Isaac v Barnes Jewish
2017 MOWCLR LEXIS 35
June 20, 2017
The commission affirms a PPD award for SIF benefits to a 49-year old on the basis of prior hypercoagulability, multiple sclerosis, ankle and neck conditions. Claimant had been awarded social security disability benefits solely on the basis of her MS. She testified regarding increased impairment from her balance, weakness and fatigue following the work injury.
The employer had settled prior to hearing on the basis of a slip and fall that produced injuries to her elbow and foot.
ALJ Kohner
Experts: Volarich, England
Tuesday, June 27, 2017
Wednesday, May 24, 2017
Supreme Court bars "settlements" after a final award
Dickemann v Costco Wholesale Corp.,
S.C. 96513 (May 22, 2018)
The Supreme Court affirms the court of appeals that parties cannot reach a settlement after a final award and any commutation must be equivalent to the commutable value.
The court found an award was not a "claim" so the Commission lacked authority under that statute to obtain approval under 287.390 as requested by the parties.
The court found that the commutation statute of 287.530 required both a finding why commutation was appropriate and why the proposed settlement represented the commutable value. In this case, the parties presented no evidence on the first issue and on the second issue they sought to reduce an award equivalent to $590,000 to $400,000. The Commission had calculated the higher figure on a 4% discount rate and based on the stipulated life expectancy of 20 years.
This decision seems to suggest that commutable vale can vary based on life expectancy, but that the present value needs to be approximate the stipulated life expectancy. The parties elected to proceed on appeal and not address the "shortcomings" noted by the Commission. It is unclear if the claimant's rated age could have supported a lower life expectancy closer to the proposed settlement amount.
ED 105266
2017 MO App. Lexis 472
Parties are not allowed to strike their own deal after an award according to the latest case out of the court of appeals - Eastern District, in direct conflict with the Western District, in an important issue that may ultimately need to be resolved by the Supreme Court.
The court of appeals affirms the Commission has no authority to consider joint agreements for approval under 287.390 (settlements of claims) and the proposed agreement fails because it does not meet the requirements of 287.530 (commutation)
This decision has huge implications for people who have awards, and seek to close out obligations that might stay open for decades and for injured workers who would rather have their money now than later.
This issue is deja vu for the Commission.
The Commission has refused to approve post-award settlements in the past that it did not represent the full value of future installments.
The Western District has told it to approve settlements if the settlement met the requirements of 287.390.1 if it is not the result of undue influence or fraud, the employee understands his or her rights or benefits, and voluntarily agrees to accept the terms. In Hinkle v A.B. Dick Co, 435 S.W.3d 685 (Mo App. 2014) the Commission balked about approving a settlement which paid 49% of the present value until it was ordered by the Western District to approve the settlement, following Nance, which found the controlling statutory authority for settlements was governed by 287.390.1 for non-contested commutations and not solely 287.530.
Dickemann is factually similar to Hinkle, in some respects. The proposed settlement of $400,000 is not equal to the commutable value of future installments. The parties seek to end their liability to pay future installments by a lump sum. In this case, the employee seeks the settlement and the employer adopts the arguments and proposal.
Dickemann case declines to follow Nance or Hinkle, and claims the only controlling authority for post-award settlements is 287.530, and the parties fail to show the settlement proposal meets the statutory requirements of 287.530: that the proposal is equal to commutable value and that unusual circumstances exist in the best interest of the parties (for example, a shorter life expectancy as in Nance) to support any commutation. The court finds under the rubric of strict construction it cannot find a "claim", like the court in Nance, and finds only parties to claims can strike their own deals.
Section 287.530 applied as the procedure to settle post-award liability whether the commutation was "contested" or not
The parties sought approval through criteria of 287.390 rather than 287.530 following precedent in Nance and Hinkle , and argued the doctrine of stare decisis to follow the Western District's precedent.
The court suggests 287.390 allowed the Commission to approve settlements only "in accordance with the rights of the parties" and the provision may conflict with the criteria of "undue influence, understood rights, and voluntarily agrees..." but waited for a "future case which would directly present the issue" for consideration. Nance followed the latter criteria.
