Wednesday, December 21, 2016

Attorney walks on claim of failure to honor lien

Truman Medical Centers v John McKay
WD 79663
Deember5 20, 2016

The defendant is an attorney who represented a client in an auto case and negotiated a settlement.  The hospital, Truman Medical Centers, claims the attorney is liable for paying the medical bill of about $2700 because he was aware of the lien and chose to ignore it.

The court affirmed a dismissal against the attorney.

Section 430.250 provides a one year suit against any person

making any payment to such patient or to his attorneys or heirs or legal representatives as compensation for the injury sustained, after the receipt of such notice in accordance with the requirements of section 430.240,

"We disagree that Section 430.250 encompasses attorneys who accept payment on behalf of their injured client and then forward that payment to the client. We find that, while Section 430.250 uses the terminology "any person," Section 430.250 requires that for liability to attach, notice of the claimed lien must have been received pursuant to Section 430.240. Section 430.240 requires notice be sent to the "person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received." Therefore, "any person" in Section 430.250 is limited to the "person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received." An attorney representing an injured client is not liable to that injured client for the injuries sustained as a result of someone ."

 

SIF total benefits due while claimant is "working"

Thilmony v Schwan's Food
2016 MO WCLR Lexis 83
Dec. 15, 2016

The ALJ awarded total disability in the case.  The Commission found the ALJ erred by finding claimant's MMI date in 2015 and not in 2010 when he was released from medical care.  This change impacts makes the Fund's duty to pay benefits arise sooner.

The Commission notes, however, that it "appeared" the MMI could have been in April 5, 2010

"Mr. Thilmony produced a paycheck which indicated that he got paid for work at Schwan's Foods on August 12, 2010, for the period of July 25, 2010, through August 7, 2010. Mr. Thilmony testified that this was his last payment for work performed for Schwan's Foods."

The ALJ found claimant continued to work into 2015.

"Mr. Thilmony was employed by his wife at her day care and was performing valuable services for which she would have had to hire a replacement employee should Mr. Thilmony have been unable to work in the day care. Mr. Thilmony testified  that he worked in the day care until July of 2015 when the day care closed. Thus, July 1, 2015 is the date on which Mr. Thilmony is eligible to receive permanent total disability benefits from the Second Injury Fund." notes ALJ Fischer.

The commission finds if claimant completed treatment in 2010 then he was a total in 2010 and that subsequent employment was not real work in the open labor market to disturb the finding that he was totally disabled. 

"The Second Injury Fund is liable for permanent total disability benefits beginning August 7, 2010, at the differential rate of $ 62.69 for 52.6 weeks, and thereafter at the stipulated weekly permanent total disability benefit rate of $ 485.66. The weekly payments shall continue for employee's lifetime, or until modified by law."

The award from the Commission finds the factual determination of MMI not supported by the record.  What is more important in the award, is there is not any   reduction or credit in obligation to pay disability benefits by the Fund even though there is uncontroverted evidence that that is working during some of  the same time.  It is unclear if this issue was raised on appeal. 

The commission noted the employee stipulated that PTD benefits were due on August , 2010 and it would not "second guess employee where he is willing to stipulate....[to a different date]."

The claimant was represented by attorney Uhrig.

Commisison affirms PTD for recurrent spine injuries.

Morris v Captain D's
2016 MO WCLR Lexis 80, 81
December 15, 2016 

Claimant alleges he was hurt in a motor accident in 2007 in Laclede County going to the company store and had a re-injury at work about a week later. 

The Commission affirmed a PTD award against the Fund and more than $50,000 in partial disability benefits against the employer for partial disability.Prior to the hearing the employer paid less than $300 in medical bills and no lost time benefits.  The employer disputed causation and the extent of any disabilities.

Claimant alleges injuries to the head, back, neck and face.  He established 20% disability to the neck and back. On a second accident, he was awarded an additional 12 1/2 % of the body and 10% of the leg.

The court applauded claimant's "strong work ethic" and vocational success despite limited education.
She notes the job injuries "forced him" to quit his job and go on social security.

Claimant treated for soft tissue injuries following an auto accident.  He claims he slipped less than 2 weeks later, and experienced increased symptoms in his back and right knee, body parts where he had prior surgical repairs.  About a year after the work injury, he pursued pain management for back and right knee complaints.   He ultimately underwent a back surgery with unsatisfactory results.

Dr. Volarich, claimant's expert, attributed new disability to the neck, the back, and the knee superimposed on prior impairment to the back, the knee and the heart.  Dr. Volarich concluded the worker was a SIF combo.  Dr. Volarich related the claimant's back complaints to the accident despite the absence of documented back complaints in the initial emergency room records.  " He said he took Claimant at his word that he had conveyed complaints of back pain to the emergency room staff, but those complaints simply did not get recorded."

Claimant later had additional auto accidents and  pursued a 2 level cervical fusion and single level lumbar fusion, which Dr. Volarich did not attribute to the work accident(s).

Dr. Lennard concluded claimant had partial disability  for cervical and lumbar strains from the accidents.

The employer did not raise subrogation as a disputed issue although suggested claimant had already obtained a settlement in a third-party case.

" I generally find Dr. Volarich more persuasive because his initial examination, performed one year after the accidents, was much closer in time to the accidents than that of Dr. Lennard. I do not agree with Dr. Volarich's assessment of the wrist disability and I find some of his ratings excessive. I find Mr. Swearingin, the sole vocational expert in this case, to be credible" noted ALJ Mahon.

The ALJ did not find the omission of documented back complaints dispositive. "Even though contemporaneous medical records do not substantiate his subjective complaints of lower back pain and injury from the motor vehicle accident, Claimant's deposition and hearing testimonies consistently mention back pain stemming from the motor vehicle accident, as well as from the later January 14, 2007 accident. Dr. Volarich also believed that Claimant hurt his back in the motor vehicle accident."

