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


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.

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.


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