Reginald Jones v Orbital ATK
Indemnity Ins Co of N. America
Release Date: Sept. 12, 2019 (Accident date April 3, 2013)
Venue: Jackson County
Plot Summary: Claimant who had a prior ACL knee surgery failed to show a new injury by accident when he stepped in a hole at work caused a new medical condition (personal injury). Claimant's expert felt claimant was a candidate for knee arthroscopy and defense expert felt claimant required TKR due to arthritis. The defense expert indicated it was possible for the accident to cause the alleged medical conditions but that the accident did not cause them.
Inj. No. 13-031100
https://labor.mo.gov/sites/labor/files/decisions_wc/JonesReggie13-03110009-12-19.pdf
Cast:
Siedlik
Jones, atty
Roby, atty
Stuckmeyer 25%
Samuelson
Strong
Memorable Quotes
"The difference being Tillotson had a torn meniscus whereas here, the Employee was not found to have sustained more than an aggravation of his pre-existing condition...."
Comments
The majority finds defense experts were more credible noting they were orthopedic surgeons and were involved in active treatment rather than Dr. Stuckmeyer who performed a singular exam, he was not involved in treatment of anyone for several years, and comments the expert was known by the Commission "by virtue of his numerous reports offered before the Division on behalf of employees."
The commission notes that claimant's testimony that he was suffering from "constant and unrelenting pain" that impacted his lifestyle and ability was weakened because he had worked at two subsequent jobs and not availed himself of "equitable relief" or sought care through alternate sources, such as the V.A.
The ALJ noted the employer apparently admitted accident that claimant snagged his foot at work, although the ALJ when he described testimony about the accident noted claimant was "vague" in other details.
A dissent argued that claimant's expert was more credible that claimant had a new medical condition (aggravation) and a medical disability to support a temporary award and that the majority appears to find aggravations are not compensable injuries.
Tuesday, October 1, 2019
Expert opinion more credible based on more facts
Jessica Hurd v SSM Health Care St. Louis
Release date: Sept. 5, 2019
Venue: St. Louis
Plot summary: The Commission affirms a PPD award for knee strain/syndrome when a 32-year old tripped and fell and rejects the defense argument that the award was not based on objective evidence. Claimant received a brief course of treatment but reported continued symptoms with squatting, standing and "somewhat" weak hamstrings. The Commission finds the employee's expert more credible as more "fully informed" based on more complete treating records and more fully documented findings
Comments
The record was ambiguous whether the claimant's expert had reviewed the MRI as reported by the ALJ. The Commission found this could be reasonably inferred as the expert had reviewed the "records.
The ALJ noted knee injuries are "problematic" as "ambulation injuries" and lack of symptoms while claimant performed sedentary work was not dispositive of the extent of disability. The ALJ noted the award "could have" been higher with "more objective findings." The Commission notes it has the authority as the fact finder, and there was nothing in 287.190.6(2) that required reversal.
What's it worth?
15% knee
Release date: Sept. 5, 2019
Venue: St. Louis
Plot summary: The Commission affirms a PPD award for knee strain/syndrome when a 32-year old tripped and fell and rejects the defense argument that the award was not based on objective evidence. Claimant received a brief course of treatment but reported continued symptoms with squatting, standing and "somewhat" weak hamstrings. The Commission finds the employee's expert more credible as more "fully informed" based on more complete treating records and more fully documented findings
Inj. No 17-037838
Cast:
Denigan
Sievers
Volarich - paellofemoral syndrome 20%, 22.5%
Karre 0%
Memorable quotes:
"it may be observed in hindsight that Employer under-treated Claimant given the persistent complaint and, with the standing diagnosis of patellofemoral syndrome, perhaps beyond the expertise of an urgent are physician." … . (ALJ)
Comments
The record was ambiguous whether the claimant's expert had reviewed the MRI as reported by the ALJ. The Commission found this could be reasonably inferred as the expert had reviewed the "records.
The ALJ noted knee injuries are "problematic" as "ambulation injuries" and lack of symptoms while claimant performed sedentary work was not dispositive of the extent of disability. The ALJ noted the award "could have" been higher with "more objective findings." The Commission notes it has the authority as the fact finder, and there was nothing in 287.190.6(2) that required reversal.
What's it worth?
