Employer owes TKR for arthritic knee

A claimant cannot 'waive' her right for the employer to pay medical services for a work related condition until she knows the condition is work related.  Dierks v Kraft Foods, WD 77893 (Mo App. 2015) (July 14, 2015).

The case involves a  common scenario. Claimant is 68-years old. She has bilateral knee arthritis and asserts the left knee became symptomatic after the work injury.  An expert indicated her meniscus tear arose from arthritis and not from trauma. The Commission rejected the defense.  It found claimant had a new condition based on the opinion of her surgeon and her own testimony. 
As a result, the Commission awarded the medical benefits, future medical for a TKR, and disability benefits.

"When Dierks sought to get her knee surgically repaired by Dr. Buchert, she had no reason to believe that employer should be responsible for providing that medical treatment. It was only while performing the surgery that Dr. Buchert saw evidence of an acute injury to the knee and was able to determine that the meniscus tear had been caused by her work injury. "

The court rejects the employer's appeal noting "well-settled principle" that it defers  to the Commission to make determinations regarding credibility.  It  notes the employer "expresses a belief" that this deference  does not apply in cases in which testimony is submitted by deposition.  It relied upon Dr. Koprivica's opinion that the accident accelerated the arthritis and need for surgery and escalated the condition to the point of a disability. The Commission could reasonably rely upon expert testimony that osteoarthritis had progressed even in the absence of current x-rays to verify any progression.  

The Commission affirmed an award of PTD against the Second Injury Fund in part due to a prior right knee condition which had severe arthritis and required repair of a torn meniscus with no history of trauma.  The SIF disputed liability and asserted claimant was able to work 12 hour shifts and had no disabling symptoms.   The court noted that the SIF may have over-relied on statements from the claimant that her right knee was asymptomatic  before the new left knee injury and construed the statement to only mean the time period "right before the accident."

 "The fact that a person has managed to perform various work duties does not preclude the fact that they have a permanent partial disability. Frequently, restrictions placed upon workers by doctors are not measures of what an individual has the physical ability to do but are, rather, directions designed to keep the worker from engaging in behavior likely to worsen their condition, cause pain, or lead to future injury."  
J. Ellis
Experts:  Koprivica, Cohen, Main
Treater: Buchert

Medical fee dispute not subject to 60 day service

A doctor selected by the comp carrier disputed partial payment of a medical bill, resulting in an award of the entire bill when the employer offered no evidence disputing the reasonableness of the charges.  Phillips v Allied Systems, 2015 Mo WCLR Lexis 72 (June 25, 2015).

AIG re-priced the bill and reduced the charges by $1,090.  The ALJ found no factual or legal basis to dispute the charges.   The Commission affirmed the award.  The employer objected to the admission of the affidavit by the ALJ pursuant to 287.210 when it was served less than 60 days before the hearing.   The Commission  made a distinction between a doctor-written report that was an expert medical opinion subject to the 60 day rule  and an expert "professional" opinion addressing the narrower issue whether the doctor regarded his own fees were reasonable.  It concluded the admission of fee-dispute reports were governed by 287.140 and not 287.210.7. The only objection was whether the report violated the "rules of evidence in civil proceedings."


ALJ Rebman
Atty Schroer, Moen

Commission puts employers on notice

A new Commission case affirmed an award of benefits, but what make the case important are dicta on how the new Commission now views denials based on lack of written notice. Brown v Nestle Purina Petcare, 2015 MO WCLR Lexis 33 (April 16, 2015).

Some background is important.  Missouri’s notice statute, 287.420, required injured workers to provide written notice of a work place injury (with several exceptions).  The exceptions often swallowed up the defense and in 2005 the legislature amended the statute.  Among other things, it threw out the "good cause" defense for late notice and triggered an obligation to provide notice after diagnosis.   This lead to a number of cases indicating that there was no duty to provide notice on diagnosis alone  until an expert told a worker the condition was work related.  It was unreasonable to assume, to paraphrase Kenny Rogers, for a worker to know what condition his condition was in. 

