Employer ignores temp award, ALJ finds PTD
Claimant fell in a nursing home in 2005 and was diagnosed with an L5 radiculopathy. She was found unable to ever work again as a result of a new back injury, superimposed on a prior disc herniation. Thomas v Forsyth Care, DOLIR 5-17-2013
She was regarded as a poor surgical candidate due to depression, obesity and dependence on narcotics. She reports she has to lie down and her legs buckle. Claimant persuaded the ALJ that she was rendered asymptomatic from a prior disc herniation and had new symptoms of chronic back pain and foot drop. The attempt to impeach claimant with remote felony convictions was not persuasive because claimant stated she had changed her life.
The Commission found the employer's refusal was a "brazen indifference" to a temporary award to provide treatment had no explanation and "particularly egregious" based on testimony that delays impaired her chance of recovery and "condemned" the employer. The Commission was unable to double unpaid bills as a penalty because the bills were not in evidence. In Young v Boone Electric, also decided the same month, the same Commission made a point to indicate it would have awarded bills if they had been offered.
ALJ Wilson
Atty: Lawrence, Reidy
Experts: Olive, Bennoch
Willful neglect from ignoring claim
A claimant alleges he injured his back pushing a 100 pound container resulting in a herniated disk. He consulted Dr. Shitut and advised he was a surgical candidate and proceeded with a temporary award. ALJ Hart awarded benefits, affirmed recently by the Commission.
The court noted the employer engaged in willful neglect and had not responded to various contacts by claimant's counsel Dalton. The court noted neglect referring the matter to defense counsel Moser, Marselek, who appeared over objection on the day of the hearing. Judge Hart awarded approximately $51,000 in back benefits, ordered future medical care and the right for claimant to chose his own doctor, ordered "maximum" compensation rate because "maximum" had been pled because the answer was in default, and referred the matter to the fraud unit. Claimant testified the employer did nothing while the case remained pending for a year after the claim was filed and wanted claimant to change the date of the reported accident, and then denied the claim due to late notice. The case is Kirk Wilson v Allied, DOLIR 6-2-09.
Employer ignoring prior award
A 41-year old claimant alleges a back injury arising from a 2003 accident, undergoes a two level back fusion by Dr. Graven in 2005, and claims he requires narcotics daily because of pain levels and can never work again. The claimant won a temporary award for benefits in 2005, and pursued treatment through group insurance when the employer failed to comply with the award. In a final 3 day hearing in September 2008, Judge Wenman found claimant permanently and totally disabled and entitled to future medical care, and noted claimant was unemployable in the open labor market due to daily reliance on narcotics. Medical evidence suggested a pseudoarthrosis. The court rejected a causation defense and found Dr. Curylo unpersuasive that the accident did not cause the disc herniation due to a delayed presentation of sciatica for 3-4 day until claimant drove on a fishing trip. The employer's denial was deemed untimely due to a late answer, and its notice defense failed due to lack of evidence of prejudice even though claimant may have waited several months to identify a work cause of his back pain. The employer had delayed several years in obtaining an IME but had filed two unsuccessful appeals to the Commission and court of appeals, both dismissed for lack of jurisdiction, and sought a declaratory judgment to challenge the constitutionality of 8 csr 20-3.040.The award exceeds over 457,000 for accrued benefits, plus PTD and open medical, that included sanctions of 229,000 in penalties for not complying with the original hardship award.1 Ellen Morgan represented the claimant and Moser, Marselek represented the employer. The case is Petelik v Motor Control Specialists, DOLIR 6-2-09.
In the recent case Tina Balls-Sawyers v Blue Springs School District, No. 69624 (Mo. App. WD May 5, 2009), the court retroactively applied the penalty provision, substantially reducing the statutory penalty of $236,000 to $176,000 because some of the charges had been paid prior to the hearing.
Refusing to make offer
The court of appeals sanctioned an employer for costs and attorneys fees under 287.560 for refusing to make a settlement offer on an admitted case contrary to its own expert who assesses permanent disability. The case is Clark v Harts Auto Repair, No. 69767 (Mo. App. WD 1-20-09).1The court of appeals affirmed an award of sanctions that includes partial costs of three depositions, attorney's fees and medical records.Claimant was awarded permanent and total disability after he fell from a ladder and injured his leg, underwent 9 surgeries, and later developed bilateral leg symptoms, back symptoms, RSD, and depression. The employer vigorously defended the case that claimant could do some work and that claimant exaggerated his symptoms. The employer's own expert neurologist assessed 54% BAW representing nearly $68,000, but the employer tendered no offer and the carrier declined to discuss settlement prior to the hearing. The court found the refusal to make any offers unreasonable based on the opinions of its own experts.The court of appeals affirmed the decision, noting it would not disturb the credibility findings among experts with conflicting opinions. The employer abandoned its bizarre first amendment argument that it asserted at the Commission.The lesson from the case is that an employer in an otherwise undisputed nature and extent case should pick its experts wisely, and should tender an offer before hearing after receiving its disability rating or risk sanctions for unreasonable defense. The employee counsel who insists that a claimant must have his day in court may face similar sanctions. But see Brennell v Patients First, DOLIR 8-13-09, denying a motion for sanctions and costs in a bilateral carpal tunnel case in which the employer paid medical and TTD benefits but made no settlement offers.
