Monday, April 27, 2009
Commission reduces re-marriage benefits
In a rarely litigated issue, the Commission addressed whether the remarriage benefits under 287.240 include the weekly amount or the lower amount after apportionment to other dependents. Agreeing with the employer, the Commission reduced the benefits to the surviving spounse nearly $23,000, reducing a higher award issued by Judge Kasten. The case is McBride, dec. v Mo Dept. of Transporation, DOLIR 4-24-09. The Commission permitted the employer to raise the issue on appeal even though it was not raised at hearing, and noted did that the employer did not have a binding stipulation at the higher rate.
Ordinary disease of life
Claimant, 56, died after he lost consciousness while driving a school bus, and the bus swerved off the road into a ditch. The evidence provided no explanation why claimant lost consciousness and control of the bus, except for the defense evidence that claimant had a cardiac event. Judge Wilson denied benefits and concluded claimant died from sudden cardiac death from an ordinary disease of life and not from the blunt trauma to his neck and asphyxiation following the accident, noting the clinical absence of petichia. Claimant was noted with several risk factors including age, enlarged heart, prior heart attack medical history, and weight of approximately 450 pounds. The case is Ainsworth v Branson R-4 School District, DOLR 4-24-09.
tags: idiopathic, arising out of
Disability from electric shock and not ordinary heart disease of life
In the recent case Kliethermes v ABB Power, claimant was shocked in 2000 while checking a transformer. Nearly nine years later, the claimant wins permanent and total disability benefits with a 2-0 Commission vote on a remand and reversal from the Western District, rejecting an earlier denial based on an ordinary disease of life defense from a claimant with previous cardiac symptoms.Claimant, 57, experienced rapid deterioration in his heart condition following the shock and ultimately required a pacemaker, due to increased severity and intensity of atrial fibrillation. Claimant had previous cardiomyopathy requiring periodic treatment which the court found nondisabling and controlled. The Commission on remand accepted the shock "fried the circuits" in claimant’s heart, even though an EKG after the accident did not identify any physical damage to the heart muscle, no entrance or exit wounds existed, and no one could precisely identify the current except that it was over 5000 volts. Claimant was found unemployable because he could not return to his former profession of electric work because of a pacemaker and psychological "intolerance" to work with electricity, and his vocational expert concluded recurrent atrial fibrillation made him unreliable.The Court of Appeals2 noted that the Commission in its original 2-1 denial had erroneously denied benefits on the finding that claimant’s expert opinion was not supported and had over-relied merely on a temporal proximity. Judge Dierkes originally denied benefits finding the expert opinion of the claimant was not based on scientific reasoning. The employer’s expert, Dr. Schuman, concluded the worsening condition was an ordinary disease of life due to claimant’s previous symptomatic cardiomyopathy.The Court in its remand harshly criticized Dr. Schuman for not providing an equally plausible explanation regarding claimant’s rapid and unusual deterioration of symptoms, although noted neither the Commission majority nor the judge appeared to rely upon Dr. Schuman’s testimony or made any findings regarding Dr. Schuman’s credibility. The medical conclusion that the symptoms arose from an ordinary disease of life was considered without evidentiary support. Dr. Schuman agreed that electric shocks could cause uncontrolled fibrillation, and that such injuries may not be undetected on imaging studies. Dr. Schuman relied on an inaccurate history that claimant was asymptomatic for 6 weeks following the shock and conceded that rapid deterioration was atypical as an "ordinary disease of life."The employer prevailed on claimant’s assertion that a OSHA citation entitled claimant to a 15% penalty and ducked various prescription charges due to inadequate documentation how the charges related to the accident. Despite a prior symptomatic heart condition, the SIF had no liability since the condition was not deemed to be disabling.Although this decision was based on 2000 law before the statutory changes, it teaches employers several lessons. A claimant can rely in part on increased symptoms and does not have to show post-accident and pre-morbid empirical studies to document a change of pathology.3 This was not a typical case regarding a battle of the experts as the doctors agreed on most issues and the original award indicated that claimant's expert had conclusions that were not fully supported, not that he was less credible compared to another expert. Dr. Schuman’s testimony, like that of the claimant’s original expert, eventually suffered the same criticism for lack of other supporting evidence (or citation). His conclusions that rapid deterioration was part of the natural aging process were considered essentially unsupported as "formerly undocumented in medical literature." An expert opinion under the prevailing factor standard with better citation might survive such criticism. Clearly, a defense based on ordinary disease of life may be vulnerable when such a rapid progression suddenly after an accident is truly extraordinary.The Commission, on remand, affirmed 3-0 the award of PTD benefits, decided on 6-24-09. The Commission declined a 15% statutory safety penalty for an OSHA citation against the employer.
