Court defers constitutional challenge to 2005 amendments

The Missouri Supreme Court over a year ago heard oral arguments on a constitutional challenge of the 2005 amendments to the Missouri Workers' Compenation Act and concluded, after much delay, that they really couldn’t decide much of anything after all. The case is Missouri Alliance for Retired Americans v. Department of Labor and Industrial Relations, Division of Workers Compensation.1

A consortium of 71 organizations, including mostly labor unions, challenged the constitutionality of the changes and argued that the 2005 changes took away constitutional rights from workers and changed the original quid pro quo agreement when the Act was first enacted in 1926 that employees would be guaranteed certain rights in exchange for giving up common law remedies. The Missouri Supreme Court accepted the defense raised by the Division that the argument was not ripe for determination whether the challenged provisions were unconstitutional and so narrow or restrictive to deny an adequate remedy as no individual workers’ compensation claims were before the court. Nothing in the record indicated that the provisions had been interpreted or applied given the “draconian meaning” ascribed by the labor organizations. The court deferred any decision regarding the constitutionality until it is judged on individual basis.

The court issued declaratory judgment and declared that workers excluded from the Act by a narrower definition of accident and injury have a right to bring suit under the common law, just as they did prior to the initial adoption of the Act, because they no longer fall within the exclusivity provisions of the Act. The Court declined to decide what injuries fall within the definition of “accident.”

Judge Wolff in a concurring opinion concluded the declaratory judgment was an abstract principle of law and was premature to indicate how it applied on the facts of individual cases.

Judge Tietelbaum wrote a long dissent and argued that the court should have addressed the constitutional challenge , and that the open courts provision required an adequate substitute remedy when the legislature abrogates a common law cause of action of personal injury. The 2005 amendments excluded "large classes" of workers from cases, suggesting that it deprived benefits now from workers whose injuries arose “in conjunction with” drug or alcohol, those workers who engaged in post-injury misconduct, and those workers who had idiopathic injuries or unduly burdened claimants with mostly subjective complaints. Judge Teitelbaum further suggests that “accident” now excludes all repetitive trauma claims, an issue Commissioner Hickey has mentioned in several dissenting commission opinions and not addressed in the majority. The dissent in its quid pro quo topic does not resolve an issue raised in the majority opinion, that comparisons between the 2005 amendments of the “bargain” struck by labor and business in the workers' compensation law is actually several “bargains” since the law has changed many times since 1926, including many provisions favorable to labor.

This decision cannot be celebrated as a victory for anyone, since it was a decision essentially not to decide anything. It re-iterates the existing case law that parties who have actions arising outside worker's compensation can proceed under common law remedies.2 The Supreme Court leaves questions regarding the new definition of accident unanswered, and may invite employers or employees to deny workers'compensation jurisdiction in claims as a test case to further define "accident" under the new law. The decision whether to deny a workers' compensation case under the new definition of accident clearly mandates a more careful investigation of tort defenses and consideration of potential liability if the client would proceed in civil court under tort recoveries.

1. No. 88368 (Mo. 2-24-09)
http://www.courts.mo.gov/file/Opinion_SC88368.pdf

2. Such jurisdictional battles over exclusive remedies are nothing new. The Commission has exclusive original jurisdiction to hear any claim where there is a question whether a condition resulting from an accident arises out of and in the course of employment. See Jones v Jay Truck Driver Training Center, 709 S.W.2d 114, 115 (Mo. banc 1986), Schopp v. Matlock , 880 S.W.2d 357, 359 (Mo.App.E.D. 1994).

Recent decisions bode winter of discontent for Missouri employers

CARPAL TUNNEL - CAUSATION FOUND FOR EMPLOYEES

Nurse awarded 17 1/2% left hand, 15% right hand for carpal tunnel with mild pre-op EMG findings, causation found based on history from "pulling and pushing files in a file cabinet, manually pumping blood pressure cuffs, pushing carts of laundry, lifting bags of laundry, keyboarding, giving injections, and performing ear lavage," Commission modified open medical award from medication only to all future medical. Brennell v Patients First, DOLIR 8-13-09 (Ruth)

Dock worker awarded benefits in temporary award for carpal tunnel and epicondylitis, where employer expert Dr. Brown relied upon video tape that was deemed an inaccurate representation of duties representing slower duties later in morning after dock was already loaded and when claimant alleges he worked more slowly due to wet ground. Lemmon v Copp, DOLIR 2-3-09 (Landolt)

Fire protection specialist who tested drains, removed padlocks, and removed chains established that work was "vigorous and repetitive", and awarded 20% BAW for carpal tunnel. The judge rejected the employer’s defense that the duties were not hand intensive, and concluded the employer’s expert relied upon videotape with incomplete representation of claimant’s duties. Cochran v Honeywell DOLIR 2-2-09 (Siedlik)

Residential care worker employed 2 years established her carpal tunnel arose from work related duties that involved preparing meals and doing laundry and cleaning. The judge found the description relied upon by employer expert was inaccurate. The Commission in a 2-1 vote rejected a claim of future medical, noting the absence of recent treatment. Fisher v Bristol Care, DOLIR 2-2-09 (Miner)

Clerical worker employed 5 years awarded disability for carpal tunnel syndrome, rejecting defense from employer retained expert that hand duties not sufficiently intensive. Marcinkiewicz v Dave Sinclair Lincoln Mercury, DOLIR 1-28-09 (Vacca)