15% knee
No MO SIF liaiblity for combo of prior Parkinson's and minor hearing loss
Phillip Guinn v Solo Cup
Zurich American Ins. Co, Treasurer of Mo
Release Date: Sept. 26, 2019 (last employed 2006)
Venue: Southern District
Summary: The Commission affirms a denial of benefits a second time of an alleged PTD against the second injury fund and finds claimant failed to prove a right to benefits under 287.200.2 that the SIF claim is based on pre-existing permanent partial disability. The employer had settled the case involving alleged hearing loss.
Claimant, 63, retired in 2006 and was awarded social security benefits likely due to Parkinson's disease. He reports the condition became progressively worse and he could no longer do his job and in his last year he would 'essentially stand around.' In 2013 he filed a claim against the second injury fund and sought PTD benefits because of his hearing loss, tinnitus, and the prior Parkinson's, which was diagnosed in 2003.
The SIF raised defenses of injury by occupational disease, notice and statute of limitations and SIF liability. The experts reached different opinions whether claimant was unemployable solely because of his Parkinson's disease. Dr. Koprivica, claimant's expert, assigned additional disability for 2.45% for hearing impairment and 12.5% for tinnitus. Dr. Parmet, the SIF expert, felt there was no measurable degree of disability of speech reception thresholds and discrimination scores as a result of the tinnitus and that his hearing loss was likely due to occupational noise exposure (conductive) as well as sensorineural forms associated with Parkinson's disease and age.
The ALJ awarded total benefits against the Fund. The commission reversed and found the claim barred by the statute of limitations. The court of appeals reversed and found the claim was not discoverable that claimant had an occupational disease until January 17, 2013 when he filed a claim against the employer (In May 2013 his expert told him the condition was work related). The Commission denied benefits when the case is on remand and find claimant's prior Parkinson's disease reached a level of severity that the prior condition was not "partial" disability to qualify for benefits and rendered claimant unable to work in the open labor force before consideration of any the hearing loss.
A dissenting commissioner would have awarded PTD benefits.
Inj. No. 06-136330
https://labor.mo.gov/sites/labor/files/decisions_wc/GuinnPhillip06-13633009-26-19.pdf
Cast
Wilson, ALJ (original decision)
Hosmer, atty
Burks, atty
Koprovica
Parmet
North
Duff
What's it worth?
benefits denied
Zurich American Ins. Co, Treasurer of Mo
Release Date: Sept. 26, 2019 (last employed 2006)
Venue: Southern District
Summary: The Commission affirms a denial of benefits a second time of an alleged PTD against the second injury fund and finds claimant failed to prove a right to benefits under 287.200.2 that the SIF claim is based on pre-existing permanent partial disability. The employer had settled the case involving alleged hearing loss.
Claimant, 63, retired in 2006 and was awarded social security benefits likely due to Parkinson's disease. He reports the condition became progressively worse and he could no longer do his job and in his last year he would 'essentially stand around.' In 2013 he filed a claim against the second injury fund and sought PTD benefits because of his hearing loss, tinnitus, and the prior Parkinson's, which was diagnosed in 2003.
The SIF raised defenses of injury by occupational disease, notice and statute of limitations and SIF liability. The experts reached different opinions whether claimant was unemployable solely because of his Parkinson's disease. Dr. Koprivica, claimant's expert, assigned additional disability for 2.45% for hearing impairment and 12.5% for tinnitus. Dr. Parmet, the SIF expert, felt there was no measurable degree of disability of speech reception thresholds and discrimination scores as a result of the tinnitus and that his hearing loss was likely due to occupational noise exposure (conductive) as well as sensorineural forms associated with Parkinson's disease and age.
The ALJ awarded total benefits against the Fund. The commission reversed and found the claim barred by the statute of limitations. The court of appeals reversed and found the claim was not discoverable that claimant had an occupational disease until January 17, 2013 when he filed a claim against the employer (In May 2013 his expert told him the condition was work related). The Commission denied benefits when the case is on remand and find claimant's prior Parkinson's disease reached a level of severity that the prior condition was not "partial" disability to qualify for benefits and rendered claimant unable to work in the open labor force before consideration of any the hearing loss.
A dissenting commissioner would have awarded PTD benefits.
