Thursday, October 22, 2015

Commission affirms PPD award

The Commission affirmed an award for PPD involving an admitted accident.  Dewald v Select Motors, Inc., 2015 MO WCLR Lexis 97. 
 
Claimant alleged he sustained injuries when he jumped into a loader.  He claims he hurt his neck and back. 
 
The parties disputed PPD and future medical care.
 
Claimant was diagnosed with a back strain.  One expert questioned whether the complaints of  popping in his neck really had anything to do with his injury.  The accident caused acute rib fractures.
 
The expert opinions varied widely from 3% (Dr. Cantrell) to 40% (Dr. Woiteshek).  
 
Neither expert supported his demand for future medical care.
 
The ALJ noted claimant's history of prior convictions and missing therapy appointments.  He did not indicate whether this impacted claimant's credibility.
 
The Commission affirmed an award of 12 1/2% without a separate opinion.
 
ALJ  Gorman
Atty  Warner, McHugh
Experts:  Woiteshek, Cantrell 

Tuesday, September 22, 2015

Summary judgment reversed on meso death case

Bergstrom was diagnosed with meso in 2013 and died.  The case involves an appeal whether the manufacturer was entitled to summary judgment against the surviving widow based on lack of evidence of exposure during the decades her deceased husband  worked as a drywall installer.  Bergstrom v Welco, ED 102125 (Sept. 22, 2015).

The case involved the significance of deposition testimony whether he had exposure or not and the weight to be given to the party that he "misspoke" in the earlier testimony.    The fight involved what exposure he may have had before 1979.  The court found that exposure may have occurred from 1962-1976 even if the manufacturer discontinued use of asbestos in its products in the mid 1970s.  The court reversed summary judgment that there remained disputes concerning material fact. 

The case clearly demonstrates reliance on letters and documents dating back more than 30 years, a challenge more employers will face in toxic tort claims as a result of worker's comp reform.


Wednesday, July 29, 2015

Court affirms award for ankle surgery

The Commission slightly modifies the award of past medical by the cost of two office visits for knee injection for chronic knee pain which were unrelated to claimant's ankle injury, as the claimant concedes he does not seek benefits for the knee, although the Commission notes there may be "some" relationship as claimant limped after his ankle surgery.  Ambrozetes v Smurfit Stone Container Enterprises, 2015 MO WCLR Lexis 75 (July 14, 2015)

The commission affirms the award for an ankle injury including disability and medical benefits.  Claimant in 2009 had some stock fall in him when he was driving a smart car.  Claimant eventually sought care with a podiatrist who recommended surgery for a tendon tear. The employer refused to provide surgery.  The employer relied upon the opinion of Dr. Krause who questioned the need for surgery flowed from the work accident because of the absence of instability noted on exam.  The commission noted that Dr. Krause later conceded in testimony that surgery would still be reasonable due to continued pain complaints and the Commission this testimony resolved any ambiguity.

ALJ Wenman
Atty:  Mobab, Green
Experts:  Schmidt, Woiteshek, Krause

synergy

Failure to prove synergy - multiple prior back surgeries

The Commission reversed an award of PTD against the SIF on the basis of prior back impairment combined with a knee contusion.  Claimant's vocational expert changed his opinion and indicated the claimant was totally disabled from pre-existing conditions when provided more complete pre-accident records. 

"Where a medical expert relies upon a demonstrably incomplete and/or incorrect history of an employee's medical treatment in connection with preexisting conditions of ill-being --especially where that treatment involves multiple lumbar spine surgeries and a lengthy period of short-term disability --we simply cannot credit their ultimate opinions with regard to the nature and extent or combination of any disability referable to a claimed work injury versus such preexisting conditions. For this reason, we must find that Dr. Zimmerman's analysis and opinions lack any persuasive value in this case."

Glasco v Citicorp  2016 MO WCLR Lexis 63.
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Failure to use term of art "synergy"


The Commission affirmed a SIF based a "close" case whether or not claimant established proof of synergy when claimant's expert did not use the word synergy.  Pentridge v Gayman Construction, 2016 MO WCLR Lexis 22.

The Commission inferred evidence of synergy by claimant's report of prior medical impairment impeding with his recovery from the primary injury, loss of income, and expert opinion that claimant's overall disability was higher. 

--

The Commission affirms an award of 10% synergy.  Hazelrigg v Gary Gribble's Running Sports, 2016 MO WCLR Lexis 62.

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The court of appeals affirmed a denial of PTD fund benefits on a finding that claimant's expert failed to show synergy, rejected the argument that the Commission must accept the medical conclusion when the Fund offered no contrary opinion.  Rasa  v Treasurer of the State of MO,  474 S.W..3D 572 WD 78562  Claimant's own opinion on the issue was regarded as less credible without medical support. 

Claimant failed to establish synergy by lack of expert testimony on the issue of disability on the date of accident.  Claimant's expert provided a disability opinion 4 years after the accident. The ALJ found no explanation of how conditions combined synergistically.  Spratt v US Airways, 2016 MO WCLR Lexis 27.
ALJ Carlisle
Experts:  Musich


"....Stuckmeyer did not explain how the chronic pre-existing conditions were rated or responsible for the overall disability, nor how they combined with the primary injury to create current work restrictions.  .... Stuckmeyer merely offered a conclusory opinion ...."

