Friday, October 23, 2009
Dependency
A single mother whose 19 year old son died in a car accident in the course and scope of his employment failed to establish that she was a partial or total dependent for survival benefits. Claimant testified she was totally disabled in 2003, and her son quit school to work full time to support the household. The issue of dependency is determined at the time of the injury. Claimant established she was dependent on claimant until Feb. 2005, but claimant did not provide any support from Feb. 2005 until his death in August 2005, except for paying a cell phone bill on one occasion. The court found that the Commission could have made reasonable findings that claimant had failed to establish she was a dependent at the time of injury as her son did not provide support or in-kind support such as purchasing food, clothing, or even visited claimant since he moved to Missouri to live with his girlfriend. Occasional gifts do not arise to the level of dependency and the court found it "unfortunate" that claimant did not meet her burden of proof. The case is Vice, dec. v. Advantage Waste Services, No. SD 29671 (10-15-09).
Thursday, October 22, 2009
Maximum medical improvement (MMI)
no mmi - benefits awarded for carpal tunnel
An ALJ found MMI occurred when a treating doctor imposed permanent restrictions and not the later date in a supplemental report when he officially deemed claimant at MMI. The Commission affirmed the opinion without comment. That finding raises several implications for the doctor to address the issue at the time of the last medical appointment to reduce disputes about ongoing or terminated TTD benefits. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014).
Claimant cannot recover TTD after a determination of MMI, according to the Court of Appeals in Greer v System Foods, ED 101389 (Nov. 18, 2014), reversing an award of TTD by the Commission
in Greer v System Food, 2014 MO WCLR Lexis 41 (3-28-2014). The ALJ found claimant reached MMI in 2007 following a foot injury, but the Commission awarded an additional 32 3/7 weeks of TTD following a disputed revision surgery which one expert concluded was unnecessary and would have a predictably poor result.
"The phrase "maximum medical improvement" is not found in § 287.170 RSMo, the section authorizing an award of temporary total disability benefits, nor is that phrase defined or found anywhere in Chapter 287. Of course, the concept of maximum medical improvement is helpful to the extent it permits the fact-finder to identify the point at which the question of permanent disability becomes ripe for determination. See Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008). But in a case such as this one where the employee's condition does not appreciably improve (or even worsens) despite further surgeries, applying a per se rule that temporary total disability benefits cannot be awarded after the date of maximum medical improvement works an absurd result. This is especially true here, where such a rule would require us to ignore the uncontested expert medical testimony on the issue."
ALJ Kohner
Treater: Johnson
Experts: Berkin, Schmidt
*
Claimant was not entitled to recover SIF for a prior neck injury after he hurt his knee at work because the neck condition was not at MMI and continued to include surgical treatment. Miller v Treasurer, 2014 MO. App. Lexis 314 (March 25, 2014). The claimant offered no explanation to disregard the holding in Hoven v Sachs Electric, 414 S.W.3d 676 (Mo. App. 2014).
**
In order to recover benefits for permanent disability a claimant must show a disability is permanent. A claimant may fail to recover benefits if a claimant is not at MMI or the condition itself is not permanent.
In Hoven v Sachs Electric, 2012 Mo. WCLR Lexis 145 (July 19, 2012) the Commission reversed an award of $7305 in benefits against the Second Injury Fund because claimant failed to introduce persuasive evidence that his condition was permanent. Claimant's expert provided a provisional rating that claimant's condition was permanent, but the amount of disability could change if claimant received more treatment. Claimant provided equivocal testimony about plans to pursue further treatment after reporting limited improvement following previous surgeries.
In Hoven v Sachs Electric, 2013 Mo App. Lexis 1397 (Nov. 26, 2013) the court of appeals affirmed a finding that no persuasive evidence existed that claimant's condition was permanent. The court found that a settlement with the employer did not create a presumption of permanent disability in a claim against the fund, and indicated there was no evidence the settlement itself was in evidence.
ALJ Carlisle
Atty: Christenson, Da-Niel
Experts: Schlafly, Lichtenfeld
Treaters: Crandall
This result is very similar to the court of appeals decision in Cantrell v Baldwin Transportation, in which a surviving spouse could not recover benefits because claimant was not at MMI at the time of his death. Cantrell v Baldwin Transportation, 296 S.W.3d 17 (Mo. App. 2009). Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007. Like Hovens, the claimant obtained a disability rating and asserted he was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued. The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.
In 2011 the Commission found without a determination of MMI by either experts, PPD could be awarded when claimant did not pursue further treatment. Claimant's refusal to follow up for appointments or pursue further surgery supports a PPD award, even though both experts decline to find her at MMI. Claimant underwent bilateral carpal tunnel releases and reported continue complaints with grip and range of motion. Dr. German, her surgeon, provided a disability rating when she did not return for further care and previously determined she was not at MMI because of recurrent symptoms after she returned to work. Dr. Volarich, her expert, opined she had 50 % disability of each wrist but concluded she was also not at MMI but provided a rating if she declined further treatment. The ALJ noted the more thorough examination of claimant’s expert and that the surgeon based his rating on the “assumption” that claimant was fine. The case is Baxter v General Motors Corp., DOLIR 6-24-11.
