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

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."

" 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

Court finds unusual strain to affirm tremendous bill to treat rib fracture

Clark v Dairy Farmers of America
2018 MO APP. LEXIS 56      SD 34826
January 25, 2018

The employer appealed on the narrow issue whether the claimant suffered an unexpected traumatic event or unusual strain when she was performing her regular duties stirring cheese and she heard a pop in her ribs.  Employer claims the claimant must prove a traumatic event as a prerequisite to accident.The court of appeals finds substantial evidence to support the finding that claimant sustained an unusual strain by mixing cheese curds and proved she had an accident.

The Court noted   287.120.1 requires proof in a disputed accident whether  claimant sustained an unexpected traumatic event or an unusual strain.   The commission did not expressly identify what was the "accident" and what was the "injury" and the court felt it was "unduly restrictive" for the employer to  infer the Commission meant the injury was only the "pop" as an "unexpected event."

The court noted the facts supported claimant sustained an "unusual strain"  and had an unordinary act of excessive physical or mental tension, difficult exertion, or violent or overtaxing effort.  The court found an unusual strain could occur from regular activity and does not require something distinguishable from and in addition to routine work.  Claimant testified it took a lot of force to use a 35 to 40 pound shovel when she was precariously balanced.  These facts support an act of physical tension or unusual strain to fracture her rib even though the  employer argued the Commission muddled its findings of what is an injury and what is an accident. 

The court relied upon White v Conagra, 2017 MO Lexis 585, for the proposition that the Commission does not commit reversible error if it can identify the key issue in the case if the accident was the prevailing factor in causing the injury, even when the commission fails to accurate identify the accident. Similarly, the court notes Young v Boone Electric Coop, 462 S.W.3d 783 (Mo. App. 2015) held an award can be supported by an accident from an unusual strain even though it is not an unexpected event.

Clamant fractured a rib in the course of her duties.  Claimant had a lytic lesion which can cause bone weakness. 

The court limited its discussion of facts to the narrow issue regarding the interpretation of accident and whether the Commission reached the right result even if it gave a wrong or insufficient reason for its ruling without mentioning the elephant in the room that the fight was over $84,000 in bills that far exceeded customary medical bills for a rib fracture because claimant had a rare malignant lesion that was treated at the same time. 

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.