Friday, December 29, 2017

Supreme Court affirms denial for heat exertion death claim

White v Conagra Packaged Foods
2017 MO 585 (Dec. 19, 2017)

The Supreme Court affirms a denial of benefits in a death case in which a machinist with multiple cardiac risk factors died at work after working in a hot environment.

The ALJ and Commission denied benefits based on conflicting medical opinion about the cause of death. 

" In the supplemental opinion, the Commission first determined White suffered an accident because White's "death at work was an unexpected traumatic event." Second, the Commission addressed the issue of medical causation. In doing so, the Commission answered the question of whether "work was the prevailing factor in causing the alleged accident." After weighing the expert testimony, the Commission concluded Claimant had not met her burden of establishing medical causation. The Commission relied on Dr. Farrar's testimony in concluding White's work activities were not the prevailing factor in causing his cardiovascular event. The Commission was not persuaded by Dr. Schuman's testimony because the Commission found he "did not possess the necessary factual foundation to support his theory,"

The court noted the correct standard in cardiac cases is a special section and not the general accident rubric:

"Even though the Commission failed to identify accurately the "accident" (i.e., the unusual strain on White  due to the extraordinary heat) and the "injury" (i.e., death resulting from ischemia-induced arrhythmia), it accurately identified the key issue in this case, i.e., whether the accident was the prevailing factor in causing the injury."


"Section 287.020.3(4)   provides that a death or other condition resulting from a cardiovascular event" suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition." § 287.020.3(4)  (emphasis added). Accordingly, such cases are not exempt from the ordinary  accident/injury rubric set forth in section 287.120.1, and section 287.020.3  addresses how that rubric is to apply in these special circumstances

The court found the decision properly imposed a burden of proof based on prevailing factor rather than a preponderance of the evidence and the commission could properly reject lay testimony to the extent that it tried to establish the length of exposure became sufficient to support a causation opinion in a complex medical issue. 



Tuesday, December 19, 2017

Pro se claim fails in part without expert evidence

Claimant, pro se,  caught her hair in conveyor rollers while crawling under machinery  and claims hair was pulled from her head.  She complained of persistent "explosions" in her head which her doctor told her occurred because her head was "re-attaching."  She had additional treatment in pain management for her back about 9 months after the accident which she believes is related.
Zerwig v Verallia/St. Gobain, Inc. (Travelers), Inj.  No. 13-022178 ,  D/A 4-2-2013   (decided 12/17/2017)

The ALJ denied the claim concerning the back based on the lack of expert opinion, the lack of admissible medical records,  and disabling symptoms occurred 9 months later.  The ALJ awarded 2% BAW and found testimony of hair loss and minor head contusion within the scope of lay testimony. 

The claimant appealed and sought to introduce additional evidence.  The motion to submit additional evidence did not meet the standards of 8 CSR 20-3.030(2)  as the records she sought to introduce were not newly discovered evidence.  The Commission found no reversible error on claimant's allegations that she did not receive a fair trial, that the judge would not let her offer evidence, and the judge "badgered" her, among other alleged errors.

Claimant had attempted to offer exhibits which did not comply with 287.140.7 or 287.210. The claimant objected that she was unable to read from her own narrative opinion because of "well-taken" objections by the employer.

ALJ Denigan

Employer must "elect" coverage for worker to invoke enhanced statutory benefits.


The court of appeals transferred Accident Fund Ins. Fund Companies, E.J. Cody Co v Robert Casey, WD 80470, WD80481 WD 80525 to the Supreme court on constitutional issue if the General Assembly can apply mesotheleoma statute to facts occurring before its effective date in 2014 , when an award was entered against an employer and the last employment was in 2000. 

*


A claimant with mesothelioma could not access enhanced statutory benefits when the company ceased to exist before January 1, 2014, the effective date of the statute because the statute requires a company to take affirmative action, and a company could not have a separate policy to take advantage of the statute when the company was not in existence at the time the statute became effective.   The Commission affirmed a denial of benefits.  Vincent Hegger, dec. v Valley Farm Dairy, Inj. No. 14-103079   (Dec. 13, 2017).

The Division has prepared forms WC-301-I and WC-304-G for employers to provide notice to the Division if they accept or reject coverage. The statute itself, however, is noted to be unclear as it requires notice to the "Department" but does not define the term 

Section 287.200 provide an enhanced benefit of 3 times the state average weekly wage.