The ALJ finds the last accident alone combined with pre-existing conditions to render claimant totally disabled, although Dr. Volarich did not distinguish the role between the two January accidents.
The ALJ awards open medical to treat "pain" but notes Dr. Volarich is not clear in his opinion concerning which condition caused the need for treatment.

 Attorney John Neuman represented the employee. 

Employer liable for $32,000 bill for kidney stones from heat exhaustion

Brown v Domino's/MBR Mgmt.
December 15, 2016
2016 MOWCLR Lexis     (Inj. No. 12-052588)


A 39 -year old manager at a pizza restaurant in Troy, Missouri worked a week in "excessive heat" and was admitted for heat exhaustion where he underwent a thorough work-up including an endoscopy and colonoscopy.  He was diagnosed with acute renal failure and dehydration.  He was admitted a second time less than 2 weeks later for acute kidney failure.

The parties disputed who was responsible for the medical bills concerning the second hospitalization and whether claimant had any permanent disability when his exam findings were normal.  

"The parties have also essentially agreed that the accidental injury on July 8, 2012 is the prevailing factor in causing the heat exhaustion, dehydration and acute renal failure. Employer, however, disputes that the kidney stones that ultimately necessitated the second hospitalization are medically causally related to the July 8, 2012 work injury, and, further, asserts that the medical bills for that second hospitalization were, therefore, not reasonably required to cure and relieve the effects of the injury."

Claimant reported he had recovered from previous treatment for heat exhaustion and kidney issues.

Dr. Volarich, claimant's expert, concluded that claimant sustained permanent disability as a result of episode of heat exhaustion.  He concluded the heat exhaustion caused the kidney stones and that the second hospitalization related to the initial exposure.   The employer's expert, Dr. Rothstein, indicated claimant did not have a permanent disability.  "He opined that the heat exposure at work on July 8, 2012 was not the prevailing factor in either of these diagnoses. Focusing mostly on the cirrhosis diagnosis, which even Claimant does not try to relate to the work injury...."

Claimant testified that he has increased sensitivity to hot environments that impairs his ability to go to amusement parks, ball games and cut grass.

The ALJ noted the defense expert did not identify his credentials or what records he relied upon and his opinion was submitted by report and not by testimony.  "I find that for Dr. Rothstein, I have no clear understanding of his background or experience, no clear understanding of the basis or foundation of his opinions, no explanation for how he reached the opinions and conclusions he did, and all of this without any physical examination of Claimant or any understanding of what Claimant's testimony might be in the matter."

The ALJ found the totality of Dr. Volarich's testimony supported causation, and the employer over-relied on the expert's use of the word "tipping" to assert his testimony did not establish the evidentiary standard. 

Employer was directed to pay Claimant $ 32,457.90 [the disputed bills for the second hospitalization] for these past medical expenses related to the work accident on July 8, 2012, which includes the work-up for kidney stones. 

The ALJ awarded an additional  "8.75% permanent partial disability of the body as a whole on account of the residual effects of the heat exhaustion."

Claimant testified he had sought relief from his employer from heat exposure.  "Claimant noted that he had asked his boss many times to fix the air conditioning in the store before July 8, 2012, but he was told that it was not a high priority for his boss because there were other stores that did not have any air conditioning at all."

Attorney Andrew Marty represented the employee.  The Commission adopted the 3-0 decision from ALJ Boresi without a separate opinion. 

Wednesday, December 14, 2016

Commission affirms PTD and medical award for altered gait

Palmer v South Metro Fire District
2016 Mo WCLR Lexis 77
Dec. 2, 2016
Meiners


The Commission affirms an award of total disability and open medical to a firefighter who fell on his knee in August 2011 in Jackson County, Missouri.  The ALJ found as a result of "altered gait" claimant also sustained injuries to the opposite knee and back.

"Employee developed compensatory aggravation and acceleration of the degenerative process of the right knee with increased disability of the right knee. Dr. Koprivica opined that Employee's low back pain was a natural and direct complication of the August 19, 2011 left knee injury."


Claimant was initially treated for a contusion and ultimately underwent MRI imaging that identified advanced degenerative changes and lateral and meniscus tears.  Claimant had an arthroscopy for the left knee and then proceeded with a TKR when his conditions did not adequately improve.  He was unable to return to his job as a result of permanent restrictions and he described poor tolerance to physical activities due to "abnormal weight bearing."  The claimant testified the condition to his right knee and back became worse since the accident and that claimant had made a complete recovery from his prior right knee surgery that had involved meniscus repair and ACL reconstruction.

The ALJ concludes the surgeon  diagnosed Employee "with the following that he finds is the result of the direct impact injury of the left knee: Left knee medial meniscus tear, left knee anterior lateral meniscus tear, advanced grade 4 degenerative arthritis of the medial joint line, grade 4 trochlear lesion with grade 2 patellar articular lesion, and a large inferior patellar spur." (emphasis added)

The claimant offered two different experts   Dr. Koprivica  found  if the claimant was vocationally disabled then he was disabled as a result of a Fund "total" as a result of the prior surgery.  The other expert, Dr. Stuckmeyer,  found him a total from the last accident alone.  The ALJ concludes both vocational experts concluded that vocational restrictions involving sit/stand made claimant unable to work and "his age" made it unlikely he could return to the open labor market.  The ALJ relied upon medical restrictions that Dr. Koprivica attributed to the last accident alone to conclude he was totally disabled from the last accident alone.

 "I also find that Employee is unemployable in the open  labor  market as a result of the last accident based on Dr. Stuckmeyer and the overall dialogue of both vocational experts' opinions."

"....it was not realistic based on those restrictions and his age that he could return to college or the open labor market. "

The Commission affirmed the award for total disability and open medical for the "effects" of that injury.

Claimant was 59-years old at the time of the hearing and had worked 19 years for the fire department.

