Wednesday, September 20, 2017

Commission smokes employer in $820,000 "temporary" award


Joseph Franklin v AB Electrical Inc.
Inj. 15-094035
Sept. 9, 2017

Claimant alleges catastrophic injuries from a fall from an 8 foot scaffold in 2015 and the employer denied benefits on the basis of a positive marijuana test.  The Commission reversed the denial and awarded in a temporary award more than $820,000 in past medical benefits and an order to provide weekly benefits and ongoing medical care.

Claimant is 34-years old and has no memory of the accident.

A witness testified he saw claimant take two hits off a pipe in the morning of the accident.  He was injured in the afternoon.  Claimant tested positive for THC, a metabolite for marijuana at 1:27 a.m.  A toxicologist testified claimant would have been impaired in his perception and reaction time and such impairments would have affected his ability to work safely on scaffolding, even if such impairments were not obvious to a co-worker.  He concluded the effects could have lasted 8 hours, and claimant's accident occurred as a proximate cause of smoking marijuana on the job in violation of the employer's policy.

Claimant he smoked at work, but did not smoke marijuana at work but smoked it away from work "on occasions."  He introduces contested evidence that the witness statement about claimant smoking is not credible, based on testimony from his sister that the witness said he was "forced" to support the story.

The ALJ found the use supported both by the witness testimony and expert opinion making inferences about whether the positive drug test showed prohibited drug use in conjunction with and as a cause of the accident.

The commission noted the critical nature of the injury:   “a subdural hematoma with features of basal skull fracture and a comminuted fracture of the occipital bone and features of cerebral edema.”  Neurosurgeon Dr. Roger A. Ray immediately took the employee to the operating room where he performed an emergency left craniotomy.  The employee’s bone flap could not be replaced and was placed in storage."

The commission concluded the witness' statement was  laden with inconsistencies regarding prior marijuana use on the job, the ability to see what the claimant was smoking and was inconsistent with the employer's own statements.  The witness admitted he made an untrue statement about prior marijuana uses on the job.  Although it may  "looked like" claimant was smoking marijuana on the morning of the accident, such lay evidence was an inadequate foundation to support the affirmative defense.

The Commission gave greater weight to claimant's expert that it was speculative to infer impairment from marijuana 8 hours after ingestion.  The claimant  impeached Dr. Long who conceded in previous cases that he felt impairment could be inferred at 5 hours, and not 8 hours, unless  “someone had a Rastafarian-type stogie."

The Commission found insufficient evidence to support the drug penalty:

'The penalty provisions of § 287.120.6(1) only apply if the employee’s injury was sustained in conjunction with the use of alcohol or non prescribed drugs.   Employee’s urinalysis does not show when or in what amount he may have last ingested marijuana.  It did not identify the presence of any pharmacologically active substance in employee’s system or the presence of any substances identified as controlled.  It is undisputed that the employee’s urinalysis, alone, is insufficient to establish that the employee’s injury was sustained in conjunction with the use of a non-prescribed controlled drug. "

___________________________________________________________________________

 He has testified that ingesting marijuana would not result in impairment five hours after ingestion unless “someone had a Rastafarian-type stogie."

__________________________________________________________________________


The Commission found the case of marijuana tests required something more to establish the drug penalty.  The employer offered no other evidence such as claimant smelling of marijuana when he was seen at the hospital.

The Commission found the legislature changed the law in 2017 regarding drug tests but felt the law was not retroactive and would not impact its outcome.

The Commission reversed its earlier policy which gives deference to credibility findings of administrative law judges and found a lay witness and an expert were not credible, contrary to the findings of the ALJ.  The Commission suggests the employer over-relied on an affidavit with erroneous statements and seems to leave an open question whether such errors were intentional or not.



ALJ  Siedlik
Atty:  Frank, Allen
Experts:  Cary, Long
Treating:  Ray

Commision affirms PTD for failed back

The Commission affirmed an award of total disability a worker who twisted his body suddenly when using a 3 foot pneumatic gun and reported disabling back pain 3 months later. Jones v Harley Davison Motor Co., No. 11-062102 (Sept. 14, 2017)

Claimant initially treated for an elbow strain.   He had prior chiropractic treatment for his back.  After he provide notice of his back condition, the employer did not tender care for the back.   He subsequently underwent a L4-5 fusion but reported he continued to experience constant back pain.  The treating doctor assigned no disability and concluded the accident exacerbated acquired spondylolysthesis.  He reports additional symptoms related to "transition" syndrome.  Claimant identifies very limited capacity for daily activity and a need to lie down.  

Dr. Koprivica, his expert, concluded he was sat MMI in 2011, and concluded he was PTD due to a failed back syndrome even in isolation. He assigned disability for prior conditions to the low back and both shoulders.  Dr. Stuckmeyer concluded claimant required permanent restrictions but any disability was due to a combination..  The ALJ notes the employer's "best evidence" was in favor of compensation when the treating doctor "checked a box" that the condition was the prevailing factor but stated he originally did not "focus" on causation.  The expert also provided no definitive opinion whether use of a jet ski better explained the need for surgery.  Cordray felt claimant was unemployable in the open labor market due to a need to lie down and from the last accident alone, although claimant's prior disability to the arm precluded his ability to perform sedentary work.  The ALJ noted testimony from claimant's former spouse that she would "watch him suffer significant pain." 

The ALJ admitted, over objection, references to an expert report from Dr. Zimmerman that was not submitted into evidence.  The court found the experts who reviewed the report did not adopt or defer to any opinions and over-ruled the objection.

The defense relied upon a typewritten note from a therapist that claimant injured his back following his honeymoon while using a jet ski.  The therapist testified she could not explain why the entry was in typewritten notes but not in handwritten notes but "does not believe she could be inaccurate."  The spouse stated claimant did not ride a jet ski and noted at the time of the honeymoon, and after the accident, he could not little more than sit on the beach. 

The ALJ found the claimant complied with notice requirements and provide notice of the accident and provide notice of a back condition when he was later told it was related. 

The ALJ awarded 13 months of disability benefits,  and $129,236.23 n medical bills although the employer argued the bills showed a zero balance.  The claimant introduced a financial responsibility form showing liability for the entire amount.  The ALJ awarded open medical. The ALJ further awarded PTD based on the testimony of chronic pain, the need for narcotic medication and the need to unpredictably lie down during the day.

The employer appealed and claimed, among other things, that the ALJ ignored testimony and adopted nearly verbatim the proposed award of the employee.  The Commission declined to address the issue and noted the proposed awards were not made part of the legal file. 

The employer contends claimant failed in his burden of prevailing factor because his chiropractor documented no change in his condition. 

The Commission found claimant met his burden to show accident by demonstrating evidence of "an" injury but he was not required to show evidence of symptoms of "each and every" body part claimed when the symptoms of the back did not develop until 2-3 days later.  The Commission found no evidence that claimant had evidence to similar hazards away from work. 

The Commission found no evidence of prejudice to support a notice defense.  The obligation to provide notice of the nature of the injury was defined by the definition of injury to show "violence to the physical structure" and  it was the employer's burden to show prejudice when the employer later experience additional symptoms.  In this case, the employee reported back problems nearly 3 months after the accident and the employer did not exercise any right to direct medical care or minimize disability. 

The Commission noted it would not disturb a finding of PTD against the employer, when the employer did not preserve the issue on appeal that the permanent total was due to a combination of his primary injury and pre-exiting disability.  The Commission criticized the employer's brief for being discourteous, hyperbolic and inflammatory.  The Commission further admonished the ALJ that an adopted opinion include pertinent citations and "careful, impartial analysis "that only an administrative law judge exercising his or her independent judgment can provide."

ALJ:  Siedlik
Atty:  Pittman, Billam, Colling
Experts:  Koprivica, Cordray
Treater:  Drisko

Tuesday, September 19, 2017

Commission awards total for foot fracture with complications

Badock v R.P. Lumber
Inj. No 10-004-961
DOLIR 9/18/2017

Claimant slipped while getting out of a truck in 2010 and sustained a fracture with complications. The ALJ awarded permanent partial disability.  The Commission modified the award to a total against the employer.

Claimant treated for a metatarsal fracture.  He developed shortness of breath and was treated for DVT and PE.  The treating doctor released him to full duty and assigned no disability for some recurrent swelling.  He was rated by a cardiologist with a 10-15% disability following CT imaging which identified no evidence of PE.  Dr. Goldberg felt he was capable of only desk job and to be allowed to keep his leg elevated because of post-phlebetic syndrome. 