The court noted the joint agreement failed to list any of the statutory grounds of 287.530: best interest of the parties, unusual circumstances, or present value. The proposal represented about 2/3 of the present value.
The court and commission relies upon strict construction of 287.800 and concludes that it was legislative intent to allow post-award negotiation as an exception and only in very narrow circumstances.
The Western District now allows parties to strike their own deal, even after an award, and determine what is in their best interest. The Eastern District now backs a long-standing position of the Commission that workers and their employers lose that chance to negotiate further after a final award and they must live by the deal, good or bad, and there are no second bites at the apple.
Judge Hess authored the opinion.
S.C. 96513 (May 22, 2018)
The Supreme Court affirms the court of appeals that parties cannot reach a settlement after a final award and any commutation must be equivalent to the commutable value.
The court found an award was not a "claim" so the Commission lacked authority under that statute to obtain approval under 287.390 as requested by the parties.
The court found that the commutation statute of 287.530 required both a finding why commutation was appropriate and why the proposed settlement represented the commutable value. In this case, the parties presented no evidence on the first issue and on the second issue they sought to reduce an award equivalent to $590,000 to $400,000. The Commission had calculated the higher figure on a 4% discount rate and based on the stipulated life expectancy of 20 years.
This decision seems to suggest that commutable vale can vary based on life expectancy, but that the present value needs to be approximate the stipulated life expectancy. The parties elected to proceed on appeal and not address the "shortcomings" noted by the Commission. It is unclear if the claimant's rated age could have supported a lower life expectancy closer to the proposed settlement amount.
ED 105266
2017 MO App. Lexis 472
Parties are not allowed to strike their own deal after an award according to the latest case out of the court of appeals - Eastern District, in direct conflict with the Western District, in an important issue that may ultimately need to be resolved by the Supreme Court.
The court of appeals affirms the Commission has no authority to consider joint agreements for approval under 287.390 (settlements of claims) and the proposed agreement fails because it does not meet the requirements of 287.530 (commutation)
This decision has huge implications for people who have awards, and seek to close out obligations that might stay open for decades and for injured workers who would rather have their money now than later.
This issue is deja vu for the Commission.
The Commission has refused to approve post-award settlements in the past that it did not represent the full value of future installments.
The Western District has told it to approve settlements if the settlement met the requirements of 287.390.1 if it is not the result of undue influence or fraud, the employee understands his or her rights or benefits, and voluntarily agrees to accept the terms. In Hinkle v A.B. Dick Co, 435 S.W.3d 685 (Mo App. 2014) the Commission balked about approving a settlement which paid 49% of the present value until it was ordered by the Western District to approve the settlement, following Nance, which found the controlling statutory authority for settlements was governed by 287.390.1 for non-contested commutations and not solely 287.530.
Dickemann is factually similar to Hinkle, in some respects. The proposed settlement of $400,000 is not equal to the commutable value of future installments. The parties seek to end their liability to pay future installments by a lump sum. In this case, the employee seeks the settlement and the employer adopts the arguments and proposal.
Dickemann case declines to follow Nance or Hinkle, and claims the only controlling authority for post-award settlements is 287.530, and the parties fail to show the settlement proposal meets the statutory requirements of 287.530: that the proposal is equal to commutable value and that unusual circumstances exist in the best interest of the parties (for example, a shorter life expectancy as in Nance) to support any commutation. The court finds under the rubric of strict construction it cannot find a "claim", like the court in Nance, and finds only parties to claims can strike their own deals.
Section 287.530 applied as the procedure to settle post-award liability whether the commutation was "contested" or not
The parties sought approval through criteria of 287.390 rather than 287.530 following precedent in Nance and Hinkle , and argued the doctrine of stare decisis to follow the Western District's precedent.
The court suggests 287.390 allowed the Commission to approve settlements only "in accordance with the rights of the parties" and the provision may conflict with the criteria of "undue influence, understood rights, and voluntarily agrees..." but waited for a "future case which would directly present the issue" for consideration. Nance followed the latter criteria.
The court noted the joint agreement failed to list any of the statutory grounds of 287.530: best interest of the parties, unusual circumstances, or present value. The proposal represented about 2/3 of the present value.
The court and commission relies upon strict construction of 287.800 and concludes that it was legislative intent to allow post-award negotiation as an exception and only in very narrow circumstances.