Tuesday, December 13, 2016

Commission orders payment of radiation treatment as a precursor to treat a work related rib fracture


Clark v Dairy Farmers of America
2016 MO WCLR Lexis 78
December 7, 2016


Clark in May 2011 worked in Monett Mo for DFA and claims she leaned against a vat to stir curds and felt a pop and pain in her chest and experienced an acute onset of symptoms in her right arm.  She underwent imaging which identified an irregularity in the rib which was investigated as a possible malignancy (LCH). She underwent radiation treatment.

The Commission reversed a denial of benefits for a fracture to the rib, and found the accident an aggravating factor even though the rib had been weakened by a prior non-occupational lesion.  What is striking about the case is the award of nearly $84,0000 in bills for radiation and other treatment "reasonably necessary" to diagnose and treat her lesion referable to LCH.

"Employee's right fifth rib was, undoubtedly, weakened when she went to work on the morning of June 20, 2011, owing to a preexisting degenerative condition, namely, the lesion referable to LCH. However, employee was not suffering from a broken right fifth rib until after she suffered the accident at work on that date. In other words, employee suffered an aggravation of her preexisting degenerative  condition as a product of the work accident."

Dr. Parmet concluded that the lesion had already weakened the bone.  He concluded that the fracture was a pathological fracture and could occur through activities of normal daily living or even a sneeze.  Essentially,the rib fracture could have occurred without or without any precipitating work event.

Dr. Mullins, claimant's expert, concluded that the fracture was not typical, it had not healed, and claimant had occupational limitations because of fear of re-injury.  Claimant had further  scarring and nerve irritation as a result of radiation treatment.  He felt the forces were sufficient to cause the fracture, independent of weakness from her LCH disease and that work was the prevailing factor even if the LCH was a contributing factor." He concluded that "the LCH might have gone undiagnosed and never needed treatment. He opined that people live with a condition and have no issues until a work-related accident occurs, which requires testing and other treatment to fix the underlying problem", like an asymptomatic degenerative arthritis.

ALJ House denied benefits, found a failure of proof of accident or injury by accident and denied medical bills.

 "Claimant did not suffer an injury under Section 287.020. Her shoveling was not the prevailing factor causing her fractured rib or any disability from that rib fracture. In addition, her medical treatment did not flow from her work activity."

"I find and conclude that the greater weight of the evidence supports the conclusion that Claimant suffered a pathological fracture from Langerhan's cell histiocytosis the prevailing factor in causing her condition and disability . rather than from her shoveling at work. Claimant's fracture matches the profile of a pathological fracture. Her tumor was close to the fracture site on the fifth rib. The bone was weakened by her LCH. The rib failed by fracturing at or near the site of the LCH lesion under a load less than normal force."

The commission reversed and found the accident arising out of her employment related to an identifiable work hazard.   The Commission reversed and awarded disability and medical bills to treat the malignancy.

"Employee was wholly unaware she was suffering from LCH or the lesion affecting her right fifth rib, as she had not experienced any symptoms referable to these conditions."

The Commission found the bills reflected necessary treatment to cure and relieve the effects of the rib fracture as a "precursor" to heal the bone fracture.   "We conclude that the disputed treatment was reasonably required to cure and relieve from the effects of employee's compensable work injury of a right fifth rib fracture."  The employer did not challenge the reasonableness or whether all the charges were related, and the Commission it was bound by that stipulation.   

"We have credited Dr. Mullins's unrebutted testimony that the workup and radiation treatment to cure and relieve the specific lesion behind employee's right fifth rib was a necessary precursor to the healing of her work-related rib fracture; consequently, we can easily conclude that such expenses "flow" from the work injury. See  Tillotson v St. Joseph Med. Ctr, 347, S.W.3d 511 (Mo. App. 2011).  With regard to the numerous, additional diagnostic procedures intended to measure the extent and seriousness of the LCH itself (e.g. whether the condition had metastasized to different areas of employee's body) the work connection would seem more tenuous. However, given that the parties stipulated that the issue of past medical expenses would "rise and fall" with causation, and because we are bound by that stipulation, see Hutson v Treasurer of Mo, 365 S.W.3d 269 (MO. App. 2012).  it appears that we are precluded from parsing such additional expenses or from even reaching the issue whether they must be denied."


The Commission concluded the defense expert  "did not positively identify employee's preexisting lesion, or her condition of LCH, as the prevailing factor causing employee to suffer the rib fracture  of June 20, 2011. Instead, it appears to us that he determined her work activity was not the prevailing factor causing her to suffer a rib fracture based on an implicit assumption that where any non-work-related, but-for cause of an injury is present, the accident cannot be deemed the prevailing factor. In other words, Dr. Parmet's theory in this case appears to involve a legal conclusion, as opposed to a purely medical opinion"

The Commission noted that the treating physician declined to allocate whether the work event or the prior LCH was the prevailing cause of her rib fracture.

The employer did not raise idiopathic cause as a defense. 

The Commission denied future medical care.  She continues to treat over the counter mediation for her "rib fracture."  Her expert did not provide persuasive testimony that the pain management treatment he proposed flowed form the work injury. 

In addition, the Commission awarded an additional 10% PPD.

The Commission denied a claim of past TTD benefits of nearly two years and found claims of fatigue during radiation treatment were insufficient alone to support an incapacity to work.

 National Cancer Institute notes: "Langerhan's cell histiocytosis is a malignancy without known cause, but most closely associated with smoking in adults. Six percent of bone involvement in adults involves the ribs, and most adult cases are polyclonal, not monoclonal, a factor which would only affect their spread in chemotherapy but not the use of radiation."

Randy Alberhasty represented the employee. 

Friday, December 2, 2016

Failure to provide available safety equipment provided basis for tort claim

Nolen v Gary Bess, etal
ED 101591 (Mo Ct. App. 2016)
Nov. 29, 2016

Claimant worked as a janitor and sued his employer when he fell from bleachers which he was cleaning.  He appealed a summary judgment motion for the defendant that he failed to  establish a breach of personal duty outside the duty to provide a safe work place. 

