While facing a death sentence and nothing else works, a convict turned to worker's comp.
When claimant was in his early 30s he worked in a sawmill. A piece of wood broke off a log and lodged into his head resulting in brain surgery. After the injury, claimant developed changes in his personality, he abused alcohol, and he became anti-social. He diagnosed with "Dementia Due to General Medical Condition, Major depression, and Psychotic Disorder Due to General Medical Condition," i.e., traumatic brain injury.
Many years later he was convicted of shooting a deputy point blank in his head when the deputy investigated a complaint from his girlfriend. He argued at trial that he didn't do it, and even if he did do it, he didn't mean it and lacked intent. He argued at the sentencing phase, the death penalty was not appropriate because of his prior TBI. The "sad" belief that divine intervention will save him and free him to become a gospel singer did not make him incompetent.
A dissent argued that he was entitled to a hearing to assess his competency given past IQ scores of 71 and that is was unconstitutional to execute him, even if he may have been more competent at the time of the hearing. The judge criticized the state for rushing the execution dates of capital convicts. The deputy was killed 19 years earlier. State ex rel Clayton v Griffith, 2015 Mo Lexis 24 (March 14, 2015).
Clayton, 74, was Missouri's oldest inmate on death row. He was executed by lethal injection. http://www.huffingtonpost.com/2015/03/17/cecil-clayton-execution_n_6889312.html.
St. Louis University has researched for many years the adverse impact of some workers with back injuries and long-term consequences such as financial problems resulting in more post-accident evictions and child support collections. The lead researchers concluded that disparate treatment is associated with more post-accident anti-social behavior such a stalking and adult abuse. http://www.slu.edu/x52734.xml
The death row appeal dealt with a narrow issue of whether someone who had previous marginal testing of IQ with a history of 20% of his brain removed was entitled to a hearing on competency before he was executed. The state Supreme Court split 4-3 to deny a hearing. The governor denied clemency.
Tuesday, March 17, 2015
Wednesday, March 11, 2015
Circuit court punts on setttlement release of 3rd party case
A recent Illinois case dealt with a fairly common problem: what happens when the worker releases a pending worker's compensation claim in conjunction with a "global settlement" of a federal lawsuit? The court declined to answer the riddle and upheld a dismissal of the appeal for declaratory judgment based on lack of jurisdiction. Bradley v City of Marion, 2015 Il App. (5th) 140267 (March 10, 2015).
Both parties agreed that the circuit court had jurisdiction to render declaratory judgment. The worker in the case received a $650,000 settlement in a third party case. The worker repaid $190,000 in benefits and agreed to dismiss the comp claim, filed a dismissal of the pending comp claim, but then about 5 weeks later refilled on the comp claim. The worker contends that the employer could not enforce a dismissal of the work comp claim and waived any right to further credit against the prior settlement.
The employer sought declaratory judgment that the worker could not pursue further comp benefits based on the terms of the settlement. The employee sought declaratory judgment that there was no legally enforceable waiver because the Commission never approved a waiver and that the statute required approval of any enforceable waiver. 820 ILCS 305/23. The employer sought declaratory judgment and filed suit for breach of the settlement contract.
The circuit judge had no authority except to dismiss the claim due to lack of jurisdiction. Section 305/18 vests original jurisdiction exclusively with the Commission and 305/19 grants circuit courts jurisdiction only for appellate issues. For example, the circuit court cannot enjoin the employer from stopping TTD benefits or allow the employer to seek a restitution claim for a worker who lied about his condition when he was hired. The court asserted there was no concurrent jurisdiction with the circuit court and primary jurisdiction doctrine did not apply, distinguishing the case of Employers Mutual Cos. v. Skilling, 644 N.E.2d 1163, 1165-66 (Ill App. 1994). Skilling is distinguishable as a case of concurrent jurisdiction which did not require exhaustion of administrative remedies because it involved contractual interpretation of insurance coverage.
It is unclear why both parties sought the circuit court to pursue remedies. 'Global settlement' language of comp cases often fail to make obligations to pay contingent on approval of the work comp dismissal.
Atty: Hannagan, Vacala
Both parties agreed that the circuit court had jurisdiction to render declaratory judgment. The worker in the case received a $650,000 settlement in a third party case. The worker repaid $190,000 in benefits and agreed to dismiss the comp claim, filed a dismissal of the pending comp claim, but then about 5 weeks later refilled on the comp claim. The worker contends that the employer could not enforce a dismissal of the work comp claim and waived any right to further credit against the prior settlement.
