Thursday, November 16, 2017

Commission modifies award to allow bills for unauthorized care immediately after claim is filed

A substitute teacher, 33 years old,  fell on some ice and snow and alleged injuries to her back and knee.

The Commission affirmed a denial of benefits, based on a finding of lack of credibility, but awarded some limited medical bills from a provider not authorized by the employer.   The ALJ found the claimant  lacked credibility about testimony playing basketball several times a week and failing to acknowledge a radical change in weight of 65 pounds in a short time based on her medical records.

The ALJ found claimant's expert not credible. 

"It is not credible that Dr. Droege determine a twenty-five percent permanent  partial disability to the left knee when the three other physicians that treated found zero permanent partial disability. Neither of Dr. Droege's PPD ratings are credible. The record does not support an award of permanent partial disability "

The Commission modified the award to include $783 in bills from Dr. Droege in care over 10 days right after the claim was filed and medical was requested in the claim.  The Commission found the employer was put on notice was an unambiguous request for medical care that was included as part of the claim for compensation. The claim was acknowledged on Jan 14.  Claimant incurred charges starting on Jan 17.  The employer tendered an appointment on Jan 30 (16 days after the claim) . The employer failed to attend the appointment in a timely fashion but later provided additional care.

The Commission finds the care (therapy) reasonable and consistent with the type of care later tendered by the employer,  and ordered the care.  It notes the general rule to acknowledge some reasonable delay to set up appointments. 
" Furthermore, brief delays in scheduling appointments 
other than in emergency situations
 do not render employer/insurer liable for unauthorized care."

It does not appear claimant's treatment was an "emergency".  The treatment in dispute was more than a month after the accident.   It is not clear  where the commission draws the line between reasonable and unreasonable delay in the tender of care but suggests the employer must exercise its absolute duty  to tender care quicker than 16 days. 

The commission does not disturb the finding that Dr. Droege lacks credibility.   In the end, the Commission orders the employer to pay for treatment it did not authorize from a doctor the ALJ found was not credible.

Take away:  This case  shows the importance to check claims for additional comments that are often added outside the information requested in the form.  It highlights there is no safe harbor for employers before an answer is filed.  The Commission seems to reward  the growing  practice of extraneous comments added to the claim for compensation. 

Boykins Walls v Normandy School District
2017 MOWCLR Lexis 51
Nov. 13, 2017

ALJ  Keaveny
Atty:  Johnson, Shockley
Experts:  Droege, Doll

Friday, November 10, 2017

SIF total awarded with need to lie down

The Commission affirms without opinion an award of total disability benefits against the fund and a 35% back and 10% ankle award against the employer with no open medical.   Johnson v DirectTV, 2017 MO WCLR LEXIS __ , Inj. No. 12-100647 (released 11-3-2017)

Claimant is a 48-year old who fell in a customer's yard and underwent a single level back surgery. He was released from care in 2013.  He testified he now takes Norco and various medications from his personal care physician for "constant" low back pain.  He claims he has been unable to work since his surgery due to back pain and the need to lie down on multiple occasions during the day. 

He states now that his prior anxiety and sleep problems are worse, and that he lost previous work because of his need to take medication.  He noted his alcohol use problems appeared to be in full remission.  Dr. Paul felt the need to lie down during the day flowed from his back injury.  He has never regained full function of his left leg due to an earlier condition which produced paralysis. 

The ALJ awarded PPD against the employer based on the ratings of claimant's expert, Dr. Paul.  Dr. Paul concluded claimant developed pain in his right foot from standing too long.  He felt claimant's need for any narcotic medication ended after 2 years. 

ALJ:  Fischer
Atty:  Murphy
Experts: Halfaker, Hughes, Eldred, Pau

Cake Assault provides an important lesson for holiday planners

Image result for google images cake clip art

It is that time of year again.

The fall colors start to change.    Companies think holiday parties are the icing on the cake for loyal employees who have stuck it through the year.