Sanctions reversed against employer
Claimant Nolan tested positive for meth and marijuana following a pick-up accident where he lost control for unknown reasons, which caused severe injuries. Claimant became paralyzed and died three months after the accident. The employer denied all benefits and the judge imposed sanctions of over $10,000 in attorneys fees against Degussa Admixtures for withholding benefits.On appeal the Commission vacated the sanction of attorneys fees, and imposed 15% penalty on all benefits, including medical bills. On first appeal, the court remanded the case to the Commission to brief the issue of costs under §287.560, as the Commission did not provide due process to the claimant before vacating the award of sanctions. The Commission on second round found the defense reasonable to assert based on the positive drug tests. Claimant appealed again, and the court found the court affirmed the decision to vacate sanctions against the employer, rejected the disparate points of error did not establish the Commission's decision was clearly against the logic of the circumstances and so unreasonable and arbitrary to shock one’s sense of justice. The decision is Nolan v Degussa Admixtures, Inc., No. 29282 (Mo. App SD 1-14-09)Although it is not clear from this recent court of appeals decision, the Commission case reports the employer had denied 100% of benefits instead of invoking the 15% penalty, and a dissenting commissioner criticized the employer and argued it failed to offer sufficient evidence that the "use of" any drugs "caused" the accident.
ILLINOIS - Sanctions after settlement
In the Illinois case Burzic v Illinois Workers' Compensation Commission, No. 1-08-2303 (April 28, 2009), claimant settled "any and all issues" for $175,000 following a 2002 injury with a back strain, and before the settlement he sought sanctions under 7090.2 and 4(c) for terminating claimant's vocational services in 2006. The lower court dismissed for lack of jurisdiction. The 1st District found the petition not precluded by the prior settlement and jurisdiction existed to consider the demand for sanctions, but found the facts did not establish a "policy of unfairness", rejecting claimant's contention that a single act supported an award of sanctions. "A single course of action in an individual case does not a policy make." The employer noted that claimant had dress code problems, attendance issues, and was a Bosnian with poor command of English.
Friday, June 26, 2009
Wednesday, June 10, 2009
Surfing Up the Work Comp Claimant
There is a classic 1960's cartoon about Mr. Peabody, a dog, and his boy, Sherman, who travel back in time using their WABAC machine to explore improbable moments in history. Investigating a claimant on the internet in a Missouri worker’s compensation involves the same thing, except the dog is usually not as erudite. Worker’s compensation defenses often center on two fronts: did claimant’s impairment arise at work, and what is the impairment worth. Googling a party or surfing through social web networks can go way back too, like the eager boy Sherman, and can tag claimants who malinger or commit fraud.
Discovery
Any person obtaining a recorded statement or deposition should inquire whether on not a claimant participates in social network web sites. A law firm or insurance may be prevented from due diligence to actually search social networks, ironically, by their own IT departments, who filter access to social network sites as distractions to productivity.1 In light of the popularity of such sites, especially among Gen X claimants, the failure to even inquire about participation is difficult to justify. Seasoned old defense dogs cannot ignore the internet and rely on deposition outlines drafted when the Selectric was cutting edge.
There are over 100 social network sites.2 Popular cites such as Myspace and Facebook boast over 200 million members each.3 The participation in social web sites is now widely accepted. Inquiring about participation on such widely-accepted sites does not annoy, embarrass or oppress a claimant.4
The content of social network sites may reasonably lead to discoverable evidence. Sites may confirm a claimant’s employment or educational history or substantiate claims of impairment. On the other hand, claimants may also disclose hobbies or physical activities inconsistent with claims of current disability. Photographs or video may impeach claimants, or document indiscrete behavior that taints a claimant’s overall credibility. Social network sites maintained by roommates or spouses may including photographs tagging claimant in activities inconsistent with their reported physical limitations.5 Indiscrete postings from "friends" may also impeach claimant’s credibility too. Electronic stored information on company networks or on cell phones such as text messages and photographs may provide critical accident scene information or clarify the scope of initial reported injuries.6
Social web sites may be divided between "public" information, available to anyone who has access to a modem, and "private" information, which may be available only by permission. Chat rooms or job posting services like Monster.com, similarly, may open the door to more discoverable information. Computer archive programs such as "wayback" can recover many pages that have been removed or updated, and are invaluable resources.7 Many postings, presumed to be ephemera, are rarely destroyed completely merely by hitting delete. Current inexpensive software can easily capture webpage screenshots8 as potential exhibits.
Reported appellate decisions do not address ethical concerns and have dealt primarily with the internet social sites as the new playground for child molesters. Some recent decisions have addressed the role of the internet and social web pages in personal injury claims. Missouri informal advisory opinions remain silent on proper or improper methods to discover contents of social web networks. Discovery of private social web postings recently has been criticized as unethical in Pennsylvania. The question was whether a third party could pose as a "friend" to gain access to a private section of a social web page. The attempt to access private portions of a website using a proxy violates ethical rules, and the committee compares the activities to having a videographer sneak into a house posing as a utility worker.9 Screening claimants by investigating social networks, too, before returning a claimant to the work place, may raise other ethical issues too.10
Compelling Production
Missouri has no reported cases regarding a claimant compelled to disclose social web pages in a workers’ compensation case.11 The issues in other jurisdictions arises whether the party has a reasonable expectation of privacy.12
A claimant may have waived any reasonable expectation of privacy to social site postings when participating on such sites on company networks instead of from private home computers.
