Thursday, January 30, 2014

Award supported by "subjective" symptoms

Missouri courts once again wrangle in  the old grudge match between the evidentiary weight given to subjective and objective symptoms.  Reformers thought they had put an end to those types of fights by indicating that "where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings."  287.190.6. 

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)
ALJ  Landolt
Atty:  Haupt, Banahan, Daugherty
Experts:  Volarich, Burke, England

Monday, January 27, 2014

PTD award supported without a physical exam

The Commission reversed a denial of benefits and found that a psychiatrist's opinion supported an award of PTD benefits against the Second Injury Fund for a combination of prior psychiatric conditions and new orthopedic injuries even though the expert performed no physical exam. of  the 41 year old claimant for his orthopedic injuries.   Phillips v M&S Painting Ins., DOLIR 1-14-2014.

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.

ALJ Carlisle

Thursday, January 16, 2014

Court finds delay to investigate claim constitutes a denial of treament

An employer has an obligation to provide treatment for a work-related injury, and the duty may arise even though claimant does not  prove the condition is work-related when requesting care, according to the recent court of appeals case, Downing v. McDonald's Sirloin Stockade, 2014 Mo App. Lexis 37 (Jan 15, 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. 

Friday, January 3, 2014

Editorial: Fund reform still allows recovery for systemic illness.

On January 1, 2014 the Missouri legislature made a New Year's Resolution that the Second Injury Fund was going into a new fitness plan: it was going to be tighter, leaner, and meaner.  Those crazy bygone days of spending its money recklessly  on partials are gone and the Fund eligibility on a total is harder.  It was no longer going to be the laughing stock in the locker room.

SB 1 reform did trim away recoveries from SIF for claims of partial disability.  Despite the fancy new gym clothes that made it look like it was serious, reform did little to limit SIF recoveries for claims of total disability.  In the end, it was  like giving up snacking between meals but still booking a lot cruises with 24-hour buffets.

Of course, there are statutory examples that reportedly limit qualifying PTD disability.  It states it  can flow from a prior military duty, or a prior case, or from opposing extremities or an opposite eye or ear.  There is a glaring exception:  287.220.3(a)a.(iii)  allows a prior disability which is  "Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury...."

So what does that mean?

None of these terms are defined in the statute.  Accelerate generally means to "cause to occur sooner than expected."  Aggravate means to "make worse or more serious."   The word "significantly" is used in one clause but omitted from the following clause.  It is not clear whether this has any significance and adds little to the meaning.  It is like two young siblings arguing:  "You are BOTHERING me," and 30 seconds later:  "Now you are SIGNIFICANTLY bothering me."

Our Commission last year in the Maness v City of Desoto  noted that the word "aggravation" never appears in the statute. 'We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287." One of the major reforms was  to redefine injury by accident to require something more than just showing up at work.

The takeaway is the expert proving up SIF liability now must say the magic words:  "significantly aggravates." Wow, that just stopped the world, didn't it?

Let's take for example some of the more popular systemic diseases in the Midwest like obesity, cancer, or heart disease.    Take, for example, a familiar factual allegation:  someone hurts his back, has surgery, and ends up with lifting restrictions which prevent return to former employment.   Is it really that hard to find an expert to conclude that heart disease or obesity doesn't make it just a little harder to bounce back from that three-level fusion?    It's like serving dinner on smaller plates and going back for seconds.

A happy New Year, let's hope it's a good one....