The holiday party may have a dark side, especially when there is an open bar.  It is like a WPA for the under-worked labor counsel. It is the gift that keeps on giving It creates endless opportunities for litigation the new year.
“Let them eat cake” is always a great motivator The French were so excited they had a street party with live entertainment.     

Holiday parties, no matter how good the cake,  may erode morale rather than build it.   Some people would rather take the money and run or have needles shoved under their finger nails rather than choke down one more holiday hoedown.  

This takes me to the recent news story from Florida in which a woman was charged for date violence with a birthday cake.  Like most date violence with birthday cake crime stories, there was more to it than that.  This probably wasn’t just some playful cake slice -in-your-face moment between a giggly groom and a bride. 

According to the Tampa Bay Times, the girlfriend, Karina Mora-Noveco, on Nov. 2, 2017 makes a birthday cake for her boyfriend, Robert Brown.   They lived in Dunedin, Florida, which is in Pinellas County about four miles from the Gulf and where it never snows.

One can read between the lines to set the scene. The candles burn down.  The cake plates get put away.  The lights go low.  The clock is watched, minute by minute.    The boyfriend staggers home drunk, and not only drunk, he comes home late at 1 in the morning.  After a heated tete-a-tete, the couple decides to go to bed. 

She lets him have in the kisser with the birthday cake once he is asleep..  The report says she “slams” it in his face.   One can imagine the 911 call.  “You’ve been attacked by a – douboche –  is that your pet or someone else's?"

The police charge her with battery and dating violence.  

 In the end, he was probably darn lucky that he didn’t like fruit cake.    It could have been called in as a homicide.
The factual scenario of  assault by birthday cake contains absurd qualities only found in law school exams and Florida newspapers.   

What lessons can be learned from the holiday party planners? 
A holiday party, like the cake in the story, does not solve dysfunction in personal relationships or in business organizations that may have fundamental flaws.  While holiday parties may be wonderful things in some organizations, such parties can become litigation roux.

Letting people eat cake  becomes a source of combustion rather than celebration.

The story of birthday cake has the familiar themes  of alcohol, anger management, impulse control, and perceptions of unfairness which pervade many  employment litigation, harassment claims  and some holiday related workers compensation cases. 

Once in a while, some guys need to have some sense knocked into them.

Thursday, November 2, 2017

Commission affirms denial on lack of crediblity but "disavows" findings that medical condition was idiopathic

Clayton Hosmann
v Bill Grant Ford
Oct 31, 2017 Wilson
2017 MO WCLR LEXIS 49.

The Commission affirms a denial of benefits that claimant was not credible on issues regarding medical history, physical limitations and restrictions which undermined the medical opinion of his expert.

Claimant had a history of prior left leg radiculopathy and alleged he developed an occupational disease in 2012 while detailing trucks.  In 2013 he underwent back surgery with hardware. Dr. Swain, his expert, concluded his prior condition had "resolved."  Dr. Belz attributed the condition to polyarthropathy.

The Commission disavowed the ALJ finding that claimant's condition was idiopathic from an auto-immune disease or the expert opinion that claimant's repetitive activity was not a contributing factor to his condition, but affirmed the denial based on lack of credibility.

Wednesday, November 1, 2017

Commission may parse opinions of multiple experts to support PTD award

Barnes v Treasurer of the State of MO.
ED 105508
Oct 31, 2017

The Court of Appeals affirms an award of SIF total and rejects arguments that claimant must prove a case by a single expert, that the decision was erroneous because of admission of a hearsay report and the decision was not supported by the evidence or against the overwhelming weigh of the evidence.

Claimant alleges he hurt his back changing a tire in 2009.  Claimant was identified with two disc abnormalities and underwent a single level fusion that resulted in permanent work restrictions.  Before the accident he had previous surgery at the same level, settled the earlier case for 25% and asserted he had no further problems.

The ALJ awarded PTD against the employer alone and excluded a hearsay report.  The Commission modified the PTD award against the fund, admitted a hearsay report, but concluded it was not persuasive because it was hearsay. 