The ALJ denied the PTD claim and found the assertion that claimant required his foot to remain elevated frequently was unsupported by the medical records.  The ALJ found claimant sustained more than 120 weeks of disability. 

The Commission found claimant credible that he could not tolerate sustained activities without breaks and that his reliance on anti-coagulants would "discourage" any employer to hire him.  It noted that he had no transferrable job skills and although claimant could be active some of the time he could not be considered employable unless he could sustain that level of activity.


ALJ Boresi
Atty  Burke, Leritz
Experts:  Volarich, England, Rao

Court affirms summary judgement based on a statutory employee defense


Kayden v Ford Motor Co.
WD 870165 (9/19/2017)


Clamant fell on a parking lot at Ford's assembly plant in Claycomo, Missouri in 2010.  She was employed by U.S. Security Associates, which h was in a contract with Allied Automotive to provide security for Ford.  She claims that she fell because of a mud-like substance and that Ford created a dangerous condition when it attempted to patch a large pothole in the parking lot. 

Ford obtained a summary judgment that  Kayden was Ford's statutory employee and her exclusive remedy was through worker's compensation. 

The test for statutory employment considers four elements:  1) are activities routinely done, 2) on a regular and a frequent schedule 3) contemplated in the agreement to be repeated over a relatively short span of time and 4) the performance of which would require the statutory employer to hire permanent employees absent the agreement

The only legal question was whether the work was performed in the usual course of Ford's business.  The claimant worked 30 hours per week in the capacity to perform security, the security was routinely provided and that Ford would have hired to use its own employees if the private security business did not perform the same services

The court found these facts satisfied a finding to support the statutory employment defense.  The court noted the appellant did not "address in a substantive manner" what facts did not qualify her as a statutory employee and relied upon general principles of negligence instead of addressing the primary legal issue in the case.

Atty  Beny, Reinhold

Wednesday, September 13, 2017

Supremes vacate award for stress claim from seeing bad things

Mantia v Mo Dept. of Transportation, No. SC 95885  (Sept. 2, 2017)

In a much-anticipated decision about mental-mental claims, the Missouri Supreme Court has vacated an award of 50% partial disability and open medical to a highway worker who had  developed psychiatric conditions from exposure to grisly accident scenes over a 20-year career. The court  remanded the case to the Commission to apply the proper statutory standard. 

Claimant filed a claim in 2008.  Dr. Jovick concluded she had work-related depression and PTSD caused by her work.  Dr. Stillings agreed claimant's employment caused depression but found that highway workers as part of their customary job encounter human tragedy at highway scenes. 

The ALJ denied the claim that she failed to prove her stress was extraordinary or unusual based on testimony from the expert that her exposures were similar to other employees and other supervisors witnessed the same type of accident scenes.  The Commission reversed and awarded benefits.

The court addressed only one issue on appeal if there was sufficient competent and objective evidence to support the award. 

Section 287.120.8 provides mental injury claims for  stress require proof that the stress is work related, extraordinary and unusual, and measured by objective standards and actual events.

In this case both experts agreed that her exposure at work caused some degree of mental disability but disagreed on the diagnosis and the extent of disability. The legal issue was whether the change in the statute after reform to strict construction changed precedent whether proof of  extraordinary and unusual stress continued to apply the former 'similarly situated employee' standard applied or a more generic 'reasonable person' standard construed by the Commission which would allow greater access of benefits to jobs with inherently stressful duties.


The court noted the statute provides no guidance what proof is required to show objective standards.  The court considered MAI and found the 'objective standard for determining whether Employee's stress was compensable is whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.  This could include evidence of other highway workers as to the circumstances that are experienced as part of the job and must demonstrate the actual events she experienced were such that a reasonable highway worker would experience extraordinary and unusual stress.  This could be demonstrated most commonly by comparing the level of work related stress with other employees n similar positions.

The court noted the commission found that the employee was exposed to events that caused her stress but did apply the correct statutory standard.     The court noted the statute created "confusion as to the appropriate test" and it was 'unclear" whether the employee would have been able to present sufficient evidence to meet the requirements/

The commission analyzed the exposure as unusual, and that encountering human tragedy was outside the experience of the average reasonable person that it would be compensable. The Supreme Court noted essentially that the issue was not whether an event could cause stress, or that the event could subjectively cause stress in a party, but whether the exposure  itself (whether horrendous or not) would cause unusual stress in a "reasonable" person in a similar profession. 

This raises a higher element of proof than applied by the Commission to show through expert or lay testimony not just how an employee responds to an exposure, or that an employee testified he or she "sees" bad things, but the additional element how other people would process such exposures.      The Commission's approach is that if someone saw something that was "bad" and unusual to the general public it satisfied the "extraordinary" prong.  The effect is that people in inherently stressful jobs compared to the general public generally cannot seek additional benefits because of ordinary exposures.

The court noted the legislature created an exception for firefighters who do not have to meet the statutory standard.


Comission awards future medical based on lay testimony

Popejoy v Sauer Construction
Inj. No 05-136093
DOLIR 8/31/2017


The Commission affirms an award of permanent total with open medical to a 53 year old who fell 2 stories when a walk board collapsed which resulted in L3 paraplegia. 

The ALJ awarded PTD benefits against the employer, Sauer, which was a subcontractor for Cooksey.  Cooksey was dissolved 7 years before the hearing and Sauer was discharged in bankruptcy.   Neither employer appeared for the hearing.  The SIF requested an 'order' before they would process any bills, and on appeal alleged insufficient evidence to support an award for future medical.  The ALJ found $180,024.72 in past medical expenses but awarded $8121.50 against the second injury fund.

The Commission found the SIF liable for future medical and nursing care based on medical testimony that claimant required assistance with transfers and household chores.  The commission went on to note that expert opinion was not required when an issue did not require an expert opinion and concluded that it was within lay understanding that someone confirmed to a wheelchair would require future nursing care. 

ALJ  Hart
Atty:  Miller, Kincade
Experts:  Levy
Treater: Coyle

Commission finds accomodated job is not work in the open labor market

Kenneth Weber v Kraft Foods Inc.
No. 08-124473
Sept 7, 2017


The Commission modified an award of permanent partial to permanent total against the second injury fund and found a 65-year old employee who had gone back to work for 5 years part-time was not precluded from a PTD award because his accommodated job was unavailable in the open labor market.

Claimant had a history of prior 22%  disability to his spine and sustained a new injury to his neck and back that required surgeries.  The employer settled the case for 12.5% before trial.  The ALJ found that claimant's 2008 accident caused a need for a 2008 back fusion and  a 2009 neck fusion caused 30% new disability and the conditions combined to support a SIF award with a 20% load. 

The Commission disagreed with the conclusion that claimant established that he could work in the open labor market, even though he had been employed five years on a part-time basis.  It concluded claimant had not competed in the open labor market for the job for a customer service based on testimony from the car wash owner that he was hired out of compassion.  The commission noted that claimant did not demonstrated he maintained employment in the open labor market because his position was accommodated and the owner let him leave for personal breaks and tolerated claimant's difficulty to remember simple tasks.  The basis of the Fund's liability was based on orthopedic conditions and not on any rateable learning or mental disability.

The claimant introduced testimony from Dr. Garth Russell that claimant's two-level fusions rendered him unemployable because he is "constantly" hurting despite a history that minimizes his symptoms.  The doctor did not regard part-time work as an "employable situation."  Gary Wiemholt testified that claimant had physical limitations, that he could not be hired in former jobs, he could not be retrained, and that he did consider his part-time work "to constitute full employment."
 
The Commission noted that part-time work can be considered work in the open labor market but distinguished this case because claimant could come and go as he pleased and the employer felt he could not "realistically" find work anywhere else.   

A defense vocational expert noted that claimant did not have work restrictions from treating physicians that prevented his ability to work.


ALJ Dierkes
Atty:  Pirmantgen, Dunham,
Experts:  Russell, Wiemholt, England

Tuesday, August 29, 2017

Non-slip footwear found to be an occupational risk while shooting hoops on break.


