Tuesday, August 29, 2017

Non-slip footwear found to be an occupational risk while shooting hoops on break.

The Commission affirms an award for an avulsion fracture  when claimant’s foot slipped while shooting hoops during a paid break.  The Commission disavowed comments about the  mutual benefit doctrine and found the accident arose from an identifiable risk (non-slip shoes) not encountered in non-occupational life (wearing such shoes while shooting hoops away from the job).  The statutory exclusion for recreational activities did not apply because claimant was “on the clock.” The ALJ  applied the mutual benefit doctrine which noted the employees were shooting hoops, building morale, and not "gambling, gossiping or grumbling against Employer."

The ALJ discusses 2005 statutory changes which abolished the phrase "work related injury" and notes the definition of accident contains a "carry over" from the original language and does not establish a separate test to establish accident. 

The ALJ noted the statutory exclusion for recreational activities excluded payment "while" participating, but did not require payment "for" participating, citing Miles v Lear Corporation, 259 SW3d 64 (Mo. App. 2008).  The Commission found that Miles, a pre-reform case, remained controlling authority.  

No. 14-043810  (August 18, 2017)

ALJ  Dierkes
Atty:  Christianson, Fowler, Woodbury
Experts:  Volarich, Komes

Wednesday, August 23, 2017

Commission shifts former SIF liaiblity to employer

Cosby v Drake Carpentry
Inj. No. 14-003644

The Commission concludes that the legislature in 2014 when it  limited  SIF liablit5y that it put the employer to stand in the place of the fund to pay that liability.  This will raise the price to settle any case with an employee who has significant prior medical conditions or earlier settlements. with enhanced PPD or PTD claims that no longer meet the new standards. 

The Commission affirms a denial of partial  and total disability benefits against the second injury fund, arising from a Jan 22, 2014 accident, based on statutory changes affecting eligibility to recover fund benefits.

Claimant injured his knee, settled the claim against the employer, and sought benefits against the fund for PPD or PTD, and asserted whether  statutory changes to limit  recovery of benefits from the Fund for injuries after January 1, 2014 was unconstitutional. 

Claimant continues to work part-time following a knee surgery.  He introduced evidence of 4 prior injuries including injuries to both shoulders, the left knee and hernias.  An expert testified that the injuries combined synergistically and that prior and current injuries required medical restrictions.

The ALJ found claimant was not totally disabled.  The ALJ further found 287.220.3 as amended barred partial claims against the Fund.   The ALJ found he lacked specific statutory authority to address the constitutionality of the statutory changes. 

The Commission discussed Gattenby v Treasurer, 56 S.W.3d 859 (Mo. App. 2017) which allowed claims against the second injury fund for PTD unless the primary and the pre-existing occur after January 1, 2014.  In those instances, when the primary and pre-existing occur after January 1, 2014 then the higher standards of 287.220.3 apply.

The Commission found that Cosby dealt with a claim of permanent partial and no recovery can be made against the Fund.

The Commission notes in dicta it considers the changes in SB 1 to limit liability to the fund now expands liability to the employer. This applies in two instances:  in the case of a PTD claim that does not qualify under the stricter terms of 287.220.3, then the employer is responsible.  In in cases in which there is evidence of synergistic disability that would have been previously paid by the Fund, then the employer is now responsible. 

The Commission did not award  enhanced PPD benefits against the employer as the employer was not a party to the appeal and had settled the case. 

The Commission found the constitutional claim was properly preserved, which may ultimately go up on appeal. 

Such an interpretation creates procedural due process questions as the current state-approved  claim forms do not provide adequate notice  how to plead such claims against the employer  and without such notice the employer is denied its due process rights to perform appropriate discovery. 

ALJ Zerrer
Atty:  Edelman

Monday, August 21, 2017

PTD for multi-level fusion

The Commission affirms an award of PTD benefits for a worker who hurt his thoracic spine while cutting a tree in 2014  which required a multi-level fusion and more than $400,000 in medical benefits.    Ernst v Jackson County, Inj. No 14-016690,  Aug 15, 2017.

The ALJ claimant's pain complaints credible despite  FCE and surveillance evidence.  The worker introduced vocational testimony that his vocational profile and his restrictions rendered him unemployable. 

The Commission deferred to the ALJ's finding of credibility noting a general policy to rarely disturb a finding of credibility of a live witness.

ALJ  Mieners
Atty:  Edelman
Exerts:  Stuckmeyer  Dreiling

Friday, August 18, 2017

Soccer ball to head causes multiple injuries

The Commission affirmed a PTD award against SIF, and concluded subsequent part-time employment did not preclude an award for total disability.  Hull v Dr. Pepper   08-117368  8/15/2017

The Commission found that claimant's capacity to work part-time in a highly accommodated work environment did not constitute substantial gainful employment. 

Claimant alleges as a result of the primary injury he was hit in the head with a soccer ball.  He had a long history of concussions from playing hockey.  He claims he also sustained injuries to his neck and both knees.  A defense expert concluded his condition in part arose from somatoform disorder.

ALJ Carlisle
Atty:  Meyers, Toepke
Experts:  Liss, Volarich, Gonzales

Commission affirms PTD for hernia repair

Claimant injured his left groin while turning a valve in 2010.  He claims he developed nerve entrapment after a hernia repair and became depressed. He was released to return to work without restrictions.  Adams v City of Kansas City  Inj.  10-067514  8/15/2017

The ALJ awarded PTD benefits based on vocational testimony that claimant could not tolerate work because he was in too much pain and had to lie down during the day and that he required pain medication.  He was advised by his expert that he needed a spinal cord stimulator.   The ALJ awarded future medical but noted that future medical was not identified as a stipulated issue.

On appeal, the Commission found that evidence supported an award of open medical, that the employee made it an issue in the course of the hearing when the ALJ asked whether he wanted to consider it. The Commission notes the defense did not object or preserve error on appeal that the ALJ may have exceeded his authority. 

The Commission found no expert opinion was necessary to show that use of pain relieving medication was reasonable to alleviate symptoms of pain nor was there express expert opinion that the continued use of such medication was not necessary. 

ALJ:  Rebman
Atty:  Wickersham
Experts:  Parmet, Titterington, Wheeler

Friday, August 4, 2017

Commission enhances PPD award for multi-knee surgery case

A 62-year old teacher fell in 2013 and ultimately underwent multiple knee  surgeries and required future medical treatment including TKR  related to chondromalacia and end-stage arthritis.  The Commission nearly doubled the award for permanent partial disability.  Simpson v Columbia College, 2017 MOWCLR LEXIS ___ (July 28, 2017) (13-069045).

The Commission modified the PPD award from 22.5% to 40% and rejected the defense that her need for TKR flowed from arthritis and not the work injury.   Claimant's chondromalacia was staged from grade 1 to grade 3 in the course of her care for the work injury. 

The employee alleged the employer denied injections recommended by its own doctor and delayed to obtain  a medical opinion to support its denial for nearly a year.  The ALJ found that the employer's denial was not persuasive but was reasonable based on medical expert opinion.  The ALJ denied the motion for fees for the cost of the treating physician to testify live at the hearing about causation and the need for disputed injections. 

ALJ  Zerrer
Atty: McDuffy, Friel
Experts:  Volarich, Leslie, Marr