Atty:  Neuner, Conrad

The court of appeals affirmed a denial of fund benefits based on lack of synergy. Winingear v Treasurer of the State of Mo., 474 S.W.3d 203 (Mo. 2015)

Claimant was choked while working security at Fulton State Hospital and settled the claim against the employer for a neck injury paying new disability on top of a prior settlement for the neck.  Claimant then used the 2 neck cases and prior injuries to pursue SIF benefits.  The commission found Dr. Cohen's conclusions that synergy existed to support Fund liability was not persuasive without any explanation.  The court affirmed the denial and deferred to the commission to assess credibility, even though the commission may have articulated the wrong legal standard in its opinion of clear and convincing evidence.  It does not appear the Fund offered an expert testimony to contest the claim.  The case was decided before reform in 2013 limited such partial claims for Fund benefits.


The commission affirmed a denial of SIF benefits based on lack of synergy.  Reynolds v. Fulton State Hospital, 2015 Mo WCLR Lexis 76.

Claimant settled a case against the employer for 3% and sought SIF benefits for prior medical conditions involving a right knee, a groin injury when the claimant was "grabbed" by a patient and a significant prior 38%t to the same ankle from a ligament reconstruction surgery as a result of a work injury while playing basketball with patients.   The commission found no  basis to award SIF benefits when the record contained no lay or expert opinion about the enhanced disability.  It noted a worker was generally competent to testify about enhanced disability when injuries were bilateral but "here the employee has failed to produce any evidence" except how each prior condition caused separate disability.

ALJ Ruth
Atty:  Keifer,
Experts:  Volarich
Treater: Krause

Court directs parties to commission to resolve when "open"medical means

State ex rel  ISP Minerals v the Labor and Indus. Relations Commission, No. SC 94478 (Mo. 2015).

                This is a case primarily about two things.  What did the parties mean when they settled a case and agreed to leave medical open and who should interpret the meaning of what is owed  if there is a dispute?  It is in some respects primarily a “contract” case about intent but is important for the procedural warning that employers may be pulled back into the comp system if the contract language is unclear or if the parties dispute what it includes.

                The problem in the first instance arose when the parties settled a case for disability but claimant had ongoing medical issues related to a pulmonary condition and apparently was at risk for silicosis.  To address these concerns, the employer agreed to leave medial “open.”  The employer apparently did not want to pay for inhalers and basically argued that the medical was left only partially open to include monitoring such as scans but not include other things.  It was the employer’s position that when the case was settled that the employee’s only recourse was to sue them in circuit court for specific performance or breach of contact if they didn’t like what was being paid or what was being denied.

                The Supreme Court in oral arguments questioned the narrow interpretation by the employer when it promised to “leave future related medical care open” that it meant to only include monitoring and not a broader array of treatment such as inhalers.  In the case claimant had sought to obtain inhalers, but the employer denied benefits based on a second opinion contrary to the recommendations of the physician they designated in the settlement contracts to provide treatment. 

                The court resolved the dispute based on its statutory interpretation.  Section  287.390.1 did not include language which divested the Division of jurisdiction in these circumstances.  Section 287.801 vested authority to “review” claims of future medical benefits with the commission and appellate courts and not the circuit court. The Division has long established authority to sort out the employer’s obligations for treatment for industrial injuries.  The court noted the issue here was one of interpretation, caused by the contract language itself, and not a matter of enforcement.   If the issue was simply enforcement (an unpaid award, for example), then 287.500 provided a procedural remedy to register and enforce the judgment through circuit court.

                  There may be a drafting lesson here to avoid this type of “buyer’s regret"  by the employer  designating a specific specialist on the contract.  What if the specialist dies or retires and there are no contingencies?  What if the specialist does something unexpected?  Perhaps the drafting lesson is to retain the right to select a physician rather than naming one person without other contingencies for medical management of a claim.  Parties can certainly use additional pages to sort out contingencies rather than the “short hand” method used here.  Defense counsel in oral arguments spent a lot of time describing the word "open" as a term of art in comp.   Parties are free to structure what they will pay for and not pay for, which is becoming necessary in more cases generally because of Medicare involvement in many comp settlements.  The Medicare problem becomes a bigger problem to if  parties in cases agree to leave medical open, acknowledge they are settling in consideration of Medicare's interests, and then refuse to pay for treatment.  The issue of enforcement is often understated in contracts.  Perhaps even if the Division technically retains jurisdiction the parties could designate by contract other means to resolve disputes more quickly when the costs are limited such as various ADR methods.
Atty:  Lindsay, Mogab

Wednesday, July 15, 2015

Employer owes TKR for arthritic knee

A claimant cannot 'waive' her right for the employer to pay medical services for a work related condition until she knows the condition is work related.  Dierks v Kraft Foods, WD 77893 (Mo App. 2015) (July 14, 2015).

