Friday, December 19, 2014

Commission affirms credit for missed appointment

The claimant alleges he knew nothing about 3 appointments he missed for  IMEs scheduled over a 5 month period.  The Commission affirmed an award with reductions for $300 in costs for the missed appointments.  The employer ultimately secured medical opinion from a different expert.  Moore v Delmar Gardens, 2014 MO WCLR Lexis 139 (December 9, 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. 

ALJ:  Landolt
Atty:  Robbins, Temme
Experts:  Meyers, Kitchens
Treater:  Poulus

It's a wonderful job -- not!

Claimant had a wonderful life up to the point that it wasn’t.  Business slumped.  He began to have suicide ideation with paranoid thoughts that people were taking his money.  He began to hear voices that no one else could hear that guided him into to an alternate reality.  Zuzu always said every time her daddy heard a bell he got his Seroquel.

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. 

This runs contrary to the general philosophy behind comp.  Comp is a no fault system.  In mental-mental claims among workers there is this vestige of assumption of risk.   If your boss makes a Gordon Ramsay rant sound like a purring tuxedo cat, then you should just get out of the kitchen if you can’t stand the heat.  People in high stress jobs make “real” money so they should put up with “real” stress and deal with it.  This is contrary to approaches to most occupational disease.  No one in the coal mine business says to its retirees with terminal illnesses:  “We paid you a lot more than minimum wage jobs around here.  Stop being such a whiney sissy just because you have that meso-whatever.”   

The standard in Missouri is that stress claims are generally not compensable with the exception of stress that is extraordinary or unusual.  This has been the rule also to exhaustion claims unless there are truly  extraordinary hours.  Snowbarger v Tri-County Electric Cooperative, 793 S.W.2d 67 (MO 1990).   A separate rule applies when the mental claim arising from an assault   I.e.    Jones v Washington University, 239 S.W.3d 659 (Mo. App. 2007) (grabby patient);  P.M. v Metromedia Steakhouses, 931 S.W.2d 846 (Mo. App. 1996) (rape), Chuchian v TWA, 2003 MO WCLR lexis 117 (strangled by co-worker).    Exactly what slings and arrows of poor human resource management is extraordinary is left undefined and resolved on a case by case basis. 
The commission has provided some guide as to what is considered "ordinary:" stress:  invasion of personal space and offensive gestures;   Blair v St. Louis Community College, 2001 MO WCLR Lexis 25; criticism from supervisor,  Smith v Anheuser Busch Credit Union, 2004 MO WCLR lexis 77; dealing with "perfectionist" as a supervisor;   Russell v St. Louis Board of Education, 200 MO WCLR Lexis 16; Verbal reprimand, Burnett v Barnes Jewish Hospital 2000 Mo WCLR Lexis 9; politically incorrect jokes; Bray v G&K Services, 2009, MO WCLR Lexis 43; ethnically offensive pranks,  Session v the Boeing Company, 2011 MO WCLR lexis 187; Rayborn v Eagle Picher Industries, 1990 Mo WCLR Lexis 69; co-worker teasing  Webber v Chrysler , 1990 MO WCLR Lexis 72 (co-worker with bowel disorder teased as 'poopy Dan.')

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. 

Every comp case that begins with a story that it’s not about the money and how a worker perceives he has been mistreated is not just another case of patch them up and send them out.  All the attention to ergonomics and safety isn’t worth a hill of beans by not controlling the risks of poor management.  When a worker gets up, goes to the window, sticks his head out and starts yelling he’s not going to take it anymore then it’s too late.  Nothing ever comes to no good on Bedford Halls Ridge.