No award for disputed medical bills without notice of need for care

 Justin Kent v NHC Healthcare

Release Date:  2-2-2021  (Accident date Dec. 2008)

Venue:  ED   108667

Plot summary:  Claimant sought a claim of PTD benefits, past medical bills and TTD and he was awarded PPD only.  He appealed.  The court affirms and found sufficient evidence to support a PPD award and no foundation of notice of a need for medical care to award the medical bills before he proceeded to have a microdiscectomy and later a fusion.   The ALJ had excluded various expert reports used in conjunction with a disability claim. 

The ALJ awarded 35% to the spine.  It note: 

"Only after his termination by NHC Healthcare did Kent embark on a long, expensive, and at times questionable path seeking medical treatment for back pain Kent associates with his workplace injuries. Kent’s journey involved multiple physicians and medical professionals offering varied diagnoses and treatments. The record unambiguously shows that at no time while Kent sought medical care and treatment from Dr. Parks or anyone else, did Kent make any demand on NHC Healthcare or notify NHC Healthcare of his desire to continue medical treatment with these professionals. To the contrary, the record clearly shows that Kent intentionally declined to notify NHC Healthcare of his intent to seek continuing medical care for his reported back pain following his termination of employment. The record supports the Commission’s finding that Kent knowingly incurred medical care and treatment after his March 2009 termination at his own expense. See Section 287.140.1. The record reveals that Kent did not request any additional medical treatment from NHC Healthcare because he did not think 24 NHC Healthcare would assist him. Whether Kent was correct in his assessment of how NHC Healthcare might react to a post-termination request for medical care is strictly a matter of speculation and inconsequential to our review as the record before us clearly shows Kent never asked for medical treatment from NHC Healthcare after March 2009. Nevertheless, Kent argues the Commission is obligated to order NHC Healthcare to pay the medical expenses Kent incurred while directing his own course of treatment because NHC Healthcare had notice of his need for additional treatment. We are not persuaded."

No SIF benefits when failure to prove aggravation by prior non-compensable condition

 Tamara Polston v State of Mo. 

Release Date:  2-11-2021 (Accident date 3-10-2015, injury #2)

Venue:  Callaway County

Plot Summary:  Claimant was assaulted and hurt her knee, settled the case with the employer, and sought benefits against the Fund.  The ALJ found claimant sustained a compensable knee injury but failed to show she was PTD due a combination of prior conditions and noted she was not credible regarding her limitations, symptoms and physical and psychiatric conditions and did not  introduce credible evidence that her non-work prior psychiatric condition significantly aggravates or accelerates her primary knee condition to satisfy the statutory burden of proof.  

A dissent felt claimant was PTD and found credible that claimant had bipolar disorder and PTSD. 

15-013956

PolstonTamara15-013956-02-11-21.pdf (mo.gov)

Cast:

Farmer, ALJ

Dr. Daniel

Dr Cohen

Dr. Oliveri  

Dr. Pribor

Concussive injury supports partial disability despite memory lapse who it occurred

Terry Humphrey v Ruan Logistics Co. 

Release Date:  2 5 2021  (Accident 9/6/2012)

Venue:  Newton County

Plot summary:  medical fee dispute

The ALJ awards 12.5% PPD for a concussive injury with memory problems when claimant struck his head on a truck safety mirror while walking around  a truck. The ALJ rejected an expert who concluded the accident could not happen the way it was alleged, even though claimant could not fully describe it due to memory loss.  

HumphreyTerry12-07815302-05-21.pdf (mo.gov)

Cast:

Fisher

Webster

Koprivica

Appelbaum

No combo, no total in SIF claim

 Robert March v Millbank Mfg.

Release Date:  Feb. 23, 2021  (D/A  May 1, 2015)

Venue:  Lafayette County

Plot Summary:  Claimant denied SIF PTD claim based on a failure to prove a prior lower leg condition did not aggravate or accelerate work related carpal tunnel or that  disability wasn't caused by post-accident worsening. The Commission affirmed a denial on the failure of the burden of persuasion that claimant's inability to work was not because of the prior leg condition alone, and describes how the employer provided accommodations.

Cast:

Siedlik

Kenter

Wilson

Note:  A majority criticizes the original opinion for grammatical errors and confusing language. 

Court remands to address whether prior condition reached MMI

 Bruce Krysl v Treasurer of MO

ED 108958

Venue Eastern District

Release Date:  Dec.  22, 2020

Plot summary:The court ordered the Commission to reinstate benefits of PPD for a 2013 accident under section 2.  The SIF argued it should be able to reassert its defense that claimant was not at MMI, a position that was ignored as moot by the original commission decision.  The court found the commission  did not address this issue consistent with its mandate. 

The court re-examined its original mandate violated due process by not allowing the Commission to address the second defense.  The court noted the error due to poor briefing:

"The Fund’s failure to alternatively request its desired relief upon reversal in its Krysl I brief and its failure to argue the opinion in Krysl I was erroneous in its Rule 84.17 motion has resulted in superfluous administrative and appellate proceedings. We admonish the Fund to include all arguments in its briefings and draft Rule 84.17 motions carefully to include all perceived errors with this Court’s opinions in the future. Had this appeal involved an issue less sacrosanct than due process the outcome may have been different." 

Judicial estoppel not applied despite inconsistent statements

 Michel Ziade v Quality Business Solutions Inc.

Release Date:  Feb. 9, 2021  (July 2015)

Venue:  WD 83763  

Plot summary:  Claimant (Michel) is murdered and the murderer (Parker) confessed it was over a dispute about pay with FCMT.   The surviving spouse/company owner of FCTM  (Kristen)  named as employers FCTM and QBS.  FCTM did not appear at the hearing  

QBS defended the case that claimant was not an employee and the claim was also precluded under judicial estoppel. The ALJ and commission awarded benefits, and found an employment relationship. The Commission disavowed the opinion the DWC could not address issues of estoppel.  The ALJ found a service agreement that made QBS a co-employee of FCTM employees.  

The court noted the Commission improperly concluded it lacked jurisdiction to consider matters of res judicata or collateral estoppel.  QBS argued judicial estoppel and claimant cannot proceed on the theory that Michel was in the course and scope of employment to recover comp benefits when she alleged in an earlier motion for summary judgment that he was on a personal errand.  

The court noted the summary judgment in federal court was not decided on the issue if claimant was on a personal errand or not but on the issue of coverage, and FCMT had dropped its general liability coverage 3 months prior to the death.  

The ALJ rejected a 'wild' defense that the death was purely personal because of a private loan or that Parker wanted to kill Michel because he was while.  No additional evidence was introduced to support either theory.   

Commission rejects PTD claim for treatment after retirement

 Mark Lynch v Anheuser Busch 

Date Feb. 2, 2021  (Accident date Jan 30 2009)  

Venue:  STL

Plot Summary:  Claimant fails to prove his injury by occupational disease (carpal tunnel) combined with pre-existing conditions when claimant retired in 2009 (last date of employment), he had knowledge of carpal tunnel at time of his retirement, and two years later sought care.  Dr. Rotman felt he had neuropathy unrelated to a work related carpal tunnel.  The employer settled the case at 20% of the wrist.  A dissent would have awarded PTD on the finding that claimant had some unidentified problem with his wrists when he was still working.

The ALJ notes the proper date was the last date of employment and found the SIF offered no evidence on a notice defense and no evidence to contest the extent of disability. 

Inj. No.  09-101188, 09-039485

Cast

Teer, ALJ 

Woiteshek

Rotman

Tatlow

Morgan

Campbell