The case involves a  common scenario. Claimant is 68-years old. She has bilateral knee arthritis and asserts the left knee became symptomatic after the work injury.  An expert indicated her meniscus tear arose from arthritis and not from trauma. The Commission rejected the defense.  It found claimant had a new condition based on the opinion of her surgeon and her own testimony. 
As a result, the Commission awarded the medical benefits, future medical for a TKR, and disability benefits.

"When Dierks sought to get her knee surgically repaired by Dr. Buchert, she had no reason to believe that employer should be responsible for providing that medical treatment. It was only while performing the surgery that Dr. Buchert saw evidence of an acute injury to the knee and was able to determine that the meniscus tear had been caused by her work injury. "


The court rejects the employer's appeal noting "well-settled principle" that it defers  to the Commission to make determinations regarding credibility.  It  notes the employer "expresses a belief" that this deference  does not apply in cases in which testimony is submitted by deposition.  It relied upon Dr. Koprivica's opinion that the accident accelerated the arthritis and need for surgery and escalated the condition to the point of a disability. The Commission could reasonably rely upon expert testimony that osteoarthritis had progressed even in the absence of current x-rays to verify any progression.  

The Commission affirmed an award of PTD against the Second Injury Fund in part due to a prior right knee condition which had severe arthritis and required repair of a torn meniscus with no history of trauma.  The SIF disputed liability and asserted claimant was able to work 12 hour shifts and had no disabling symptoms.   The court noted that the SIF may have over-relied on statements from the claimant that her right knee was asymptomatic  before the new left knee injury and construed the statement to only mean the time period "right before the accident."

 "The fact that a person has managed to perform various work duties does not preclude the fact that they have a permanent partial disability. Frequently, restrictions placed upon workers by doctors are not measures of what an individual has the physical ability to do but are, rather, directions designed to keep the worker from engaging in behavior likely to worsen their condition, cause pain, or lead to future injury."
 
J. Ellis
Experts:  Koprivica, Cohen, Main
Treater: Buchert

Tuesday, June 30, 2015

Medical fee dispute not subject to 60 day service

A doctor selected by the comp carrier disputed partial payment of a medical bill, resulting in an award of the entire bill when the employer offered no evidence disputing the reasonableness of the charges.  Phillips v Allied Systems, 2015 Mo WCLR Lexis 72 (June 25, 2015).

AIG re-priced the bill and reduced the charges by $1,090.  The ALJ found no factual or legal basis to dispute the charges.   The Commission affirmed the award.  The employer objected to the admission of the affidavit by the ALJ pursuant to 287.210 when it was served less than 60 days before the hearing.   The Commission  made a distinction between a doctor-written report that was an expert medical opinion subject to the 60 day rule  and an expert "professional" opinion addressing the narrower issue whether the doctor regarded his own fees were reasonable.  It concluded the admission of fee-dispute reports were governed by 287.140 and not 287.210.7. The only objection was whether the report violated the "rules of evidence in civil proceedings."


ALJ Rebman
Atty Schroer, Moen

Friday, April 24, 2015

Commission puts employers on notice

A new Commission case affirmed an award of benefits, but what make the case important are dicta on how the new Commission now views denials based on lack of written notice. Brown v Nestle Purina Petcare, 2015 MO WCLR Lexis 33 (April 16, 2015).

Some background is important.  Missouri’s notice statute, 287.420, required injured workers to provide written notice of a work place injury (with several exceptions).  The exceptions often swallowed up the defense and in 2005 the legislature amended the statute.  Among other things, it threw out the "good cause" defense for late notice and triggered an obligation to provide notice after diagnosis.   This lead to a number of cases indicating that there was no duty to provide notice on diagnosis alone  until an expert told a worker the condition was work related.  It was unreasonable to assume, to paraphrase Kenny Rogers, for a worker to know what condition his condition was in. 
Jennifer Brown is an obese  lady in her late 40s who developed asthma as an adult.    Asthma runs in the family.  She developed breathing symptoms after working several years working in a plant making kitty litter in southeastern Missouri.  She had a variety of duties operating machines which incude what she describes as a regular “smell” test.  Sometimes she used masks; sometimes she did not. An expert attributed the likely cause of her asthma to exposure to perfumes, heptane and/or bentonite.  Another expert felt it was adult-onset asthma.  The employer hired both experts. 

 The ALJ essentially found it didn’t really matter whether the worker  provided notice because she showed the employer was never prejudiced by lack of notice.  The purpose of notice is to tender care and investigate claims.  Here, the employer never tendered care.  There was no evidence that its investigation was hampered.  In fact, the employer exercised its right frequently for medical exams, and when an expert found the condition was work related, it would send her somewhere else.  The case ultimately was decided on a battle of the experts (all hired by the employee). Not surprisingly, the ALJ found the case compensable based on an expert from the employer who made causation.