A person who publically posts has no legitimate expectation of privacy. Guest etal v Simon L. Leis, etal 255 F. 3d 325 (6th Cir. 2001)(obscenity case) http://www.ca6.uscourts.gov/opinions.pdf/01a0206p-06.pdf
Other jurisdictions have divided opinions regarding discovery in civil cases of social sites. In Mackelprang v Fidelity National Title Agency of Nevada, Inc. 2007 WL 119149 (D. Nev. Jan. 9 2007), a sexual harassment claim, the court prevented a motion to compel production of private MySpace pages as a mere fishing expedition when the defendant only had a suspicion regarding possible contents. Recently, a district court in Colorado allowed discovery of Facebook, Myspace and Meet-up to produce postings, noting allegations of loss of consortium, and that parties had already stipulated to confidentiality of discovered material. Ledbetter v Wal-mart Stores, 2009 WL 1067018 (D. Colo. April 21, 2009).
Admitting Evidence
There are no provisions within the Missouri worker’s compensation statute addressing admissibility of electronically stored information (ESI). Chapter 287 has no equivalent to federal Rule 16 or Missouri Rule 59.01 practice to request parties admit to the authenticity of electronic documents such as copies of web pages.
Other jurisdictions have different levels of acceptance of ESI evidence. In St. Clair v. Johnny’s Oyster and Shrimp, Inc. 76 F. Supp. 2d 773 (S.D. Tex. 1999), the court sharply criticized the internet as "inherently untrustworthy"and is "largely a catalyst for rumor, innuendo and misinformation."
Federal rules require ESI to be relevant (rule 401) and authentic (rule 901-902).13 When the website statements are made by a claimant, such statements overcome a hearsay objection raised against non-parties. A website can be authenticated by circumstantial evidence. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (employee’s e-mail), Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1153-54 (C.D. Cal. 2002) (admitting website postings as evidence due to circumstantial indicia of authenticity, including dates and presence of identifying web addresses).
Conclusion
Resources on the internet, including social web pages, provide glimpses way back into a claimant’s past to assess current claims of disability. Social web pages can be a vast wasteland too, far worse than television. Data may be as unreliable as a typical ad in the personals and should not be over-relied upon as a defense. On the other hand, it can show claimants doing improbable things deserving of America’s Funniest Home Videos. Employers who did not investigate years ago because investigators were too expensive can now uncover more information quicker with only a mouse click. A claimant who posts to the web, posts to the world, including every risk manager who decides what bills to pay and what the case is worth. Such postings are now another source of information to be considered. The indiscrete claimant, like the often-befuddled young Sherman, can find himself in places he never expected to be, when he his own tangled web postings are served up to the court.
1. See Sinrod, Can Social Network Co-exist with the workplace? CNET Dec. 19, 2007
http://news.cnet.com/Can-social-networking-co-exist-with-the-workplace/2010-1030_3-6223458.html
2. http://en.wikipedia.org/wiki/List_of_social_networking_websites
3. see ftn. 2.
4. Rule 56.01 prohibits such conduct. Inquiries may be embarrassing or harassing, however, such as inquiries about dating sites implying infidelity or membership in sites with socially unacceptable sexual proclivities. The issue of preserving internet reputations has created a new cottage industry of internet reputation management consultants. E.g. IRM Consultants advertisement:
http://www.internet-reputation-management.com/.
5. See. Facebook drinking photos show parole violation in fatal DUI Case, Chicago Tribune, June 5, 2009.
http://redeye.chicagotribune.com/news/local/chi-facebook-braceletjun05,0,1469717.story
6. Such data may be sometimes overlooked as statements subject to production under 287.215.
7. http://www.archive.org/web/web.php
8. One example is Techsmith’s SnagIt product. http://screen-capture-software-review.toptenreviews.com/snagit-review.html
9. Opinion 2009-02 (March 2009), Philadelphia Bar Association.
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf
10. White, Recruiters Use the Internet to Screen Job Applicants, Wall Street Journal Oct 12, 2004, http://www.adamsmithesq.com/blog/pdf/WSJ.2004.10.12.BruceMacEwen.pdf, ; See Hayes v Show Me Believers, 192 S.W.3d 706 (Mo. 2006) (recognizing cause of action under 287 based on claimant’s previous litigation history of claims against other employers)
11. Most Missouri Commission cases have been somewhat dismissive of internet sources used by experts Crowell v Sigma Chemical Co., DOLIR 6-28-02 (reliance on chat rooms criticized as not authoritative) , Rufer v Monet Metals, DOLIR 10-31-08 (expert criticized for using internet sources instead of textbooks).
12. Levine, Are Social Networking Sites Discoverable? http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202425974937
13. See Lorraine v Markel American Ins. Co., No PWG-06-1893 (D. MD 2007)(detailed discussion, rejecting admission of e-mails on motion for summary judgment).
http://indianalawblog.com/documents/Lorraine_v_Markel.pdf
Discovery
Any person obtaining a recorded statement or deposition should inquire whether on not a claimant participates in social network web sites. A law firm or insurance may be prevented from due diligence to actually search social networks, ironically, by their own IT departments, who filter access to social network sites as distractions to productivity.1 In light of the popularity of such sites, especially among Gen X claimants, the failure to even inquire about participation is difficult to justify. Seasoned old defense dogs cannot ignore the internet and rely on deposition outlines drafted when the Selectric was cutting edge.
