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. 


Saturday, March 11, 2017

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

Miller v Nieman Foods
March 2, 2017

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

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

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

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

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

Thursday, March 9, 2017

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

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

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

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

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

Clamant appealed and argued:   

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

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

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

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

Expert dies, now what?

McDowell v Mo Dept of Transportation
2017 MOWCLR Lexis 24
March 3, 2017

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

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

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

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

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

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

Tuesday, March 7, 2017

Unreliable history of accident defeats claim

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

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

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

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

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

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

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

The Commission suggests alternate testimony could have cured the inconsistencies:

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

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

Only 2 of the 3 commissioners wrote the award. 

Attorney Plufka represented the employee. 

Friday, March 3, 2017

Post back surgery need to lie down supports total

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

Wednesday, March 1, 2017

Court nixes retro application of new SIF eligiblity rule of 287.220.3

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

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

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

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

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

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

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

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

must give it effect."

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



Friday, February 24, 2017

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

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

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

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

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

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

Patterson defended the case for the employer.

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

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

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

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

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

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

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

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

ALJ Boresi noted: 

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

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

Robert Merlin represented the employee. 

Monday, February 20, 2017

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

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

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

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

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

Claimant loses 17 year old case from cleaning fume exposure

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

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

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

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

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

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

Tuesday, February 14, 2017

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

Bierman v Kimmie Violette
ED 100946
Feb. 14, 2017

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

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

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

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

Friday, February 10, 2017

Commission reverses drug forfeiture

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

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

The ALJ noted:

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

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

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

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

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

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

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

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

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

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

The case was defended by Travelers. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What went wrong with the mileage claim?

The ALJ noted:

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

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

Inconsistent testimony defeats back claim

Bohannon v Peterson Industrial Scaffolding
Feb. 7, 2017  (Denigan)

The commission affirms a denial of benefits that claimant failed to prove accident.

The Commission deferred to the ALJ's findings of credibility.

Claimant worked for the employer about a week. 

The ALJ noted

"Some of Claimant's testimony was simply inconsistent, or deliberately evasive. On direct examinataion he was questioned about the work days following the alleged accident that occurred on a Tuesday and the fact that the crew worked in the days preceding the Christmas holiday. However, on direct examination, Claimant was unwilling to acknowledge that Tuesday was the accident day.  Elsewhere, he purported not to recall his referral to his back surgeon even though Claimant currently works as a legal investigator.

His testimony was often misleading and he acceded to numerous corrections on cross-examination. His testimony contrasted sharply with the two supervisors whose testimony reconciles well with the timeline and the lack of WC patient histories to his (private) medical providers. Claimant's testimony is not reliable and cannot be found to be credible.

The unusual amount of leading questions, and summarizing questions, were a frequent distraction during trial."

Claimant underwent a disc herniation but a neurosurgeon was unable to conclude the condition flowed from hi accident. 

Tuesday, January 31, 2017

Commission awards total for CRPS claim

Wetzel v Production Castings
Jan 24, 2017   (Denigan)

The Commission awarded total disability for a CRPS claim and affirmed a denial of a drug defense based on a post-injury drug test positive for marijuana. 

Claimant slipped and fell while carrying a heavy item and sustained a trimalleolar fracture.  Claimant contends he was permanently total and not partially disabled and entitled to sanctions.

The parties offered conflicting evidence whether claimant had CRPS.  The Commission concluded claimant had CRPS, which it felt was not inconsistent with the absence of clinical findings on other exam on their theory that symptoms wax and wane. The Commission modifies the award from partial to total disability noting the high degree of impairment when claimant's condition is symptomatic.

A dissent argued the employer should be penalized for reducing TTD benefits by 50% for 46 weeks because there is no violation of the employer policy or evidence of drug use in conjunction with the accident.

"Employee is not accused of manufacturing, distributing, dispensing, possessing, selling, purchasing, or using any controlled substance, illegal drug or drug paraphernalia on employer's property. Instead, employer's position is that employee "failed to obey" its drug-free workplace policy when he provided a post-accident urinalysis that was deemed positive for marijuana metabolites. But employer's policy does not state that a positive post-accident drug screen constitutes a violation of the policy; instead, this event merely triggers the two specified options, from which the employee may choose. The only relevant penalty under employer's written policy comes after an employee provides two positive drug test results."