The Commission’s statutory interpretation about notice is what makes the case, well, worth the notice.  § 287.420 specifically requires employee to provide notice to the employer of the "nature of the injury." It creates a duty to provide notice “no later than thirty days after the diagnosis of the condition.”
What is meant by “condition”? A condition is not just the body part or symptoms flowing from a specific body part.  A condition according to the Commission appears to mean the exact diagnosis the Division ultimately finds to be work related.  If there is no parity in diagnosis, there is no duty to report, and if there is no duty there is no notice defense.  The clock does not begin until a doctor tells the claimant there is a condition which is the same conditions the judge finds to be the work-related diagnosis.  Here, the commission found the 30 day notice clock did not begin to run until someone told her she had obstructive air way disease, even though she was told earlier her symptoms to the same part of the body were better explained by reactive airway disease. 

 “Her diagnosis of restrictive lung disease runs contrary to the diagnoses rendered by the testifying pulmonary specialists. Specifically, Drs. Hyers and Tepper agree that employee suffers from asthma, while Dr. Tuteur provided the more specific diagnosis of irritant induced bronchial reactivity disease.” It notes  "Especially where § 287.420 specifically requires employee to provide notice to the employer of the "nature of the injury," we are not persuaded that Dr. McCants's incorrect diagnosis triggered the 30-day notice period."
 The diagnosis of worker’s conditions frequently changes in the course of a case.  Diagnosis is a work in progress.  While the diagnosis may match in simple cases (a fracture, for example) the diagnosis is probably rarely the same in more complex issues involving the heart or lungs.  The diagnosis in forensic exams used as a basis to award disability often varies widely from diagnosis on treating records.  The expectation of diagnostic parity is not realistic in most cases.

The problem is this strict interpretation produces an absurd result. Section 287.420 can be over-used defensively (to deny benefits).  The interpretation in this case to negate the defense almost seems to practically bring back the "good excuse" argument the legislature eliminated because the worker has good excuse for not knowing the exact diagnosis a judge might find was the cause many years later in a hearing.  There is no indication why the legislature may have intended the result in this case.
 Section 287.420 has another purpose too.  It invokes the duty to provide care based on general information about the nature of the injury  Similarly, since the duty to provide care is not invoked by specific diagnosis the duty to provide notice should follow the same standard. 

ALJ:  Robbins
Atty: Moreland, Day
Experts:  Teuter, Hyers


Tuesday, April 21, 2015

Res judicata bars second OD claim after denial of accident

Claimant tried a case for a shoulder injury, he was denied benefits, and then filed on a second case involving the same shoulder.   The court of appeals found the Commission exceeded its powers by allowing the worker to re-litigate the claim in a second hearing based on an alternate theory of occupational disease.  Johnson Controls v David Trimmer, WD 77948 (Mo. App. 2015) (April 21, 2015). 

Claimant was a career employee who  tore his shoulder tendon.  His medical histories initially deny any accident and later document a fall.  The case was tried and the ALJ found claimant failed to prove accident.  Claimant appealed and lost.  He then filed a second claim alleging occupational disease.   The ALJ then ordered treatment in a temporary award.  The employer appealed and was ordered by the Commission to provide treatment and paid about $66,000 in benefits.   The claim proceeded to a final hearing which the employer lost both at hearing which was affirmed 2-1, resulting in a further award of partial disability.

The dispute arose whether claimant was precluded from litigating the issue of occupational disease in the second hearing based on the doctrine of res judicata.  The court ultimately found that occupational disease was previously litigated or should have been raised.   The stipulated issue in the first hearing was: "whether or not the claimant sustained an accident or occupational disease" and the denial
implicitly found  that claimant failed to prove occupational disease.  The problem arose because the judge only expressly found that he failed to prove that he "sustained an accidental injury" and made additional comments that he suspected claimant's shoulder condition should have been compensable as an occupational disease.  The attorney took the hint and then filed the second claim.

The court finds that even if the issue of occupational disease was not fully resolved in the first case it should have been brought and was barred by res judicata because the same operative facts give rise to both claims including the same medical and testimonial evidence.   The fact that causes of action arise from two separate statutory provisions did not matter.  It found there was not reason to reach the issue if claimant ever sustained an occupational disease.

Two separate ALJs had found the two cases were separate and distinct causes of action based on two separate provisions.  Trimmer v Johnson Controls, 2001 MO WCLR Lexis 101.  ALJ Allen noted in the original award:  "This is a troublesome case because I suspect that the claimant's injury to his left shoulder was the result of   30 years of hard physical labor performed for the employer. This should have been compensable. However, the claimant has pled an alleged injury from a fall." 2006 MO WCLR Lexis 118. ALJ Miner wrote the final award.   The dissent at the Commission  the proper remedy was to appeal the decision to the court of appeals rather than re-litigating the case in a separate proceeding. 
 

Employer did not lose its right to direct medical

Claimant Pace sustained permanent and total disability as a result of work injuries in 2002 while employed for the City of Joseph.   In 2011 the Commission issued a final award for past medical bills and an order for the employer to direct and authorize and furnish medical care in accordance with section 287.140.Pace v  City of St. Joseph, WD 77976 (April 21, 2015).  Claimant Pace asserts that he has the right to pick his own medical doctors and require the employer to pay for it. 

Pace registered the judgment and both parties sought declaratory judgments whether the employer had the right to direct medical providers.  This prior award included a finding that the city had previously waived its right to direct its worker to medical doctors as provided in 287.140. The trial court granted the City's motion for summary judgment and Pace appealed. 