The Western District now allows parties to strike their own deal, even after an award, and determine what is in their best interest. The Eastern District now backs a long-standing position of the Commission that workers and their employers lose that chance to negotiate further after a final award and they must live by the deal, good or bad, and there are no second bites at the apple.
Judge Hess authored the opinion.
Thursday, April 27, 2017
Commission needs evidentiary hearing for contested notice of show cause order
The court of appeals remands the case when the commission did not conduct an evidentiary hearing on whether notice was properly received when claimant did not respond to a motion to show cause to substitute payments for attorney’s fees from her attorney Harry Nichols to the Nichols Living Trust, in the event he predeceases her.
BRECKLE V TREASURER OF THE STATE OF MO, 2017 MO WCLR LEXIS 306 (April 18, 2017)
Saturday, March 11, 2017
No credit in temporary award without sufficient foundation of self-funded plan.
Miller v Nieman Foods
2017 MOWCLR LEXIS 25
March 2, 2017
Claimant alleged a back injury from lifting boxes in January 2013. The ALJ issued a temporary award and back medical bills of about $62,000 related to a prior surgery.
The Commission rejects the alleged error that the employer should have received offset for payments through a self-funded insurance plan.
"Employer argues that many of the disputed charges have already been satisfied, in part, by payments from employee's group health insurance plan through employer. But (as employer acknowledges in its brief) the record is bereft of evidence to establish the nature of that insurance policy, and whether such was fully funded by the employer or instead involved co-pays, co-insurance, deductibles, or monthly premiums payable by employee. In the absence of such evidence, there is no support for a finding these insurance payments and/or any adjustments referable thereto constituted benefits directly from the employer for purposes of 287.270."
"Nevertheless, employer asserts it will offer the requisite evidence if and when this matter proceeds to a hearing for a final award, and asks the Commission to impose a "stay" on the Division's award of past medical expenses until the full hearing may be held. We must decline this request, because the relevant statutes do not confer upon the Commission the authority to "stay," in whole or in part, any temporary or partial award by an administrative law judge. Instead, pursuant to 287.250. RSMo. these proceedings are kept open until a final award can be made"
The employer was entitled to a credit for a prior payment sent to claimant by the carrier. The Commission indicated the employer could offer additional proof on the issue in a final award which could be an indirect invitation to settle the case.
2017 MOWCLR LEXIS 25
March 2, 2017
Claimant alleged a back injury from lifting boxes in January 2013. The ALJ issued a temporary award and back medical bills of about $62,000 related to a prior surgery.
The Commission rejects the alleged error that the employer should have received offset for payments through a self-funded insurance plan.
"Employer argues that many of the disputed charges have already been satisfied, in part, by payments from employee's group health insurance plan through employer. But (as employer acknowledges in its brief) the record is bereft of evidence to establish the nature of that insurance policy, and whether such was fully funded by the employer or instead involved co-pays, co-insurance, deductibles, or monthly premiums payable by employee. In the absence of such evidence, there is no support for a finding these insurance payments and/or any adjustments referable thereto constituted benefits directly from the employer for purposes of 287.270."
"Nevertheless, employer asserts it will offer the requisite evidence if and when this matter proceeds to a hearing for a final award, and asks the Commission to impose a "stay" on the Division's award of past medical expenses until the full hearing may be held. We must decline this request, because the relevant statutes do not confer upon the Commission the authority to "stay," in whole or in part, any temporary or partial award by an administrative law judge. Instead, pursuant to 287.250. RSMo. these proceedings are kept open until a final award can be made"
The employer was entitled to a credit for a prior payment sent to claimant by the carrier. The Commission indicated the employer could offer additional proof on the issue in a final award which could be an indirect invitation to settle the case.
Thursday, March 9, 2017
Commission affirms 30 hour rule for part-time employee as "fair" resolution under 287.250.4
Johnson v RPCS dba Price Chopper
2017 MOWCLR Lexis 23 (March 3, 2017) (House)
Claimant was killed in a 2015 motor vehicle accident. The issues in dispute were if he died as a result of accident arising out of his employment and the applicable compensation rate.