The court noted that a single expert did not have to testify to causation and to disability and that the Commission could consider multiple opinions of different specialists to form its opinion.  The Commission could rely upon the defense expert that the last accident alone caused only permanent partial disability and rely upon the plaintiff experts that claimant was totally disabled and not adopt their position that the last accident alone caused total disability.

The SIF offered no evidence that the Commission relied upon the hearsay report for its conclusions.   It did not address whether the admission was error but essentially concludes any admission would have been harmless error since the SIF failed to show prejudice.  The Commission indicates the report was hearsay within hearsay.  The record does not address why the Commission elected to reverse the ALJ and allow a report with no value to be admitted into evidence.

Hon Dowd

Commission affirms denial - failure to prove accident

Saine v Pepsi Beverages Company
2017 MO WCLR Lexis 48
Oct 22, 2017

The Commission affirms a denial of benefits that claimant herniated a cervical disc herniated when he stopped his vehicle quickly and jerked his neck. .

"Employee did not show a single, identifiable traumatic event or unusual strain occurred during any single work shift. Specifically, the administrative law judge found employee's evidence of the alleged accident, as lacking in credibility. The administrative law judge found claimant gave several diverse and distinguishable versions of how the alleged incident occurred."

The Commission found harmless error that the ALJ relied upon a reference to deposition that was not part of the record. 

"After careful consideration, we are not persuaded to disturb the administrative law judge's credibility determination as to the nature and onset of injury. As pointed out in the administrative law judge's decision, employee identified the nature of the injury (as well as the date), differently in various incarnations of his Claim for Compensation."

The Commission noted the ALJ   "recounted and substantially relied upon his firsthand observations of employee's testimony regarding the issue of employee's credibility."

At various times, "claimant reported a lifting injury, a turning or twisting injury, swerving to avoid a car, an injury caused by repeatedly backing up and hitting the loading dock, stacking, and hard steering."

 The ALJ notes  "that the statute of limitations has not yet run in the event that the claimant can determine how the injury occurred and the date in which the single work shift occurred."

The decision points out some inconsequential typos in the ALJ's award.

ALJ Kohner
Experts:  Kennedy, Rutz

Monday, October 30, 2017

Commission rejects "he was working" SIF defense

The Commission affirmed a PTD award against the second injury fund despite a rating of 90% to the primary injury and claimant's attempts to minimize the impact of medical conditions prior to his accident.

Claimant alleges he hurt his back after pouring concrete for a boat ramp in 2006.
The ALJ awarded 55% for  the primary case involving a back surgery.  He experienced  cauda equine syndrome and released with permanent lifting restrictions.  He sought psychiatric counseling for a variety of psychiatric issues which he attributed to being in the "dumps" after the surgery. 

The ALJ awarded PTD based on in part on vocational testimony that claimant was "bedridden" and dependent on narcotics.  Claimant reported back and leg pain attributable to his recent accident and prior conditions including a previous back surgery.  The ALJ found that the high rating of claimant's expert for the primary injury may have been based on incomplete information about prior conditions over-relied on claimant's own attempts to minimize their impact.  

Head v Mo Department of Conservation, 2017 MO WCLR LEXIS _____.
Oct. 23, 2017

ALJ Spillars
Atty: Korte

Friday, October 27, 2017

Commission modifies credibility finding to award total

Wann v the Lawrence Group
Inj. No. 12-0909608
Oct 11, 2017

The Commission modifies an award of permanent partial to permanent total and finds claimant was more credible how his "sleep issues" impacted his ability to work.

The Commission noted that it "ordinarily" deferred to a finding of credibility but in this case provided its own determination of credibility based on expert opinion

The Commission notes that Dr. Volarich's opinion is undisputed that claimant has sleep problems related to the accident and both vocational experts agreed that claimant could not work in the open labor market because employers would not accommodate a worker who needed to nap.  Claimant asserts he was just too tired during the day and needed to rest because his shoulders hurt and disturbed continuous sleep. 