There are over 100 social network sites.2 Popular cites such as Myspace and Facebook boast over 200 million members each.3 The participation in social web sites is now widely accepted. Inquiring about participation on such widely-accepted sites does not annoy, embarrass or oppress a claimant.4
The content of social network sites may reasonably lead to discoverable evidence. Sites may confirm a claimant’s employment or educational history or substantiate claims of impairment. On the other hand, claimants may also disclose hobbies or physical activities inconsistent with claims of current disability. Photographs or video may impeach claimants, or document indiscrete behavior that taints a claimant’s overall credibility. Social network sites maintained by roommates or spouses may including photographs tagging claimant in activities inconsistent with their reported physical limitations.5 Indiscrete postings from "friends" may also impeach claimant’s credibility too. Electronic stored information on company networks or on cell phones such as text messages and photographs may provide critical accident scene information or clarify the scope of initial reported injuries.6
Social web sites may be divided between "public" information, available to anyone who has access to a modem, and "private" information, which may be available only by permission. Chat rooms or job posting services like Monster.com, similarly, may open the door to more discoverable information. Computer archive programs such as "wayback" can recover many pages that have been removed or updated, and are invaluable resources.7 Many postings, presumed to be ephemera, are rarely destroyed completely merely by hitting delete. Current inexpensive software can easily capture webpage screenshots8 as potential exhibits.
Reported appellate decisions do not address ethical concerns and have dealt primarily with the internet social sites as the new playground for child molesters. Some recent decisions have addressed the role of the internet and social web pages in personal injury claims. Missouri informal advisory opinions remain silent on proper or improper methods to discover contents of social web networks. Discovery of private social web postings recently has been criticized as unethical in Pennsylvania. The question was whether a third party could pose as a "friend" to gain access to a private section of a social web page. The attempt to access private portions of a website using a proxy violates ethical rules, and the committee compares the activities to having a videographer sneak into a house posing as a utility worker.9 Screening claimants by investigating social networks, too, before returning a claimant to the work place, may raise other ethical issues too.10
Compelling Production
Missouri has no reported cases regarding a claimant compelled to disclose social web pages in a workers’ compensation case.11 The issues in other jurisdictions arises whether the party has a reasonable expectation of privacy.12
A claimant may have waived any reasonable expectation of privacy to social site postings when participating on such sites on company networks instead of from private home computers.
A person who publically posts has no legitimate expectation of privacy. Guest etal v Simon L. Leis, etal 255 F. 3d 325 (6th Cir. 2001)(obscenity case) http://www.ca6.uscourts.gov/opinions.pdf/01a0206p-06.pdf
Other jurisdictions have divided opinions regarding discovery in civil cases of social sites. In Mackelprang v Fidelity National Title Agency of Nevada, Inc. 2007 WL 119149 (D. Nev. Jan. 9 2007), a sexual harassment claim, the court prevented a motion to compel production of private MySpace pages as a mere fishing expedition when the defendant only had a suspicion regarding possible contents. Recently, a district court in Colorado allowed discovery of Facebook, Myspace and Meet-up to produce postings, noting allegations of loss of consortium, and that parties had already stipulated to confidentiality of discovered material. Ledbetter v Wal-mart Stores, 2009 WL 1067018 (D. Colo. April 21, 2009).
Admitting Evidence
There are no provisions within the Missouri worker’s compensation statute addressing admissibility of electronically stored information (ESI). Chapter 287 has no equivalent to federal Rule 16 or Missouri Rule 59.01 practice to request parties admit to the authenticity of electronic documents such as copies of web pages.
Other jurisdictions have different levels of acceptance of ESI evidence. In St. Clair v. Johnny’s Oyster and Shrimp, Inc. 76 F. Supp. 2d 773 (S.D. Tex. 1999), the court sharply criticized the internet as "inherently untrustworthy"and is "largely a catalyst for rumor, innuendo and misinformation."
Federal rules require ESI to be relevant (rule 401) and authentic (rule 901-902).13 When the website statements are made by a claimant, such statements overcome a hearsay objection raised against non-parties. A website can be authenticated by circumstantial evidence. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (employee’s e-mail), Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1153-54 (C.D. Cal. 2002) (admitting website postings as evidence due to circumstantial indicia of authenticity, including dates and presence of identifying web addresses).
Conclusion
Resources on the internet, including social web pages, provide glimpses way back into a claimant’s past to assess current claims of disability. Social web pages can be a vast wasteland too, far worse than television. Data may be as unreliable as a typical ad in the personals and should not be over-relied upon as a defense. On the other hand, it can show claimants doing improbable things deserving of America’s Funniest Home Videos. Employers who did not investigate years ago because investigators were too expensive can now uncover more information quicker with only a mouse click. A claimant who posts to the web, posts to the world, including every risk manager who decides what bills to pay and what the case is worth. Such postings are now another source of information to be considered. The indiscrete claimant, like the often-befuddled young Sherman, can find himself in places he never expected to be, when he his own tangled web postings are served up to the court.
1. See Sinrod, Can Social Network Co-exist with the workplace? CNET Dec. 19, 2007
http://news.cnet.com/Can-social-networking-co-exist-with-the-workplace/2010-1030_3-6223458.html
2. http://en.wikipedia.org/wiki/List_of_social_networking_websites
3. see ftn. 2.
4. Rule 56.01 prohibits such conduct. Inquiries may be embarrassing or harassing, however, such as inquiries about dating sites implying infidelity or membership in sites with socially unacceptable sexual proclivities. The issue of preserving internet reputations has created a new cottage industry of internet reputation management consultants. E.g. IRM Consultants advertisement:
http://www.internet-reputation-management.com/.