Claimant had retired and worked as a part-time floater meat cutter and at the time of the accident he was returning from a Kansas store to his home in Missouri. The ALJ found that claimant was not traveling from the employer's principal place of business (it had 48 locations) and the accident arose out of his employment, relying upon Harness v Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009).
The employer argued rate should be based on 30-hour rule as a part-time employee rather than 52 weeks. No evidence was offered of any regular or full-time employee. The ALJ employed his hourly rate when he was full-time to a 30 hour schedule.
Clamant appealed and argued:
"that employee's work as a part-time floating meat cutter was "of the same or similar nature" as employee's prior work as a full-time meat market manager, and thus evidence of employee's own prior average weekly wage is sufficient for purposes of 287.250.3."
The commission affirmed the calculation by the ALJ based on the 30 hour rule at the former hourly full-time rate as "fair" based on 287.250.4 and indicated that calculation under 287.250.3 was debatable.
"The 30-hour statutory minimum does not operate to cure gaps in the claimant's evidence, or to establish a de-facto 30-hour week wherever the evidence shows an injured employee was working part-time. There is no evidence on this record to establish "the number of hours per week required by the employer to classify [an] employee as a full-time or regular employee. " Consequently, there would appear to be no basis for referring to or applying the 30-hour minimum, as there is no evidence that employer attempted to classify meat cutters working less than 30 hours per week as "full-time or regular" employees"
The employer did not appeal calculation using 30 hours although the claimant's part-time schedule was usually at 22 hours.
2017 MOWCLR Lexis 23 (March 3, 2017) (House)
Claimant was killed in a 2015 motor vehicle accident. The issues in dispute were if he died as a result of accident arising out of his employment and the applicable compensation rate.
Claimant had retired and worked as a part-time floater meat cutter and at the time of the accident he was returning from a Kansas store to his home in Missouri. The ALJ found that claimant was not traveling from the employer's principal place of business (it had 48 locations) and the accident arose out of his employment, relying upon Harness v Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009).
The employer argued rate should be based on 30-hour rule as a part-time employee rather than 52 weeks. No evidence was offered of any regular or full-time employee. The ALJ employed his hourly rate when he was full-time to a 30 hour schedule.
Clamant appealed and argued:
"that employee's work as a part-time floating meat cutter was "of the same or similar nature" as employee's prior work as a full-time meat market manager, and thus evidence of employee's own prior average weekly wage is sufficient for purposes of 287.250.3."
The commission affirmed the calculation by the ALJ based on the 30 hour rule at the former hourly full-time rate as "fair" based on 287.250.4 and indicated that calculation under 287.250.3 was debatable.
"The 30-hour statutory minimum does not operate to cure gaps in the claimant's evidence, or to establish a de-facto 30-hour week wherever the evidence shows an injured employee was working part-time. There is no evidence on this record to establish "the number of hours per week required by the employer to classify [an] employee as a full-time or regular employee. " Consequently, there would appear to be no basis for referring to or applying the 30-hour minimum, as there is no evidence that employer attempted to classify meat cutters working less than 30 hours per week as "full-time or regular" employees"
The employer did not appeal calculation using 30 hours although the claimant's part-time schedule was usually at 22 hours.
Expert dies, now what?
McDowell v Mo Dept of Transportation
2017 MO APP. LEXIS (August 29, 2017) SD 34931
The court affirms a commission award that modified and
increased the award for psychiatric disability following an ankle injury and
denies the constitutional challenge from the employer that it did not have an
opportunity to cross exam claimant’s expert because the expert died. The court found the constitutional challenge
was not adequately preserved specifically as a due process violation at the
time of the hearing and did not cite a specific constitutional provision or
section.
The court declined to address whether 491.070, which identifies a statutory ight to cross examine a witness when a witness is "called" would even apply in these circumstances in which the witness was not "called' but opinions were submitted by motion pursuant to 287.210.7. The court notes the appellant did not fully develop the issue and it was deemed abandoned.
2017 MOWCLR Lexis 24
March 3, 2017
The Commission addressed an interesting problem: what happens when someone submits an expert opinion by 287.210.7 motion and the expert dies before a party performs a cross exam?