Inj. No. 06-136330
https://labor.mo.gov/sites/labor/files/decisions_wc/GuinnPhillip06-13633009-26-19.pdf
Cast
Wilson, ALJ (original decision)
Hosmer, atty
Burks, atty
Koprovica
Parmet
North
Duff
What's it worth?
benefits denied
Monday, September 30, 2019
Commission denies benefits when risk source is an equal exposure
Pauline Nugent v State of Mo Missouri State University
Release Date: 9/5/2019
Venue: Springfield, MO
Plot Summary: Commission affirms a denial of benefits that claimant failed to prove a wrist injury arose from an identifiable risk source when claimant tripped over a parking lot island when claimant had experienced a equal exposure to same island and risk of falling in her in non-occupational life.
Inj. No. 17-0110830 2019 MO WCLR LEXIS 65
https://labor.mo.gov/sites/labor/files/decisions_wc/NugentPauline17-011083090519.pdf
Cast:
Fischer, ALJ
Alberhasky
Harris
Bang
Mullins
Comments:
287.020.2 provides....
"In this case, there is no evidence that Employee was carrying or wearing any item related to her employment. She testified the only thing she was carrying was her handbag, which contained personal items....."
"Furthermore, the evidence establishes that Employee when injured was walking in a parking lot that she walks in on occasions in her normal non-employment life. In fact Employee had, just moments before her alleged work related fall, walked in the very same parking lot, with the very same parking island in her normal non-employment life when she went to the United State Post Office located in the Glen Isle Center on personal business. Employee also testified that since the fall in February 2017, she has been in the same parking lot on personal non-employment business
Employee's own testimony establishes that she is routinely exposed to similar parking islands in similar parking lots that she frequents in her normal non-employment life."
The cases arises on unique facts in which claimant identifies an exposure to an identical hazard at work and away from work. There is further analysis that the cause did not flow from any identifiable hazard or defect of the island.
What's it worth?
Denied.
Release Date: 9/5/2019
Venue: Springfield, MO
Plot Summary: Commission affirms a denial of benefits that claimant failed to prove a wrist injury arose from an identifiable risk source when claimant tripped over a parking lot island when claimant had experienced a equal exposure to same island and risk of falling in her in non-occupational life.
Inj. No. 17-0110830 2019 MO WCLR LEXIS 65
https://labor.mo.gov/sites/labor/files/decisions_wc/NugentPauline17-011083090519.pdf
Cast:
Fischer, ALJ
Alberhasky
Harris
Bang
Mullins
Comments:
287.020.2 provides....
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) It 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 nonemployment life.
"In this case, there is no evidence that Employee was carrying or wearing any item related to her employment. She testified the only thing she was carrying was her handbag, which contained personal items....."
"Furthermore, the evidence establishes that Employee when injured was walking in a parking lot that she walks in on occasions in her normal non-employment life. In fact Employee had, just moments before her alleged work related fall, walked in the very same parking lot, with the very same parking island in her normal non-employment life when she went to the United State Post Office located in the Glen Isle Center on personal business. Employee also testified that since the fall in February 2017, she has been in the same parking lot on personal non-employment business
Employee's own testimony establishes that she is routinely exposed to similar parking islands in similar parking lots that she frequents in her normal non-employment life."
The cases arises on unique facts in which claimant identifies an exposure to an identical hazard at work and away from work. There is further analysis that the cause did not flow from any identifiable hazard or defect of the island.
What's it worth?
Denied.
Court of Appeals affirms an award for spouse providing emotional support
Ronald Reynolds v Wilcox Truck Line, Inc.
Venue: Western District
Release date: Sept. 17, 2019
pages: 18
Plot Summary: The Court of Appeals affirms a Commission award of permanent and total disability benefits and affirms an award for nursing services provided by his wife which includes emotional support for the worker's PTSD.
