Tuesday, April 29, 2014

'Chipping' Employees

The Missouri legislature has once again made the national news.  SB 523 recently  passed 90-56 to bar the use of school districts requiring RFID tags on their students.   This privacy bill  keeps Big Brother outside the dorms.  Anyone who wants to know where students are will have to check Instagram instead.

RFID tags transmit a unique signal to magnetic readers.  They can be implanted as micromodules. There has been some talk that chips as the new dog tags or required biomarker for high security clearance jobs.  They have been used for years with livestock, laboratory animals, and endangered species.  Missouri has drawn its line in the sand:  No chipping freshmen.   
This raises a concern in the battle against fraud in worker's comp whether  employers can require chipping their employees just like some federal employers so everyone is watched.

Missouri has been all over this issue.  In 2008 it passed HB2041 to be right behind privacy fighters in Wisconsin and North Dakota to stop chips in the work place.   Don’t even start talking about chipping our M14 sniper rifles.

285.035. 1. No employer shall require an employee to have personal identification microchip technology implanted into an employee for any reason.

2. For purposes of this section, "personal identification microchip technology" means a subcutaneous or surgically implanted microchip technology device or product that contains or is designed to contain a unique identification number and personal information that can be noninvasively retrieved or transmitted with an external scanning device.

3. Any employer who violates this section is guilty of a class A misdemeanor.

What does this mean to worker’s comp?   The fight against fraud is not going to be fought with chips.  It will be fought with secret microphones and mood rings.   Claimants can be reassured they not have been secretly implanted with invisible chips by IME doctors or being followed by Carrie Masterson.  Just don’t bring up the subject about drones behind “The Cloud.”

Monday, April 28, 2014

Judicial notice and the 'known knowns.'

“A court may take judicial notice of facts generally known and accepted and have been duly authenticated in repositories of fact open to all, and especially so of facts of official, scientific or historical character as the same may be set down and recorded in encyclopedias, dictionaries, and the like to which the court may turn to verify its information or refresh its recollection”.   State of Mo ex rel Hostetter, etal, 104 S.W.2d 671 (Mo. 1937).

In 1937 an entry of encyclopedia made a difference whether or not a claimant could recover from a work injury when lightning struck a building because the court used judicial notice that barns are a “peculiar object of the destructive force of lightening.”    Hostetter, supra.

Any request for judicial notice must be preserved on a timely basis.  Shelton v City of Springfield, 2003 Mo WCLR Lexis 38 (rejecting admission of ordinances which were not newly discovered evidence).

Judicial notice has been used as a tool of statutory interpretation when the legislature fails to define its own terms.    Miller v Mo Highway Transportation Commission, 2008 MO WCLR Lexis 113 (event, traumatic, external, violence);  Peery v Mid Continental Industrial, 2008 MO WCLR Lexis 43 (medical abbreviations);  Rader v Werner Enterprises, 2010 Mo WCL Lexis 161 (own);  Ahern v P & H, 2007 MO WCLR Lexis 177 (idiopathic); Carter v Terminix, 2008 MO WCLR Lexis 146 (automobile), Hammonds v Columbia Mall Car Wash, 2009 Mo WCLR Lexis 168 (shift); Johnson v Town & Country, 2007 Mo WCLR Lexis 232 (hazard).

 The doctrine may arise regarding disputes concerning pleadings and mileage. Judicial notice allows a judge to take “notice” of its own file.  Judicial notice can also resolve mileage disputes.  The Commission has recognized the distance between cities as a matter of judicial notice.  Woods  Brauer Supply, 2004 Mo WCLR Lexis 30.  In Illinois, the Commission found Mapquest sufficiently reliable to invoke judicial notice.   The court noted it calculated its own search to verify mileage claimed and noted only a “negligible” difference in the calculation when the calculation was not part of the record itself.  Shaffer v Contech Construction, 2007 Ill. Wrk. Comp. Lexis 986.
The quest to find the “known knowns” can produce curious results.    Librarians apparently are known to  fall more than the average member of the public,  Keyster v Univ. School District, 2004 Mo WCLR Lexis 173. A claimant who did not have hemoglobin would be “deemed a vampire.”  Collier v A.G. Edwards and Sons, 2004 Mo WCLR Lexis 12.    Clearly, if Collier  had been written in 2014 some clerk at the Commission  would have probably cited Wikipedia.


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

Court rejects rehashed standing argument

An employer once again attempted to withdraw a settlement proposal for a lump sum of a permanent total award when a claimant with an unrelated  stage 4 cancer died while the contract was awaiting approval.  In its second visit to the court of appeals on this case, the employer once again failed to persuade the court that it could walk away from the deal.  Nance v Maxon Electric, WD 76587 (April 8, 2014), 2014 Mo App. Lexis 400. 

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