The court affirmed the summary judgment that the award allowed the employer the right to select the provider as provided in 287.140 because the award itself was "in accordance" with the statute.  The court found that claimant did not timely preserve the issue because he did not appeal it to the commission regarding the ALJ and Commission's power to restore the City's right to select a provider and could not challenge the issue in a collateral attack.  The court distinguished between findings of waiver for past medical care and cases in which the Commission had specifically ordered future medical services from a claimant's spouse. 

Wednesday, April 15, 2015

Court affirms worker had "unusual" strain from routine activities

A worker in his 50s tore three tendons in his right shoulder in 2009 after he lifted himself about two feet into his truck.  In a 9-2 decision, the majority of the Western District as a matter of first impression found under the new Act claimant established he had an “accident” even though he performed the normal duties of ascending his truck in a usual fashion.  Young v Boone Electric Cooperative, WD 76567, WD 76568 (W.D. Mo. App. 2015), 2015 Mo App. Lexis 407 (April 14, 2015).  The court affirmed benefits previously awarded by both the ALJ and the Commission.

This important case involved statutory interpretation to sort out what the legislature meant when it redefined “accident”.  Section 287.020.2 defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.”

The legislature did not define key terms in the definition of “accident” like “unusual” and told the courts to disregard everything they said in the past by abrogating prior judicial interpretations. Larson's treatise explains that "unusual" can have several different meanings depending on what is being compared.   The court noted it disagreed with the policy behind the reform and clearly decided to do something about it even though the statutory argument was never properly preserved in the brief.  The majority decouples the definition and finds proof of strain does not require proof of an "event."
Missouri case law before 1983 required proof of an unusual event.   The dissent concluded that reform brought the state back to a pre-1983 standard to prove unusual events before Wolfgeher  v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983).  

The majority found what matters is the fact that an injury occurred and not what preceded it.
 Claimant described an activity (lifting) that was identifiable by a time and place and causally related to his medical condition.  It did not reach the issue whether the facts also established an unusual traumatic event.   It rejected the defense that claimant must show an abnormal activity or abnormal performance of a normal activity.    The court relied upon Pattengill v Gen Motors Corp., 845 S.W.2d 630 (Mo. App. 1992) (a pre-reform case) which it finds to have analogous facts. 

 Claimant described an immediate onset of symptoms that his shoulder popped and he had difficulty moving his arm.   The concurring opinion found the majority used circular reasoning and that the legislature’s use of “unusual” meant something more than a worker experienced an unusual manifestation of symptoms after a usual activity.  

The case clearly ease the burden to prove accident.  Medical causation of injury by accident was not disputed in this case.   

The court also affirmed an award of compensation and found claimant had a compensable accident when he stepped on a frozen clod of dirt and fell.  Claimant in 2008 sprained his knee when his knee popped, and then it popped again when his co-workers helped him up. 

The employer asserted claimant did not have an accident to his knee because he did not prove the statutory requirement under 287.020.3(2)(b) that the injury “does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.”

The employer asserts that claimant lives on a farm that farms have dirt, and he could have the same risk of falling over dirt away from the work.  The Court found that 287.020.3(2) (b) under strict construction does not allow a defense based of the same general hazard but only of the same hazard at the same location.  Alternatively, the Commission found no evidence of non-occupational “equal” exposure.   Claimant is required only to show that he was exposed to an unsafe condition as a function of his employment.  It is then the employer’s burden as an affirmative defense to show that he had equal exposure to the same place and the same hazard when he was not working such as being exposed to the same ice on the same lot or the same crack on the same street.  Duever v All Outdoor, 371 S.W.3d 863 (Mo. App. 2012).    This becomes an impossible defense when claimant when the claimant in his capacity as a non-worker would not have access to space within the employer’s exclusive control.   It becomes the employer’s defense to show equal exposure “to disprove the prima facie case already made by Young.” 

The court makes a semantic distinction of injuries that occur because someone is working and not merely while they are working.  

Atty:  Allen, Friel
 

Wednesday, April 8, 2015

Court remands subrogation finding with consortium damages

The Commission went too far to address a subrogation dispute in a third party settlement involving a wife’s loss of consortium claim when the wife was not a party to the comp case.    Graham V Latco Contractors, 2015 MO App. Lexis 379 (April 7, 2015) found the Commission violated due process of the claimant’s spouse.

The third party settlement contained an no allocation for the claimant and his spouse.  The employer was entitled to a portion of the claimant's net recovery but the comp subrogation statute did not allow recovery for the wife's consortium recovery.   The Commission concluded that the spouse was presumed to have no recovery and made the entire net recovery subject to subrogation, following Ryder Integrated Logistics v Royse, 125 F. Supp. 2d 375 (E.D. MO 2000).
The court found Ryder unpersuasive and that the Commission violated due process because  the claimant’s spouse had never been added as a party.
The case is remanded to the Commission to amend the award. Similarly, MIGA was not a proper party under 287.150.6 for the ALJ to find a subrogation interest or for the Commission to take it away.  The court noted the civil rule for joinder  provided no remedy to add the spouse as a party.
See also  McGuire v Christian County, 2014 MO App. Lexis 502 (May 5, 2014).(finding no right of joinder).