Claimant reported his right arm continues to feel stiff even after right shoulder surgery and his left hand is stiff and painful.  He treats his condition with ibuprofen. 

The ALJ summarized the vocational opinion:
"Mr. England testified Claimant will never be able to compete in the open labor market. Although Claimant has sleep disturbance, he takes no medication to help him sleep. He opined if Claimant were able to get a full night sleep, he could be a candidate for some jobs that do not involve much use of his arms."


"Ms. Abrams testified Claimant made a good first impression. She identified a number of jobs he could perform. These jobs will require him to learn new things, but he can be proficient in a few months. She opined napping three or four times a day could preclude his ability to get a job. She noted Claimant was not taking any over the counter or prescription pain medications."

The ALJ rejected the PTD claim:

"Claimant testified to sleep difficulties, but made no demonstrable attempt to alleviate his sleep disturbance. Sleep issues are not substantiated in the treatment records and are only found in the expert reports. Claimant’s expert opinions rely on Claimant’s assertion of a sleep deficit. The vocational experts opined Claimant has good WRAT scores, is articulate, has transferable skills, has no memory problems, and is able to learn new skills; yet, he has made no effort to seek employment other than one job through a family member."

The ALJ noted claimant did not have typical PTD presentations:

"ambulation deficits, narcotic pain regimens, inability to perform self-care, or marked sleep deficits. Claimant’s medical evidence contains none of these characteristics."

The Commission awarded the 59-year old open medical and noted he had qualified for social security. A doctor suggested he may ultimately need a joint replacement for arthritis. 

ALJ  Hart
Atty  Niesen
Expert, Volarich, England

Court affirms denial for SIF on "working total" defense

Glasco v Treasurer of the State of MO
WD 80186                    October 24 2017

The court of appeals affirms a denial of a PTD claim against the second injury fund.

The Commission noted it was "constrained" to deny the claim and revered an award of total.

 The Court of Appeals noted  the claimant's experts omitted critical information, "suggests" claimant misunderstood the nature of the stipulations at hearing,  did not assert an alternate claim of partial against the fund, misunderstands the decision from the Commission and basis for the reversal, and raises points on appeal that are "difficult" to understand and without merit.

Claimant injured her left knee in 2011 from a fall.  She had a history of constant pain in the left leg.  She settled with Citicorp for 15% of the knee and pursed a claim of total against the Fund. 

The issues at the hearing was whether she had a compensable injury, whether she had prior disability, and the liability of the second injury fund. 

Claimant relied upon expert opinion of Dr. Zimmerman and Michael Dreiling, a vocational specialist.  Zimmerman was unaware of the complete medial history which suggested she could not really do "anything" as a result of medical conditions that predated the accident.  The vocational expert also relied upon an incomplete history that did not consider she had "severe" pain prior to the work accident and had recently received short term disability leading up to the accident.  He conceded the prior back condition rendered her virtually unemployable due to her back condition. 

The opinion lacks details about her job at the time of the accident but indicates she had returned from a recent short term leave.

Dr. Drisko indicated that she was totally disabled from the back condition alone.  Dr. Thomas testified he did not feel the accident impacted her back condition.

The Commission reversed an award of  total disability against the fund and found insufficient evidence to establish a combination effect to support fund benefits because the experts found the claimant disabled solely due to the pre-existing low back condition.  The Commission noted no alternate claim of permanent partial disability benefits.  The Commission noted the experts did not consider synergy because there was no claim for partial disability benefits. 

The Commission applied "old law" unaffected by statutory changes after January 2014. 

Claimant alleged the parties stipulated to permanent total based on overwhelming facts and had no additional burden to show synergy.  The court found the stipulations never addressed the extent of disability or the Fund's liability and the issue of synergy only applied to a claim for partial disability, which was never asserted. 