The court of appeals reversed and found that allegations that the employer specifically instructed claimant to clean the bleachers without rails and withheld safety equipment  was a breach of a personal duty outside the duty to provide a safe work place.  The claim arose in the "gap" before 2012 concerning co-employee liability.  Claimant alleges he specifically asked for protection from falls and it was not provided.

Claimant's spinal injuries had resulted in paralysis.

Wednesday, November 16, 2016

Amputee awarded maximum statutory benefits.

Daniel Small v Red Simpson Inc.
2016 MO WCLR Lexis 76 (Nov. 10, 2016)


The commission on remand , 484 S.W.3d 341 (Mo. App. 2016),  awards benefits and reverses its earlier position that the case was barred by the statute of limitations and the statute was not tolled by payments made by a worker's compensation claim from the same incident in Texas, where the accident occurred.

The case relates back more than 20 years to a 1995 accident.  Claimant sustained an electrocution injury and amputation to his forearm.  He had a subsequent injury in 2008 and prosecuted that case to obtain a permanent total award against the Fund.

The commission found he was not precluded from seeking PPD benefits also on the 1995 case. The commission found the employer was not entitled to any "credit" for the Texas case because there was no evidence what disability the prior settlement represented.  The employer offered no medical defense on the 1995 injuries.  The commission recognized a credit for TTD benefits paid. 

The commission awarded 110% of the elbow, an additional 15% BAW based on "pain" complaints from claimant's expert, and the statutory maximum 40 weeks for disfigurement.  The commission rejected the claim to disfigurement because claimant could use a prosthesis, and did not regard the argument as even a colorable defense.  The employer offered no ratings of disability. 

ALJ Mieners
Atty:  Kelly, Johnston
Experts:  Stuckmeyer

Commission reverses denial in toxic exposure case

Franken v Honeywell dba Bendix Corp.,
2016 MO WCLR Lexis 75
Nov. 10, 2016. 

The commission reversed a denial of benefits, and found the death causally related on  medical evidence which established exposure to chemical agents without clarification regarding scientifically accepted levels to cause injury based on magnitude, frequency or duration. 

While treating for cancer  at Anderson claimant took a dose of methadone in his hotel room, had an adverse allergic reaction, and went into septic shock resulting in organ failure resulting in death from organ failure and respiratory distress in 2005.  An autopsy identified a small cell carcinoma in his lung.

Claimant worked in the meterology department at Honeywell.  The ALJ found no evidence of toxic exposure,   The defense expert found flawed methodology and no epidemiology or experimental studies which showed a link of bellyrium and claimant's cancer. The Commission  concluded it was undisputed that claimant had some exposure and that was enough without having to show some exposure was a scientifically proved toxic exposure. 

The first time any expert made a connection between exposure and his death was several months after claimant had died. The court found under pre-reform law there was no statutory duty to provide notice in an occupational disease case.    Dr. Parmet, claimant's expert, had previously developed a bellyrium awareness program for the defendant. .  He found the death likely due to exposure of multiple dangerous chemicals and not solely to bellyrium.

The commission found that specific omission of evidence of the magnitude, frequency and duration was too rigorous burden of proof and was "over-arching" and contrary to law.  The commission found the type of cancer was not an ordinary disease of life because it was rare and that experts established some exposure to various chemical agents as the likely cause of a carcinoma. 

The commission ordered equal shares to the surviving spouse and two grandchildren, who were total dependents by guardianship dating back to 2005. 

Back TTD ordered for disputed repetitive trauma

Clawson v Cassens Transport Company
2016 MO WLCR LEXIS 70 (Nov 1, 2016)

The commission affirms an award of benefits for a 2015 knee injury in a temporary award as an occupational disease.

Claimant asserts that he had a very physical job.  The employer refused to send him to a work comp doctor after he described worsening of his symptoms.  Claimant's expert concluded that an MRI finding in 2016  of a new meniscus tear  flowed from his work duties.  He had been released from the 2010 accident with a knee strain based on a normal MRI. 


The ALJ ordered TTD benefits based on claimant's testimony that he felt he was unable to work and work restrictions that prevented from kneeling or squatting.  The employer was ordered to pay more than $55,000 in back TTD benefits at the time of the award plus ongoing benefits.  The employer had paid some benefits and had made a 4,000 advance. 

The ALJ notes the employer raised a notice defense but had a witness sit in the court room and was not called to testify.   "Mr. Liljequist was present in the courtroom for the entirety of the employee's testimony. However, Mr. Liljequist was not called to give any contrary testimony on the issue."

Commission awards benefits for plantar fasciitis.

Williams v Tyson Poultry
2006 MO WCLR Lexis 74
(Nov. 1, 2016)

The Commission affirms a temporary award for benefits for plantar fasciitis from working on concrete floors.

Claimant asserts that he had to stand during 12 hour shifts. 

The employer was ordered to provide treatment, pay back TTD, and the judge noted insufficient evidence to support a defense that claimant had collected unemployment benefits.  The employer expert agreed claimant required restrictions but found the condition more likely related to a non-occupational condition.  The experts disputed whether he had  pes planus. 

ALJ Dierkes

Appeal to stop award for interest fails due to appellate rules


William Scott v Saladino Mechanical and Cincinnati Ins. Co.
WD 79516  (Nov. 15, 2016)

The employer disputed paying interest on a permanent total award.  The court found the employer prematurely and without jurisdiction tried to stop enforcement of the award through circuit court.

The case arose from a 2007 accident.  The ALJ awarded permanent total with open medical and awarded past medical with a proviso "any past due compensation shall bear interest as provided by law."  The Commission affirmed the award.  The employer did not appeal further.

The employer  paid the award but refused to pay any interest.  The employee registered the judgment in circuit court and the judgment was not appealed further.  The circuit court denied by "order" that the judgment was enforceable and not  too vague.