 Claimant at age 41 was awarded total disablity when  he became hypersensitive to smells from building and maintaining chicken houses.  He last worked 15 years ago.  He settled a personal injury case against Tyson for $730,000.  His worker’s compensation carrier, Legion, became insolvent in 2002 about two years after he stopped working.  

Graham was modified by the Commission, 2015, MO WCLR Lexis 46 (May 14, 2015).
 

Atty: Rau, Petraborg, Wilfong

Monday, March 23, 2015

Commission enhances disability for eye injury

Claimant injured his left eye in 2011 when he used a nail gun and after two surgeries he had a 0% visual acuity.  The major issue in the case was whether he was entitled to an additional 14 week enhancement for a 100% loss of use.  Romero v Nelson Flooring, 2015 MO WCLR Lexis 20 (March 12, 2015). 

Section 287.190.2(29) provides a 10% enhancement of a disability award when there is a 100% loss of use of a scheduled injury.  The Commission indicated the medical evidence did not expressly establish a 100% loss of use.  The stipulated findings at hearing did not expressly address the 10% enhancement and the Commission found the stipulations somewhat ambiguous.  The only evidence was there was a 100% loss of visual acuity and the employer seemed to agree to a 100% loss at hearing, although neither party made a finding regarding entitlement to 110% of PPD.  The Commission ultimately found claimant entitled to 110% benefits and noted the employer attorney showed an "admirable show of candor" that he really meant a 100% loss at the time of the hearing, which appears to have been the case all along. 

In addition, the Commission awarded  future medical for doctor's office visits, replacement contact lenses, reimbursement for the cost of eye drops, and lens cleaner as needed in the future by Claimant; TTD based on 3 days of earnings (based on testimony that claimant worked 2-3 days), and awarded costs against the employer for the cost of a service of a subpoena when the company owner  based on  "his refusal to voluntarily and cooperatively attend" a deposition. 

 Parties who intend a 110% loss may want  to stipulate to that effect at hearing to avoid a need for appeal to clarify any ambiguity in the record. Similarly, the opinion suggests a contested issue for a statutory  10% enhancement may require express findings by an expert addressing "loss of use."



ALJ Landolt
Atty:  Ituarte, Paasch
Experts:  Pernoud

Tuesday, March 17, 2015

Comp injury no excuse for murder

While facing a death sentence and nothing else works, a convict turned to worker's comp.

When claimant was in his early 30s he worked in a sawmill.  A piece of wood broke off a log and lodged into his head resulting in brain surgery.  After the injury, claimant developed changes in his personality, he abused alcohol, and he became anti-social.  He  diagnosed with  "Dementia Due to General Medical Condition, Major depression,  and Psychotic Disorder Due to General Medical Condition," i.e., traumatic brain injury.

Many years later he was convicted of shooting a deputy point blank in his head when the deputy  investigated a complaint from his girlfriend.  He argued at trial that he didn't do it, and even if he did do it, he didn't mean it and lacked intent.   He argued at the sentencing phase, the death penalty was not appropriate because of his prior TBI.     The "sad" belief that divine intervention  will save him and free him to become a gospel singer did not make him incompetent. 

A dissent argued that he was entitled to a hearing to assess his competency given past IQ scores of 71 and that is was  unconstitutional  to execute him, even if he may have been more competent at the time of the hearing.  The judge criticized the state for rushing the execution dates of capital convicts.  The deputy was killed 19 years earlier.   State ex rel Clayton v Griffith, 2015 Mo Lexis 24 (March 14, 2015). 

Clayton, 74,  was Missouri's oldest inmate on death row.  He was executed by lethal injection.  http://www.huffingtonpost.com/2015/03/17/cecil-clayton-execution_n_6889312.html

St. Louis University has researched for many years the adverse impact of some workers with back injuries and long-term consequences such as financial problems resulting in more post-accident evictions and child support collections.  The  lead researchers concluded  that disparate treatment is  associated with  more post-accident anti-social behavior such a stalking and adult abuse.  http://www.slu.edu/x52734.xml

The death row appeal dealt with a  narrow issue of whether someone who had previous marginal testing of IQ with a history of 20% of his brain removed was entitled to a hearing on competency before he was executed.   The state Supreme Court split 4-3 to deny a hearing.   The governor denied clemency. 





Wednesday, March 11, 2015

Circuit court punts on setttlement release of 3rd party case

A recent Illinois case dealt with a fairly common problem:  what happens when the worker releases a pending worker's compensation claim in conjunction with a "global settlement" of a federal lawsuit?  The court declined to answer the riddle and upheld a dismissal of the appeal for declaratory judgment based on lack of jurisdiction.  Bradley v City of Marion, 2015 Il App. (5th) 140267 (March 10, 2015).

Both parties agreed that the circuit court had jurisdiction to render declaratory judgment.  The worker in the case received a $650,000 settlement in a third party case. The worker repaid $190,000 in benefits and agreed to dismiss the comp claim, filed a dismissal of the pending comp claim,  but then about 5 weeks later refilled on the comp claim.  The worker contends that the employer could not enforce a dismissal of the work comp claim and waived any right to further credit against the prior settlement.