The decision distinguishes between being employed and being employable in the context of a total claim.  A claimant could be employed in a limited capacity, sporadic work, highly accommodated, or back at work after an absence but may be unemployable in the open labor market but still be deemed totally disabled.  The court  defers to factual findings regarding employability and "when" someone is totally disabled.

The commission could find claimant was unemployable due to the pre-existing back condition alone unrelated to the accident and could discredit other opinion that were provided demonstrably and critically incorrect information.

The case was tried in 2015.  The commission notes plaintiff counsel requested two extensions of time and then did not file a brief.  2016 MO WCLR Lexis 63.  ALJ Rebman had awarded total disability against the Fund. 

Hon.  James Welsh
Experts:  Zimmerman, Drieling

Friday, October 20, 2017

Commission affirms temporary award for pop to knee

Candy Myers v Quanta Services
Inj. No. 15-099678
affirmed Oct 18, 2017.

The Commission affirmed a temporary award for benefits for a 57-year old who experienced a pop in her knee while unplugging a device, and the commission rejected a medical causation defense based on mechanism of accident. .

Claimant testified in 2015 she was under her desk unplugging computer cords and heard a pop in her knee.  She was moving her work station.  An MRI identified a meniscus and ACL  tear and marked degenerative changes. 

Dr. Hopkins provided a report on behalf of the claimant that the accident was the direct and prevailing factor in a torn meniscus because claimant would have been symptomatic from the nature of the tear.  He concurred with the treating physician that the only way to repair the knee was a total knee replacement because of the prior degenerative conditions. 

The employer relied upon expert opinion of Dr. Strange who felt she had prior ACL and meniscus tears that were not caused by the accident based on the mechanism of injury.  The ALJ noted the expert went through "unusual effort" to dismiss the mechanism of injury.  Claimant asserted she was asymptomatic from a prior surgery to the same knee.  The ALJ felt the variances in the documented medical histories were not material.

The ALJ relied upon Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011) as a basis to award further medical care to cure and relieve the effects of the injury, including the cost of a total knee replacement.

ALJ   Siedlik
Atty:  Alvarez, Walsh
Experts:  Paul, Hopkins, Strong


Tuesday, October 17, 2017

Commission affirms temporary award to treat frozen shoulder after a lifting accident

Leech v Phoenix Home Care
2017 MOWCLR LEXIS 45 (Oct 12, 2017)

The Commission affirms a temporary award for benefits for an 2015 injury to the right shoulder while a loading  a tub into a vehicle which included an award of more than a year in unpaid temporary disability benefits. 

The issues in dispute were medical causation, the obligation to pay temporary total and medical benefits and attorney's fees. 

The claimant is a 49 year old home health care worker employed in Greene County. 

She lifted a 20-25 pound plastic tub into the trunk of a patient's car and slipped causing a jerking motion to he right shoulder.  The treating doctor identified adhesive capsulitis.  The ALJ noted about a month later the doctor "changed" his diagnosis to "diabetic" frozen shoulder and placed her at MMI.  The doctor found no traumatic pathology within the shoulder.  She denied prior symptoms.

Dr. Putnam concluded that claimant's accident was the prevailing factor in her frozen shoulder, although diabetes placed her at greater risk to develop adhesive capsulitis,  which occurs idiopathically or from trauma. 

The ALJ found the employer expert, Dr. Roeder, to be less persuasive and "inconsistent at best".  The ALJ found the employer was not subject to sanctions for unreasonable defense because it could reasonably rely upon the medical expert.  The ALJ rejected the employer's request for a "credit" for cancellation of a deposition of its own expert "by claimant's attorney."

ALJ  Fischer
Atty:  Winget,  Vessell
Experts:  Roeder, Putnam

Monday, October 9, 2017

Driver fails to prove TBI without expert opinon

Parr v Bobby Boatright and Frozen Food Express
October 5 2017                                             Mahon

The Commission affirms a denial of benefits for a neck strain following an auto accident. 

