unnecessary if the Commission allowed discovery through Rule 57(a) interrogatories. The ruling from the ALJ potentially could have been more favorable for the employee if that had been the 1st deposition rather than the 8th. The simple takeaway of the opinion is there was no abuse of discretion and the rulings were proper. The dicta is more ominous that employers better get ready to be sworn in and get their witness lists prepared sooner than later.
Wednesday, February 19, 2014
The injured worker sustained multiple injuries from a collision between a locomotive and a truck, but returned to work for about 4 years after his accident until he states worsening symptoms prevented him from gainful employment. The ALJ found claimant unemployable due to post-accident worsening but awarded partial benefits against the employer and the SIF, and did not adopt the finding's of claimant's expert that claimant was a SIF total due to a combination.
The court concluded that no party disputed whether claimant was PTD but only the cause of the condition as post-accident worsening or from a SIF combination. In the original appeal the court remanded the case and found the Commission erred by disregarding Dr. Poetz' opinion that claimant was totally disabled due to a combination and misread the record that Dr. Poetz' opinion was based on an incomplete medical history. The determination that claimant's disability flowed from post-accident worsening was not supported by substantial evidence because none of the medical experts supported that conclusion.
The opinion distinguishes between the amount of disability and the cause of disability. Both parties conceded that claimant was totally disabled but the SIF disputed the cause. The defense of post-accident worsening in this type of case required expert testimony and the Fund failed to introduce such evidence to support its defense in the primary case or on remand. As no party disputed that claimant was unemployable, the only issue was the cause the disability.
The Commission later affirmed a finding of PTD, 2014 MO WCLR Lexis 63 (May 7, 2014).
Thursday, January 30, 2014
In Ballard v Woods Supermarkets, 2014 Mo App. Lexis 93 (January 29, 2014) the Southern District was asked to reverse a finding of permanent and total disability to a 58 worker who had a two-level back surgery because her "subjective" symptoms such as a need to lie down precluded gainful employment and her surgeon found no "objective" neurological deficits to explain her symptoms. The court affirmed benefits and found the employer's argument without any merit.
The court of appeals indicates the commission properly applied 287.190.6 as the finding was based on objective findings of a failed laminectomy surgery with scarring. Both medical experts agreed that her post-surgical condition could be a source of pain. Both vocational experts regarded any need to lie down was toxic and she was unemployable in the open labor market. Pain is a logically related to the diagnosis. The court didn't want to deal with deciding how much someone hurts and deferred the finding as a matter of credibility to be determined by the Commission.
A similar issue previously surfaced in the Eastern District in which the employer also lost an argument that an objective finding from an FCE regarding a capacity to work had greater evidentiary weight than claimant's subjective limitations due to pain. In Reichardt claimant was awarded total disability benefits based on pain complaints after a back surgery and a reported need to lie down. Both vocational experts in Reichardt, as in Ballard, concluded claimant could not work if he needed to lie down. The Commission found that the FCE did not assess pain so there was no conflict. Reichardt v Industrial Sheet Metal Workers, 2011 MO WCLR Lexis 226, 367 S.W.3d 650 (Mo. App. 2012), affirmed without an opinion.
Both the court in Ballard and the commission in Reichardt assume that pain cannot be measured without any expert ever addressing that issue directly. Subjective and objective findings both warrant some evidentiary weight to assess disability. The difference between subjective and objective is not always clear.
Ballard reaches a predictable conclusion that 287.190.6 does not preclude an award of total disability based on subjective reports of pain. Section 287.190.6 appears to still require a worker to show that pain logically flows from an objective condition, but the claimant does not have to objectively prove the degree of pain or explain why a degree of pain may be higher than expected. In the civil context, this is an issue about damages and not the issue of liability. The suggestion that pain cannot be measured or quantified is over-simplistic. Therapists quantify pain every day. Pick a number between 1 and 10. How much do you hurt now? How about now when you bend this far? The real issue is that the degree of pain is sometimes psychosocial and may not have a good medical explanation. To demand a medical explanation would make comp unavailable to a population of workers with the highest level of pain complaints that are difficult to treat.