5. See. Facebook drinking photos show parole violation in fatal DUI Case, Chicago Tribune, June 5, 2009.
http://redeye.chicagotribune.com/news/local/chi-facebook-braceletjun05,0,1469717.story
6. Such data may be sometimes overlooked as statements subject to production under 287.215.
7. http://www.archive.org/web/web.php
8. One example is Techsmith’s SnagIt product. http://screen-capture-software-review.toptenreviews.com/snagit-review.html
9. Opinion 2009-02 (March 2009), Philadelphia Bar Association.
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf
10. White, Recruiters Use the Internet to Screen Job Applicants, Wall Street Journal Oct 12, 2004, http://www.adamsmithesq.com/blog/pdf/WSJ.2004.10.12.BruceMacEwen.pdf, ; See Hayes v Show Me Believers, 192 S.W.3d 706 (Mo. 2006) (recognizing cause of action under 287 based on claimant’s previous litigation history of claims against other employers)
11. Most Missouri Commission cases have been somewhat dismissive of internet sources used by experts Crowell v Sigma Chemical Co., DOLIR 6-28-02 (reliance on chat rooms criticized as not authoritative) , Rufer v Monet Metals, DOLIR 10-31-08 (expert criticized for using internet sources instead of textbooks).
12. Levine, Are Social Networking Sites Discoverable? http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202425974937
13. See Lorraine v Markel American Ins. Co., No PWG-06-1893 (D. MD 2007)(detailed discussion, rejecting admission of e-mails on motion for summary judgment).
http://indianalawblog.com/documents/Lorraine_v_Markel.pdf
Tuesday, June 9, 2009
ex parte contacts with physicians
Can a court compel a release to allow ex parte communication with a treating physician in a personal injury case? No.
In the recent case State ex rel Camillo,et al v Beck, No. ED 100427 (Oct. 15, 2013) plaintiff alleged injuries from an auto accident and sued the City of Bowling Green for the "subsequent actions of its employee." The City obtained a court order compelling the release of medical information and allowing ex parte communication with the providers. The court of appeals granted a writ of prohibition against ex parte communications and found the release overbroad.
Medical information is waived pursuant to 491.060(5) when the physical condition is an issue in the pleadings. Ex-parte communications are another issue entirely.
State ex rel v. Proctor, 320 S.W.3d 145 (Mo banc 2010) Supreme Court ruled as a matter of first impression based on its interpretation of HIPPAA that a court in the personal injury case against a physician cannot compel or authorize ex parte discussions with non-party treating physicians outside the formal discovery provided in the rules of court in which courts may exercise oversight and control over "judicial proceedings." In the case the judge issued an order advising non-party treating physicians they could meet or decline to meet with counsel for the defendant, without the plaintiff or plaintiff counsel present because the plaintiff had waived any privilege with the health care provider. The Supreme Court found HIPPAA pre-emption, that the order created a risk to divulge protected health information outside the scope of any waiver, and the court exceeded its authority by releasing essentially an advisory opinion.
The court of appeals addressed a similar issue regarding compelled releases for "any and all information." In State ex rel Colins v Hon. Rolden, 289 S.W.3d 780 (Mo. App. 2009) a medical malpractice case, the court of appeals supported a plaintiff's refusal to sign a medical authorization that allowed "any and all information" instead of limited to "medical records and bills", as the court construed the broader release to compel the treating doctor to allow ex parte communications with defense counsel contrary to several supreme court decisions.
In the recent case State ex rel Camillo,et al v Beck, No. ED 100427 (Oct. 15, 2013) plaintiff alleged injuries from an auto accident and sued the City of Bowling Green for the "subsequent actions of its employee." The City obtained a court order compelling the release of medical information and allowing ex parte communication with the providers. The court of appeals granted a writ of prohibition against ex parte communications and found the release overbroad.
Medical information is waived pursuant to 491.060(5) when the physical condition is an issue in the pleadings. Ex-parte communications are another issue entirely.
State ex rel v. Proctor, 320 S.W.3d 145 (Mo banc 2010) Supreme Court ruled as a matter of first impression based on its interpretation of HIPPAA that a court in the personal injury case against a physician cannot compel or authorize ex parte discussions with non-party treating physicians outside the formal discovery provided in the rules of court in which courts may exercise oversight and control over "judicial proceedings." In the case the judge issued an order advising non-party treating physicians they could meet or decline to meet with counsel for the defendant, without the plaintiff or plaintiff counsel present because the plaintiff had waived any privilege with the health care provider. The Supreme Court found HIPPAA pre-emption, that the order created a risk to divulge protected health information outside the scope of any waiver, and the court exceeded its authority by releasing essentially an advisory opinion.
The court of appeals addressed a similar issue regarding compelled releases for "any and all information." In State ex rel Colins v Hon. Rolden, 289 S.W.3d 780 (Mo. App. 2009) a medical malpractice case, the court of appeals supported a plaintiff's refusal to sign a medical authorization that allowed "any and all information" instead of limited to "medical records and bills", as the court construed the broader release to compel the treating doctor to allow ex parte communications with defense counsel contrary to several supreme court decisions.
Wednesday, June 3, 2009
Illinois Supreme Court allows PTD and PPD in same case
The Illinois Supreme Court on May 21, 2009 in Beelman Trucking v The Illinois Workers' Compensation Commission, addressed whether claimant could obtain both a statutory permanent total award for leg injuries and additional PPD benefits for loss of use of his arms.