Claimant's truck overturned in 2007 and he escaped the wreckage before it caught fire and burned. He was diagnosed with PTSD and major depressive disorder. Claimant's wife quit her job to care for her husband and asserts she spends 20 hours a day "to keep him calm" when he had panic attacks among other activities. The ALJ (Miner) denied nursing benefits but the commission found the services were compensable because they were 'nursing' care distinguishable from services of a spouse
Claimant's truck overturned in 2007 and he escaped the wreckage before it caught fire and burned. He was diagnosed with PTSD and major depressive disorder. Claimant's wife quit her job to care for her husband and asserts she spends 20 hours a day "to keep him calm" when he had panic attacks among other activities. The ALJ (Miner) denied nursing benefits but the commission found the services were compensable because they were 'nursing' care distinguishable from services of a spouse
WD 81969 2019 MO APP. LEXIS 1459 https://www.courts.mo.gov/file.jsp?id=144334
Prequel:
Cast:
Hardwick, Judge
Lanham, atty
Powell, atty
Steven Akeson
Dale Halfaker
Stanley Butts
Gary Weimholt
Jennifer Lynch
Memorable Quotes:
"the legislature demonstrated that it is perfectly capable of abrogating previous opinions it finds objectionable"
Comments:
The crux of the employer's argument is the types of the services the spouse performed were not "real" nursing services and that the commission was writing checks for someone to perform "normal" activities to support a spouse emotionally Claimant quit her job, and argues the scope of duties were extensive (20 hours a day) and she was involved in other medical management activities rather than just emotional assurance to make her injured spouse feel someone had his back.
The court found persuasive the argument that the activities could be characterized as nursing duties that would be medically necessary if the spouse did not provide them rather than drawing the line in the sand of what an "ordinary" spouse might be expected to perform. To that extent, the court seemed to suggest the employer would be obligated to find d a nurse to perform similar tasks such as managing meds and could pay a nurse if it did not want to pay the spouse. The findings are unclear if claimant simply could not perform the task (self medical management, for example) or if the spouse simply assumed the duties and role to perform the activity and wants to be paid as an after-thought. The Commission reduced the amount of compensation the spouse had sought for her services from essentially round the clock to 3 days a week.
The court also dismissed the employer's argument that its defense was compromised by claimant's refusal to appear for a psychiatric exam. The court criticized the employer's argument as "thinly disguised invitation" to re-visit the issue of credibility and failed to show why the ALJ was wrong to deny further psychiatric evaluation based on opinion evidence that more exams would "endanger" him.
Claimant's return to work for a trial period did not defeat a claim of total disability and claimant's activity on a cattle farm which he claims he needed constant supervision did not establish he was capable of working in the open labor market. Similarly, post-accident conduct to not seek employment did not negate a finding that he was unemployable when that conclusion was supported by expert opinion.
The court found persuasive the argument that the activities could be characterized as nursing duties that would be medically necessary if the spouse did not provide them rather than drawing the line in the sand of what an "ordinary" spouse might be expected to perform. To that extent, the court seemed to suggest the employer would be obligated to find d a nurse to perform similar tasks such as managing meds and could pay a nurse if it did not want to pay the spouse. The findings are unclear if claimant simply could not perform the task (self medical management, for example) or if the spouse simply assumed the duties and role to perform the activity and wants to be paid as an after-thought. The Commission reduced the amount of compensation the spouse had sought for her services from essentially round the clock to 3 days a week.
The court also dismissed the employer's argument that its defense was compromised by claimant's refusal to appear for a psychiatric exam. The court criticized the employer's argument as "thinly disguised invitation" to re-visit the issue of credibility and failed to show why the ALJ was wrong to deny further psychiatric evaluation based on opinion evidence that more exams would "endanger" him.
Claimant's return to work for a trial period did not defeat a claim of total disability and claimant's activity on a cattle farm which he claims he needed constant supervision did not establish he was capable of working in the open labor market. Similarly, post-accident conduct to not seek employment did not negate a finding that he was unemployable when that conclusion was supported by expert opinion.
The court noted that pre-reform allowed compensation to allow an award of nursing services for a spouse. The court found section 287.800.1 and its mandate for strict construction did not require reversal of these cases. The court relied upon a dictionary definition to allow nursing that included duties of a person skilled in caring for and waiting on the infirm, the injured, or the sick, which could include one especially trained to carry out such duties under the supervision of a physician. The court found no legislative purpose to abrogate the earlier cases or a more restrictive scope of services.
What's it worth?
PTD for PTSD/Depression with open medical.
Appeal fails in allergy case when worker does not identify a specific error in her application for review
Ali Crawford v Ronald McDonald House Charities
Release Date: Sept. 26, 2019 (2012 Accident Date)
Venue: Southern District
Plot Summary: Court of Appeals affirms a dismissal of claimant's appeal, and finds that the Commission did not act without or in excess of its powers when it dismissed an appeal because of a failure to comply with 8 CSR 20-3.030(3)(A) which requires the applicant to state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. In the case the ALJ found the employer's expert more credible and denied benefits.