Jennifer Brown is an obese  lady in her late 40s who developed asthma as an adult.    Asthma runs in the family.  She developed breathing symptoms after working several years working in a plant making kitty litter in southeastern Missouri.  She had a variety of duties operating machines which incude what she describes as a regular “smell” test.  Sometimes she used masks; sometimes she did not. An expert attributed the likely cause of her asthma to exposure to perfumes, heptane and/or bentonite.  Another expert felt it was adult-onset asthma.  The employer hired both experts. 

 The ALJ essentially found it didn’t really matter whether the worker  provided notice because she showed the employer was never prejudiced by lack of notice.  The purpose of notice is to tender care and investigate claims.  Here, the employer never tendered care.  There was no evidence that its investigation was hampered.  In fact, the employer exercised its right frequently for medical exams, and when an expert found the condition was work related, it would send her somewhere else.  The case ultimately was decided on a battle of the experts (all hired by the employee). Not surprisingly, the ALJ found the case compensable based on an expert from the employer who made causation.

The Commission’s statutory interpretation about notice is what makes the case, well, worth the notice.  § 287.420 specifically requires employee to provide notice to the employer of the "nature of the injury." It creates a duty to provide notice “no later than thirty days after the diagnosis of the condition.”

What is meant by “condition”? A condition is not just the body part or symptoms flowing from a specific body part.  A condition according to the Commission appears to mean the exact diagnosis the Division ultimately finds to be work related.  If there is no parity in diagnosis, there is no duty to report, and if there is no duty there is no notice defense.  The clock does not begin until a doctor tells the claimant there is a condition which is the same conditions the judge finds to be the work-related diagnosis.  Here, the commission found the 30 day notice clock did not begin to run until someone told her she had obstructive air way disease, even though she was told earlier her symptoms to the same part of the body were better explained by reactive airway disease. 

 “Her diagnosis of restrictive lung disease runs contrary to the diagnoses rendered by the testifying pulmonary specialists. Specifically, Drs. Hyers and Tepper agree that employee suffers from asthma, while Dr. Tuteur provided the more specific diagnosis of irritant induced bronchial reactivity disease.” It notes  "Especially where § 287.420 specifically requires employee to provide notice to the employer of the "nature of the injury," we are not persuaded that Dr. McCants's incorrect diagnosis triggered the 30-day notice period."

 The diagnosis of worker’s conditions frequently changes in the course of a case.  Diagnosis is a work in progress.  While the diagnosis may match in simple cases (a fracture, for example) the diagnosis is probably rarely the same in more complex issues involving the heart or lungs.  The diagnosis in forensic exams used as a basis to award disability often varies widely from diagnosis on treating records.  The expectation of diagnostic parity is not realistic in most cases.

The problem is this strict interpretation produces an absurd result. Section 287.420 can be over-used defensively (to deny benefits).  The interpretation in this case to negate the defense almost seems to practically bring back the "good excuse" argument the legislature eliminated because the worker has good excuse for not knowing the exact diagnosis a judge might find was the cause many years later in a hearing.  There is no indication why the legislature may have intended the result in this case.

 Section 287.420 has another purpose too.  It invokes the duty to provide care based on general information about the nature of the injury  Similarly, since the duty to provide care is not invoked by specific diagnosis the duty to provide notice should follow the same standard. 

ALJ:  Robbins
Atty: Moreland, Day
Experts:  Teuter, Hyers

Res judicata bars second OD claim after denial of accident

Claimant tried a case for a shoulder injury, he was denied benefits, and then filed on a second case involving the same shoulder.   The court of appeals found the Commission exceeded its powers by allowing the worker to re-litigate the claim in a second hearing based on an alternate theory of occupational disease.  Johnson Controls v David Trimmer, WD 77948 (Mo. App. 2015) (April 21, 2015). 

Claimant was a career employee who  tore his shoulder tendon.  His medical histories initially deny any accident and later document a fall.  The case was tried and the ALJ found claimant failed to prove accident.  Claimant appealed and lost.  He then filed a second claim alleging occupational disease.   The ALJ then ordered treatment in a temporary award.  The employer appealed and was ordered by the Commission to provide treatment and paid about $66,000 in benefits.   The claim proceeded to a final hearing which the employer lost both at hearing which was affirmed 2-1, resulting in a further award of partial disability.