The employer sought declaratory judgment that the worker could not pursue further comp benefits based on the terms of the settlement. The employee sought declaratory judgment that there was no legally enforceable waiver because the Commission never approved a waiver and that the statute required approval of any enforceable waiver. 820 ILCS 305/23. The employer sought declaratory judgment and filed suit for breach of the settlement contract.
The circuit judge had no authority except to dismiss the claim due to lack of jurisdiction. Section 305/18 vests original jurisdiction exclusively with the Commission and 305/19 grants circuit courts jurisdiction only for appellate issues. For example, the circuit court cannot enjoin the employer from stopping TTD benefits or allow the employer to seek a restitution claim for a worker who lied about his condition when he was hired. The court asserted there was no concurrent jurisdiction with the circuit court and primary jurisdiction doctrine did not apply, distinguishing the case of Employers Mutual Cos. v. Skilling, 644 N.E.2d 1163, 1165-66 (Ill App. 1994). Skilling is distinguishable as a case of concurrent jurisdiction which did not require exhaustion of administrative remedies because it involved contractual interpretation of insurance coverage.
It is unclear why both parties sought the circuit court to pursue remedies. 'Global settlement' language of comp cases often fail to make obligations to pay contingent on approval of the work comp dismissal.
Atty: Hannagan, Vacala
Friday, March 6, 2015
No sanctions for stopping TTD at retirement.
An Illinois commission denied sanctions against an employer when it terminated a worker's TTD benefits after he retired from work, even though he continued to treat after retirement for his arm. Sharwarko v Ill. Worker's Compensation Commission, 2015 Ill App. Lexis 128 (Feb. 27, 2015).
The case involves a worker who hit his right elbow against a wall in 2006. He underwent releases of the right carpal and cubital tunnel in August 2006. Claimant stated his symptoms became worse after the surgery. A re-evaluation in 2007 showed the ulnar condition had become worse after the surgery and he underwent a second surgery to remove an obstructive neuroma. He was found at MMI about 3 years later and sustained an 80% loss in the use of his arm. He failed to establish the accident rendered him totally disabled.
The court noted that claimant had not looked for work, the employer had accommodated work with one-hand restrictions leading up to his resignation (and had a history of accommodating other employees), and that claimant's only expert conceded that claimant might be able to work with one-handed restrictions. Although claimant may have unable to do any work after the surgery, the record lacked sufficient records to support such an award.
"The arbitrator noted that the termination of the claimant's TTD benefits on the day of his retirement came before the supreme court's decision in Interstate Scaffolding and was based upon a reasonable interpretation of the law existing at that time. For its part, the Commission denied the claimant's request for an award of penalties and attorney fees because it determined that the claimant's entitlement to TTD benefits ended when he voluntarily retired on October 31, 2006."
Interstate Scaffolding v the Illinois Workers Compensation Commission, 2010 Ill Lexis 12 (IL 2010) awarded ongoing TTD for a period of time after a worker was discharged for misconduct and considered the dispositive issue was whether claimant was at MMI.
The case involves a worker who hit his right elbow against a wall in 2006. He underwent releases of the right carpal and cubital tunnel in August 2006. Claimant stated his symptoms became worse after the surgery. A re-evaluation in 2007 showed the ulnar condition had become worse after the surgery and he underwent a second surgery to remove an obstructive neuroma. He was found at MMI about 3 years later and sustained an 80% loss in the use of his arm. He failed to establish the accident rendered him totally disabled.
The court noted that claimant had not looked for work, the employer had accommodated work with one-hand restrictions leading up to his resignation (and had a history of accommodating other employees), and that claimant's only expert conceded that claimant might be able to work with one-handed restrictions. Although claimant may have unable to do any work after the surgery, the record lacked sufficient records to support such an award.
"The arbitrator noted that the termination of the claimant's TTD benefits on the day of his retirement came before the supreme court's decision in Interstate Scaffolding and was based upon a reasonable interpretation of the law existing at that time. For its part, the Commission denied the claimant's request for an award of penalties and attorney fees because it determined that the claimant's entitlement to TTD benefits ended when he voluntarily retired on October 31, 2006."
Interstate Scaffolding v the Illinois Workers Compensation Commission, 2010 Ill Lexis 12 (IL 2010) awarded ongoing TTD for a period of time after a worker was discharged for misconduct and considered the dispositive issue was whether claimant was at MMI.
Wednesday, March 4, 2015
Commission finds prevailing factor with degenerative knee
A worker in 2009 hyper-extended his knee while pushing a tub. The Commission affirmed an award of partial disability benefits to the knee and future medical for total knee replacement. Gladish v Enersys, 2015 MO WCLR Lexis 18 (Feb. 24, 2015).
