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
2017 MOWCLR LEXIS 12
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.