The dispute arose whether claimant was precluded from litigating the issue of occupational disease in the second hearing based on the doctrine of res judicata.  The court ultimately found that occupational disease was previously litigated or should have been raised.   The stipulated issue in the first hearing was: "whether or not the claimant sustained an accident or occupational disease" and the denial
implicitly found  that claimant failed to prove occupational disease.  The problem arose because the judge only expressly found that he failed to prove that he "sustained an accidental injury" and made additional comments that he suspected claimant's shoulder condition should have been compensable as an occupational disease.  The attorney took the hint and then filed the second claim.

The court finds that even if the issue of occupational disease was not fully resolved in the first case it should have been brought and was barred by res judicata because the same operative facts give rise to both claims including the same medical and testimonial evidence.   The fact that causes of action arise from two separate statutory provisions did not matter.  It found there was not reason to reach the issue if claimant ever sustained an occupational disease.

Two separate ALJs had found the two cases were separate and distinct causes of action based on two separate provisions.  Trimmer v Johnson Controls, 2001 MO WCLR Lexis 101.  ALJ Allen noted in the original award:  "This is a troublesome case because I suspect that the claimant's injury to his left shoulder was the result of   30 years of hard physical labor performed for the employer. This should have been compensable. However, the claimant has pled an alleged injury from a fall." 2006 MO WCLR Lexis 118. ALJ Miner wrote the final award.   The dissent at the Commission  the proper remedy was to appeal the decision to the court of appeals rather than re-litigating the case in a separate proceeding. 
 

Employer did not lose its right to direct medical

Claimant Pace sustained permanent and total disability as a result of work injuries in 2002 while employed for the City of Joseph.   In 2011 the Commission issued a final award for past medical bills and an order for the employer to direct and authorize and furnish medical care in accordance with section 287.140.Pace v  City of St. Joseph, WD 77976 (April 21, 2015).  Claimant Pace asserts that he has the right to pick his own medical doctors and require the employer to pay for it. 

Pace registered the judgment and both parties sought declaratory judgments whether the employer had the right to direct medical providers.  This prior award included a finding that the city had previously waived its right to direct its worker to medical doctors as provided in 287.140. The trial court granted the City's motion for summary judgment and Pace appealed. 

The court affirmed the summary judgment that the award allowed the employer the right to select the provider as provided in 287.140 because the award itself was "in accordance" with the statute.  The court found that claimant did not timely preserve the issue because he did not appeal it to the commission regarding the ALJ and Commission's power to restore the City's right to select a provider and could not challenge the issue in a collateral attack.  The court distinguished between findings of waiver for past medical care and cases in which the Commission had specifically ordered future medical services from a claimant's spouse. 

Court affirms worker had "unusual" strain from routine activities

A worker in his 50s tore three tendons in his right shoulder in 2009 after he lifted himself about two feet into his truck.  In a 9-2 decision, the majority of the Western District as a matter of first impression found under the new Act claimant established he had an “accident” even though he performed the normal duties of ascending his truck in a usual fashion.  Young v Boone Electric Cooperative, WD 76567, WD 76568 (W.D. Mo. App. 2015), 2015 Mo App. Lexis 407 (April 14, 2015).  The court affirmed benefits previously awarded by both the ALJ and the Commission.

This important case involved statutory interpretation to sort out what the legislature meant when it redefined “accident”.  “Section 287.020.2 defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.”

The legislature did not define key terms in the definition of “accident” like “unusual” and told the courts to disregard everything they said in the past by abrogating prior judicial interpretations. Larson's treatise explains that "unusual" can have several different meanings depending on what is being compared.   The court noted it disagreed with the policy behind the reform and clearly decided to do something about it even though the statutory argument was never properly preserved in the brief.  The majority decouples the definition and finds proof of strain does not require proof of an "event."