The dissent argues there is  no expert opinion to establish the "in conjunction" burden of proof to overcome claimant's denials, and finds the reduction in benefits was egregious because it jeopardized the worker's financial security. 

The ALJ had awarded 75% partial disability and open medical, and denied the drug penalty. 

The ALJ noted that no one had pursued underpayment as a hardship issue.  "Notice and demand to Employer for reinstatement of full TTD benefits for the miscalculation is administrative in nature. Apparently, this misunderstanding and miscalculation was not the subject of a Motion or hardship hearing. It is undisputed that Claimant has positive drug screens. Indeed, both of Claimant's experts avoided this recurrent subject-matter. TTD rates are miscalculated often enough and no precedent is cited for award of fees and costs in this circumstance. While Claimant is awarded the underpaid TTD benefits, the evidence of the drug tests demonstrates that Employer did not defend the issue without substantial evidence.."

 The Commission found that walking and wearing shoes in a video was not inconsistent with the claim of CRPS and was part of the rehabilitative process to desensitize.

Monday, January 30, 2017

Commission affirms back strain award

Tyler v. SSM
2017 MOWCLR Lexis 6
(Jan. 20, 2017).   Carlisle

The claimant alleges she hurt her back putting a bag in a trashcan.  The employer stipulated that claimant sustained injuries and its doctor assessed a minimal amount of permanent partial disability.

The employer litigated the case on causation and nature and extent of disability. 

The 60-year old claimant treated for a back strain with "exacerbation" of degenerative disc disease and stenosis and continued to report symptoms after treatment with medication, therapy and injection.   She stated physical therapy caused more symptoms. Her expert, a retired doctor who based his opinion on a records review, assigned multiple different diagnoses. 

Her MRI identified no finding of any nerve impingement.  The experts disputed whether or not she had piriformis syndrome.

The Commission affirmed an award of 10% without further opinion.  The treating physiatrist rated 1% and apportioned the vast majority of her disability to prior degenerative changes.  Claimant's expert contended she had 30% new disability. 

Friday, January 20, 2017

Pain complaints to dominant arm rendered claimant unemployable

 Nichols,  v.  Belleview R-III School District
2017 MO WCLR Lexis 5   (Kasten)
Jan 12, 2017

The Commission affirmed an award of total benefits to a 59 year old  teacher's aide who fell down 3 to 4 wet steps in 2009 and alleged injuries to the spine, left leg, and left arm.

The employer disputed injuries to the neck and back. 

She treated with therapy and injection and reported no significant improvement from an ulnar nerve surgery for severe neuropathy.  She underwent a rotator cuff repair and asserted that exercises aggravated a tremor condition.  She had COPD.  The defense expert was the primarily problem associated with her impaired ability to walk.  Her expert felt she was unemployable and disabled because of her difficulty lifting and moving.

The employer relied upon expert opinion that claimant was employable and impeachment of prior records showing significant prior symptoms which suggested she relied more heavily on oxygen than suggested by her testimony.

Claimant asserts she was unemployable because of impairment in her dominant hand, limited physical endurance and a need to lie down.  The ALJ felt the defense expert had not reviewed all of the medical records.  The ALJ noted claimant appeared highly credible that she was in a lot of pain and noted: " She moved around in her chair several times in an effort to get comfortable. She appeared to be in a lot of pain. The employee requested permission to stand and stood during her testimony. She requested to take a break during  the hearing. The testimony and observed behavior of the employee was important on the issue of permanent total disability.