Claimant sustained injuries in 1995 while driving his employer's truck, resulting in paralysis of both legs, paralysis of the left arm, and amputation of of the right arm above the elbow. The arbitrator found claimant a statutory PTD under 8(3) (18) for the loss of his legs, The employer appealed an award of over 400 weeks for additional disability to the arms. The employer disputed an award of over $12,000 for a home computer system as a reasonable and necessary expense to control lighting and allow claimant to use the internet. The employee's doctor concluded the computer system was necessary for therapeutic purposes to "preserve some vestige of autonomy. "
The employer argued that an award of total under section (18) precluded an additional award for PPD. The court rejected the defense noting a statutory "total" was not a literal meaning but a determination that certain injuries should be compensated at certain fixed figures, citing Freeman in which a worker was a statutory total but continued to work and received benefits for a subsequent injury. In Beelman, claimant did not elect to obtain duplicate benefits for the same body part, as in Arview, but could recover under (18) for his legs and separately under (10) for his arms.
The court concluded the finding that computer-related expenses were necessary and reasonable medical expenses was not against the manifest weight of the evidence. The court also affirmed an award of insurance premiums for a modified van to pay additional fees to insure the modifications to the van that the disability requires.
Claimant sustained injuries in 1995 while driving his employer's truck, resulting in paralysis of both legs, paralysis of the left arm, and amputation of of the right arm above the elbow. The arbitrator found claimant a statutory PTD under 8(3) (18) for the loss of his legs, The employer appealed an award of over 400 weeks for additional disability to the arms. The employer disputed an award of over $12,000 for a home computer system as a reasonable and necessary expense to control lighting and allow claimant to use the internet. The employee's doctor concluded the computer system was necessary for therapeutic purposes to "preserve some vestige of autonomy. "
The employer argued that an award of total under section (18) precluded an additional award for PPD. The court rejected the defense noting a statutory "total" was not a literal meaning but a determination that certain injuries should be compensated at certain fixed figures, citing Freeman in which a worker was a statutory total but continued to work and received benefits for a subsequent injury. In Beelman, claimant did not elect to obtain duplicate benefits for the same body part, as in Arview, but could recover under (18) for his legs and separately under (10) for his arms.
The court concluded the finding that computer-related expenses were necessary and reasonable medical expenses was not against the manifest weight of the evidence. The court also affirmed an award of insurance premiums for a modified van to pay additional fees to insure the modifications to the van that the disability requires.
Tuesday, June 2, 2009
Employee-employer status disputed
Summary judgment did not estop status as employer
Claimant fell when he performed home repairs on a barn roof and sued the owner who hired him to make the improvements. The ALJ denied benefits based on estoppel that the issue had been fully litigated before the District Court. The Commission concluded it had power to review the issue or employment independently because it asserted that employment for purposes of civil liability imposed different elements of proof than employment for purposes of comp liability and concluded the 'issue' of employment was not the same. In the case the determination of employment depended on the level of control, and the commission found there wasn't sufficient control to create an employment relationship even though the owner may have been more involved than other customers. The takeaway is the Commission retains more discretion for itself and avoids the issue of sanctions for the prosecution of the case after an unfavorable determination in district court.
Hamilton v Gregory and Toni Palm, DOLIR 6-26-13 (2-0 decision)
ALJ Wenman and Boresi
Atty: Robert Kister, Martin Buckley
Claimant received an award for permanent and total disability benefits following a 2003 accident in Missouri. Claimant states he spends most of his time laying in bed or a massage chair and taking daily medication for stabbing pain as a result of his back injury and two-level fusion. The court noted as a result of liberal construction of a 2003 claim an independent contractor agreement is inadequate to specify a Nebraska forum for purposes of Section 287.110.2 when the accident occurred in Missouri.. The court noted the employer had originally argued claimant was an independent contractor and did not preserve its choice of law argument specifically interpreting 287.110.2 exception: "unless the contract of employment in any case shall otherwise provide. " The Commission opinion notes the employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits.
The evidence was insufficient under an owner-operator defense to establish claimant "owned" the truck, because claimant had limited rights to use the truck and could not convey it. Dr. Volarich's restrictions, including the boilerplate need to "rest when needed" supported a PTD award. The case is Rader v Werner Enterprises, 2012 Mo. App. Lexis 24, ED 95905 (Jan. 10, 2012)
Atty: Lindsay, Thurmer, Barnard
Experts: Irvine, Volarich, DeGrange, England
Claimant was a beautician who was fatally shot during a robbery while covering a shift for another person. He failed to show he was an employee and not an independent contractor when he worked for an uninsured salon. He did not demonstrate sufficient control or a verbal contract to establish he was a statutory employee. A dissent found a contract existed and classification of claimant's status was purposeful to elude state and federal laws. Pacheco, dec. v Tina's Hair Salon, 2012 Mo WCLR Lexis 47 (March 15, 2012) affirmed Pachecho v Tina's Hair Salon, WD 75062 (April 30, 2013). The court of appeals noted that claimant failed to establish the third prong of statutory employment that activities were in the usual course of employer's business as claimant used space on a fee-splitting arrangement, he set his own hours and fees, and he and did not directly assist the salon owner, even though both parties performed similar activities. The parties disputed whether claimant's attendance was required on the day of the robbery.
ALJ McKeon
Atty: Kenter
Claimant failed to prove that he was an employee under the controllable service test when he performed duties for a limited period of time, he was paid sporadically, and ALJ Tilly concluded he was directed what to perform but not how to perform assignments. The Commission affirmed the case Butler v Laplant, 6-2-09.
In Linden v Davenbaugh, DOLIR 7-30-09, claimant proved he was an employee when he was driving home after transporting a patient and struck a bull in the road, resulting in head and neck injuries. Employer’s counsel, after being contacted by telephone, stated that neither he nor the Employer would appear and that the hearing may proceed in abstentia. The employer filed for bankruptcy the day after the hearing, in which the uninsured employer was found liable for over $80,000 in medical bills, TTD and permanent partial disability.