The Commission affirms an award for an avulsion fracture  when claimant’s foot slipped while shooting hoops during a paid break.  The Commission disavowed comments about the  mutual benefit doctrine and found the accident arose from an identifiable risk (non-slip shoes) not encountered in non-occupational life (wearing such shoes while shooting hoops away from the job).  The statutory exclusion for recreational activities did not apply because claimant was “on the clock.” The ALJ  applied the mutual benefit doctrine which noted the employees were shooting hoops, building morale, and not "gambling, gossiping or grumbling against Employer."

The ALJ discusses 2005 statutory changes which abolished the phrase "work related injury" and notes the definition of accident contains a "carry over" from the original language and does not establish a separate test to establish accident. 

The ALJ noted the statutory exclusion for recreational activities excluded payment "while" participating, but did not require payment "for" participating, citing Miles v Lear Corporation, 259 SW3d 64 (Mo. App. 2008).  The Commission found that Miles, a pre-reform case, remained controlling authority.  

GRUENDER V CURATORS OF THE UNIVERSITY OF MISSOURI,
No. 14-043810  (August 18, 2017)

ALJ  Dierkes
Atty:  Christianson, Fowler, Woodbury
Experts:  Volarich, Komes
 

Wednesday, August 23, 2017

Commission shifts former SIF liaiblity to employer

Cosby v Drake Carpentry
Inj. No. 14-003644
8/16/2017

The Commission concludes that the legislature in 2014 when it  limited  SIF liablit5y that it put the employer to stand in the place of the fund to pay that liability.  This will raise the price to settle any case with an employee who has significant prior medical conditions or earlier settlements. with enhanced PPD or PTD claims that no longer meet the new standards. 

The Commission affirms a denial of partial  and total disability benefits against the second injury fund, arising from a Jan 22, 2014 accident, based on statutory changes affecting eligibility to recover fund benefits.

Claimant injured his knee, settled the claim against the employer, and sought benefits against the fund for PPD or PTD, and asserted whether  statutory changes to limit  recovery of benefits from the Fund for injuries after January 1, 2014 was unconstitutional. 

Claimant continues to work part-time following a knee surgery.  He introduced evidence of 4 prior injuries including injuries to both shoulders, the left knee and hernias.  An expert testified that the injuries combined synergistically and that prior and current injuries required medical restrictions.

The ALJ found claimant was not totally disabled.  The ALJ further found 287.220.3 as amended barred partial claims against the Fund.   The ALJ found he lacked specific statutory authority to address the constitutionality of the statutory changes. 

The Commission discussed Gattenby v Treasurer, 56 S.W.3d 859 (Mo. App. 2017) which allowed claims against the second injury fund for PTD unless the primary and the pre-existing occur after January 1, 2014.  In those instances, when the primary and pre-existing occur after January 1, 2014 then the higher standards of 287.220.3 apply.

The Commission found that Cosby dealt with a claim of permanent partial and no recovery can be made against the Fund.

The Commission notes in dicta it considers the changes in SB 1 to limit liability to the fund now expands liability to the employer. This applies in two instances:  in the case of a PTD claim that does not qualify under the stricter terms of 287.220.3, then the employer is responsible.  In in cases in which there is evidence of synergistic disability that would have been previously paid by the Fund, then the employer is now responsible. 

The Commission did not award  enhanced PPD benefits against the employer as the employer was not a party to the appeal and had settled the case. 

The Commission found the constitutional claim was properly preserved, which may ultimately go up on appeal. 

Such an interpretation creates procedural due process questions as the current state-approved  claim forms do not provide adequate notice  how to plead such claims against the employer  and without such notice the employer is denied its due process rights to perform appropriate discovery. 


ALJ Zerrer
Atty:  Edelman

Monday, August 21, 2017

PTD for multi-level fusion

The Commission affirms an award of PTD benefits for a worker who hurt his thoracic spine while cutting a tree in 2014  which required a multi-level fusion and more than $400,000 in medical benefits.    Ernst v Jackson County, Inj. No 14-016690,  Aug 15, 2017.

The ALJ claimant's pain complaints credible despite  FCE and surveillance evidence.  The worker introduced vocational testimony that his vocational profile and his restrictions rendered him unemployable. 

The Commission deferred to the ALJ's finding of credibility noting a general policy to rarely disturb a finding of credibility of a live witness.

ALJ  Mieners
Atty:  Edelman
Exerts:  Stuckmeyer  Dreiling

Friday, August 18, 2017

Soccer ball to head causes multiple injuries

The Commission affirmed a PTD award against SIF, and concluded subsequent part-time employment did not preclude an award for total disability.  Hull v Dr. Pepper   08-117368  8/15/2017

The Commission found that claimant's capacity to work part-time in a highly accommodated work environment did not constitute substantial gainful employment. 

Claimant alleges as a result of the primary injury he was hit in the head with a soccer ball.  He had a long history of concussions from playing hockey.  He claims he also sustained injuries to his neck and both knees.  A defense expert concluded his condition in part arose from somatoform disorder.

ALJ Carlisle
Atty:  Meyers, Toepke
Experts:  Liss, Volarich, Gonzales

Commission affirms PTD for hernia repair

Claimant injured his left groin while turning a valve in 2010.  He claims he developed nerve entrapment after a hernia repair and became depressed. He was released to return to work without restrictions.  Adams v City of Kansas City  Inj.  10-067514  8/15/2017

The ALJ awarded PTD benefits based on vocational testimony that claimant could not tolerate work because he was in too much pain and had to lie down during the day and that he required pain medication.  He was advised by his expert that he needed a spinal cord stimulator.   The ALJ awarded future medical but noted that future medical was not identified as a stipulated issue.

On appeal, the Commission found that evidence supported an award of open medical, that the employee made it an issue in the course of the hearing when the ALJ asked whether he wanted to consider it. The Commission notes the defense did not object or preserve error on appeal that the ALJ may have exceeded his authority. 

The Commission found no expert opinion was necessary to show that use of pain relieving medication was reasonable to alleviate symptoms of pain nor was there express expert opinion that the continued use of such medication was not necessary. 

ALJ:  Rebman
Atty:  Wickersham
Experts:  Parmet, Titterington, Wheeler

Friday, August 4, 2017

Commission enhances PPD award for multi-knee surgery case

A 62-year old teacher fell in 2013 and ultimately underwent multiple knee  surgeries and required future medical treatment including TKR  related to chondromalacia and end-stage arthritis.  The Commission nearly doubled the award for permanent partial disability.  Simpson v Columbia College, 2017 MOWCLR LEXIS ___ (July 28, 2017) (13-069045).

The Commission modified the PPD award from 22.5% to 40% and rejected the defense that her need for TKR flowed from arthritis and not the work injury.   Claimant's chondromalacia was staged from grade 1 to grade 3 in the course of her care for the work injury. 

The employee alleged the employer denied injections recommended by its own doctor and delayed to obtain  a medical opinion to support its denial for nearly a year.  The ALJ found that the employer's denial was not persuasive but was reasonable based on medical expert opinion.  The ALJ denied the motion for fees for the cost of the treating physician to testify live at the hearing about causation and the need for disputed injections. 


ALJ  Zerrer
Atty: McDuffy, Friel
Experts:  Volarich, Leslie, Marr

Wednesday, July 26, 2017

Commission slashes benefits for eye injury

The Commission stripped more than $100,000 in benefits awarded to a carpenter partially blinded when he was cutting wood and debris went into his eye.  Billy Hood v Michael Menech and Vandalia Area Historical Society, Inj. No.  12-107135 (July 19, 2017) but allowed the claimant  a second chance by converting an award from a final award to a temporary award. 

Claimant required immediate surgery to repair a ruptured globe and a lens implant. He later pursued additional treatment after two additional accidents.  He has not worked since 2012.

The ALJ issued a final award for permanent partial disability, temporary total disability benefits, past and future medical for $134,849.25.  The Commission modified the award to about $28,000.

What happened?

The commission noted an absence of expert testimony or opinion to support some aspects of the award.  The commission found that there was insufficient evidence that treatment beyond the initial medical care and surgery flowed from the accident and reduced the award of medical bills

The Commission rejected the defense, in part, that the claimant failed to advance testimony from a physician to show the medical conditions flowed from the accident. The Commission found the undisputed facts were self-proving that claimant had an accident, that he had a foreign object lodged in his eye, and that he required emergency room treatment and the prevailing factor in "some" disability but that claimant failed in proof to show how diagnosis of conjunctival neoplasm, uveitic cataract and retrocorneal membrane related to the accident.