The court concluded the appeal was filed out of time, does not meet the foundation requirements of Rule 76.25 which requires proof of a levy (there had been no actual attempt at enforcement), and the "order" does not meet the foundation requirements of a "judgment" as required by Rule 74.01(a).

The decision never delineates the dollars of interest in dispute behind a collateral attack on appeal.

Friday, November 11, 2016

Court affirms death benefits without safety penalty reduction

Hadley, dec. v Beco Concrete Products
SD 34941 (Nov 10, 2016)


Affirmed death benefits and denial of safety penalty


Claimant drove off of a highway while operating a flatbed truck in 2012 and died in the accident.  The employer appealed the Commission not to apply a safety penalty  to survivor benefits.

The Commission based wages under 287.250.4 based on income for the preceding year and used comparable full-time employees under the exceptional circumstances provision to calculate wages because claimant's work schedule was irregular.  The court found no error to calculate wages in this method.

The Commission rejected the employer's contention that it warned the driver as a company safety rule to comply with safe driving procedures and that the claimant was speeding and violated the safety rule in conjunction with his accident. The Commission noted such warnings must be with a greater degree of specificity.  The court found no evidence to show when and where  the employer had adopted such a safety rule and had no persuasive evidence the claimant was speeding at the time he went off of the road.

The court noted the appellant made multifarious arguments contrary to the rules.

https://www.courts.mo.gov/file.jsp?id=107515

Friday, November 4, 2016

Employer liable for aggravating congenital neck condition.

Stevenson v Laclede Gas

2016 MO WCLR Lexis 67 (Oct. 21, 2016)


 Commission affirms 40% award. for neck surgery.

The worker underwent a three level cervical surgery following a 2004 accident when she fell while trimming trees.     The employer defended the case that the accident caused a temporary aggravation and any need for surgery arose from severe congenital defects.   Under the pre-reform standard of substantial factor, she established the accident made her condition symptomatic based on her capacity to perform heavy labor work and engage in various athletic recreational activities.  The ALJ found the opinion of the treating surgeon persuasive that claimant was capable of some employment and awarded partial rather than total disability.  ALJ Boresi made various findings about her background, including being a Homecoming Queen.

        

2016 MO WCLR Lexis 68

Commission affirms denial for blood pressure. 

Claimant alleged she experienced high blood pressure while performing work.  While being examined her blood pressure was 200/90.  Claimant fails to identify an accident or provide medical expert opinion to support the claim.


2016 MO WCLR Lexis 69.

The Commission affirmed a denial of disability but awarded an outstanding bill for $463.50. 

Claimant described an onset of neck pain while changing to change a valve. 

"This is largely because employee, in her testimony, failed to identify any new symptom, limitation, or other permanent disability specifically attributable to the accident of August 15, 2006. Absent supporting testimony from the employee, given the lack of any contemporaneous medical treatment record substantiating any permanent increase in her symptomatology or other limitation, and in view of the purely conclusory opinion from employee's medical expert, Dr. Robert Poetz, we are not persuaded that any permanent disability is attributable to the August 15, 2006, accident."

The Commission notes to proof of medical causation requires proof of condition and disability, but

"the statute does not require that employee prove the accident was the prevailing factor causing any permanent disability. Instead, it is sufficient that some disability -- of whatever nature, duration, or extent--resulted from the accident."

The Commission concluded because claimant had to use vacation time she established a "temporary" disability to establish causation and the employer's liability for medical bills.

The ALJ regarded claimant totally disabled and recovering from the 2004 accident at the time of the last accident in 2006. 
  

Tuesday, October 25, 2016

Failure to preserve dependency status at hearing loses Schoemehl option

Carter v Treasurer of the State of MO.
WD 79437
Oct 25, 2016

Circuit court could not make new findings after it registered a judgment of PTD to award benefits to surviving spouse. 

A worker had an injury in 2005.  In 2009 the ALJ awarded PTD benefits against the second injury fund.  No benefits, contingent or otherwise, were awarded to the spouse.  No appeal was taken.  In 2014 the worker died from unrelated causes.  The commission denied a motion to substitute the surviving spouse as a party based on lack of jurisdiction because the award was final. 

She appealed and then sued in circuit court to enter the award as judgment and ask for an order to compel the fund to pay her lifetime benefits.  The court held an evidentiary hearing and based on additional facts it found dependency and contingency of benefits and ordered PTD benefits.

The fund argued as a matter of law the circuit court exceeded its authority under 287.500 to make additional findings as a basis to  substitute parties and order ongoing benefits.  The court found the circuit court had no discretion in entering a judgment and cannot determine any outstanding factual issues.  The court lacked authority to make additional findings to determine if the surviving spouse satisfied the Schoemehl contingencies. 
 
WD 77487
Oct. 25, 2016

The Commission lacked authority to make new findings of dependency after a final award when the issue was not preserved in the original hearing. 

On the same day, the court affirmed the Commission's refusal to substitute claimant as a party based on lack of jurisdiction.  The court found the commission lacked authority to allow substitution after a final award when dependency was not established in the original hearing.  

Claimant asserted her due process right were violated.  The court noted the statute allowed her to substitute herself as a party under  a change in circumstances.  That remedy was available only if she had established dependency status at the time of the hearing or by appealing the original award.

The court found other statutory exceptions to alter an award did not apply. 


Thursday, October 20, 2016

Total disablity for serial knee surgeries

Head v Curators of the University of MO
2016 MO WCLR Lexis 65, 66 (Oct 12, 2016)
 
ALJ  Dierkes  (Boone County)
 
Commission adopts PTD award against employer
open medical to include potential  home modifications 
 
 
Claimant injured her left knee leaving a hospital after a meeting and slipped and fell.  The accident is Feb. 2003.    The ALJ awarded permanent and total disability benefits with open medical.
 
The evidence in the case involved testimony from Dr. Volarich, Dr. Gross and Dr. Cantrell.
 
