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