The Commission noted issues of causation were complicated because of claimant's subsequent injuries to his eye occurred when he fell down two flights of steps stairs when he was "voluntarily" intoxicated on a bottle and a half of Jack Daniels and "dislodged" the lens after the fall.


The Commission  noted some  evidence that claimant was an independent contractor but the defendants did not preserve the issue on appeal if claimant was an employee or to reconcile confusing evidence  which of the two co-defendants employed him.  The claimant testified that he worked for Menech but that he was paid under the name of Vandalia Area Historical Society.  He states Menech employed 20 to 25 people and would provide larger equipment for construction projects.  He states he never received a W2 form.  Menech asserted he was a self-employed manager of the historical society project. 


The Commission affirmed an award for future (or open) medical noting that claimant had required a prosthesis (an implanted lens) and it was reasonable probable he would require care in the future.  No medical record is identified for this conclusion. The ALJ  ordered Menech to provide treatment which may be selected by the Claimant.

 The Commission notes no doctor found MMI so the award of PPD and converted the case from a final to a temporary award.

The Commission found no party challenged the compensation rate, which was calculated based on the ALJ's "assumption" that claimant worked 40 hours.

The Fund was liable under 287.220.7 to pay for treatment to cure and relieve the effects of the injury for an uninsured employer.  The legislature later limited the law to allow similar claims  only arising prior to Jan 1, 2014.  The employer  represented itself without counsel and it's appeal was dismissed for the failure to post a bond.  It remained unclear from the opinion whether the business was a going concern or whether the employer had any resources to pay any of the award. 



ALJ Zerrer
Atty  Laramore, Hanson   

Benefits awarded for pain after "tilting" neck

The commission awarded 20% disability to a 65-year old state employee who alleges her neck felt funny when she bent it at work to clean a sink.  Estes v State of MO., 2017 MO WCLR Lexis 36 (July 18, 2017).

"She tilted her neck such as to cause her to have pain in her neck and such that she "saw stars."

She reported the accident in May 2012 after a leave for other medical conditions.  She initially declined an offer of treatment but later pursued injection and RFA on her own.  She testified she had a limited capacity to lift.  She subsequently had additional orthopedic surgery for her shoulder and knee.  The employer designated doctor had recommended care and attributed a nominal amount of permanent disability to the incident.

The commission affirmed an award of 20%.  The ALJ denied liability for the shoulder and denied a claim of PTD benefits.

ALJ  House
Atty:  Platter
Experts:  Lennard, Parmet

Thursday, July 20, 2017

Total for slip and fall injury

Barahona v Hilton Hotel
July 7, 2017
10-043312, 10-110361, 10-111518, 11-031709

The Commission affirmed an award of total disability to a kitchen employee who slipped and fell in 2011, hit her head, twisted her back and required knee surgery.

The claimant had four claims of orthopedic injuries over a period of about 10 months in 2010-2011..  The Commission determined the last accident alone produced her work limitations based on the opinion of Dr. Volarich, although he Commission noted  some of the functional limitations identified by the ALJ appeared to combine pre-accident and post-accident symptoms.  Her vocational expert concluded she was a total due a combination of  old and new impairments.

The Commission noted:

"For example, employee’s current and ongoing need for assistance with activities of daily living; her need for daily narcotic medications in connection with multiple pain-generating conditions; and her limitations with regard to prolonged sitting and standing would all appear to involve at least some component of disability referable to employee’s preexisting injuries and disability conditions.
 Likewise, employee’s bilateral ankle problems clearly involve disability referable to her prior work injuries of June and July 2010 affecting the right ankle. Accordingly, we must disclaim, from the numbered list spanning pages 49 and 50, the above-mentioned items, as we are convinced each involve some component of disability or impairment not referable solely to the effects of the last work injury."
Claimant described headaches, memory loss, back pain, and capacity to stand only a matter of seconds without pain.  The employer-designated doctor felt she was capable  of sedentary work.  The ALJ noted she is 55 years old, has an eighth grade education from Honduras, she is unable to spell, she has poor concentration and orientation, she was depressed, she  requires narcotics and rest breaks, among other limitations.

The ALJ noted that Dr. Kitchens concluded claimant's back findings were degenerative in nature and disputed claimant's theory that she had a traumatic annular tear as the source of her numerous symptoms. In addition, the Commission affirmed 3 additional PPD awards for accidents  preceding the last accident.

ALJ  Fischer
Atty: Newman
Experts:  Volarich, Eldrid, Olive, Kitchens, England

Tuesday, July 11, 2017

Commission affirms 20% load on SIF claim

Satterfield v Carlisle Power Transmission
2017 MO WCLR LEXIS
13-098713  (July 7, 2017)

The ALJ awards partial SIF benefits on the basis of bilateral hand condition combined with a primary metatarsal fracture.

Claimant alleges her foot was yanked underneath a pallet while she was working production at a job in Greene County.  Claimant produced expert opinion that severe arthritis in both hands. The ALJ found a "unique" instance to award the 72 year old claimant disability of 25% of each wrist and a  a 20% loading factor. 

The award does not identify any expert opinion offered by the fund. 

ALJ  Mahon
Atty:  Newman

Court declines to compel SIF to pay interest on awards

Deckard v Eric Schmitt Treasurer,
WD 80154  (July 11, 2017). 

The second injury fund failed has had insolvency problems for years and was sued for contempt when it failed to pay judgments and interest on several permanent total awards.  The only issue remaining on appeal was unpaid interest. 

The workers sued, seeking a writ of mandamus and an order of contempt.  The workers lost in a motion for summary judgment.  The court of appeals affirmed and concluded the appellants could not appeal an interlocutory order and the appellants had not preserved for appellate review by obtaining an evidentiary hearing on the issue of contempt.

The legislature adopted a surcharge to attempt to solve the insolvency of the Fund and adopted a list of priority creditors or payments.  The surcharge applies through 2021.  The list is in section 287.220.15.

The court found purposeful legislative intent for the provision to apply retroactively by the use of the word "any." The court found that appellants failed to establish they had a clear, unequivocal right to require respondents to pay interest.  Section 287.220.15 set a list of priorities to satisfy Fund obligations and the statutory obligation was below 5th out of 5 other priorities.

The fund is paid through a surcharge on employers and "ran out of money" to meet its obligations and is not funded out of general state revenue. 


Hon Gabbert
Atty:  Ieezi, Harris

Thursday, July 6, 2017

Governor signs new comp bill

Missouri Governor Greitens on July 5, 2017 signed Senate Bill 66 to change the worker's compensation law.

The bill changes the law regarding hardship claims, drug penalties, retaliatory discharge and others areas.

A new book  RUB SOME DIRT ON IT! talks about how the changes may create new problems and unintended consequences. 

Friday, June 30, 2017

Court affirms denial of accident in prankster fire

Hedrick v. Big O Tires
2017 Mo. App. LEXIS 660  (Burrell, J.)
June 29, 2017
re-issued  July 18, 2017

Claimant appeals a denial of benefits  for failure to prove an unexpected accident when he lit a can of glue on fire, the can exploded, and the can severely burned him and a co-worker, who originally held the can.

Claimant was unable to testify regarding the accident and stated he recalled waking up in a hospital.  He sustained burns to more than 40% of his body from the accident.  He expressly denied that he ever engage in dangerous horseplay.  Claimant was fired as a result of the incident. 

A witness testified that the employer had discouraged horseplay in the shop. 

"On the day Mr. Milazzo was injured, he observed Claimant "[g]oofing around, watching videos on his cell phone." Mr. Milazzo thought it was Claimant's last day at work for Employer. Mr. Milazzo recalled that just before he was injured, he was patching a tire that had been removed from a wheel. Mr. Milazzo had not asked for help patching the tire, he did not need help patching the tire, and he could not think of any reason related to job duties that Claimant would have had "a lighter near [Mr. Milazzo's] bottle of adhesive[.]" Mr. Milazzo was letting the glue "dry by air" and he did not "use a flame of any kind to dry the glue or adhesive during the patching process[.]" He was not a smoker, and he did not use a lighter in his work at Employer's shop. Mr. Milazzo testified that "immediately before he caught on fire[,]" Claimant "came up to [him] and . .. lit the can of glue on fire that was in [Mr. Milazzo's] hand and looked at [Mr. Milazzo] and kind of smiled  and then [Mr. Milazzo] immediately threw the bottle down because [he] was on fire." Mr. Milazzo said Claimant used "[a] lighter" to ignite the glue can, and Claimant was "laughing" as he lit it. The glue can fizzled and "spit" on Mr. Milazzo's arm, causing him to throw or drop it. When it landed, "[i]t exploded with a big flame." Mr. Milazzo "require[d] extensive treatment for [his] injuries" and was off work "quite a long time."
"The Commission found that even though Claimant "expressly denied"   engaging in dangerous horseplay, "he readily admitted that lighting a can of adhesive on fire was unquestionably dangerous." Finding that Claimant's injuries did not arise out of and in the course of his employment, the Commission reasoned: "Simply stated, the risk or hazard from which [Claimant's] injuries came was [his] own voluntary choice to engage in a spontaneous, unprecedented, and potentially deadly act when he lit a can of  industrial adhesive on fire." This appeal timely followed. See section 287.495.1."

