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.

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.

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.