1. Kliethermes v ABB Power T&D, DOLIR 2-24-09http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/KliethermesRonald.htm2 Kliethermes v. ABB Power T&D, etal; 264 S.W.3d 626 (Mo. App.2008)http://www.courts.mo.gov/file/Opinion_WD66700.rtf
3 The Western District last year found an employer liable for a total knee replacement when a claimant had substantial degenerative changes but at least some portion of claimant's future medical needs "flowed" from his accident. Conrad v Jack Cooper Transport, WD 69407 (Mo. App. 2008)http://www.courts.mo.gov/file/Opinion_WD69407.rtf Compare Bartley V Hawthorne, DOLIR 2-10-09 (ALJ denied benefits noting that dramatically increased symptoms to back following slip and fall did not flow from work injury but from prior degenerative condition that required extensive prior treatment)http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/BartleyJohn.htm
Causation from exposure from dirty laundry
Claimant, 67, worked about 4 months in 2004 cleaning laundry at a veterans' home and developed a C. diff infection resulting in the removal of her colon. She developed various physical and psychological complications, never returned to work, and filed a claim for permanent and total disability benefits. The Western District has now reversed the Commission denial based on lack of causation, and remanded for further hearing in Vickers v Mo. Dept. of Public Safety, No. 69233 (Mo. App WD 4-28-2009).1Vickers performed laundry service in all four units and states laundry was not segregated between the general population and a few patients who had c diff infections. The commission rejected benefits that claimant failed to demonstrate that she contracted C diff while working at the Home. Dr. Folk testified that claimant was exposed to fecal-contaminated laundry daily and contamination likely occurred through a fecal-oral route at the Home. Dr. Fried, the employer's expert, concluded that proper hygiene made such infection unlikely and that claimant's use of antibiotics may have made a pre-existing condition symptomatic. The court found Folk's testimony satisfied claimant's burden in this pre-05 case to a reasonable probability that working conditions caused the disease, although they need not be the sole cause.The Court found the Commission's denial against the overwhelming weight of the evidence, noting that claimant was symptomatic during her employment, that there was a record of several patients with the infection, and that any defense of "ordinary disease of life" did not apply since the condition was rare, affecting only 3% or less of the population, so it was not "ordinary."The court's definition of "ordinary disease of life" has potential far-reaching implications in older cases on other defenses, as many of the common occupational diseases alleged in worker's compensation litigation have low incident rates among the general population (and, frankly, probably also low incident rates among the general work population). For example, carpal tunnel has been shown with an incident rate of 3.4 per 1000 2 and MSRA has an incident rate of 3.1 per 10000.3 The court's interpretation under a pre-05 standard, may not withstand strict construction without the liberal .800 mandate to expand the statute to provide greater benefits.