In Hudgins v Sentinel Fastener Supply, 7-30-09, claimant injured his shoulder while working as a warehouse picker and established that he was an employee working for an uninsured employer. ALJ Fowler awarded the disability rating obtained by claimant's expert Koprivica and awarded medical bills, to be paid by the Second Injury Fund.
"Five or More" Makes Company subject to Act
In a fight whether or not the uninsured employer had enough employees to be subject to the Act, the Court of Appeals affirmed the Commission that the owner's wife, who had no employment contract, was unpaid, and could quit anytime was still an "employee" to grant claimant benefits under the Act. Claimant sustained injuries when a motorcycle fell on him. The parties disputed the level of involvement regarding payroll and checkbook functions and the owner attempted to reconcile his testimony at hearing and admissions he made at an earlier deposition that that he just "wanted to get out of the room." The parties also disputed the level of involvement of a friend of the owner who was a shareholder who would sometimes work behind the counter and "maybe like pick up the phone when it rings." Applying a liberal construction, the court rejected defenses of employment raised by second injury fund. The commission case indicates the dispute was about $14,000 in unpaid bills. The court rejected the uninsured employer's brief in support of the Fund, as the employer had failed to post a bond. Ellen Morgan represented the employee.The case is Busby v D.C. Cycle Ltd, SD 29464 (Mo. App. 8-31-09).
Circuit court addresses statutory employment issue
Claimant alleged he was injured while delivering product to Walmart's store and filed suit. Wal-mart on the day of the trial attempted to block the lawsuit and asserted that the plaintiff was a statutory employee and that the court lacked subject matter jurisdiction. The court concluded that the defense was misdirected since the court clearly have constitutional authority to hear civil claims. The southern district case is McCracken v Walmart, No. 29087 (Mo. App. 2009).1 A similar conclusion was reached in State of Mo ex rel Dolgencorp Inc. dba Dollar General Stores v Honorable Stephen R. Sharp, No. 29398 (MO. App. SD 3-19-09).
Claimant did not establish an entitlement to second injury fund benefits when he failed to show he was an employee under 287.030, when his primary injury was a volunteer fireman and his second job wage loss claim involved his primary source of income hauling asphalt to road construction sites under a lease agreement. In a matter of first impression, the court applied the owner-operator exemption to second injury fund claims, and found 287.020.1 excluded owner-operators as an employee. Davidson v Missouri State Treasurer, No. SD 30536 (Mo. App. 12-7-2010).
truck driver
The commission affirmed a denial of benefits that a truck driver was not an employee covered under the Act when he sustained a hernia in Parsons v Steelman Transportation, DOLIR 3-23-10. The defendant operated a multi-state trucking company and leased trailers to drivers. Claimant admitted in his application that he was an independent contractor and opted to carry his own occupational accident policy. Judge Mahon rejected the argument that the application was a statement of an "injured" employee (as the statement occurred before the injury), and the novel argument that the accident was compensable as it flowed from lifting side panels directly off of the trailer and not from driving. The court of appeals affirmed the decision, Parsons v Steelman Transportation, 335 S.W.3d 6 (Mo. App 2011) transf. denied 2011 Mo. Lexis 114.
Domestic servant
The court of appeals in Massey v Spasser, 318 S.W.3d 737 (Mo. App. 2010) found a CNA injured while hired by private individuals to provide care in a private household excluded from coverage under the Missouri Workers Compensation Act, after she states she claims she pulled her back while carrying for a patient, reversing an award of benefits for a back strain awarded by the commission. The commission defined "domestic servant" as a matter of first impression, relying upon decisions in other states. The court found the authority outside Missouri not persuasive and decided there was no statutory intent to provide benefits in this type of case. ALJ Tackes originally denied benefits.
Claimant fell when he performed home repairs on a barn roof and sued the owner who hired him to make the improvements. The ALJ denied benefits based on estoppel that the issue had been fully litigated before the District Court. The Commission concluded it had power to review the issue or employment independently because it asserted that employment for purposes of civil liability imposed different elements of proof than employment for purposes of comp liability and concluded the 'issue' of employment was not the same. In the case the determination of employment depended on the level of control, and the commission found there wasn't sufficient control to create an employment relationship even though the owner may have been more involved than other customers. The takeaway is the Commission retains more discretion for itself and avoids the issue of sanctions for the prosecution of the case after an unfavorable determination in district court.
Hamilton v Gregory and Toni Palm, DOLIR 6-26-13 (2-0 decision)
ALJ Wenman and Boresi
Atty: Robert Kister, Martin Buckley
Claimant received an award for permanent and total disability benefits following a 2003 accident in Missouri. Claimant states he spends most of his time laying in bed or a massage chair and taking daily medication for stabbing pain as a result of his back injury and two-level fusion. The court noted as a result of liberal construction of a 2003 claim an independent contractor agreement is inadequate to specify a Nebraska forum for purposes of Section 287.110.2 when the accident occurred in Missouri.. The court noted the employer had originally argued claimant was an independent contractor and did not preserve its choice of law argument specifically interpreting 287.110.2 exception: "unless the contract of employment in any case shall otherwise provide. " The Commission opinion notes the employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits.