The employer sought declaratory judgment that the worker could not pursue further comp benefits based on the terms of the settlement.  The employee sought declaratory judgment that there was no legally enforceable waiver because the Commission never approved a waiver and that the statute required approval of any enforceable waiver.  820 ILCS 305/23.  The employer sought declaratory judgment and  filed suit for breach of the settlement contract.

The circuit judge had no authority except to dismiss the claim due to lack of jurisdiction.  Section 305/18 vests original jurisdiction exclusively with the Commission and  305/19 grants circuit courts jurisdiction only for appellate issues.  For example, the circuit court cannot enjoin the employer from stopping TTD benefits or allow the employer to seek a restitution claim for a worker who lied about his condition when he was hired.  The court asserted there was no concurrent jurisdiction with the circuit court and primary jurisdiction doctrine did not apply, distinguishing the case of Employers Mutual Cos. v. Skilling,  644 N.E.2d 1163, 1165-66 (Ill App. 1994).   Skilling is distinguishable as a case of concurrent jurisdiction which did not require exhaustion of administrative remedies because it involved contractual interpretation of insurance coverage. 

It is unclear why both parties sought the circuit court to pursue remedies.   'Global settlement' language of comp cases often fail to make obligations to pay contingent on approval of the work comp dismissal.

Atty:  Hannagan, Vacala


Friday, March 6, 2015

No sanctions for stopping TTD at retirement.

An Illinois commission denied sanctions against an employer when it terminated a worker's TTD benefits after he retired from work, even though he continued to treat after retirement for his arm.  Sharwarko v Ill. Worker's Compensation Commission, 2015 Ill App. Lexis 128 (Feb. 27, 2015).

The case involves a worker who hit his right elbow against a wall in 2006.  He underwent releases of the right carpal and cubital tunnel in August 2006.  Claimant stated his symptoms became worse after the surgery.  A re-evaluation in 2007 showed the ulnar condition had become worse after the surgery and he underwent a second surgery to remove an obstructive neuroma.  He was found at MMI about 3 years later and sustained an 80% loss in the use of his arm.  He failed to establish the accident rendered him totally disabled. 

The court noted that claimant had not looked for work, the employer had accommodated work with one-hand restrictions leading up to his resignation (and had a history of accommodating other employees), and that claimant's only expert conceded that claimant might be able to work with one-handed restrictions.  Although claimant may have unable to do any work after the surgery, the record lacked sufficient records to support such an award. 

"The arbitrator noted that the termination of the claimant's TTD benefits on the day of his retirement came before the supreme court's decision in Interstate Scaffolding and was based upon a reasonable interpretation of the law existing at that time. For its part, the Commission  denied the claimant's request for an award of penalties and attorney fees because it determined that the claimant's entitlement to TTD benefits ended when he voluntarily retired on October 31, 2006."

Interstate Scaffolding v the Illinois Workers Compensation Commission, 2010 Ill Lexis 12 (IL 2010) awarded ongoing TTD for a period of time after a worker was discharged for misconduct and considered the dispositive issue was whether claimant was at MMI. 


Wednesday, March 4, 2015

Commission finds prevailing factor with degenerative knee

 A worker in 2009 hyper-extended his knee while pushing a tub.  The Commission affirmed an award of partial disability benefits to the knee and future medical for total knee replacement.   Gladish v Enersys, 2015 MO WCLR Lexis 18  (Feb. 24, 2015).  

Claimant is 270 pound make in his 50s.  He initially had an arthroscopy which did not help and sought further treatment.    He had some limited treatment for his knee before the accident.  It is somewhat unclear whether this was fully disclosed in records to his providers.

The employer disputed accident but offered no evidence to dispute claimant's testimony how the accident occurred.  Claimant prior to the accident had been referred to an orthopedic surgeon for knee pain and had x-ray evidence of degenerative osteoarthritis.  The commission concluded the accident was the prevailing factor because claimant's prior condition was not disabling resulting in lost time or resulting in medical restrictions.  The Commission ultimately concluded the need for treatment including a total knee replacement flowed from the accident.  The Commission found claimant established prevailing factor making symptomatic a pre-existing arthritic condition. 

The Commission noted that the claimant could rely upon an expert to testify who was not licensed in Missouri and the employer had waived any objection by stipulating to the doctor's qualifications. 

Monday, February 16, 2015

Commission won't lift under corporate veil

Claimant worked as a janitor for University of Missouri and  hurt his right shoulder swinging a mop and ultimately asserted he was unemployable in the open labor market. Marshall v Job Finders, etal, 2015 Mo WCLR Lexis 14 (Feb. 10, 2015). The Commission affirmed the award with additional findings related temporary agency, Job Finders, used by the university.

The ALJ found the temporary agency employed more than 200 people  and operated at the time of the accident without insurance and found the owner  (Williams) personally liable for worker's compensation benefits.  The employer had not answered a claim  for about two years and its corporate name varied slightly from the pled name.  Job Finders  did not file a timely application for review to the Commission either.