1 http://www.courts.mo.gov/file/Opinion_WD69233.pdf
2 Nordstrum, etal, Incidence of diagnosed carpal tunnel in a general population, EPIDEMIOLOGY 1998, May 9(3); 342-5.
3. Klevens, etal, Invasive Methicillin-Resistant Steaphylococcus aures infections in the United States, JAMA 298:15, Otober 17, 2007.
tags: idiopathic, arising out of
Disability from electric shock and not ordinary heart disease of life
In the recent case Kliethermes v ABB Power, claimant was shocked in 2000 while checking a transformer. Nearly nine years later, the claimant wins permanent and total disability benefits with a 2-0 Commission vote on a remand and reversal from the Western District, rejecting an earlier denial based on an ordinary disease of life defense from a claimant with previous cardiac symptoms.Claimant, 57, experienced rapid deterioration in his heart condition following the shock and ultimately required a pacemaker, due to increased severity and intensity of atrial fibrillation. Claimant had previous cardiomyopathy requiring periodic treatment which the court found nondisabling and controlled. The Commission on remand accepted the shock "fried the circuits" in claimant’s heart, even though an EKG after the accident did not identify any physical damage to the heart muscle, no entrance or exit wounds existed, and no one could precisely identify the current except that it was over 5000 volts. Claimant was found unemployable because he could not return to his former profession of electric work because of a pacemaker and psychological "intolerance" to work with electricity, and his vocational expert concluded recurrent atrial fibrillation made him unreliable.The Court of Appeals2 noted that the Commission in its original 2-1 denial had erroneously denied benefits on the finding that claimant’s expert opinion was not supported and had over-relied merely on a temporal proximity. Judge Dierkes originally denied benefits finding the expert opinion of the claimant was not based on scientific reasoning. The employer’s expert, Dr. Schuman, concluded the worsening condition was an ordinary disease of life due to claimant’s previous symptomatic cardiomyopathy.The Court in its remand harshly criticized Dr. Schuman for not providing an equally plausible explanation regarding claimant’s rapid and unusual deterioration of symptoms, although noted neither the Commission majority nor the judge appeared to rely upon Dr. Schuman’s testimony or made any findings regarding Dr. Schuman’s credibility. The medical conclusion that the symptoms arose from an ordinary disease of life was considered without evidentiary support. Dr. Schuman agreed that electric shocks could cause uncontrolled fibrillation, and that such injuries may not be undetected on imaging studies. Dr. Schuman relied on an inaccurate history that claimant was asymptomatic for 6 weeks following the shock and conceded that rapid deterioration was atypical as an "ordinary disease of life."The employer prevailed on claimant’s assertion that a OSHA citation entitled claimant to a 15% penalty and ducked various prescription charges due to inadequate documentation how the charges related to the accident. Despite a prior symptomatic heart condition, the SIF had no liability since the condition was not deemed to be disabling.Although this decision was based on 2000 law before the statutory changes, it teaches employers several lessons. A claimant can rely in part on increased symptoms and does not have to show post-accident and pre-morbid empirical studies to document a change of pathology.3 This was not a typical case regarding a battle of the experts as the doctors agreed on most issues and the original award indicated that claimant's expert had conclusions that were not fully supported, not that he was less credible compared to another expert. Dr. Schuman’s testimony, like that of the claimant’s original expert, eventually suffered the same criticism for lack of other supporting evidence (or citation). His conclusions that rapid deterioration was part of the natural aging process were considered essentially unsupported as "formerly undocumented in medical literature." An expert opinion under the prevailing factor standard with better citation might survive such criticism. Clearly, a defense based on ordinary disease of life may be vulnerable when such a rapid progression suddenly after an accident is truly extraordinary.The Commission, on remand, affirmed 3-0 the award of PTD benefits, decided on 6-24-09. The Commission declined a 15% statutory safety penalty for an OSHA citation against the employer.