Claimant is 270 pound make in his 50s. He initially had an arthroscopy which did not help and sought further treatment. He had some limited treatment for his knee before the accident. It is somewhat unclear whether this was fully disclosed in records to his providers.
The employer disputed accident but offered no evidence to dispute claimant's testimony how the accident occurred. Claimant prior to the accident had been referred to an orthopedic surgeon for knee pain and had x-ray evidence of degenerative osteoarthritis. The commission concluded the accident was the prevailing factor because claimant's prior condition was not disabling resulting in lost time or resulting in medical restrictions. The Commission ultimately concluded the need for treatment including a total knee replacement flowed from the accident. The Commission found claimant established prevailing factor making symptomatic a pre-existing arthritic condition.
The Commission noted that the claimant could rely upon an expert to testify who was not licensed in Missouri and the employer had waived any objection by stipulating to the doctor's qualifications.
Claimant is 270 pound make in his 50s. He initially had an arthroscopy which did not help and sought further treatment. He had some limited treatment for his knee before the accident. It is somewhat unclear whether this was fully disclosed in records to his providers.
The employer disputed accident but offered no evidence to dispute claimant's testimony how the accident occurred. Claimant prior to the accident had been referred to an orthopedic surgeon for knee pain and had x-ray evidence of degenerative osteoarthritis. The commission concluded the accident was the prevailing factor because claimant's prior condition was not disabling resulting in lost time or resulting in medical restrictions. The Commission ultimately concluded the need for treatment including a total knee replacement flowed from the accident. The Commission found claimant established prevailing factor making symptomatic a pre-existing arthritic condition.
The Commission noted that the claimant could rely upon an expert to testify who was not licensed in Missouri and the employer had waived any objection by stipulating to the doctor's qualifications.
Monday, February 16, 2015
Commission won't lift under corporate veil
Claimant worked as a janitor for University of Missouri and hurt his right shoulder swinging a mop and ultimately asserted he was unemployable in the open labor market. Marshall v Job Finders, etal, 2015 Mo WCLR Lexis 14 (Feb. 10, 2015). The Commission affirmed the award with additional findings related temporary agency, Job Finders, used by the university.
The ALJ found the temporary agency employed more than 200 people and operated at the time of the accident without insurance and found the owner (Williams) personally liable for worker's compensation benefits. The employer had not answered a claim for about two years and its corporate name varied slightly from the pled name. Job Finders did not file a timely application for review to the Commission either.
The ALJ allowed found both the temporary agency and the university were employers and liable under the statute.
The Commission concluded its review was not limited to issues raised in applications as long as the parties had due process and additional time to address other issues. The Commission noted in order to find an owner responsible that the owner needs to be named as a party in the original claim and the ALJ violated due process by asserted liability against the uninsured owner It further noted that under strict construction required express finding the person is either an employer or an insurer and did expressly allow piercing the corporate veil.
The Commission made a finding to pierce the corporate veil in Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012).
ALJ Ruth
Atty: Hines, Murphy
The ALJ found the temporary agency employed more than 200 people and operated at the time of the accident without insurance and found the owner (Williams) personally liable for worker's compensation benefits. The employer had not answered a claim for about two years and its corporate name varied slightly from the pled name. Job Finders did not file a timely application for review to the Commission either.
The ALJ allowed found both the temporary agency and the university were employers and liable under the statute.
The Commission concluded its review was not limited to issues raised in applications as long as the parties had due process and additional time to address other issues. The Commission noted in order to find an owner responsible that the owner needs to be named as a party in the original claim and the ALJ violated due process by asserted liability against the uninsured owner It further noted that under strict construction required express finding the person is either an employer or an insurer and did expressly allow piercing the corporate veil.
The Commission made a finding to pierce the corporate veil in Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012).
ALJ Ruth
Atty: Hines, Murphy
Tuesday, January 27, 2015
Rolling truck produces $10 million verdict
In a civil case, a jury awarded a plaintiff 10 million dollars but found him 65% at fault resulting in multiple orthopedic and internal injuries when a truck rolled back and trapped him. Key v Diamond International Trucks, WD 77323 (Jan 27, 2015).
Key delivered trucks to dealerships. In 2007 he sustained injuries when undecking trucks using a hoist provided by Diamond. Key had lifted a truck and used wheel chocks out of a container bin and became trapped when the truck rolled as he released a U-bolt. He had used one strap rather than two.