Claimant offered medical opinion that the 86-year old died as a result of complications of mesothelioma.

ALJ Boresi  

SIF asks Commission to "undo" its previous stipulation about MMI


The Second Injury Fund was ordered to pay permanent total benefits and appealed regarding the effective date when the benefits were due and alleged the finding that they wee due on January  was an error, although the Fund stipulated to the same January date in the hearing. Michael Deters v Boeing Company,  Inj. No.  14-091486 (Dec. 7 2017)
  
The parties had stipulated in the original hearing that the MMI date was January 2015 and had filed a motion using the later date in May 2015.

The commission rescinded the original stipulation that MMI was in January 2015, and granted an implicit request that MMI was May 2015, but notes the parties did not expressly stipulate that was the date of MMI.  The Commission suggests the parties can modify prior stipulations in many circumstances but the proper inquiry was the date of MMI and not the indirect finding when PTD benefits were due. 

The SIF  offered no expert evidence to refute claimant's experts that claimant was PTD.  

ALJ Baker.

Tuesday, December 5, 2017

Lessons on client image from drunk possums


 
Our story begins with booze, Florida, and opossums.

Sure, there’s probably a lot of different Goggle hits that match that search.

I am talking about the Thanksgiving Opossum, the one last month that broke into Cash’s Liquor in Fort Walton Beach, Florida. 

Some readers may have already heard the story of marsupial mischief.  The critter broke into a store and knocked down a bottle right after Thanksgiving and was found literally at the scene of the crime, passed out, probably after air guitaring all night to Lynyrd Skynyrd songs.

In a rush to get the story first, some journalists spread fake news that the girl opossum was chugging bourbon.  Nothing was further from the truth.  The bottle was cognac.     There’s no point in slut shaming an opossum that passes out and think she wasn’t drinking the best of the house.  

How did they figure this out?  According to a witness, the possum wasn’t “acting normal.”  This may be a low bar among opossums.  I suspect in the national  expert witness database there is probably an expert on opossums to define what is normal.

The opossum was returned to a safe place in the Emerald Coast Wild Life Refuge to sober up and fly right and not cause any more shame to her family of dumpster divers.

So what lessons can be drawn here for workers’ compensation?

 Plenty.

Workers’ compensation, like other litigation, is  about creating an image and telling the story on most favorable terms that puts a client  in the best light. 

Take, for example, how the opossum story was reported. Some versions of this show stock photos of a generic opossum, opossums that were cute and cuddly that you turn them into a plush for your baby niece.  On the other hand, other photos showed the sad truth of the passed out opposum, life on opossum skid row; the opossum that life had turned to shadows it could have its own film noir biopic.
 



The Daily Meal runs the picture with the pretty fence climbing possum.  One wonders why a story about opossums is in a web site called the “daily meal” but that may be a story for another column which might be best answered by a different Google search of “Beer, Possum, and Louisiana.”

Sometimes new clients show up more like the opossum on the floor than the happy one walking on sunshine. Zealous representation sometimes may call for a little spin and re-packaging. Let's just say some public defenders know how to rent suits.
 
Nothing makes a comp claim look like a passed out opossum than someone who cannot tell the truth, changes stories all the time, changes medical histories all the time, and changes body parts all the time.   Employers have a similar need to protect their brand.  Pictures of opossum passed out might be a little funny, but are not quite so funny when it is an exhibit of a litigant from a Facebook  account.  Don't be the opossum that goes viral now becomes an example.

No matter how many breath mints,  sometimes the story is  still  going to stink. 

Friday, December 1, 2017

Surgery Center ordered to pay costs for misdirected medical fee dispute

Timberlake Surgery Center  asserted it was entitled to more money when the insurance company re-priced its bill and cut about 70% of the original charges. Zerrer v Ahal Concrete Contractors, 2017 MOWCLR Lexis 54

The Center tried three times to contact the Division to identify the cause number to file a claim for a medical fee dispute involving a thumb surgery  The Division reported it had no reported injury involving treatment for the thumb but only had an older case involving an elbow with a different named employer.

The Surgery Center relied upon the injury number in the earlier case and continued to prosecute the claim even when they had a chance to take a "fresh look" at their initial pleadings despite the evident difference in body parts, years of accident, and names of the employer and the prosecution changed from "reasonable" to unreasonable. 

The ALJ declined to address the constitutional challenge regarding the notice procedure and addressed a portion of the legal fees. 