In August 2014 claimant submitted a motion to submit a report of Dr. Stillings, his expert, into evidence. Dr. Stillings had assessed disability for a mood and pain disorder following an ankle injury. Dr. Stillings died in March 2015. Employer concedes it had 7 months to schedule the cross-examination but postponed the deposition until the employer obtained its own expert opinion. The employer concurred claimant's accident caused a psychiatric condition but stated that it resolved without causing a permanent condition.
The commission affirmed the decision to over-rule to objection and allow the report into evidence.
The commission declined to consider the constitutional challenge that allowing the report without cross examination denied a right to cross exam under 491.070. The commission found 287.210.7 required only a reasonable opportunity after motion to depose the expert, and 7 months was reasonable. On appeal, the commission enhanced the psychiatric award from 2% to 10%.
In a prior case, the ALJ had allowed admission of a report by a deceased expert.
Claimant's expert died 6 years after an IME depriving the employer of an opportunity for cross exam. The ALJ admitted the report and relied upon it as a basis to award permanent and total disability benefits. Graham v LATCO Contractors Inc., 2014 MO WCLR Lexis 52.
2017 MO APP. LEXIS (August 29, 2017) SD 34931
The court declined to address whether 491.070, which identifies a statutory ight to cross examine a witness when a witness is "called" would even apply in these circumstances in which the witness was not "called' but opinions were submitted by motion pursuant to 287.210.7. The court notes the appellant did not fully develop the issue and it was deemed abandoned.
2017 MOWCLR Lexis 24
March 3, 2017
The Commission addressed an interesting problem: what happens when someone submits an expert opinion by 287.210.7 motion and the expert dies before a party performs a cross exam?
In August 2014 claimant submitted a motion to submit a report of Dr. Stillings, his expert, into evidence. Dr. Stillings had assessed disability for a mood and pain disorder following an ankle injury. Dr. Stillings died in March 2015. Employer concedes it had 7 months to schedule the cross-examination but postponed the deposition until the employer obtained its own expert opinion. The employer concurred claimant's accident caused a psychiatric condition but stated that it resolved without causing a permanent condition.
The commission affirmed the decision to over-rule to objection and allow the report into evidence.
The commission declined to consider the constitutional challenge that allowing the report without cross examination denied a right to cross exam under 491.070. The commission found 287.210.7 required only a reasonable opportunity after motion to depose the expert, and 7 months was reasonable. On appeal, the commission enhanced the psychiatric award from 2% to 10%.
In a prior case, the ALJ had allowed admission of a report by a deceased expert.
Claimant's expert died 6 years after an IME depriving the employer of an opportunity for cross exam. The ALJ admitted the report and relied upon it as a basis to award permanent and total disability benefits. Graham v LATCO Contractors Inc., 2014 MO WCLR Lexis 52.
Tuesday, March 7, 2017
Unreliable history of accident defeats claim
Clark v Almost Family, Inc.
2017 MOWCLR LEXIS 22 (Kohner)
February 23, 2017
A home care worker alleges she hurt her neck and sought a temporary award for a myelogram and other treatment. The Commission affirmed a denial of benefits that claimant's expert relied upon materially incorrect facts.
Claimant filed a claim alleging she hurt her neck moving a 400 pound patient. Claimant provides different medical histories some of which describe a work injury and the first emergency room record for treatment described the cause as "unknown." Claimant treated on her own with injections for aggravation of cervical arthritis. She sought a temporary award for treatment and claims that her hand draws up and she has unrelenting pain. An expert proposed a myelogram.
Dr. Taylor felt her condition flowed from a somatization disorder without an organic explanation related to a cervical condition.
"The essential question in this case is whether the claimant suffered a work-related injury from an accident at work. She testified at the hearing that she suffered a severe neck and left arm injury while lifting a 400-pound patient on November 29, 2014, or December 6, 2014. On the other hand, the claimant suffered from pre-existing cervical arthritis and degenerative disc disease relating to her neck."