Claimant was 63-years old and had worked for the university for about 20 years reviewing and approving budgets for research projects.
 
The employer did not dispute either accident. 
 
In February 2003 claimant slipped on ice in the parking lot, fell, and began to experience left knee pain.  Claimant had an arthroscopy in 2003 and then proceeded with a total knee replacement in 2003.  In 2004 she underwent a revision of the knee replacement.  She underwent a third surgery to the same knee in 2005.  In 2007 there was concern whether the replacement was failing.
 
The ALJ found she developed altered gait and  underwent treatment for her back including use of a spinal stimulator.
 
In 2008 she fell again on some ice melter and landed on both knees.  She began treatment for pain management and depression.  She began to use a scooter and wheelchair more often at work.  She retired in 2010. 
 
In 2011 she had another revision to the same knee and developed DVT.
 
The ALJ found claimant's need for serial knee replacements flowed as a natural and probable consequence from her knee injury and initial total knee surgery, noting testimony from Dr. Gross:
 
"I think she had some further surgeries based on trying to improve her pain. She had a second surgery that Dr. Bal thought the components were slightly off or the tibial component was slightly off so he tried to modify that to make it more perfect. She had a surgery after that because there was some question of ligament laxity. She had another surgery after that which injured the arteries.
So I think that as she continued to have pain in her knee, physicians who treated her tried to find out what her pain was and tried to make it better by doing further surgical intervention."
 
 
The judge noted further:  "Popliteal vein and artery injuries and the left lower extremity deep vein thrombosis were directly caused by Dr. Aleto's May 10, 2011 left total knee revision surgery, which surgery was not authorized by Employer. I find that Employer is nonetheless responsible for additional disability caused by this surgery, as, once Employer provided the first knee replacement, Employer became responsible for that prosthesis, including any revisions thereof.)
 
The ALJ denied the SIF claim and noted she had potentially disabling conditions predating the accident, including surgery to both knees, but that she had no occupational impairment.  The ALJ found no new disability associated with the 2008 accident. 
 
Dr. Cantrell felt the need for total knee replacement flowed from her arthritis.
 
The Commission affirmed an award for open medical for the knee, for neuropathic back pain that required a spinal stimulator,  and for home modification in the future to make it handicap accessible if her capacity to ambulate changes. 
 
The case was decided under pre-reform standards of "substantial factor."
 
 

Sunday, October 16, 2016

Note to Readers

I have removed many of the older posts to the blog. 

Some of the older posts will be updated and published in a book later this year. 

Thursday, September 22, 2016

Court looks to vocational impairment evidence to find disabling date for fund liability

Wickam v. Treasurer of the State of MO, 499 S.W.3d 751 (Mo App. 2016) ( reverses an award of permanent partial against the Fund and remanded to find permanent total disability. The award was modified to PTD by the Commission.  2017 MOWCLR Lexis 8.

An issue in the case was when carpal tunnel became a disabling condition to benchmark what conditions "pre-existed" for purposes of assessing fund liability.  The fund argued an earlier date applied of  2000, when claimant began to experience symptoms of his hands instead of 2001 when there was a recommendation for surgery, as found by the Commission.  The claimant argue that the later date applied of 2003 when surgery was performed.

Claimant treated in 1999 for a shoulder injury and had a diagnosed of carpal tunnel based on EMG studies.  Claimant in 2000 retained an expert who concluded he had carpal tunnel as a result of a work-related exposure.  In 2003 he underwent surgery.  He later settled the case with the employer.
He also settled his work related shoulder injury. 

The Commission by using the earlier date for the onset of the carpal tunnel disability it precluded consideration of sleep apnea and knee impairment. A dissent argued that disability for fund purposes existed when claimant began to miss work or impact ability to work, and not merely when diagnosis or symptoms manifested. 

The court found the controlling standard:

"An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." Garrone v Treasurer of the State of MO  , 157 S.W.3d 237 (Mo App. 2004).  There was no evidence in the Wickam from either party how claimant's carpal tunnel condition affected his ability to work prior to the surgery. The court found the Commission had insufficient evidence to make its finding when disability occurred based alone on a recommendation for surgery.  The court noted that liability attaches when vocational impairment attaches without or without surgery and the employer should not rely upon Wickam for the proposition that it did not owe anything until there was a recommendation for surgery. 

The uncontested evidence was that claimant was permanently and totally disabled as the fund apparently offered no contrary medical or vocational opinions.

It should not go unnoticed that this is pre-reform, claimant has already obtained two settlements from the employer and this SIF-only appeal involves a dispute more than a decade ago.



Wednesday, September 7, 2016

NAILING JELLO is a new Book about Post traumatic Stress Disorder claims

Product Details

 
PTSD claims have been a growing problem in the world of worker's compensation.  NAILING JELLO is a new e-book that looks at PTSD claims.  There are a lot of books  that describe ways to live with PTSD.  This book  looks at ways to live with the PTSD claims epidemic, methods  to evaluate claims and the myths about PTSD in popular culture that  impact claims.   The book is now available on Amazon. 

Friday, May 13, 2016

Risk managers: time to add that no butt slapping rule

What happens when an employee does something wrong, gets fired for misconduct, and then turns around and tries to collect unemployment benefits?

This is a common thorn in the side of many employers why misconduct might be good enough to fire someone but not misconduct-y enough to keep them from getting unemployment.

Take for example, the  story of  Stahl, a woman who worked at Hank's Cheesecake.  A co-worker comes along, makes a vulgar comment to another employee.  Stahl, not finding any of it funny, turns around and backhands the co-worker in the buttocks.  There is some dispute whether this was done with the back of a pan or the back of a hand.  It is uncontroverted that it was not a love tap.

Stahl is then fired the next day.

Stahl files for unemployment benefits.

Unemployment benefits are granted. Hank's appeals to the Labor Commission.  Hank's loses the appeal.  Hank's tries again this time with the court of appeals, and loses again.

