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.