The ALJ concluded that the emergency room history was inconsistent with the claim as a basis to deny compensation. The ALJ noted that Dr. Volarich provided a rationale for the myelogram to better evaluate osteophyte formation despite a normal MRI. The ALJ considered his explanation a "more reasonable analysis" rather than the "focus on the relationship of the alleged occurrence to the claimant's medical condition"
The Commission noted the employer had stipulated claimant provided services on the date of the alleged accident and that inconsistencies in the accident date was not always fatal. She was unable to reconcile her testimony that she was in "intractable pain" and payroll records showing she continued to work until she sought treatment 10 days later. Dr. Volarich's "timeline with regard to the accident, employee's onset of symptoms, and her first seeking emergency medical treatment materially differs from the facts that we must find if we are to both (1) honor the parties' stipulation and (2) credit employee's testimony."
The Commission suggests alternate testimony could have cured the inconsistencies:
"If Dr. Volarich had been properly apprised of the date of initial injury, 10-day gap in seeking treatment, employee's work in the interim, and the apparent aggravation and or worsening of employee's symptoms between November 29 and December 9, 2014, he might have been able to explain these circumstances in a manner that would, nevertheless, persuasively identify the accident as the prevailing factor in causing injury. Indeed, it is not outside the realm of possibility that employee suffered an initial injury on November 29, 2014, that gradually worsened as she continued to perform her duties for employer, until her symptoms became so severe that she required emergency care. Such a theory of injury might satisfy the statutory requirements, if supported by persuasive expert medical testimony.
As it stands, however, we are faced with a record where employee's evaluating expert relied upon demonstrably, and in our view, materially incorrect facts. "
Only 2 of the 3 commissioners wrote the award.
Attorney Plufka represented the employee.
2017 MOWCLR LEXIS 22 (Kohner)
February 23, 2017
A home care worker alleges she hurt her neck and sought a temporary award for a myelogram and other treatment. The Commission affirmed a denial of benefits that claimant's expert relied upon materially incorrect facts.
Claimant filed a claim alleging she hurt her neck moving a 400 pound patient. Claimant provides different medical histories some of which describe a work injury and the first emergency room record for treatment described the cause as "unknown." Claimant treated on her own with injections for aggravation of cervical arthritis. She sought a temporary award for treatment and claims that her hand draws up and she has unrelenting pain. An expert proposed a myelogram.
Dr. Taylor felt her condition flowed from a somatization disorder without an organic explanation related to a cervical condition.
"The essential question in this case is whether the claimant suffered a work-related injury from an accident at work. She testified at the hearing that she suffered a severe neck and left arm injury while lifting a 400-pound patient on November 29, 2014, or December 6, 2014. On the other hand, the claimant suffered from pre-existing cervical arthritis and degenerative disc disease relating to her neck."
The ALJ concluded that the emergency room history was inconsistent with the claim as a basis to deny compensation. The ALJ noted that Dr. Volarich provided a rationale for the myelogram to better evaluate osteophyte formation despite a normal MRI. The ALJ considered his explanation a "more reasonable analysis" rather than the "focus on the relationship of the alleged occurrence to the claimant's medical condition"
The Commission noted the employer had stipulated claimant provided services on the date of the alleged accident and that inconsistencies in the accident date was not always fatal. She was unable to reconcile her testimony that she was in "intractable pain" and payroll records showing she continued to work until she sought treatment 10 days later. Dr. Volarich's "timeline with regard to the accident, employee's onset of symptoms, and her first seeking emergency medical treatment materially differs from the facts that we must find if we are to both (1) honor the parties' stipulation and (2) credit employee's testimony."
The Commission suggests alternate testimony could have cured the inconsistencies:
"If Dr. Volarich had been properly apprised of the date of initial injury, 10-day gap in seeking treatment, employee's work in the interim, and the apparent aggravation and or worsening of employee's symptoms between November 29 and December 9, 2014, he might have been able to explain these circumstances in a manner that would, nevertheless, persuasively identify the accident as the prevailing factor in causing injury. Indeed, it is not outside the realm of possibility that employee suffered an initial injury on November 29, 2014, that gradually worsened as she continued to perform her duties for employer, until her symptoms became so severe that she required emergency care. Such a theory of injury might satisfy the statutory requirements, if supported by persuasive expert medical testimony.
As it stands, however, we are faced with a record where employee's evaluating expert relied upon demonstrably, and in our view, materially incorrect facts. "
Only 2 of the 3 commissioners wrote the award.
Attorney Plufka represented the employee.
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