The Commission affirmed an award of 30% PPD for a lumbar fusion, without a separate opinion. The employer lost a hardship hearing demanding medical care, and offered new testimony from Dr. Cantrell after a L5-s1 fusion disputing whether claimant's accident was a substantial factor in his condition. The original hardship found the employer liable in the 2002 accident for aggravating a previous asymptomatic degenerative condition. In the final hearing, a different ALJ found the employer had the burden to show "additional significant evidence" to disturb the earlier findings on causation, and the new opinon disputed substantial factor but providing a rating. Kinnikin v Triad Development, DOLIR 2-4-11.
ALJ Gorman
Atty: Bollwert, Hendershot, Waganer
Experts: Cantrell, Volarich, Coyle, Cantrell, England
Treater: Kennedy
Tuesday, February 22, 2011
Personal Comfort doctrine survives "reform"
The Commission recently reversed a denial of benefits, and found a billing clerk who twisted her ankle while making coffee at work can recover compensation benefits under the personal comfort doctrine. The case is Sandy Johme v St. John's Mercy Medical Center, decided on 2-22-11. The Commission found making coffee was an activity incidental to her employment. She twisted her ankle, fell off her shoe, fell backwards, and broke her pelvis.
The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.
The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.
Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.
http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf
The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.
The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.
Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.
http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf
Wednesday, February 16, 2011
PTD Cases (denied)
No Disability from fall from bus seat
Claimant failed to prove a new permanent injury when he fell out of a bus seat of a bus driven by a coworker. He treated for a back injury with therapy and injections and asserted that he had significant disability to his back. His expert provided a nominal rating of 5% disability but felt the condition combined to render him totally disabled. The ALJ denied any benefits. Taylor v Penmac Personnel, 5-16-2013.
Claimant was 66 years old and had recently re-entered the labor market as a part-time employee after collecting social security disability for several years. He had several previous settlements, including a prior SIF settlement of $30,000 based on allegations of total disability. He had sought treatment for an epidural steroid injection shortly before his primary injury. The ALJ noted a strong similarity of symptoms reported after the primary accident compared to treatment shortly before the accident.
The ALJ that no doctor attributed any new psychiatric disability, although claimant had a prior psychiatric condition which affected his "perception" of disability.
ALJ Wilson
Atty: Alberhasty, Hosmer, Bullock, Burks
Experts: Koprivica, Halfaker, Pak, England
No PTD for bump in hall
A 66-year old registered nurse claims she could never work again because a doctor bumped into her with his shoulder in the hallway. She worked another 7 years after the August 2000 accident.
The Commission concluded claimant failed to prove causation to support an award of medical bills and disability to many of her allegations which included TMJ, depression and laryngeal hematoma. The claimant reported chronic myofascial pain that affected her sleep, required injections, and regular use of a cervical collar. ALJ Allen awarded 30% BAW and TTD on the basis of her cervical symptoms. Burke v Heartland Health Systems, 2012 Mo WCLR Lexis 201 (Nov. 26, 2012).
ALJ Allen
Experts: Koprivica, Thompson, Blatt, Zarr
Competing experts
The claimant failed to persuade the ALJ based on competing vocational testimony that he was unemployable in the open labor market. Age was not a hindrance for someone pursuing a "second" career. The evidence was indecipherable to define the extent of pre-existing hearing loss based on the required statutory formula. Bay v Bays Window and Siding, 2012 MOWCLR 60 (3-21-12) (no published ALJ opinion)
ALJ Boresi
Experts: Lalk, Poetz, Chabot
"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.
ALJ Siedlik.
Experts: Koprivica, Drieling
Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.
ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling
Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.
ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez
Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.
ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea
Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11
ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz
Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.
ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek
Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)
Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch
Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11
ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens
Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totaling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. Benoist v Anheuser Busch Co., DOLIR 12-2-10.
ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin
Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.
The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.
Claimant failed to prove a new permanent injury when he fell out of a bus seat of a bus driven by a coworker. He treated for a back injury with therapy and injections and asserted that he had significant disability to his back. His expert provided a nominal rating of 5% disability but felt the condition combined to render him totally disabled. The ALJ denied any benefits. Taylor v Penmac Personnel, 5-16-2013.
Claimant was 66 years old and had recently re-entered the labor market as a part-time employee after collecting social security disability for several years. He had several previous settlements, including a prior SIF settlement of $30,000 based on allegations of total disability. He had sought treatment for an epidural steroid injection shortly before his primary injury. The ALJ noted a strong similarity of symptoms reported after the primary accident compared to treatment shortly before the accident.
The ALJ that no doctor attributed any new psychiatric disability, although claimant had a prior psychiatric condition which affected his "perception" of disability.
ALJ Wilson
Atty: Alberhasty, Hosmer, Bullock, Burks
Experts: Koprivica, Halfaker, Pak, England
No PTD for bump in hall
A 66-year old registered nurse claims she could never work again because a doctor bumped into her with his shoulder in the hallway. She worked another 7 years after the August 2000 accident.
The Commission concluded claimant failed to prove causation to support an award of medical bills and disability to many of her allegations which included TMJ, depression and laryngeal hematoma. The claimant reported chronic myofascial pain that affected her sleep, required injections, and regular use of a cervical collar. ALJ Allen awarded 30% BAW and TTD on the basis of her cervical symptoms. Burke v Heartland Health Systems, 2012 Mo WCLR Lexis 201 (Nov. 26, 2012).
ALJ Allen
Experts: Koprivica, Thompson, Blatt, Zarr
Competing experts
The claimant failed to persuade the ALJ based on competing vocational testimony that he was unemployable in the open labor market. Age was not a hindrance for someone pursuing a "second" career. The evidence was indecipherable to define the extent of pre-existing hearing loss based on the required statutory formula. Bay v Bays Window and Siding, 2012 MOWCLR 60 (3-21-12) (no published ALJ opinion)
ALJ Boresi
Experts: Lalk, Poetz, Chabot
"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.
ALJ Siedlik.
Experts: Koprivica, Drieling
Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.
ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling
Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.
ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez
Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.
ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea
Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11
ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz
Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.
ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek
Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)
Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch
Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11
ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens
Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totaling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. Benoist v Anheuser Busch Co., DOLIR 12-2-10.
ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin
Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.
The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.
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