Missouri case law before 1983 required proof of an unusual event.   The dissent concluded that reform brought the state back to a pre-1983 standard to prove unusual events before Wolfgeher  v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983).  

The majority found what matters is the fact that an injury occurred and not what preceded it.
 Claimant described an activity (lifting) that was identifiable by a time and place and causally related to his medical condition.  It did not reach the issue whether the facts also established an unusual traumatic event.   It rejected the defense that claimant must show an abnormal activity or abnormal performance of a normal activity.    The court relied upon Pattengill v Gen Motors Corp., 845 S.W.2d 630 (Mo. App. 1992) (a pre-reform case) which it finds to have analogous facts. 

 Claimant described an immediate onset of symptoms that his shoulder popped and he had difficulty moving his arm.   The concurring opinion found the majority used circular reasoning and that the legislature’s use of “unusual” meant something more than a worker experienced an unusual manifestation of symptoms after a usual activity.  

The case clearly ease the burden to prove accident.  Medical causation of injury by accident was not disputed in this case.   

The court also affirmed an award of compensation and found claimant had a compensable accident when he stepped on a frozen clod of dirt and fell.  Claimant in 2008 sprained his knee when his knee popped, and then it popped again when his co-workers helped him up. 

The employer asserted claimant did not have an accident to his knee because he did not prove the statutory requirement under 287.020.3(2)(b) that the injury “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 non-employment life.”

The employer asserts that claimant lives on a farm that farms have dirt, and he could have the same risk of falling over dirt away from the work.  The Court found that 287.020.3(2) (b) under strict construction does not allow a defense based of the same general hazard but only of the same hazard at the same location.  Alternatively, the Commission found no evidence of non-occupational “equal” exposure.   Claimant is required only to show that he was exposed to an unsafe condition as a function of his employment.  It is then the employer’s burden as an affirmative defense to show that he had equal exposure to the same place and the same hazard when he was not working such as being exposed to the same ice on the same lot or the same crack on the same street.  Duever v All Outdoor, 371 S.W.3d 863 (Mo. App. 2012).    This becomes an impossible defense when claimant when the claimant in his capacity as a non-worker would not have access to space within the employer’s exclusive control.   It becomes the employer’s defense to show equal exposure “to disprove the prima facie case already made by Young.” 

The court makes a semantic distinction of injuries that occur because someone is working and not merely while they are working.  

Atty:  Allen, Friel
 

Court remands subrogation finding with consortium damages

The Commission went too far to address a subrogation dispute in a third party settlement involving a wife’s loss of consortium claim when the wife was not a party to the comp case.    Graham V Latco Contractors, 2015 MO App. Lexis 379 (April 7, 2015) found the Commission violated due process of the claimant’s spouse.

The third party settlement contained an no allocation for the claimant and his spouse.  The employer was entitled to a portion of the claimant's net recovery but the comp subrogation statute did not allow recovery for the wife's consortium recovery.   The Commission concluded that the spouse was presumed to have no recovery and made the entire net recovery subject to subrogation, following Ryder Integrated Logistics v Royse, 125 F. Supp. 2d 375 (E.D. MO 2000).
The court found Ryder unpersuasive and that the Commission violated due process because  the claimant’s spouse had never been added as a party.

The case is remanded to the Commission to amend the award. Similarly, MIGA was not a proper party under 287.150.6 for the ALJ to find a subrogation interest or for the Commission to take it away.  The court noted the civil rule for joinder  provided no remedy to add the spouse as a party.
See also  McGuire v Christian County, 2014 MO App. Lexis 502 (May 5, 2014).(finding no right of joinder).

 Claimant at age 41 was awarded total disablity when  he became hypersensitive to smells from building and maintaining chicken houses.  He last worked 15 years ago.  He settled a personal injury case against Tyson for $730,000.  His worker’s compensation carrier, Legion, became insolvent in 2002 about two years after he stopped working.  

Graham was modified by the Commission, 2015, MO WCLR Lexis 46 (May 14, 2015).
 

Atty: Rau, Petraborg, Wilfong