Future medical awarded for degenerative disease defense

Fuller v. Elementis Specialties, Inc., Employer

2017 MO WCLR Lexis 3, 4  (Kohner)

(Jan. 12, 2017)

The commission affirms an award of partial disability to a 59 year old  machine operator with arthritis in both hands.    The case involved a 2011 onset. 
Claimant's expert contends "overuse" from packing duties caused irreversible aggravation of arthritis that required surgery to excise the trapezium.   The ALJ awarded additional disability against the second injury fund for substantial pre-existing disability to the shoulder, elbows and wrists.
 No future medical was awarded.  The award reflects an agreement that the parties agreed to hold claimant harmless if the medical provider sought further reimbursement.   The ALJ affirmed the award without a separate opinion. 
Dean Christianson represented the employee. 
In a second case, claimant slipped and fell in 2013 resulting in injuries to her knee and other body parts.  She subsequent went on to have a total knee replacement.  The ALJ found a partial disability but ordered the employer to pay for the surgery.  Both the claimant and the employer appealed. The employer contests the award for past medical benefits.  The employee claims she should have been awarded total disability.
The surgeon found her meniscus tear caused by the work injury, but that her subsequent total knee replacement and post-operative pain complaints related to degenerative conditions.  The ALJ found the total knee replacement related to the accident but denied future care.  "We find that because employee's left knee joint has been removed and replaced with a prosthetic device, any problems she experiences in the future relating to her left knee joint cannot be considered  causally related to pre-existing degenerative arthritis."
The ALJ found claimant's inability to work flowed from subsequent degeneration of unrelated conditions.  The Commission modified the decision to award total benefits against the second injury fund. 

Wednesday, January 18, 2017

No "equal exposure" defense in occupational disease cases.

Lankford v Newton County
SD 34269 (Mo. App. 2017)
(Jan 17, 2017)

The court of appeals affirmed an award of total disability and death benefits to an investigator who died from complications of a lung biopsy.

Claimant had undergone a biopsy to evaluate his lung, he sustained a stroke after the surgery, and resulted in severe problems regarding the use of his arms, his ability to walk, talk and breathe.  He was unable to return to work due to his symptoms.  The surgery removed 1/2 of his right lung, which was ultimately found not to be cancerous.Claimant died from complications of pneumonia and COPD. 

He was diagnosed with COPD several years earlier as a result of ammonia exposure from investigating a meth lab.  He smoked frequently The claimant's expert identified an MIA infection on biopsy. 

The court describes claimant took frequent smoke breaks on the roof of the court house, that he would discuss business on the roof with co-workers, and went to the roof because it was quiet and helped him "think about" his cases.  Claimant alleges he developed pneumonia and recurrent bronchitis symptoms a result of exposure to fungus in pigeon droppings on the roof. 

Claimant's expert concluded a biopsy identified a fungus and a bacteria which he felt most likely flowed from exposure to pigeon droppings, that the lobectomy was necessary to treat the infections, and the stroke was a natural and probable consequence of treatment and the hemiparesis and cognitive dysfunction rendered him unemployable.  He agreed that claimant's smoking habits were also contributing causes to his death. 

The employer's expert agreed that claimant's diagnosis of MIA, a bacterial infection, supported the need for the biopsy.   An infectious disease specialist indicated claimant could have contracted MIA from occupational or non-occupational exposure and could not conclude it was more likely work related.  An internist concluded the prevailing factor in his MIA was smoking. 

The ALJ awarded total disability benefits on March 2015and found claimant's expert more persuasive that claimant developed MIA from exposure to pigeon droppings and that his subsequent need for surgery, and complications from the biopsy , all flowed from investigating that condition.  The employer was ordered to pay back benefits of $167,811 and ongoing benefits for his surviving wife.

The employer raised a defense that the Commission erred when it reached the legal conclusion that the  claimant had no burden to show he had a greater exposure at work than exposure away from work applying the "equal exposure" defense  in 287.020.3(2).  The court affirmed this was not a required element to prove an occupational disease.

Proof of an accident is governed by 287.020. 

Proof of an occupational disease is set forth in 287.067.1&2. 

In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.  (emphasis added)

2. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
Section 287.020.2 provides additional element for accident:

(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. (3) An injury resulting directly or indirectly from idiopathic causes is not compensable. (4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

The court of appeals found  strict construction does not include the equal exposure defense for occupational disease. The court noted that 2005 amendments to 287.067 removed the cross reference to 287.020 and the phrase "An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020"  State ex rel KCP & L Greater Mo Operations Co v Cook, 353 S.W3d 14 (Mo. App. 2011), Amesquita v. Gilster-Mary Lee Corp, 408 S.W.3d 293 (Mo.App. E.D. 2013).