CERVICAL - CAUSATION FOUND FOR EMPLOYEE BASED ON ROUGH ROAD
A truck driver with a prior neck fusion was awarded future medical benefits in a temporary award for a new neck fusion when he claims rough roadway jarred his neck based on his testimony that road was rough, contrary to photographs of the road produced by the employer. The judge sharply criticized that the adjustor had "meddled" when the treating physician Dr. Wilkey originally supported causation and changed his opinion, and that treating physician was "confused" and over-relied upon picture of roadway that was not a picture where claimant stated that the accident occurred. The employee's expert Dr. Kennedy found the reported torque of neck and acute changes in an EMG study more relevant than alleged road wear.
Harvath v UPS 2-2-09 (Vacca)

COURSE OF EMPLOYMENT/ARISING OUT OF
Benefits denied. Claimant failed to prove accident in course of employment when he was going home from party, based on an earlier admission that he was going home contary to testimony that he was traveling to work-related destination. Chokota v Independent Photo Art Supply, DOLIR 1-16-09 (Magruder)
Benefits denied. Clalmant failed to prove accident arose from fatigue after working double shift, rejecting application of Snowbarger. Storie v American Systems, DOLIR 1-16-09 (Kasten)

DEPENDENCY
Claimant dies after an accident and has no surviving spouse or children. Claimant lived with mother 6 months before the accident and sent her a $50 check to pay for cell phone. The evidence of a periodic payment did not support the mother's claim of dependency. Vice v Advantage Waste Service, DOLIR 2-2-09 (Mahon)

EMPLOYMENT
Claimant was awarded 14% PPD and found to be statutory employee when injured removing a tire from the truck of a customer. The judge criticized the employer for asserting its staff were all independent contractors and attempting to "evade" legal obligations and expenses. Burnfin v DJ&J Driveaway, DOLIR 1-16-09 (Allen)

Claimant was awarded medical bills against the second injury fund based on a finding that a sawmill job with no comp insurance was an employment subject to the Act under "relative nature of work test," but claimant was not entitled to pierce the veil of the 80% corporate owner where lack of insurance did not contribute itself to injury of tree falling on a claimant and causing head and neck injuries. Second Injury Fund was denied a right to a "credit" of $25,000 settlement against the putative employer, as the employer is not entitled to a credit under .270 and the Fund cannot assert defenses in an uninsured employer claim that would not be available to the employer. Goodson v GB Logging, DOLIR 1-29-09 (Kasten).

FUTURE MEDICAL - MASSAGES
Claimant was awarded 64% disability for an ankle injury when he fell from scaffolding, and an award for open medical that included massage therapy. Claimant described that massages several times a week made him feel better, including the 248 sessions he received over three years from his female massage therapist had never been ordered by a doctor. The treating physician, Dr. Burns, originally concluded such treatment was not necessary but conceded his position may need "rethinking." A pain management specialist retained by the employer dismissed the need for long-term massages as "touchy-feely" care. The judge accepted that such treatment at a minimum relieved claimant's symptoms and might reduce his swelling and daily use of several narcotics. The judge did not award the past medical bills related to the unauthorized care. Claimant, 27, states no one would hire him after the accident and he runs his own construction business and is a volunteer fire fighter. Castile v Sander Siding, DOLIR 1-27-09 (Robbins).

On remand from the court of appeals, the Commission ordered future medical care including total knee replacement because the need for treatment "flowed" in part from the original accident, despite prior degenerative conditions. The court of appeals found Dr. Jones' conclusion that claimant's meniscus tear was not a substantial factor in the need for future medical care inconsistent with earlier reports and not credible when he initially indicated that the work accident significantly aggravated his condition and should be considered part of a "persistent claim." Conrad v Jack Cooper Transport, DOLIR 2-13-09.

MEDICAID LIEN - EMPLOYER GETS STUCK WITH ORIGINAL CHARGES
Claimant awarded 65% PPD for back injury after fall from ladder and entire medical charges awarded, where employer offered no evidence that claimant would not be responsible when Medicaid repriced charges. Rector v Gary’s Heating & Cooling, DOLIR 1-23-09. (Fischer)

MMI
Benefits denied when claimant slipped and fell on dock, died from unrelated cancer, and disability opinion from claimant’s expert deemed speculative as to what minimum disability claimant ‘would have had’ if he proceeded with proposed surgery. Cantrell v Baldwin Transporation, DOLIR 1-27-09 (Mahon)

PTD
46 year old CNA awarded PTD after he injured back moving large patient and had ongoing symptoms from post-laminectomy syndrome after 2 surgeries, claimant testified he was going to get a morphine pump and needed to lie down during the day. The employer expert was criticized for waiting 2 years to render a disability opinion after his exam. Boler v Citizens Memorial Healthcare Foundation, DOLIR 1-23-09 (Zerrer)

Claimant awarded PTD after auto accident caused multiple fractures, claimant now must lie down 5-6 times a day. Judge criticizes AMA ratings. Employer argument that claimant’s PTD is not from accident alone but in part due to claimant’s old prior felony convictions rejected as "without merit". Steel v Air Serve Group, DOLIR 1-27-09 (Cain)

SIF PTD claim rejected, where phlebotomist sprayed with blood who developed hep c and nervous breakdown, failed to prove psychological condition prior to employment was sufficiently disabling to qualify for statutory benefits. Madison v NABI, DOLIR 1-27-09 (Mahon)