The court noted that proof of accident required proof of an "unexpected" traumatic event.  In this instance, lighting a flammable container was expected or foreseeable to produce wounds and did not meet the definition of accident. It was unnecessary to address whether the claimant fully appreciated the scope of potential injury.  The court also noted claimant could not pursue a claim under a theory of assault and re-iterated Missouri's initial aggressor rule. 

The commission denied on the basis of the failure to prove accident or that his accident arose out of his employment. It  found  his"own voluntary choice to engage in a spontaneous, unprecedented, and potentially deadly act when he lit a can of  industrial adhesive on fire." The commission affirmed a denial on failure to prove accident and that the injury did not arise out of his employment.  The court affirmed the denial on failure to prove accident, although it noted the original decision focused on the second issue of arising out of.

Tuesday, June 27, 2017

Fund benefits awarded for multiple sclerosis

Isaac v Barnes Jewish
2017 MOWCLR LEXIS 35
June 20, 2017

The commission affirms a PPD award for SIF benefits to a 49-year old on the basis of prior hypercoagulability, multiple sclerosis, ankle and neck conditions.  Claimant had been awarded social security disability benefits solely on the basis of her MS. She testified regarding increased impairment from her balance, weakness and fatigue following the work injury.

The employer had settled prior to hearing on the basis of a slip and fall that produced injuries to her elbow and foot. 


ALJ Kohner
Experts:  Volarich, England

Court dismisses appeal for lack of jurisdiction to consider a temporary award

Williams v Tyson Foods
WD 80267  (Gabbert)
June 27, 2017


The employer files an appeal and asserts there is insufficient evidence to support a temporary award to provide treatment regarding a 2015 injury to the worker's foot.

The court sua sponte dismissed the appeal for lack of jurisdiction. 

The court found both the Eastern and the Southern District no longer recognizes exceptions to appeal a temporary award when an employer is claiming it does not owe anything or when an award is not made pursuant to 287.510.   The Western District stated it did not need to reach the determination whether it agreed with the other districts because it found the appeal did not meet either exception.

The court denied an employee's request for attorney fees.

Wednesday, June 14, 2017

New book explores the latest Misssouri workers' compensation cases and 2017 reforms
















 
RUB SOME DIRT ON IT! tells how Missouri tried to fix its comp law in 2017 as part of major tort reform, the new rules of the road in Senate Bill 66, and the disaster that happened the last time Missouri business tried reform to put the comp genie back in the bottle. The book describes more than 100 of the latest cases, medical claims too crazy to make up, and the latest legal fights and emerging issues.  It is packed with many helpful tips how people win and lose comp cases. 

The book also consolidates and updates a lot of blawgs from MO Work Comp Alerts  as an easy reference source.

The book is now available  through Amazon for pre-order and will be available on June 21,  2017.



 

Wednesday, May 24, 2017

Eastern District obstructs parties from reaching post-award compromise

Dickemann v Costco Wholesale Corporation
ED 105266
2017 MO App. Lexis 472
filed May 23, 2017  transferred to MO Supreme Court  6/14/2017


Parties are not allowed to strike their own deal after an award according to the latest case out of the court of appeals - Eastern District, in direct conflict with the Western District, in an important issue that may ultimately need to be resolved by the Supreme Court. 

The court of appeals affirms the Commission has no authority to consider joint agreements for approval under 287.390 (settlements of claims) and the proposed agreement fails because it does not meet the requirements of 287.530 (commutation)

This decision has huge implications for people who have awards, and seek to close out obligations that might stay open for decades and for injured workers who would rather have their money now than later.

This issue is deja vu for the Commission.

The Commission  has refused to approve post-award settlements in the past that it did not represent the full value of future installments. 

The Western District has told it to approve settlements  if the settlement met the requirements of 287.390.1 if it is not the result of undue influence or fraud, the employee understands his or her rights or benefits, and voluntarily agrees to accept the terms.  In Hinkle v A.B. Dick Co, 435 S.W.3d 685 (Mo App. 2014) the Commission balked about approving a settlement which paid 49% of the present value until it was ordered by the Western District to approve the settlement, following Nance, which found the controlling statutory authority for settlements was governed by 287.390.1 for non-contested commutations and not solely  287.530.

Dickemann is factually similar to Hinkle, in some respects.  The proposed settlement of $400,000 is not equal to the commutable value of future installments.  The parties seek to end their liability to pay future installments by a lump sum. In this case,  the employee seeks the settlement and the employer adopts the arguments and proposal. 

 Dickermann case declines to follow Nance or Hinkle, and claims the only controlling authority for post-award settlements is 287.530, and the parties fail to show the settlement proposal meets the statutory requirements of 287.530:  that the proposal is equal to commutable value and that unusual circumstances exist in the best interest of the parties (for example, a shorter life expectancy as in Nance) to support any commutation.  The court finds under the rubric of strict construction it cannot find a "claim", like the court in Nance, and finds only parties to claims can strike their own deals. 
Section 287.530 applied as the procedure to settle post-award liability whether the commutation was "contested" or not

The parties sought approval through criteria of 287.390 rather than 287.530 following precedent in Nance and Hinkle , and argued  the doctrine of stare decisis to follow the Western District's precedent. 

The court suggests 287.390 allowed the Commission to approve settlements only "in accordance with the rights of the parties" and the provision may conflict with the criteria  of "undue influence, understood rights, and voluntarily agrees..."  but waited for a "future case which would directly present the issue" for consideration.  Nance followed the latter criteria.


The court noted the joint agreement failed to  list any of the statutory grounds of 287.530:  best interest of the parties, unusual circumstances, or present value.  The proposal represented about 2/3 of the present value. 

The court and commission  relies upon strict construction of 287.800 and concludes  that it was legislative intent to allow post-award negotiation as an exception and only in very narrow circumstances. 

The Western District now allows parties to strike their own deal, even after an award, and determine what is in their best interest.  The Eastern District now backs a long-standing position of the Commission that workers and their employers lose that chance to negotiate further after a final award and they must live by the deal, good or bad, and there are no second bites at the apple. 

Judge Hess authored the opinion.


Tuesday, May 2, 2017

No recovery for "personal" risk from horseplay

A worker failed to show his shoulder injury arose out of his employment when he was involved with an altercation with a co-worker and fell to the ground. Grayson v Thorne and Son Asphalt Paving Company, 2017 MOWCLR LEXIS 31 (April 18, 2017).   The Commission affirmed the denial on different grounds.

The ALJ noted the 57 year old worker began work on a morning in 2015 when a co-worker reportedly grabbed him.  Claimant stated he was not a voluntary participant to the assault.

Witnesses indicated there was no animosity between the employees and they returned to their regular duties without incident.  Another employee reported that people were always goofing around but wrestling was not typical conduct.  Claimant had a history of shoulder problems and provided an evolving history how the accident occurred. 

The Commission found the risk source was purely personal and not compensable.  The ALJ denied the case as horseplay.

Thursday, April 27, 2017

Commission needs evidentiary hearing for contested notice of show cause order


The court of appeals remands the case when the commission did not conduct an evidentiary hearing on whether notice was properly received when claimant did not respond to a motion to show cause to substitute payments for attorney’s fees from her attorney Harry Nichols to the Nichols Living Trust, in the event he predeceases her. 

BRECKLE V TREASURER OF THE STATE OF MO, 2017 MO WCLR LEXIS 306 (April 18, 2017)

Saturday, March 11, 2017

No credit in temporary award without sufficient foundation of self-funded plan.

Miller v Nieman Foods
2017 MOWCLR LEXIS 25
March 2, 2017

Claimant alleged a back injury from lifting boxes in January 2013.  The ALJ issued a temporary award and back medical bills of about $62,000 related to a prior surgery.