ALJ  Ottenad
Atty:  Spooner, Sheehan

Medical Releases

State ex rel  Fennewald v. Hon. Patricia Joyce
533 S.W.3d 220  (Mo. 2017)

The Missouri Supreme Court granted a writ in prohibition to prevent a circuit judge from compelling release of "any and all" medical records in a wrongful death action. 

Various medical providers were sued for wrongful death related to metastatic colon cancer.  The medical providers sought a release of any and all records not only related to the colon cancer but to all records, all lab reports, all radiology, all pharmacy, all billing records and all documents including mental health, HIV-related information and drug or alcohol abuse. 

The court noted that a party is entitled to discover those medical records that relate to the physical condition at issue under the pleadings, and the authorization should track plaintiff's allegation of injury in the petition and should be tailored to the pleadings which can be determined on a case by case basis.  The physician-patient privilege impacts both the scope of permissible authorization and the process of determining the records to be produced.  The request for "limitless" records and world-wide authorizations not directed to specific providers further create the potential release of information that remains privileged. 


State ex rel Williams v Munton, 531 S.W.3d 643 (Mo. App. 2017) (S.D.)

The court of appeals  prohibited a trial court from enforcing a subpoena compelling the release of plaintiff's prescription records for 6 years prior to ah accident in which a partially raised truck bed crushed him after the interlock switch was touched.  The court found claimant's cognitive function was an issue in dispute a to the cause of the accident which permitted discovery regarding use of prescription medication, but the scope of waiver applied only to the use at or near the event. 

Commission enhances PPD award for "not credible" claimant

Nance v Aramark Uniformed Services Corp.
Inj. No. 12-104863
DOLIR Nov. 30, 2017


The Commission increases an award of PPD on appeal for a 68 year claimant alleging an inability to work following a multi-level cervical fusion. The Commission deferred to the ALJ finding that the claimant's testimony was not convincing, credible or consistent. 

The claimant was struck in the head between his eyes with a pipe in 2012 and the ALJ awarded 45% PPD.  The 68 year old claimant describe acute onset of neck pain that he states after surgery still  requires him to lie down during the day and take naps.  He states he relies upon a cane to maintain his balance.  He testified the employer forced an early resignation and refused to provide other benefits if he did not quit his job.

Claimant reported he did not report back or balance problems in the course of some of his treatment.  He state he "forgot" about prior litigation involving claims of severe and disabling injuries and balance and sleep problems.  Several witnesses provided conflicting evidence about prior job discipline or plans to retire.

Claimant had  a C4-C7 fusion by Dr. Kennedy and Dr. Raskas.  He had a revision surgery for pseudo-oarthrosis.  Dr. Volarich testified that  the accident aggravated an asymptomatic multi-level degenerative cervical spine and rated 85% for PPD.

Doctor Kennedy felt that claimant had limitations and that the "lack of full effort" noted during therapy evaluations was of limited importance. He felt the fusion was solid and the claimant was employable and that he did not need to lie down because of the surgery.

Doctor Kitchens felt claimant was employable and the three-level fusion would not cause any balance issues.

Gonzelez testifies that claimant was unemployable  based on restrictions from Dr. Volarich that imposed less than sedentary capacity.

Jim England testified that claimant was employable within Dr. Volarich's restrictions, except for the toxic "need to lie down."

The ALJ found Dr. Volarich less credible and did not award future medical care.  The ALJ noted claimant's credibility was substantially affected by inconsistencies on major issues such as the need to lie down, the conflicting medical opinions whether he has a myelo-radiculopathy, and found inconsistencies on other  collateral issues such as withdrawing money from a retirement fund, and use of a computer. The ALJ found the testimony was not convincing, credible or consistent. 

The Commission found that claimant's testimony lacked credibility but suggested inconsistencies  may not be intentional and flow from some memory problems. The Commission stated it addressed credibility based on the medical testimony and found Dr. Kennedy persuasive that claimant was employable with restrictions.  The Commission ordered open medical benefits open because of continued pain complaints from post-laminectomy syndrome.


AL Robbins
Atty:  Hennessey, Amsler
Experts:  Volarich, Gonzalez, Kitchen
Treater:  Kennedy, Raskas

Medical bills improperly admitted as outside scope of pleadings

Schieffer v Tomas DeCleene, ED 105243
Nov. 14, 2017


The court of appeals reversed a finding based on error alleged by the plaintiff in which he judge allowed introduction of the plaintiff's medical bills in a negligence claim involving an auto accident when the plaintiff originally plead the bills as special damages and then later deleted any claim for medical bills in his second amended petition filed on the morning of the trial.