Claimant fell asleep on the road while operating a truck, he initially denied any injuries at the scene, and the vehicle went into a ditch and sustained only minor damage.   The ALJ noted the claimant then performed his own research on the internet and became convinced that he had a traumatic brain injury.  Claimant offers no expert opinion that he is totally disabled from this accident although he qualified for social security disability benefits and asserts he is limited in his ability to stand or walk.

Dr. Strang felt his symptoms were "related" to the accident.  Dr. Cantrell found no evidence of brain injury or need for surgery for the 62 year old claimant or permanent injury from a neck strain. 

Claimant objected on the basis of the seven-day rule that records had not been furnished seven day sin advance. The ALJ found no seven day rule applied for the service of medial "records", but if records being offered were not medical records they were subject to the seven day rule of business records in 490.692.   

Claimant failed in a burden of proof without expert opinion to show the demand for TTD was because of medical injury or to explain why left sided cervical findings would explain right-sided symptoms.

ALJ  Mahon
Experts Strange, Cantrell. 

Friday, September 29, 2017

Commission grants total for "undocumented" worker

Sanchez-Rivera v Jorge Calderon Construction
Inj. No. 10-059076  9/21/2017

The Commission awarded life-time disability benefits to a young man  who was an "illegal" immigrant with ankle injuries and psychiatric issues.

 The Commission affirms a PTD award to a 34 year old worker he fell from a ladder while installing windows resulting in injuries to his legs, feet, ankles and back.   He was diagnosed with a compression fracture and bilateral tibial fractures.  He was found at MMI in 2011.  His expert concluded he became depressed with PTSD.

He reports constant pain in both ankles uncontrolled with daily narcotics and states he was told he may require ankle fusions.  He was told to monitor his liver because of daily use of medications.

A vocational expert did not perform any vocational testing  concluded he was unemployable given work restrictions that suggest less than sedentary work and a reported need to lie down to "ease his pain."  He noted he had about an 8th grade education which was a barrier to re-training.

The employer relied upon an expert who provided an impairment rating and concluded claimant was capable only of sedentary work due to ankle injuries. 

Missouri does not create a statutory distinction regarding immigration status regarding entitlement to work place injuries.  There are public policy debates on either side whether the risk of injury should fall on undocumented workers or on the employers who hire them. 

The employer argued to the vocational specialist  that claimant's undocumented immigration status and lack of proficiency in English were  important factors why he isn't working after his accident.  Dr. Koprivica indicated he was totally disabled and  was unemployable despite the "language barrier."

The decision shows a duty of the employer to pay for injuries on the job independent of the immigration status.  In this case,  the claimant fell from a ladder from an unexplained fall.  The ALJ accepted as credible the assertion from the 34-year old that he needs to lie down al the time, take narcotics daily. The employer's own expert opinion conceded he was limited to sedentary work due to ankle fractures and a healed back compression fracture. The ALJ accepted as credible vocational opinion that claimant was vocationally disabled without any vocational tests because the vocational expert indicated the claimant could not perform the tests in English.  It is not clear why he could not perform the tests in Spanish or why someone with an 8th grade education could not improve their education.

The Division appears to send another message that it perceives the employer as a bad actor in its recitation of facts.

 The employer hired claimant fully aware of uncertain immigration status based on testimony that the employer furnished a generic social security number.  Claimant was not a new hire.  Claimant stated other members of his family, who were also undocumented, were hired by the same employer and paid in cash.  There is no suggestion that the employer was tricked based on fake documents.

State Farm, in the ends, appears to be stuck holding the bag on a big-ticket case.

A carrier can decide who it insures, whether to renew accounts, and what behavior voids any duty to defend a case.  There are obvious increased potential risks from  vocational barriers to someone looking for work after an injury if the person is undocumented and lacks proper immigration status. Any insurer who offers a policy may want to examine its policies on hiring and immigration issues as much as policies regarding other safety rules and risk management issues.    Employers who do not obtain or cannot obtain insurance operate at their own peril.

ALJ Fowler
Atty:  Curotto
Experts: Koprivica

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.  

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

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
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
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.