The ALJ allowed found both the temporary agency and the university were employers and liable under the statute. 

The Commission concluded its review was not limited to issues raised in applications as long as the parties had due process and additional time to address other issues.  The Commission noted in order to find an owner responsible that the owner needs to be named as a party in the original claim and the ALJ violated due process by asserted liability against the uninsured owner  It further noted that under strict construction required express finding the person is either an employer or an insurer and did expressly allow piercing the corporate veil. 

The Commission made a finding to pierce the corporate veil in   Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012).

ALJ  Ruth
Atty:  Hines, Murphy

Thursday, February 12, 2015

Absence of treatment weakens knee claim

A 55 year worker alleges he is totally disabled as a result of alleged injuries to his back and his knee.  Pannell v Mo Dept of Corrections, 2015 Mo WCLR Lexis 9 (Feb. 5, 2015).  The Commission affirms an award of partial disability. 

Claimant was a corrections officer who 'did the splits' when he fell and hurt his back.  He had back surgery. At some point after the back surgery his records document knee symptoms.  His expert concluded he would need a total knee because he 'made symptomatic' an arthritic knee.  His vocational expert indicated he was unemployable in light of his prior medical conditions and what he regarded as new injuries to the back and knee.  A surgeon indicated that claimant's knee may have become more symptomatic because of immobilization during the back surgery. 

The ALJ found no evidence of a new knee injury, no new structural change, no contemporaneous treating records, and no mechanism at the time of the accident consistent with a knee injury.  A dissent found claimant PTD even without consideration of the knee as a Fund combo and indicated:  "It appears to me that the Commission majority, while sympathetic to the plight of this seriously disabled individual, is operating under the mistaken impression that expert testimony is needed to establish that employee is permanently and totally disabled even if his left knee complaints are set aside. I disagree with such a proposition because, as I have demonstrated, it finds no support in the Missouri Workers' Compensation Law."

ALJ:  Fisher
Atty:  Van Camp, Edelman, Mueller
Experts: Stuckmeyer, Marberry, Gross, England

Tuesday, January 27, 2015

Rolling truck produces $10 million verdict

In a civil case, a jury awarded a plaintiff 10 million dollars but found him 65% at fault  resulting  in multiple orthopedic and internal injuries when a truck rolled back and trapped him.  Key v Diamond International Trucks, WD 77323 (Jan 27, 2015).

Key delivered trucks to dealerships.  In 2007 he sustained injuries when undecking trucks using a hoist provided by Diamond.  Key had lifted a truck and used wheel chocks out of a container bin and became trapped when the truck rolled as he released a U-bolt.  He had used one strap rather than two.

Diamond asserted, among other instructional errors, that it owed no duty to the plaintiff and asserted he was an independent contractor and Diamond had no duty to provide equipment (wheel chocks) for him to perform the job safely.  The court distinguished between the duty owed to independent contractors in cases of premises liability and cases involving a specific instrumentality.  A landowner owes a duty of ordinary care for their safety and for injuries involving unsafe appliance or instrumentality furnished by the landowner. The court noted Diamond  should have preserved  the issue in a motion for a directed verdict.

The jury found plaintiff's wife sustained damages but found the amount of damages was zero.  The plaintiff required ongoing treatment for urology and gastroenterology. 

Monday, January 26, 2015

Climbing steps a lot supports knee disability claim

Claimant, 64,  is a former career-employee with bad knees that required bilateral knee replacements.  The Commission affirmed an award of benefits because he used steps a lot at work.  Tarpeo v New World Pasta, 2015 MO WCLR Lexis 4 (Jan 15, 2015).

The parties agreed that claimant used steps daily to perform his job duties as a pasta pressman. The employer's expert, the only knee surgeon to testify in the case,  found the prevailing cause in claimant's condition was degenerative arthritis and weight.   The employer contends the employee over-estimated how many times he used steps and his knees were bad because he was old.

The claimant's father died 40 years earlier. Dr. Rende indicated claimant's father had arthritis.  Dr. Rende  stated his opinion that OA was age related did not change even absent that genetic history.  The ALJ  rejected the genetics defense because claimant denied his father had arthritis.  The ALJ also noted that the employer over-relied on an opinion in the treating records that the condition was not work related and faults the employer for not deposing the treating physician. The physician does not indicate the full basis for his conclusions, and the conclusion disputing causation according to the ALJ could have been "predicated on a desire to have his medical bills paid by Claimant's personal health insurance company, so he could provide the needed treatment to Claimant, since it was not being accepted by the Workers' Compensation insurer."  

Claimant testified he climbed steps several times an hour.  The ALJ found 2880 stairs per week  over 35 years was extensive.  The ALJ based his causation opinion on the conclusions of a non-treating hand surgeon and awarded more than $150,000 including temporary and permanent disability.  

The ALJ found claimant was PTD but not from the last accident alone, and that claimant failed to introduce sufficient medical evidence to show his English deficiency or other prior conditions flowed from permanent medical conditions. 

ALJ Ottenad
Atty:  Hoener, Hendershot, Frazier
Experts:  Schlafly, Rende