The Commission rejects the alleged error that the employer should have received offset for payments through a self-funded insurance plan.

"Employer argues that many of the disputed charges have already been satisfied, in part, by payments from employee's group health insurance plan through employer. But (as employer acknowledges in its brief) the record is bereft of evidence to establish the nature of that insurance policy, and whether such was fully funded by the employer or instead involved co-pays, co-insurance, deductibles, or monthly premiums payable by employee. In the absence of such evidence, there is no support for a finding these insurance payments and/or any adjustments referable thereto constituted benefits directly from the employer  for purposes of  287.270."

"Nevertheless, employer asserts it will offer the requisite evidence if and when this matter proceeds to a hearing for a final award, and asks the Commission to impose a "stay" on the Division's award of past medical expenses until the full hearing may be held. We must decline this request, because the relevant statutes do not confer upon the Commission the authority to "stay," in whole or in part, any temporary or partial award by an administrative law judge. Instead, pursuant to 287.250. RSMo.  these proceedings are kept open until a final award can be made"

The employer was entitled to a credit for a prior payment sent to claimant by the carrier.  The Commission indicated the employer could offer additional proof on the issue in a final award which could be an indirect invitation to settle the case. 

Thursday, March 9, 2017

Commission affirms 30 hour rule for part-time employee as "fair" resolution under 287.250.4

Johnson v RPCS dba Price Chopper
2017 MOWCLR Lexis 23 (March 3, 2017) (House)

Claimant was killed in a 2015 motor vehicle accident.  The issues in dispute were if he died as a result of accident arising out of his employment and the applicable compensation rate.

Claimant had retired and worked as a part-time floater meat cutter and at the time of the accident he was returning from a Kansas store to his home in Missouri.  The ALJ found that claimant was not traveling from the employer's principal place of business (it had 48 locations) and the accident arose out of his employment, relying upon  Harness v Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009).

The employer argued rate should be based on 30-hour rule as a part-time employee rather than 52 weeks.  No evidence was offered of any regular or full-time employee.  The ALJ employed his hourly rate when he was full-time to a 30 hour schedule.

Clamant appealed and argued:   

"that employee's work as a part-time floating meat cutter was "of the same or similar nature" as employee's prior work as a full-time meat market manager, and thus evidence of employee's own prior average weekly wage is sufficient for purposes of  287.250.3."

The commission affirmed the calculation by the ALJ based on the 30 hour rule at the former hourly full-time rate  as "fair" based on 287.250.4 and indicated that calculation under 287.250.3 was debatable.

"The 30-hour statutory minimum does not operate to cure gaps in the claimant's evidence, or to establish a de-facto 30-hour week wherever the evidence shows an injured employee was working part-time. There is no evidence on this record to establish "the number of hours per week required by the employer to classify [an] employee as a full-time or regular employee. " Consequently, there would appear to be no basis  for referring to or applying the 30-hour minimum, as there is no evidence that employer attempted to classify meat cutters working less than 30 hours per week as "full-time or regular" employees"

The employer did not appeal calculation using 30 hours although the claimant's part-time schedule was usually at 22 hours. 

Expert dies, now what?

McDowell v Mo Dept of Transportation


2017 MO APP. LEXIS  (August 29, 2017) SD 34931

 
The court affirms a commission award that modified and increased the award for psychiatric disability following an ankle injury and denies the constitutional challenge from the employer that it did not have an opportunity to cross exam claimant’s expert because the expert died.  The court found the constitutional challenge was not adequately preserved specifically as a due process violation at the time of the hearing and did not cite a specific constitutional provision or section. 

The court declined to address whether 491.070, which identifies a statutory ight to cross examine a witness when a witness is "called" would even apply in these circumstances in which the witness was not "called' but opinions were submitted by motion pursuant to 287.210.7.  The court notes the appellant did not fully develop the issue and it was deemed abandoned. 



2017 MOWCLR Lexis 24
March 3, 2017


The Commission addressed an interesting problem:  what happens when someone submits an expert opinion by 287.210.7 motion and the expert dies before a party performs a cross exam?

In August 2014 claimant submitted a motion to submit a report of Dr. Stillings, his expert, into evidence. Dr. Stillings had assessed disability for a mood and pain disorder following an ankle injury. Dr. Stillings died in March 2015.   Employer concedes it had 7 months to schedule the cross-examination but postponed the deposition until the employer obtained its own expert opinion.  The employer concurred claimant's accident caused a psychiatric condition but stated that it resolved without causing a permanent condition.

The commission affirmed the decision to over-rule to objection and allow the report into evidence.

The commission declined to consider the constitutional challenge that allowing the report without cross examination   denied a right to cross exam under 491.070.  The commission found 287.210.7 required only a reasonable opportunity after motion to depose the expert, and 7 months was reasonable. On appeal, the commission enhanced the psychiatric award from 2% to 10%. 

In a prior case, the ALJ had allowed admission of a report by a deceased expert. 

Claimant's expert died 6 years after an IME depriving the employer of an opportunity for cross exam.  The ALJ admitted  the report  and relied upon it as a basis to award permanent and total disability benefits.   Graham v LATCO Contractors Inc., 2014 MO WCLR Lexis 52.






Tuesday, March 7, 2017

Unreliable history of accident defeats claim

Clark v Almost Family, Inc.
2017 MOWCLR LEXIS 22 (Kohner)
February 23, 2017

A home care worker alleges she hurt her  neck  and sought a temporary award for a myelogram and other treatment.  The Commission affirmed a denial of benefits  that claimant's expert relied upon materially incorrect facts. 

Claimant filed a claim alleging she hurt her neck moving a 400 pound patient.  Claimant provides different medical histories some of which describe a work injury and the first emergency room record for treatment described the cause  as "unknown." Claimant treated on her own with injections for aggravation of cervical arthritis.  She sought a temporary award for treatment and claims that her hand draws up and she has unrelenting pain. An expert proposed a myelogram.

 Dr. Taylor felt her condition flowed from a somatization disorder without an organic explanation related to a cervical condition.

"The essential question in this case is whether the claimant suffered a work-related injury  from an accident at work. She testified at the hearing that she suffered a severe neck and left arm injury while lifting a 400-pound patient on November 29, 2014, or December 6, 2014. On the other hand, the claimant suffered from pre-existing cervical arthritis and degenerative disc disease relating to her neck."

The ALJ concluded that the emergency room history was inconsistent with the claim as a basis to deny compensation. The ALJ noted that Dr. Volarich provided a rationale for the myelogram to better evaluate osteophyte formation despite a normal MRI. The ALJ considered his explanation  a "more reasonable analysis" rather than the "focus on the relationship of the alleged occurrence to the claimant's medical condition"

The Commission noted the employer had stipulated claimant provided services on the date of the alleged accident and that inconsistencies in the accident date was not always fatal.  She was unable to reconcile her testimony that she was in "intractable pain" and payroll records showing she continued to work until she sought treatment 10 days later.  Dr. Volarich's "timeline with regard to the accident, employee's onset of symptoms, and her first seeking emergency medical treatment materially differs from the facts that we must find if we are to both (1) honor the parties' stipulation and (2) credit employee's testimony."

The Commission suggests alternate testimony could have cured the inconsistencies:

"If Dr. Volarich had been properly apprised of the date of initial injury, 10-day gap in seeking treatment, employee's work in the interim, and the apparent aggravation and or worsening of employee's symptoms between November 29 and December 9, 2014, he might have been able to explain these circumstances in a manner that would, nevertheless, persuasively identify the accident as the prevailing factor in causing injury. Indeed, it is not outside the realm of possibility that employee suffered an initial injury on November 29, 2014, that gradually worsened as she continued to perform her duties for employer, until her symptoms became so severe that she required emergency care. Such a theory of injury might satisfy the statutory requirements, if supported by persuasive expert medical testimony.

As it stands, however, we are faced with a record where employee's evaluating expert relied upon demonstrably, and in our view, materially incorrect facts. "

Only 2 of the 3 commissioners wrote the award. 

Attorney Plufka represented the employee. 

Friday, March 3, 2017

Post back surgery need to lie down supports total

Clift v. Queen City Winnelson Company, Employer
2017 MOWCLR Lexis 21 (Mahon)
 
(Feb. 22, 2017)
 
 
The commission unanimously affirms a permanent total award against the employer as a result of "post-laminectomy syndrome" that produced a need to lie down regularly.  
 