Hank's states there was sufficient evidence to show that Stahl engaged in misconduct in a fit of anger when she hit another employee.   It is the burden of the employer to show misconduct to disqualify an applicant from benefits. 

In its examination of the totality of the circumstances, the court noted that Hank's did not have rule against physical conduct so Hank's could not point to a "rule" that the employee broke.  Hank's argued that the action clearly violated the company standards which reflected a zero tolerance for unwanted contact between co-employees  The court deferred to the finding of the labor commission that the employer failed to show intentional violation of the rule because claimant's action  occurred without intent in the heat of the moment.   In short, what the court is saying is that an employer cannot expect its employees not to hit each other as long as their rage is 'blind.'   There is no clear intent to violate a policy of work place violence unless it rises to the level of intensity or roughness to reasonable expect that it would violate the employer's policy.  After all, the applicant didn't even use a fist. 

The case is very similar to the rationale by the commission to allow comp benefits from a first offender without a "intent" to cause serious harm.   Reis v Shade Tree Service, 2013 MO WCLR Lexis 187.

The dissent asserts there is conduct that is universally expected even if they are not written down, and intentionally slapping a co-worker on the buttocks crosses the line.  The employer does not have to prove wanton and willful acts to establish disqualification of benefits.  Judge Page suggested a double standard was applied.

Stahl v Hank's Cheesecake, 489 S.W.3d 338 (Mo. App. 2016) 

Practice pointer:  Employers should clearly delineate when butt slapping is inappropriate. Green Eggs and Ham is a good template:  'Job applicant agrees butt slapping violates company policy and core values and  heretofore there shall be no butt slapping: not in a train, not in a tree, not in box, not with a fox, not in a house and a mouse, nor here, or there or anywhere.' 


Thursday, March 31, 2016

Commission finds "new" disablity for worker told before accident she was unable to work

The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to  her back and had 6 previous spinal surgeries in a recent period.  Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).

The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in  September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was  placed on restrictions and told she could no longer work.  Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market. 

The ALJ found   "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "

The Commission reversed and found  that claimant had sustained new disability from a lumbar strain.  The Commission found claimant's expert unrebutted that claimant  sustained a new medical "condition" even if her "overall" condition flowed from prior conditions.  "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."

The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation.  The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy. 

ALJ:  Boresi
Atty:  Griffiths

Court remands case when Commission violates due process

Anhalt v Penmac Personnel Services
No. SD 34420
December 19, 2016

The court of appeals found the Commission committed error by not allowing a remand requested by the employer when the Commission on its own raised  a new theory on appeal to impose liability based on joint control by a staffing agency.   The claimant had never asserted the theory of liability based on joint control or joint benefit by the staffing agency for an injury that did not occur on its property.

 The commission never directly addressed the issue of the claimant's appeal of the ALJ's denial of liability based on a theory of statutory employment.

 The Commission violated due process under 287.470 by injecting a new issue without an opportunity for the parties to be heard on the issue.  The court declined to reach the broader issue whether the Commission had the power to inject its own theories of liability when the specific claim had never been asserted by an party.

**


An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO  in 2009.  The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).

Claimant worked for Penmac.  Penmac sent her to work at a food plant at Reckitt-Benekiser.  Reckitt controlled her activities on the job.  Benekiser paid Penmac  and Penmac paid her salary.  She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.

The ALJ found that while Reckitt may arguably be an statutory employer but  Penmac was the only liable employer under the subrogation statute as it was an insured entity.  The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmarc.  Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case. 

The Commission reversed and found claimant provided joint services for both Penmac and Reckitt and as joint employers Penmac was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided.  As claimant established one employer (Reckitt) owned and controlled the lot, then Penmac became liable too because claimant only had to show liability of one employer to attach liability to joint employers. 

The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine.   The commission notes that the 'on premises' statutory requirement  was removed after reform and that post-reform cases have awarded compensation for  parking lot injuries  when the employer owns or controls the property.

The Commission awarded about $40,000 in benefits.

The employer offered no medical expert as a defense.  Claimant relied upon opinions of Dr. Paul to establish disability.  The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved.  The Commission limited its award of disability to the wrist based on its finding that claimant "downplayed' her  condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist. 

The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots. 

A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.

ALJ Mahon

Tuesday, February 9, 2016

Flying gator presents risk management problem

A 24-year old driver at 1:30 a.m. pulls up to a Wendy's drive-thru in Jupiter, FL , orders a drink, and then reaches into his vehicle when the attendant is not looking and tosses an alligator through the window.

The guy's Mom later notes that her son  really likes Steve Irwin, and that he enjoys pranks, and he "does stuff like this."  He acquired  the gator from the side of the road before pitching it through the drive-through as a prank on someone he knew inside the restaurant. 

A police officer responded to the scene and released the 3 1/2 foot gator to a nearby canal. The story notes  that the gator was not fully grown.    A judge ordered him to stay away from Wendy's and play with his mom's dog instead and maybe see a mental health doctor.

He was charged with a variety of offenses including unlawful transporting or possession of an alligator and assault with a "deadly" weapon, among others.  The story goes on to report that he was wearing his hat backwards.

This example, of course,  shows why Florida  fully embraces Dave Barry's  phrase "and-I'm-not-making-this-up"    A few years ago a reptile store owner in Broward County made national headlines for swinging a bearded dragon lizard and hit his employees with it. One can't forget that old Florida tradition of  letting young boys and girls swim with captive alligators.  What could go wrong?

This  prank  presents an interesting problem in the world of risk management that employees bring with them all of their "associational" risks of spouses, boyfriends, and whatever. 
 Is the problem of gators flying through the drive-through window a risk that has been property addressed in the employee safety manual?   "We have a gator here.  What page is that on, again?"
Considering the number of gators present in southern Florida this clearly demonstrates the need for a "no gators inside' rule just like TSA warns people not to bring their explosives and excessive amounts of maple syrup onto planes.  This rule needs to keep in mind any ADA obligations about registered reptiles as service and emotional support animals. 

