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

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

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

2017 MOWCLR Lexis 24
March 3, 2017

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

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

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

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

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

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

Tuesday, March 7, 2017

Unreliable history of accident defeats claim

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

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

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

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

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

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

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

The Commission suggests alternate testimony could have cured the inconsistencies:

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

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

Only 2 of the 3 commissioners wrote the award. 

Attorney Plufka represented the employee. 

Friday, March 3, 2017

Post back surgery need to lie down supports total

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

Wednesday, March 1, 2017

Court nixes retro application of new SIF eligiblity rule of 287.220.3

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

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

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

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

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

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

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

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

must give it effect."

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