The 45 year old claimant performed work in a warehouse that involved heavy lifting.  He underwent a back surgery that did not resolve back and leg pain.  He testified to impaired sleep, inability to ride long distances, reduced concentration and a regular need to lie down.
 
His expert attributed his limited recovery to arachnoiditis and that his "frequent lifting" caused the herniation.  Another expert felt his back condition combined with prior reflex sympathetic dystrophy in the right upper extremity, a myocardial infarction in 2009, obstructive sleep apnea, and degenerative joint disease of the right knee after arthroscopic meniscectomy to render him to be a fund "combo."  Both vocational experts expert concluded he was unemployable due to the last accident alone because of a need to lie down.
 
"Employer/Insurer insists that the Second Injury Fund  is liable for permanent total disability given Claimant's numerous injuries and medical conditions which were potentially disabling prior to May 2013. Having found that Claimant is unemployable as a consequence of the last injury, alone, there is no need to consider the effect of these preexisting conditions. ... Moreover, Claimant unequivocally testified, without impeachment, that none of his prior conditions caused him problems at work, nor would they have limited his ability to work at other jobs. Mr. Eldred opined from a vocational perspective, that none of the preexisting conditions constituted a hindrance or obstacle to employment or reemployment prior to May 2013.
 
A vocational expert noted that claimant had been accommodated in a prior job run by a family member and he left a job because of his heart condition.  
 
Attorney Wise represented the employee.

Wednesday, March 1, 2017

Court nixes retro application of new SIF eligiblity rule of 287.220.3

Gattenby v Treasurer of the State of MO,
WD 80052
(MO. App. 2017) (Feb. 28, 2017)

The court of appeals affirms total disability in an award against the second injury fund based on a 2014 knee injury and prior injuries dating back to 1977.

Claimant settled the last knee injury for 15% of the knee, which was one of several work related settlements in consideration in the claim.  Claimant relies upon expert opinion from Dr. Stuckmeyer and vocational opinion from Cordray that he is totally disabled due to a "combo."  No contrary medical evidence is identified in the case.

The legal issue was when 287.220.3  applied based on 2013 changes.  The fund concedes the award would be supported under the pre-reform test of 287.220.2.

The court notes 287.220.3 used inconsistent terms. It concludes the legislature intended different tests whether the claim after Jan 1, 2014 was an accident or an occupational disease, and concludes for any claim of occupational disease the legislature must have intended when the pre-existing injury occurred.  "

The legislature’s choice to expressly refer to the “subsequent compensable

injury” in the context of occupational disease claims, but to refrain from such limitation

in the context of claims for all other injuries, must be presumed intentional, and we

must give it effect."

The court concludes the rules of 287.220.3, which limits access to fund benefits, applies only when the primary and pre-existing injuries occur after January 2014 and the broader provision of 287.220 applies when pre-existing disability occurs before January 2014. 

 


 
 
 
 
 

Friday, February 24, 2017

ALJ relies on treating physician to "break tie" on causation dispute

Harris v Union Electric
2017 MO WCLR Lexis 19
Feb. 15, 2017

The commission affirms a denial of benefits on a 2013 claim of occupational disease by a customer service representative.

The employer disputed causation based on expert opinion that claimant had multiple risk factors and her occupational was not intensive enough based on NIOSH standards to explain her carpal, cubital and trigger finger problems. 

Dr. Goldfarb, her personal physician, performed surgery but was unable to find the job intensive enough to make causation. Claimant relied upon expert opinion from a family doctor, Dr. Musich, based on attorney referral. 

The ALJ found Dr. Goldfarb's opinion more persuasive as a neutral party, that Dr. Musich relied upon incomplete information, and that Dr. Crandall over-relied on a threshold magical number of keystrokes to question causation. 

Patterson defended the case for the employer.

Divided commisson awards Fund total on belated story of wet surface on floor

Thompson-Jamison v Medi-Plex Healthcare
2017 MO WCLR Lexis 20
Feb. 15, 2017


The Commission awards total benefits against the second injury fund from a slip and fall in which the ALJ denied benefits for failure to prove accident.

Claimant is a 68 year old who spent most of her career as a floor nurse.  Claimant had two prior back surgeries and was on disability for more than 10 years leading up to going back into the labor force when this accident occurred.

Claimant fell in the break room. The ALJ found denied benefits and found other evidence more compelling that claimant did not have an accident from an identifiable work risk but did not expressly find that claimant lacked credibility. 

The 2-1 commission felt the employer over-relied upon the absence of corroborating testimony from other witnesses or claimant's own statements when she may have been "confused".   Claimant testified her clothing "felt wet" which the commission found more persuasive than the lack of finding of anything wet on the surface.  The commission noted that the police officer declined to testify that he could not say there wasn't anything on the surface and that the employer's investigative team obtained reliable statements: " We find it extremely unlikely that an employee would readily admit to having spilling the liquid that was responsible for causing a serious fall that left a coworker paralyzed."

Claimant subsequently underwent three more back surgeries including four level thoracic laminectomies.  The second injury fund obtained testimony from Dr. Bernardi who found the accident the cause of myelopathy resulting in a 35% new disability.  The employer settled but the amount is not identified.  The commission relied upon an opinion from Dr. Berkin that claimant was a total due to combined condition of primary and prior conditions. 

Commissioner Larsen dissented in deference to the ALJ's findings about credibility. "As a matter of general policy, I am reluctant to overturn an administrative law judge's express credibility determinations with regard to the witnesses that testify before them."

ALJ Boresi noted: 

"I am not persuaded by Claimant's testimony that she slipped in a shiny, wet substance. While she testified at hearing she was "certain" she slipped in a liquid, in the immediate aftermath of the accident she had no less than six opportunities to mention there was a liquid on the floor, and she failed to do so. But she did explain the fall in those early hours by stating her legs and feet "did something," she tripped, or she was "just walking and fell." Even factoring in the trauma with which Claimant was dealing at the time, it is beyond reason that Claimant would have so many opportunities to mention the cause of her fall and fail to do so.

It is only after Claimant's attorney filed a claim that she gives a deposition and mentions the shiny spot that allegedly caused the fall. Furthermore, Claimant provides a specific detail for the first time that she felt a wet spot low on her pants. However, Claimant testified, and medical records document, she had paralysis and loss of feeling of her lower extremities. In light of the overall trauma and pain she was experiencing, including a loss of function of the lower extremities, it seems implausible Claimant is more accurately recalling details months after the event. Claimant's present recollection of past events is simply not reliable or persuasive."

Robert Merlin represented the employee. 

Monday, February 20, 2017

Commission rejects CRPS claim based on conflicting expert opinion on diagnosis.

Horton v Lester Cox
2017 MOWCLR Lexis 18
Feb. 14, 2017 (Wilson)

Claimant is a career housekeeper for Lester Cox who alleges in May 2015 who claims she pulled her left arm while grabbing a lift bar and claims repetitive trauma further injured her left arm and shoulder.

Dr. Mullins concluded she had CRPS and needed more treatment.  Dr. Lennard concluded her  symptoms were incomplete to support a CRPS diagnosis and regarded her work accident was not the likely cause of her frozen shoulder. 

The ALJ found her calcific tendonitis not work related in light of claimant's history of poorly controlled diabetes. The ALJ found Dr. Lennard more credible on the issue of CRPS.  " He regularly treats patients with this condition, and in his opinion she did not meet the criteria for this condition. He also found no support in the medical records to support this as a diagnosis."

Claimant loses 17 year old case from cleaning fume exposure


Edgerton v Matherly Oil Co dba Pump N Pantry
2017 MOWCLR LEXIS 16   (Feb. 14, 2017)  (Mahon)

The commission affirmed a denial that claimant's activities cleaning a bathroom in September 2000 caused a permanent lung injury.

Claimant took a "less stressful" job as a cashier and worked only a few days before a work injury.    Claimant states she went to the emergency room the next day after using an unknown cleaning product to clean a bathroom.  She was diagnosed with acute bronchitis and gave a history of an occupational exposure and recent cold symptoms.   The records suggest a conflicting history about prior self-diagnosed conditions during her long prior career as a respiratory therapist. 