The court found the commission correctly found different elements of proof to establish an accident and to establish an occupational disease.

The commission found evidence that the bacterial infection MIA was not an ordinary disease of life to which the general public is exposed outside of employment.   The commission noted defense experts did not dispute the assertion that pigeon droppings might be possible source of infection, although one expert felt the prevailing factor was smoking (10x a day) or that prevalence in the community made the condition an ordinary disease of life.

The equal exposure defense is problematic even in accident cases.  It is unclear that the employer would have necessarily prevailed if the case was remanded for the Commission to apply to equal exposure analysis.   Most interpretations in accident  cases have been very fact specific regarding the exact risk factor involved in the accident and whether it had equal exposure away from work which renders the defense weak to meaningless in most scenarios.  This interpretation has been based on "strict construction." 

The testimony  anticipated an equal exposure argument. The surviving wife testified she personally observed bird poop, she not only visited the roof a lot but "120 times" and that she recalled "each time" the pigeon droppings were "fresh and dry."   It is unclear there was any evidence that claimant had been exposed to pigeons, or rooftops, or bird droppings in a non-employment capacity.

The occupational disease statute allows the "ordinary disease of life" defense compared to the "general public." .  The court did not interpret that provision  but affirmed the award based on a prior  determination of credibility.

The employer argued its experts were more credible and may have developed the legal defense of equal exposure the first time on appeal to the commission.


Head v Harley-Davidson
2017 MOWCLR  Lexis (Feb. 1, 2017)

Head  specifically references Lankford that occupational disease does not require consideration of the "unequal exposure" element in an accident claim.

The commission affirmed a temporary award for treatment of the shoulder.  The employer relied upon an opinion from its medical director based on a records review that claimant's impingement or cuff problems were better explained by age than any work exposure.   The ALJ found the claimant's expert more persuasive who had personal experience viewing work activities.  The temporary award and appeal was over a referral to a shoulder surgeon for further assessment.

The parties stipulated that the only issue was whether claimant sustained an occupational disease. .  The ALJ found claimant had an "accident."  The Commission ultimately made an additional finding that claimant also sustained an "occupational disease" consistent with the stipulated disputes. 

Claimant described both a single event and repetitive duties as the basis for her claim.  The Commission found expert opinion that alternately supported an accident claim did not preclude reliance on expert opinion that repetitive trauma also could cause an occupational disease.

Tuesday, January 10, 2017

Commission affirms total disability for foot injury

Bernand v.  Paris Ready Mix and Precast

2017 MOWCLR Lexis 1 (Jan 4, 2017)  (Fischer)

The Commission affirmed an award of PTD for a right foot injury in 2009 resulting in multiple fractures and CRPS.
The accident occurred when claimant fell backwards while changing a tire.  He developed problems with his back and his right foot. 
A doctor testified he had noted swelling, tightness, the leg being hard as a rock, and color changes. Another expert testified he had to lie down during the day.. A vocational expert felt he was employable but for the need to lie down.
The ALJ found the last accident alone rendered claimant unemployable, despite expert opinion suggesting any total was a combination and liability for the second injury fund.
 He described a high level of function before his accident  despite periodic back symptoms and a prior PPD settlement.   She noted the employer-designed physician was the only one to conclude that she had no CRPS.  The same doctor  contended he was "clinically" at MMI despite fractures that had not fully healed on x-ray.
The ALJ noted claimant's social media postings were in "sharp contraction" to his testimony but she still found him unemployable. 
"Mr. Bernand testified that he is the administrator of a Facebook account devoted to his wife's swap shop. Mr. Bernand is also the administrator for a Facebook account called the Man Cave Trading Post. Mr. Bernand said that multiple entries on his Facebook pages relating to his woodworking activities are actually   references to items his brother has made or refinished and that although the entries reflect that Mr. Bernand made or refinished items such as birdhouses, sleds, and rockers, Mr. Bernand did not actually make or refinish them. Mr. Bernand's Facebook account also contains offers to remove snow, which Mr. Bernand said were actually offers for his brother's snow removal. Mr. Bernand's brother has his own Facebook account or page on which he is active. Mr. Bernand's brother testified that he is the one who does the making and refinishing of woodworking items and he is the person who does snow removal. Mr. Bernand's brother admitted that he has attributed work to Mr. Bernand on Facebook, citing the assembly of an antique glider and the conversion of a baby cradle for which he credited Mr. Bernand for his help in completing the projects."
Attorney Scott Wilson represented the claimant. 