Diamond asserted, among other instructional errors, that it owed no duty to the plaintiff and asserted he was an independent contractor and Diamond had no duty to provide equipment (wheel chocks) for him to perform the job safely. The court distinguished between the duty owed to independent contractors in cases of premises liability and cases involving a specific instrumentality. A landowner owes a duty of ordinary care for their safety and for injuries involving unsafe appliance or instrumentality furnished by the landowner. The court noted Diamond should have preserved the issue in a motion for a directed verdict.
The jury found plaintiff's wife sustained damages but found the amount of damages was zero. The plaintiff required ongoing treatment for urology and gastroenterology.
Key delivered trucks to dealerships. In 2007 he sustained injuries when undecking trucks using a hoist provided by Diamond. Key had lifted a truck and used wheel chocks out of a container bin and became trapped when the truck rolled as he released a U-bolt. He had used one strap rather than two.
Diamond asserted, among other instructional errors, that it owed no duty to the plaintiff and asserted he was an independent contractor and Diamond had no duty to provide equipment (wheel chocks) for him to perform the job safely. The court distinguished between the duty owed to independent contractors in cases of premises liability and cases involving a specific instrumentality. A landowner owes a duty of ordinary care for their safety and for injuries involving unsafe appliance or instrumentality furnished by the landowner. The court noted Diamond should have preserved the issue in a motion for a directed verdict.
The jury found plaintiff's wife sustained damages but found the amount of damages was zero. The plaintiff required ongoing treatment for urology and gastroenterology.
Monday, January 26, 2015
Climbing steps a lot supports knee disability claim
Claimant, 64, is a former career-employee with bad knees that required bilateral knee replacements. The Commission affirmed an award of benefits because he used steps a lot at work. Tarpeo v New World Pasta, 2015 MO WCLR Lexis 4 (Jan 15, 2015).
The parties agreed that claimant used steps daily to perform his job duties as a pasta pressman. The employer's expert, the only knee surgeon to testify in the case, found the prevailing cause in claimant's condition was degenerative arthritis and weight. The employer contends the employee over-estimated how many times he used steps and his knees were bad because he was old.
The claimant's father died 40 years earlier. Dr. Rende indicated claimant's father had arthritis. Dr. Rende stated his opinion that OA was age related did not change even absent that genetic history. The ALJ rejected the genetics defense because claimant denied his father had arthritis. The ALJ also noted that the employer over-relied on an opinion in the treating records that the condition was not work related and faults the employer for not deposing the treating physician. The physician does not indicate the full basis for his conclusions, and the conclusion disputing causation according to the ALJ could have been "predicated on a desire to have his medical bills paid by Claimant's personal health insurance company, so he could provide the needed treatment to Claimant, since it was not being accepted by the Workers' Compensation insurer."
Claimant testified he climbed steps several times an hour. The ALJ found 2880 stairs per week over 35 years was extensive. The ALJ based his causation opinion on the conclusions of a non-treating hand surgeon and awarded more than $150,000 including temporary and permanent disability.
The ALJ found claimant was PTD but not from the last accident alone, and that claimant failed to introduce sufficient medical evidence to show his English deficiency or other prior conditions flowed from permanent medical conditions.
ALJ Ottenad
Atty: Hoener, Hendershot, Frazier
Experts: Schlafly, Rende
The parties agreed that claimant used steps daily to perform his job duties as a pasta pressman. The employer's expert, the only knee surgeon to testify in the case, found the prevailing cause in claimant's condition was degenerative arthritis and weight. The employer contends the employee over-estimated how many times he used steps and his knees were bad because he was old.
The claimant's father died 40 years earlier. Dr. Rende indicated claimant's father had arthritis. Dr. Rende stated his opinion that OA was age related did not change even absent that genetic history. The ALJ rejected the genetics defense because claimant denied his father had arthritis. The ALJ also noted that the employer over-relied on an opinion in the treating records that the condition was not work related and faults the employer for not deposing the treating physician. The physician does not indicate the full basis for his conclusions, and the conclusion disputing causation according to the ALJ could have been "predicated on a desire to have his medical bills paid by Claimant's personal health insurance company, so he could provide the needed treatment to Claimant, since it was not being accepted by the Workers' Compensation insurer."
Claimant testified he climbed steps several times an hour. The ALJ found 2880 stairs per week over 35 years was extensive. The ALJ based his causation opinion on the conclusions of a non-treating hand surgeon and awarded more than $150,000 including temporary and permanent disability.
The ALJ found claimant was PTD but not from the last accident alone, and that claimant failed to introduce sufficient medical evidence to show his English deficiency or other prior conditions flowed from permanent medical conditions.
ALJ Ottenad
Atty: Hoener, Hendershot, Frazier
Experts: Schlafly, Rende
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