ALJ Dinwiddie
Atty: Gregory Simon
Experts: German, Volarich
Additional medical treatment may undermine any expert opinions about MMI. The Commission found that the ALJ erred finding MMI in 1998 for purposes of SIF liability, when claimant had three subsequent back surgeries that improved her function. Her surgeon placed her at MMI 7 years later in 2005. Key v Aldi, 2011 MO WCLR Lexis 29.
ALJ Kohner
An ALJ found MMI occurred when a treating doctor imposed permanent restrictions and not the later date in a supplemental report when he officially deemed claimant at MMI. The Commission affirmed the opinion without comment. That finding raises several implications for the doctor to address the issue at the time of the last medical appointment to reduce disputes about ongoing or terminated TTD benefits. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014).
Claimant cannot recover TTD after a determination of MMI, according to the Court of Appeals in Greer v System Foods, ED 101389 (Nov. 18, 2014), reversing an award of TTD by the Commission
in Greer v System Food, 2014 MO WCLR Lexis 41 (3-28-2014). The ALJ found claimant reached MMI in 2007 following a foot injury, but the Commission awarded an additional 32 3/7 weeks of TTD following a disputed revision surgery which one expert concluded was unnecessary and would have a predictably poor result.
"The phrase "maximum medical improvement" is not found in § 287.170 RSMo, the section authorizing an award of temporary total disability benefits, nor is that phrase defined or found anywhere in Chapter 287. Of course, the concept of maximum medical improvement is helpful to the extent it permits the fact-finder to identify the point at which the question of permanent disability becomes ripe for determination. See Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008). But in a case such as this one where the employee's condition does not appreciably improve (or even worsens) despite further surgeries, applying a per se rule that temporary total disability benefits cannot be awarded after the date of maximum medical improvement works an absurd result. This is especially true here, where such a rule would require us to ignore the uncontested expert medical testimony on the issue."
ALJ Kohner
Treater: Johnson
Experts: Berkin, Schmidt
*
Claimant was not entitled to recover SIF for a prior neck injury after he hurt his knee at work because the neck condition was not at MMI and continued to include surgical treatment. Miller v Treasurer, 2014 MO. App. Lexis 314 (March 25, 2014). The claimant offered no explanation to disregard the holding in Hoven v Sachs Electric, 414 S.W.3d 676 (Mo. App. 2014).
**
In order to recover benefits for permanent disability a claimant must show a disability is permanent. A claimant may fail to recover benefits if a claimant is not at MMI or the condition itself is not permanent.
In Hoven v Sachs Electric, 2012 Mo. WCLR Lexis 145 (July 19, 2012) the Commission reversed an award of $7305 in benefits against the Second Injury Fund because claimant failed to introduce persuasive evidence that his condition was permanent. Claimant's expert provided a provisional rating that claimant's condition was permanent, but the amount of disability could change if claimant received more treatment. Claimant provided equivocal testimony about plans to pursue further treatment after reporting limited improvement following previous surgeries.
In Hoven v Sachs Electric, 2013 Mo App. Lexis 1397 (Nov. 26, 2013) the court of appeals affirmed a finding that no persuasive evidence existed that claimant's condition was permanent. The court found that a settlement with the employer did not create a presumption of permanent disability in a claim against the fund, and indicated there was no evidence the settlement itself was in evidence.
ALJ Carlisle
Atty: Christenson, Da-Niel
Experts: Schlafly, Lichtenfeld
Treaters: Crandall
This result is very similar to the court of appeals decision in Cantrell v Baldwin Transportation, in which a surviving spouse could not recover benefits because claimant was not at MMI at the time of his death. Cantrell v Baldwin Transportation, 296 S.W.3d 17 (Mo. App. 2009). Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007. Like Hovens, the claimant obtained a disability rating and asserted he was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued. The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.
In 2011 the Commission found without a determination of MMI by either experts, PPD could be awarded when claimant did not pursue further treatment. Claimant's refusal to follow up for appointments or pursue further surgery supports a PPD award, even though both experts decline to find her at MMI. Claimant underwent bilateral carpal tunnel releases and reported continue complaints with grip and range of motion. Dr. German, her surgeon, provided a disability rating when she did not return for further care and previously determined she was not at MMI because of recurrent symptoms after she returned to work. Dr. Volarich, her expert, opined she had 50 % disability of each wrist but concluded she was also not at MMI but provided a rating if she declined further treatment. The ALJ noted the more thorough examination of claimant’s expert and that the surgeon based his rating on the “assumption” that claimant was fine. The case is Baxter v General Motors Corp., DOLIR 6-24-11.
ALJ Dinwiddie
Atty: Gregory Simon
Experts: German, Volarich
Additional medical treatment may undermine any expert opinions about MMI. The Commission found that the ALJ erred finding MMI in 1998 for purposes of SIF liability, when claimant had three subsequent back surgeries that improved her function. Her surgeon placed her at MMI 7 years later in 2005. Key v Aldi, 2011 MO WCLR Lexis 29.
ALJ Kohner
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