The evidence was insufficient under an owner-operator defense to establish claimant "owned" the truck, because claimant had limited rights to use the truck and could not convey it. Dr. Volarich's restrictions, including the boilerplate need to "rest when needed" supported a PTD award. The case is Rader v Werner Enterprises, 2012 Mo. App. Lexis 24, ED 95905 (Jan. 10, 2012)
Atty: Lindsay, Thurmer, Barnard
Experts: Irvine, Volarich, DeGrange, England
Claimant was a beautician who was fatally shot during a robbery while covering a shift for another person. He failed to show he was an employee and not an independent contractor when he worked for an uninsured salon. He did not demonstrate sufficient control or a verbal contract to establish he was a statutory employee. A dissent found a contract existed and classification of claimant's status was purposeful to elude state and federal laws. Pacheco, dec. v Tina's Hair Salon, 2012 Mo WCLR Lexis 47 (March 15, 2012) affirmed Pachecho v Tina's Hair Salon, WD 75062 (April 30, 2013). The court of appeals noted that claimant failed to establish the third prong of statutory employment that activities were in the usual course of employer's business as claimant used space on a fee-splitting arrangement, he set his own hours and fees, and he and did not directly assist the salon owner, even though both parties performed similar activities. The parties disputed whether claimant's attendance was required on the day of the robbery.
ALJ McKeon
Atty: Kenter
Claimant failed to prove that he was an employee under the controllable service test when he performed duties for a limited period of time, he was paid sporadically, and ALJ Tilly concluded he was directed what to perform but not how to perform assignments. The Commission affirmed the case Butler v Laplant, 6-2-09.
In Linden v Davenbaugh, DOLIR 7-30-09, claimant proved he was an employee when he was driving home after transporting a patient and struck a bull in the road, resulting in head and neck injuries. Employer’s counsel, after being contacted by telephone, stated that neither he nor the Employer would appear and that the hearing may proceed in abstentia. The employer filed for bankruptcy the day after the hearing, in which the uninsured employer was found liable for over $80,000 in medical bills, TTD and permanent partial disability.
In Hudgins v Sentinel Fastener Supply, 7-30-09, claimant injured his shoulder while working as a warehouse picker and established that he was an employee working for an uninsured employer. ALJ Fowler awarded the disability rating obtained by claimant's expert Koprivica and awarded medical bills, to be paid by the Second Injury Fund.
"Five or More" Makes Company subject to Act
In a fight whether or not the uninsured employer had enough employees to be subject to the Act, the Court of Appeals affirmed the Commission that the owner's wife, who had no employment contract, was unpaid, and could quit anytime was still an "employee" to grant claimant benefits under the Act. Claimant sustained injuries when a motorcycle fell on him. The parties disputed the level of involvement regarding payroll and checkbook functions and the owner attempted to reconcile his testimony at hearing and admissions he made at an earlier deposition that that he just "wanted to get out of the room." The parties also disputed the level of involvement of a friend of the owner who was a shareholder who would sometimes work behind the counter and "maybe like pick up the phone when it rings." Applying a liberal construction, the court rejected defenses of employment raised by second injury fund. The commission case indicates the dispute was about $14,000 in unpaid bills. The court rejected the uninsured employer's brief in support of the Fund, as the employer had failed to post a bond. Ellen Morgan represented the employee.The case is Busby v D.C. Cycle Ltd, SD 29464 (Mo. App. 8-31-09).
Circuit court addresses statutory employment issue
Claimant alleged he was injured while delivering product to Walmart's store and filed suit. Wal-mart on the day of the trial attempted to block the lawsuit and asserted that the plaintiff was a statutory employee and that the court lacked subject matter jurisdiction. The court concluded that the defense was misdirected since the court clearly have constitutional authority to hear civil claims. The southern district case is McCracken v Walmart, No. 29087 (Mo. App. 2009).1 A similar conclusion was reached in State of Mo ex rel Dolgencorp Inc. dba Dollar General Stores v Honorable Stephen R. Sharp, No. 29398 (MO. App. SD 3-19-09).
Claimant did not establish an entitlement to second injury fund benefits when he failed to show he was an employee under 287.030, when his primary injury was a volunteer fireman and his second job wage loss claim involved his primary source of income hauling asphalt to road construction sites under a lease agreement. In a matter of first impression, the court applied the owner-operator exemption to second injury fund claims, and found 287.020.1 excluded owner-operators as an employee. Davidson v Missouri State Treasurer, No. SD 30536 (Mo. App. 12-7-2010).
truck driver
The commission affirmed a denial of benefits that a truck driver was not an employee covered under the Act when he sustained a hernia in Parsons v Steelman Transportation, DOLIR 3-23-10. The defendant operated a multi-state trucking company and leased trailers to drivers. Claimant admitted in his application that he was an independent contractor and opted to carry his own occupational accident policy. Judge Mahon rejected the argument that the application was a statement of an "injured" employee (as the statement occurred before the injury), and the novel argument that the accident was compensable as it flowed from lifting side panels directly off of the trailer and not from driving. The court of appeals affirmed the decision, Parsons v Steelman Transportation, 335 S.W.3d 6 (Mo. App 2011) transf. denied 2011 Mo. Lexis 114.
Domestic servant
The court of appeals in Massey v Spasser, 318 S.W.3d 737 (Mo. App. 2010) found a CNA injured while hired by private individuals to provide care in a private household excluded from coverage under the Missouri Workers Compensation Act, after she states she claims she pulled her back while carrying for a patient, reversing an award of benefits for a back strain awarded by the commission. The commission defined "domestic servant" as a matter of first impression, relying upon decisions in other states. The court found the authority outside Missouri not persuasive and decided there was no statutory intent to provide benefits in this type of case. ALJ Tackes originally denied benefits.
Subscribe to:
Posts (Atom)