The court found the admission of the bills was outside of the scope of the pleading and the trial judge abused his discretion to admit such evidence in finding his expenses of $14,743.75 was admissible.  The trial court has no discretion to admit evidence of bills  when it is outside the scope of the pleadings. A claim for medical bills must be stated in the petition as special damages. 

The deletion of the evidence eliminated the concern that a jury would consider what his insurance company paid (or repriced)  for the treatment.  Plaintiff alleged general damages including pain and suffering and the cost of a future surgery.  Plaintiff was offered surgery twice but cancelled it because of concerns about surgical risks. 

The court noted a party cannot implicitly consent to trying an issue outside the pleadings unless the consented to evidence would have been irrelevant to the issues that were contained within the pleadings.

The judge found the bills admissible because they "shed probative legal and factual evidence" whether the treatment was for the alleged injuries or in part due to prior impairments related to a prior disc herniation and auto accident.  The judge found under 490.715.5  any party may introduce evidence whether treatment rendered was reasonable, necessary and a proximate cause.  The defense attempted to introduce the records to differentiate the costs. The court of appeals did not conclude it was necessary to address the second point of alleged error.

The plaintiff had sought damages of $300,000. The jury returned a verdict of $25,000. 

Commission modifies denial and orders treatment for housekeeper's deQuervains.

Shegog v SSM Health
Nov. 14, 2017
ALJ  Kohner

The Commission reverses a denial of benefits and orders a temporary award to provide treatment for deQuervain's based on claimant's testimony about her job duties and medical opinion of her expert, Dr. Schlafly.

Claimant had long-standing symptoms in both arms, including a prior settlement, but the commission finds the deQuervain's a new occupational diseased despite medical opinion of her treating physician that the condition did not flow from her employment.

Claimant alleges she developed bilateral carpal tunnel syndrome and DeQuervain's tenosynovitis arising from her job duties as a housekeeper in 2012.  The employer denied the case and provided no benefits and relied upon medical opinions of Dr. Brown and Dr. Dysarz.   Claimant had worked for the employer for about a year and reports she used her hands 90% of the time. 

She underwent a right carpal tunnel release in 2012.  She treated with injection or left deQuervains.  She disputed the medical history in records documenting chronic symptoms with both hands.  She had a prior settlement in both wrists on the basis of earlier claims of carpal tunnel syndrome.  The ALJ found her credibility was "diminished" based on such inconsistencies. 

Claimant's treating physician, Dr. Dysarz, concluded that the work duties were not the prevailing factor in her carpal tunnel or deQuervain's based on her history and that he personally observed her job duties.  He noted her job description identified "frequent" lifting, carrying and pushing and pulling.

Dr. Schlafly noted in an earlier exam in 2006 that she had carpal tunnel syndrome and would probably require surgery.  At the time of his 2014 exam he recommended surgery he recommended left carpal tunnel release and left deQuervain's release. 

Dr. Brown concurred with the diagnosis of carpal tunnel syndrome and deQuervain's, but did not find the current employment to be the prevailing factor because the carpal tunnel was previously diagnosed in the earlier records. 

The ALJ found the defense based on statute of limitations was moot because he found the conditions were not compensable. 

The Commission found the work as a housekeeper exposed claimant to the risk of DeQuervain's, it accepted her testimony and the job description that her activities were "frequent" physical requirements of the job, and gave little weight to Dr. Dyserz's opinions about his own personal observations.  The Commission further accepted Dr. Schlafly's conclusions that there was a recognized link between hand motions in the job and the development of DeQuervain's, a conclusion that Dr. Dysarz indicated was controversial.  The commission gave little weight to Dr. Brown's "normal" exam of the wrist, when other doctors found the wrist with positive findings and Dr. Brown did not address "whether it is possible to rule out the continued existence of a left deQuervain's tenosynovitis based on a one-time negative clinical presentation." 

The Commission further addressed the statute of limitations issue that was not addressed by the ALJ and concluded that it was reasonably discoverable that an injury had been sustained. 

The Commission did not disturb the denial  of allegations of bilateral carpal tunnel syndrome. 

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
2017 MO WCLR LEXIS
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.  

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