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