1. Kliethermes v ABB Power T&D, DOLIR 2-24-09http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/KliethermesRonald.htm2 Kliethermes v. ABB Power T&D, etal; 264 S.W.3d 626 (Mo. App.2008)http://www.courts.mo.gov/file/Opinion_WD66700.rtf
3 The Western District last year found an employer liable for a total knee replacement when a claimant had substantial degenerative changes but at least some portion of claimant's future medical needs "flowed" from his accident. Conrad v Jack Cooper Transport, WD 69407 (Mo. App. 2008)http://www.courts.mo.gov/file/Opinion_WD69407.rtf Compare Bartley V Hawthorne, DOLIR 2-10-09 (ALJ denied benefits noting that dramatically increased symptoms to back following slip and fall did not flow from work injury but from prior degenerative condition that required extensive prior treatment)http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/BartleyJohn.htm
Causation from exposure from dirty laundry
Claimant, 67, worked about 4 months in 2004 cleaning laundry at a veterans' home and developed a C. diff infection resulting in the removal of her colon. She developed various physical and psychological complications, never returned to work, and filed a claim for permanent and total disability benefits. The Western District has now reversed the Commission denial based on lack of causation, and remanded for further hearing in Vickers v Mo. Dept. of Public Safety, No. 69233 (Mo. App WD 4-28-2009).1Vickers performed laundry service in all four units and states laundry was not segregated between the general population and a few patients who had c diff infections. The commission rejected benefits that claimant failed to demonstrate that she contracted C diff while working at the Home. Dr. Folk testified that claimant was exposed to fecal-contaminated laundry daily and contamination likely occurred through a fecal-oral route at the Home. Dr. Fried, the employer's expert, concluded that proper hygiene made such infection unlikely and that claimant's use of antibiotics may have made a pre-existing condition symptomatic. The court found Folk's testimony satisfied claimant's burden in this pre-05 case to a reasonable probability that working conditions caused the disease, although they need not be the sole cause.The Court found the Commission's denial against the overwhelming weight of the evidence, noting that claimant was symptomatic during her employment, that there was a record of several patients with the infection, and that any defense of "ordinary disease of life" did not apply since the condition was rare, affecting only 3% or less of the population, so it was not "ordinary."The court's definition of "ordinary disease of life" has potential far-reaching implications in older cases on other defenses, as many of the common occupational diseases alleged in worker's compensation litigation have low incident rates among the general population (and, frankly, probably also low incident rates among the general work population). For example, carpal tunnel has been shown with an incident rate of 3.4 per 1000 2 and MSRA has an incident rate of 3.1 per 10000.3 The court's interpretation under a pre-05 standard, may not withstand strict construction without the liberal .800 mandate to expand the statute to provide greater benefits.
1 http://www.courts.mo.gov/file/Opinion_WD69233.pdf
2 Nordstrum, etal, Incidence of diagnosed carpal tunnel in a general population, EPIDEMIOLOGY 1998, May 9(3); 342-5.
3. Klevens, etal, Invasive Methicillin-Resistant Steaphylococcus aures infections in the United States, JAMA 298:15, Otober 17, 2007.
Friday, April 3, 2009
Single work shift requirement derails Accident claim
The case of Henry v Precision Aparatus, DOLIR 4-1-09 denied benefits in part based on a definition of accident requiring an event within a "single work shift" noting that claimant had never clocked in to satisfy the requirement of "shift" under strict construction of the Act
Judge Fischer noted claimant arrived work 15-20 minutes early and helped a co-worker change a tire before he clocked in. The administrative law judge cited 287.020 and made two findings: Mr. Henry’s accident arose prior to the inception of his work shift at a time when he was volunteering his assistance to a friend engaged in personal vehicle repair and sustained injuries while moving a rock. While the case could be independently denied that the accident on premises did not arise out of employment because it was a personal task, the citation to .020 adds teeth to new accident language and the course of employment prong of accident. Such a strict interpretation could open the door to premises liability claims when claimants are off the clock.
Notice of appeal was filed with the Southern District on 4-29-09. The case is SD 29772.
Judge Fischer noted claimant arrived work 15-20 minutes early and helped a co-worker change a tire before he clocked in. The administrative law judge cited 287.020 and made two findings: Mr. Henry’s accident arose prior to the inception of his work shift at a time when he was volunteering his assistance to a friend engaged in personal vehicle repair and sustained injuries while moving a rock. While the case could be independently denied that the accident on premises did not arise out of employment because it was a personal task, the citation to .020 adds teeth to new accident language and the course of employment prong of accident. Such a strict interpretation could open the door to premises liability claims when claimants are off the clock.
Notice of appeal was filed with the Southern District on 4-29-09. The case is SD 29772.
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