Commission discounts FCE findings and modifies SIF award from PPD to PTD based on subjective complaints and conflicting expert opinion. The Commission "impliedly" finds the pain complaints credible despite an expert opinion of a normal exam and solicits admissions from employer's counsel in argument that the claimant was "credible" during the hearing. Ponticello v D&D Distributors, 2015 MO WCLR Lexis ---- (9/4/2015)
Atty: Haupt, Banahan, Daugherty
Experts: Volarich, Burke, England
Monday, January 27, 2014
The ALJ found claimant's expert was not credible. "Dr. Liss summarily concluded Claimant was PTD due to the bipolar condition and the work injury without explaining how he reached the conclusion. This is especially important in light of Dr. Liss’ opinion that Claimant’s bipolar condition alone resulted in "significant disability."" Claimant's own treating physician concluded claimant could return to work without restrictions from the orthopedic injury. An expert who examined the orthopedic injuries did not indicate unequivocally that claimant was unemployable. The ALJ found claimant's expert lacked the qualifications to render a vocational opinion.
The Commission acknowledged the expert is not "entitled to great weight" but is not rebutted or impeached anywhere in the record and claimant can rely upon expert medical opinion to establish PTD without additional vocational opinions. The takeaway from the case is the need to present contrary expert opinion, an element often lacking in many second injury fund defenses.
Thursday, January 16, 2014
Downing involved a waitress who had back surgery and the carrier would not authorize it because the carrier wanted more time to investigate the claim. Claimant initially attributed the symptoms to an accident months earlier bending over a table and she later hired an expert who attributed her disc herniation to an occupational disease. At the time of her request for care the treating physician indicated that her condition was chronic but did not attribute it to an occupational disease.
When claimant requested care several months later, the employer authorized claimant to have an MRI and see a surgeon but declined to authorize surgery to investigate the claim. Dr. Ibsen recommended surgery on June 14, claimant was told it would was denied pending investigation in a conversation on June 20, and claimant proceeded with surgery immediately resulting in two operations. The ALJ inferred a finding the employer's physician regarded the condition work-related by referring claimant to a surgeon. The claimant's expert concluded claimant herniated a disc from repetitive bending in her job as a waitress. The employer's manager testified that the waitresses complain their backs hurt all the time and he rubs them to help their various aches and pains. The ALJ awarded the rating provided by claimant's expert and adopted the causation opinion as the employer offered no expert opinion. The ALJ found that the employer in these circumstances had not denied or neglected to provide care and had previously tendered evaluations with an MRI and a surgeon.
The Commission reversed and awarded further payment of the medical bills. It noted the employer had a duty to provide care when it received a request for care. In this case, there was no evidence of an election for claimant to seek her own doctor for treatment when she treated with the doctor selected by the employer. The Commission noted it was a "reasonable concern" that the employer might delay authorization to develop a defense. "We do not believe that employer's statutory right to direct treatment invested this employer with the right to tell employee to ignore the recommendation from Dr. Ipsen and wait, in severe and unrelenting pain, for no other reason than to allow Ms. Henderson time to build her case for denying the claim altogether." The ALJ had found claimant's own expert testified the need for surgery was not an immediate "emergency" treatment 2013 MO WCLR 65, suggesting the Commission may have made its own finding that the pain was unrelenting.
The court of appeals rejected the employer's appeal that claimant had to prove authorization or a need for emergency treatment to order payment of the bills. The employer did not contest claimant had an occupational disease or that the treatment was unreasonable or that additional investigation would have changed that determination. Unlike other cases, claimant had sought treatment from a physician selected by the employer and provided notice of her intention to proceed with immediate treatment after the employer had tendered evaluations with other providers. The Court did not adopt the Commission's finding that the claimant had unrelenting pain or the Commission's implication that the employer was contriving an excuse not to pay benefits.
Two days later the court of appeals recalled this decision and issued Downing v McDonald's Sirloin Stockade, 2014 Mo. App. Lexis 41 (January 17, 2014). Notably, the court substituted its previous findings that the evidence supported a finding of an "occupational disease" to a "medical condition." The new opinion further deletes reference to the original accident of leaning over a table and an explanation why the employer questioned whether the symptoms were related to this specific incident. Claimant's expert concluded that the "work" caused the disc herniation according to both opinions.
The takeaway from the case is that a Missouri employer who has the right to select a comp provider can be on the hook when its own expert recommends surgery and has to decide quickly to fish or cut bait.