 In most states, this event would cause an uproar that everyone inside the restaurant would file PTSD comp claims but Florida has taken care of this in its comp code, 440.093,  to bar recovery   for "mental" only claims. If someone, however,  broke a toe nail running away that might be an entirely different comp story because that is a physical injury that might produce obvious emotional scars, especially if one is fond of flip flops. 

The comp exclusion does not say anything, however, to stop the right of the gator itself from suing.  If Naruto  the Macaque can tie up federal courts whether he has intellectual property rights for his own selfie, it seems  the gator expressing its own right of personhood  should have a remedy for such a wrong.   PETA should be all over this --  maybe a class action on behalf of all other gators cruelly exploited in pranks as examples that while gators play in all kinds of weather and stick together they just can't fly.

Jupiter is a north Miami suburb. 


https://www.washingtonpost.com/news/post-nation/wp/2016/02/09/assault-with-a-deadly-weapon-florida-man-charged-with-throwing-live-alligator-into-wendys/




Tuesday, January 26, 2016

Bad headaches from bang on head supports total benefits

Claimant established hitting his head while getting out of a manhole warranted life-time benefits, in a  decision affirmed by the Commission.  Schroer v City of Fulton, 2016 MO WCLR Lexis 5 (Jan 20, 2016).

Claimant is a 42-year old  a public employee who states he hit his head in 2006.  He claims he developed debilitating headaches.  An expert felt a pre-existing cavernous malformation contributed to his current symptoms.  Claimant stopped working 3 years later in 2009 and reports he has numbness, double vision and memory problems.   His wife testified that he "has changed."  Experts disputed whether or not he had PTSD. 

The ALJ awarded PTD against the employer along with life-time medical benefits.


ALJ:  Ruth
Atty:  Hines, Turner, Ahrens
Experts:  Daniel, Stillings, England, Weimholt

Thursday, January 21, 2016

Commission affirms PTD after fall from a ladder

Claimant was injured in 2010 when he fell from a six foot ladder in Greene County, Missouri.

He was assigned through a temporary agency to begin work in 2010.  The injury occurred when he lost his balance.

He injured his right elbow and left wrist.  He underwent closed reduction of the elbow and the wrist because of fractures.  He was diagnosed with nerve entrapment and for a brief time he was also diagnosed with t reflex sympathetic dystrophy.  A psychiatric concluded he worsened pre-existing psychiatric issues with somatic symptoms.

ALJ Holden found claimant was totally disabled.  She notes that the doctors concluded hand injuries limited his work to sedentary-light duty.  She concluded work restrictions imposed by claimant's forensic examiner, Dr. Bennoch, did not describe any job in the open labor market.  She felt claimant's complaints of 10/10 pain highly credible and that he had "failed" in a return to work as a telemarketer without significant accommodates to allow breaks.  The position was no longer available when the company lost its grant.

The commission affirmed an award of total disability against the employer, open medical, past medical  and TTD benefits.  ALJ Holden computed the rate based on the exceptional circumstance statute on claimant's testimony that he was paid cash and earned $10 when he had been paid for only 3 jobs varying lump sum amounts. 

The ALJ denied a medical fee dispute based on insufficient proof the employer "authorized" treatment although the claimant suggested the employer stated it would pay the bills.  The bills involved more than $50,000 in care. 

The ALJ addressed issues of statutory employment under 287. 040. 

 "In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney’s fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer."

The ALJ fund that Klean Rite was the primary employer and that Super Clean was obligated to pay as a secondary employer.  Because Klean Rite lacked insurance, Super Clean became liable under the statute.  Super Clean was a Texas company and used Klean Rite as a contractor on 24 occasions.  The ALJ found that claimant was paid in cash.   Super Clean filed a "motion for reverse judgment" in the event that Super Clean was found to the be a statutory employer. 

The ALJ rejected the defense that he was not an employee at the time of the injury, noting: "he drove the company vehicle at a specific time to the specific site specified in the work order, he was in possession and carried the work orders with him, he assisted the claimant performed specific cleaning duties on behalf of Klean Rite. I do find claimant's testimony credible that he was paid cash by David Gertz, and in light of the foregoing facts, I find it reasonable to conclude that he was employing Corey in a like fashion."

The commission used the term employee loosely and suggest that claimant's girlfriend could be also counted as an employee because she drove him to a job site.

The Commission modified the award and found that ALJ Holden erred that the employer waived its right to direct future care.

The Commission rejected the argument that suit against a statutory employer required the additional burden that a statutory employer meet the definition of an employer under 287.030 because of the use of the word "employer' in 287. 040.3 and requires only proof of the following:   One is a statutory employee if (1) the work is performed pursuant to a contract, (2) the injury occurs on or about the premises of the alleged statutory employer and (3) the work is in the usual course of the alleged statutory employer's business.

The Commission finds that work on a ladder was arguably demolition which required proof of only   1 employee, and even if it wasn't there was sufficient evidence to find 5 or more employees to meet the definition.

The case is important along with a long line of cases rejecting a waiver of the statutory right of the employer to designate future care, although the Commission in dicta signals  a road to such a remedy by better proof by showing chronic neglect of care produced endangerment.   The case is also clearly a message that employers without insurance who don't provide care and are sailing in the chop. 

No award was made against the second injury fund.  Claimant was rated with a prior 20% disability by a psychiatrist dating back to child hood.

The case did not disturb an  award of disfigurement, which the Commission historically has found incompatible with an award of PTD benefits.

Claimant was 45-years old, did not complete high school, does not drive and has had "legal" issues in the past with two prior sentences.   

The case is Mock v SuperClean Services Company, etal, 2016 Mo WCLR Lexis  3 (Jan 14. 2016).


ALJ Holden
Atty:  Mergen, Harmison (AmTrust), Burks
Experts:  Bennoch, Roeder,  Eldred, England