In an earlier case, the Commission  found CRPS flowed from a foot injury that caused multiple fractures and hypersensitivity.  Turner v Turnpike Transit, 2013 MO WCLR Lexis 220 .

Claimant's unrelated depression likely caused a relapse after her back surgery

Replogle  v.  Mexico School District, Employer; Missouri United School Insurance Company, Insurer; Treasurer of Missouri as Custodian of Second Injury Fund

2017 MOWCLR LEXIS 2  (Jan 4, 2017)

This case involved a back injury in 2006 from lifting a child into a wheelchair. Claimant was initially treated for a sprain and released from care.  She later  lost more than 100 pounds after a  gastric bypass. In the course of that care, she had discogenic symptoms.   In 2009 she underwent a two level fusion.  In 2011 she applied for disability.   She became dependent on narcotics to treat back pain. The commission affirmed in a 2-1 decision and  denied PTD benefits but affirmed an award of future  following a back surgery, and enhanced the PPD in a modified award.
Claimant alleges she was totally disabled, and relied upon expert opinion that she had a failed back syndrome and was unemployable in the open labor market.   Her symptoms became dramatically worse 14-19 months after her surgery with 10/10 pain complaints and symptoms unresolved by narcotics.  Her surgeon felt the most likely cause was that claimant regained significant weight although it was possible psychiatric conditions were also a contributing cause. 
The Commission was unable to conclude the surgery was  the prevailing cause in her current pain symptoms.  No psychiatric testimony is identified.
"Again, it appears equally likely to us that employee's recurrence of debilitating low back and radicular pain in 2011 was a product of her depression rather than the purely physical sequelae from the work injury and fusion surgery.   Employee's ability to work two jobs for approximately two years following her June 2009 surgery is further evidence undermining the claim for permanent total disability benefits. For these reasons, we adopt the administrative law judge's finding that employee failed to meet her burden of proving that she is permanently and totally disabled owing to the effects of the work injury considered alone."  (emphasis added)
The ALJ affirmed the finding that the accident caused the discogenic pain and need for surgery but she did not develop a failed back syndrome or establish a need for medical treatment related to the accident.  The ALJ awarded 35% and denied future medical.  The Commission awarded 40%.
The majority cautioned the award seemed to suggest the ALJ questioned the cause based his experience rather than the record.  The dissent criticized the ALJ for "punishing" the employee because she declined exploratory surgery to investigate a source of her complaints.  The dissent argues that claimant had established a medical condition (pain) and in the absence of a finding that her testimony of pain was not credible, the  claimant was entitled to total disability.
The majority found the employee failed in her burden of proof to establish evidence of synergy based only a conclusory opinion of her expert.
 The employee and the second injury fund appealed and the finding on future medical was undisturbed. The stipulated issue at hearing was  "Employer's liability, if any, for future medical benefits" and the award was for future medical.   The ALJ found "Employer and Insurer are also ordered to provide Claimant with future medical care as required by Section 287.140, RSMo." and notes she has retained hardware in her back. Section 287.140 imposes a general duty to "cure and relieve" and is not narrowly related to treatment of hardware.  He finds "I find that the work accident of August 29, 2006, is not the prevailing factor in the cause of Claimant's pain complaints which began fourteen months post-surgery" 
 Chronology of symptoms has a  profound impact on credibility and causation. The case further demonstrates difficult  tactical choices to include or exclude psychiatric claims.  Claimant had originally pled "psyche" but then removed the allegation.