She relies upon a 2004 medical opinion from Dr. Volarich who rated 50% disability for respiratory disease.  He concluded she may be a total based on the primary and pre-existing conditions.  Dr. Hyers was unable to relate her asthma to the alleged injury.   The claimant concedes that she had multiple exposures which  triggered symptoms in the 15 years since the work injury.

"Therefore, given the lack of specificity as to the cleaning product and its ingredients, the testimony that Claimant has continued exposure to irritants in her nonemployment everyday life, and based on Dr. Hyer's expertise, I conclude that Claimant has failed in her burden of proof. I conclude there was no accident, no injury arising out of and in the course of employment, and no medical causation between Claimant's medical condition and her job duties."

The delay in prosecution appears to have negatively impacted claimant's credibility based on the ALJ's reference to the passage of time to reconcile discrepancies between claimant's testimony and the medical records.   Karen Johnson defended the case for Federal Mutual.

Tuesday, February 14, 2017

Co-employee duty found from removing a ladder that was not fully extended.

Bierman v Kimmie Violette
ED 100946
Feb. 14, 2017

The court of appeals reverses a dismissal of a claim against a co-employee and found the allegations support an independent duty of care distinct from the employer's duty to create a safe workplace.

The claim alleges the employee used a ladder to enter a loft space, and when the co-employee returned the  12 foot ladder it was not fully extended resulting in the injury.  Claimant filed a claim within the post-reform gap regarding co-employee immunity. 

The issue if a duty was owed to a co-employee is a question of law.  The duty to lock and secure the ladder was the "root of the harm" independent of the duty to provide a safe work place, assuming the facts alleged were true.  The consideration of OSHA standards was irrelevant to the determination regarding the adequacy of the pleadings to withstand a motion to dismiss.

The case involved a 2009 accident at Espino's Bar resulting in alleged injuries to the finger, elbow and shoulder.

Friday, February 10, 2017

Commission reverses drug forfeiture

Francisco v Mega Industries
2107 MOWCLR Lexis 13
Feb. 7, 2017 (Miner)


The Commission reversed a forfeiture of benefits based on 287.120.6  and found the ALJ erroneously found that claimant "refused" to take a drug test in violation of a drug-free work place policy when he walked out of a drug testing facility.

The ALJ noted:

"I find and conclude that Claimant refused to take a test for a non-prescribed controlled substance, as defined by section 195.010, RSMo, on May 13, 2015 at the request of the Employer, and that Employer had a policy at the time of Claimant's May 13, 2015 accident that clearly authorized post-injury testing. I find and conclude that Claimant's taking a drug test two days after he refused to take the test on May 13, 2015 did not negate or invalidate his earlier refusal to take the test on the date of the accident. I find and conclude that Claimant forfeited benefits under the Missouri Workers' Compensation law."


"Employer Exhibit 1, Employer Substance Abuse Policy in effect at the time of Claimant's May 13, 2015 accident states in part: "All new applicants are required to take a drug screen and alcohol breathalyzer (Test). Additionally all employees with a workplace injury or who were involved in a workplace injury will be required to take a drug screen and alcohol breathalyzer test." Exhibit 1 also states in part: "Tests will be performed by a regional testing lab in accordance with State and/or Federal Law. Refusal of an Employee to take a Test will result in immediate removal from service and will result in disciplinary action up to and including termination."

"Exhibit 2 is an Instant Drug Screen Consent and Report Form of U.S. HealthWorks dated May 13, 2015 pertaining  to Claimant. Exhibit 2 notes the "Reason for Test" is "Post-Accident. Exhibit 2 also states in part: "Donor refused to be tested." Exhibit 2 also states in part: "Pt. left @10:53 a.m. w/o Drug Screen or treatment for injury."

So what went wrong for the employer's defense in this case?

The Commission believes the employer failed to prove it  unequivocally asked for a test:  the request by the nurse to provide a urine sample is not a request from the employer to submit to a test because the nurse is not an agent of the employer.  The reminder of a drug policy by the employer at the testing facility is, to quote the Commission, "in our view, materially different than a specific request." The employer witness could not state precisely what he said to support an unequivocal request.

The Commission find the employer failed to show claimant refused to take a test because the policy did not define the time frame in which claimant to assent or decline the test, and he later agreed to take the test the next day.

The Commission did not question that the employer established a policy that allowed testing. 

The subsequent testing was negative.  Claimant asserted that he left the facility in a panic because he remembered he had been at a nightclub where someone used marijuana and felt that might produce a positive result even though he states he never used it personally.

The employer did not dispute that claimant sustained a back injury.  He has been off work for nearly two years and sought an award for benefits. 

The takeaway:  An employer who seeks a drug penalty should be prepared to  produce as  evidence that the employer after an injury  requested a drug test.  Similarly, the policy itself could define when a refusal is deemed a refusal.

The case was defended by Travelers. 

Inability to explain how an accident occurred did not preclude an award of benefits


Conagra Foods v Jon Phillips
2017 MO App. Lexis 882
Sept. 5, 2017

The court of appeals affirmed an award appealed by the employer  which challenged claimant's credibility based on an idiopathic fall defense, an evolving medical history and a failure to show an occupational risk.

The court deferred to the Commission's finding of credibility despite inconsistent medical histories of a work-related injury that was not fully realized until claimant obtained a rating report. The opinion included a  detailed analysis about the sources and brevity of earlier medical histories.  Claimant established a unique occupational risk by a combination of distinct elements:  he was injured while traversing an unguarded incline with steel-toed boots and then falling from that unguarded incline.

The court noted the failure of the employer not to affirmatively plead idiopathic cause as an affirmative defense did not waive the defense as the employer denied all allegations and raised the issue before the ALJ that the fall was idiopathic and not work related.  The employer asserted claimant's previous impairment to his leg which had been broken in four places before was the more  likely risk source for the fall.


Phillips v ConAgra
2017 MOWCLR Lexis 15
Feb. 7, 2017

The Commission affirmed a finding that claimant's accident arose out of an in the course of employment.

Claimant fell off of a ramp while going into a break room and broke his hip.  He filed a claim that he slipped and fell but his medical records fail to identify a cause for his injury and that he did not identify why he fell.  

The commission deferred to the ALJ's finding of credibility that claimant had an accident.  Claimant identified an occupational hazard of walking on  "a three to five-inch graded ramp without a guard rail while wearing steel-toed shoes in order to access a designated break area. We find that employer's unguarded ramp constituted a risk source not encountered in employee's everyday life" despite inconsistencies in his medical history and earlier versions that he could not explain why he fell.  Claimant was entitled to benefits despite an "inability to explain why an accident occurred". 

The employer offered no expert opinion to identify idiopathic medical conditions caused claimant to fall at the time.

The Commission affirmed an award of 22.5% for a hip fracture and denied a motion for costs. 

Employer fails to show "write-offs" extinguished medical liability

Gerlemann v Mo Dept of Transportation
2017 MO WCLR Lexis 14
Feb. 7, 2017  (Carlisle)


Claimant was awarded partial disability for a neck injury sustained in a 2012 auto accident.  The ALJ awarded partial disability but denied benefits for some medical bills after claimant was released  and reimbursement for  mileage.

On appeal, the Commission further awarded  $7516 for diagnostic imaging and physical therapy.  The employer offered evidence that the bills had been written off and adjusted.

The commission found the treatment in 2014 flowed from the accident in 2013 even though claimant had been medically released and was consistent with claimant's assertion that symptoms waxed and waned as a result of flare-ups.

The commission found a summary of the therapy visits sufficient without records of the individual visits in evidence.

The commission reversed the denial of medical bills and concluded the employer failed in its burden of proof to show that the personal liability for charges had been extinguished.  The commission concluded that evidence of balances and adjustments  from the bills alone were insufficient to show liability was extinguished.  No testimony was offered from billing representatives.  The Commission further concluded it was improper to consider write-offs as a result of other insurance contracts:

 "In other words, where it appears write-offs or adjustments were a benefit of employee's personal insurance carrier having paid for compensable treatment, we cannot credit employer for same, as such would run directly contrary to the mandate under § 287.270 that we not even "consider" these sources in determining the compensation to which employee is entitled."

What went wrong with the mileage claim?

The ALJ noted:

"Claimant testified he used Google maps to determine the mileage. However, the basis for the mileage figures is unknown. Claimant did not offer testimony about how the miles were measured. The trip dates are unknown. Claimant did not identify the local or metropolitan area or the location of his principal place of employment.

For these reasons, I find Employer is not liable for mileage reimbursement."