No. SD 36028 Mo App. Lexis 1534
Cast
Sheffield, J.
Newman, atty
Hecht, atty
Comments: Claimant alleged a severe allergic reaction while at work because of an exposure to latex and presented records and an expert opinion to support his claim. The ALJ found the employer's expert more credible and denied the claim (The underlying decision is not published). Claimant appealed and alleged:
1. The judge erred in finding that the Employer/Insurer was not liable for Claimant's injuries and for Claimant's permanent partial disability, as the only credible evidence was that the employee was injured at work on December 11, 2012, in that she was removed from her place of employment at the time of the exposure and taken to the emergency room by medial personnel suffering from an allergic reaction and as a result of the exposure, Claimant has sustained permanent partial disability.
2. The only credible evidence is that Claimant was injured while at work and (the ALJ) ignored that evidence in reaching his decision that Claimant's injuries and subsequent disability were not work related.
The Commission notes the claimant failed to state why her evidence was the only credible evidence or failed to identify what specific evidence the ALJ allegedly ignored. The application did not state specifically why the ALJ 's decision is not properly supported. It was not enough for the applicant to state that the she felt her evidence was more credible. The general assertion that the decision was not supported by competent and sufficient evidence was "patently insufficient" to comply with the rule.
Judge Scott in a concurring opinion felt the lack of specificity was not prejudicial when the parties intended to brief any alleged errors. The judge notes the irony that the Commission requests more specificity but in a new September 2, 2019 rule now advises parties to keep the application short (five pages or less). Judge Scott noted the rule to require specificity flowed from a "presumed" legislative intent to deter frivolous appeals by employers.
Tuesday, July 30, 2019
Court finds claimant identified a work hazard from a slippery surface and reverses a denial based on lack of credibility
Credibility findings are never disturbed by the court of appeals. Right?
The case involves a highly educated 55-year old teacher from Turkmenistan who never goes back to work after she falls coming into work from the parking lot. MARAL ANNAYESA V SAB OF THE TSD OF THE CITY OF ST. LOUIS AND TREASURER OF MISSOURI ED 107558 (July 30, 2019)(Chief Judge Dolan)
In the rare case, the Court finds the Commission's decision not to believe the claimant was arbitrary
just because she couldn't initially identify why she fell, or that she didn't initially tell her doctors why she fell, or she was a little late getting to the point in her testimony.
She testified eventually that she fell because the entrance had no rugs and had water or dirt or something. Her medical records mentioned it within a few weeks. The claimant has the burden to only identify a risk, and she has no duty to ever mention at a risk if it can be established by reasonable inference. There were no rugs, remember?
The Commission can disbelieve the witness and it's normally game over unless there are some legal error. But here's the rub. The basis for the disbelief cannot be arbitrary. The Court suggests the commission made the finding of credibility to be questionable because the discussion of hazard did not occur as a "focus" of the testimony until it was elicited by the attorney. The court appears to conclude the lack of credibility was rooted in how the questions were asked and not the answers that were elicited and the Commission never came out in big letters and said it did not believe her.
The Court notes there was no evidence which further supports the Commission's finding that there was no hazard. Just because there was no defect in the floor did not mean there wasn't a hazard on its surface.
The employer relies on a defense of failure of proof that the claimant would not be found credible on the issue of injury by accident by omissions of a specific identifiable hazard in her initial medical history or initial report. The defense relies upon the evidentiary nutshell that a story first in time is more credible than a second, more detailed, story, that makes a better case.
The case is remanded to address causation.
ALJ Teer noted found opinions of claimant’s medical experts were specious.
“Initially, the Court finds, as to Claimant's credibility, she has failed to provide credible
testimony to this Court. It is clear Claimant's description of her injuries and their subsequent
effects verge on the point of malingering. As all, if not most, of Claimant's medical expert
testimony relies is substantial part on her own subjective description of her maladies, this Court
finds the conclusions subsequently provided are equally specious. There is little or no objective
medical finding to support any of Claimant's anomalies. Claimant has not met her burden of
showing the incident of January 8, 2013 was the prevailing factor causing the physiological
and/or psychological complaints. This Court, therefore shall deny this claim on the basis of lack
of medical causation.”
The court finds the Commission erroneous in its conclusion that showing up at work and falling at the entrance was not in the course of employment even without 'clocking in.' That finding is not unexpected.
Prequel
Subscribe to:
Posts (Atom)