The court of appeals affirmed a decision to reduce a pain management drug cocktail, but the decision came with a twist with a warning about attorney’s fees.
In Noel v ABB Combustion Engineering, ED 98446 (Mo. App. 11-13-2012) the injured worker obtained a final award for permanent and total disability with open medical for a physical and psychiatric disability after 3 back surgeries. The employer paid benefits for several years and then refused to pay for multiple medications based on the recommendation of its IME doctor that some of the drugs had anything to do with claimant’s original lifting injury. The injured worker asked the Commission to re-open her case to prevent a change in medication and sought attorney’s fees for an unreasonable defense. The Commission concluded that the injured worker failed to show all of the medications were necessary for her work-related injuries and did not reach the issue whether the change in treatment would endanger her life, health or recovery.
Section 287.140.1 provides the employer the right to designate a provider to provide care as reasonably may be required to cure and relieve from the effects of the injury. Section 287.140.2 provides the employer may lose this option if the choice endangers the life, health or recovery of the employee. Section 287.560 provides for costs for an unreasonable defense.
The court of appeals found the Commission erred in part of its finding on the first issue and failed to make a finding on the second issue and remanded to “determine the extent” of the employer’s liability for fees. The court found the Commission considered conflicting evidence and supported the IME opinion that several medications did not flow from the work injury. The Court found that the Commission improperly disallowed two other medications based on insufficient evidence.
The claimant’s expert indicated that using cheaper medications would unequivocally risk claimant’s health. The employer had previously tried to wean claimant from narcotics and was ordered by an administrative law judge to prevent the action. In the original 2007 award a different administrative law judge admonished the employer not to change physicians to try to save money and warned an adverse medical response by the claimant could support an award for costs. Noel v ABB Combustion, 2007 MO WCLR Lexis 14.
Ultimately, the court affirmed a denial of fees. 2013 MO App. Lexis 1187 (Oct. 15, 2013).
This case is important in several regards. The case demonstrates the employer may designate a medical provider in a future medical award. Such decisions, however, are subject to review and potential penalties. Claimant must establish a need for treatment flows from a work injury. The claimant does not have to show the treatment cures or relieves the injury. The employer has the burden why it cut off medications, and the absence of specific evidence on each medication fails in that burden and may result in a claim for an unreasonable defense.
It has been well established that the employer owes for medical expenses when it neglects or refuses to provide care that flows from a work injury. The decision indicates the employer continues to have an obligation to provide care in the chronic pain patient even though treatment does not, as the statute requires, cure and relieve. What remains unanswered is whether this intepretation is applies only in the context of the chronic pain patient or more broadly imposes liability for medical costs in all cases even when there is limited or no efficacy to proposed or prior care.
Court limits scope of future medical for narcotics
Claimant sustained career-ending injuries from an auto accident arising from her duties as a nurse but failed to prove an award for past or future Percocet and Fentanyl from her personal physician when there was evidence for her to taper their use and her expert could not explain why claimant's pain could not be managed with other medications. The employer stipulated to open medical but disputed the use of these medications and the award for permanent total. The administrative law judge found claimant obtaining a master's degree after her accident not an indication of her employability because she completed studies at a slower pace and on-line. Meyer v Pyramid Construction, 2010 Mo WCLR Lexis 98.
ALJ: Tilley
Experts: Koprivica, Dreilin, Conway, Kane-Thale
Treaters: Gailbraith, Concannon, Gainor, Algen, Metzler
Attys: Collins, Huck
Claimant struck his head and states he developed dizzy spells, blurred vision and neck pain. He underwent extensive medical treatment on his own including multiple cervical steroid injections and use of narcotics from Dr. Padda, representing over $60,000 in disputed medical bills. Judge Kohner awarded 15% disability on the basis of grade I concussion and cervical strain, and noted Dr. Peeples' recommendation for only non-narcotic medication more credible due to his expertise. Claimant's expert attributed the need for some medications to his work injury and pre-existing cervical conditions. Claimant's medical history indicated that he reduced his use of cigarettes and alcohol and was 'down to 2 joints' per week. Hempel v Lincoln Couty Electric, 2010 MO WCLR Lexis 18.
The Commission in a 2-1 decision reversed a finding of liability against the second injury fund and found the employer liable for total disability as a result of the effects of medication which made her sleepy. The Commission finds use of carbamazepine and hydrodone caused memory loss and fatigue which caused her to sleep during the day incompatible with gainful employment.
Sartin v Manpower, 2015 Mo WCLR Lexis 49 (May 14, 2015)
The ALJ had found the Fund liable for total disability benefits. The employer had settled the case for 12 1/2% and would have been found liable for total disability benefits for the 51 year old claimant.
ALJ Fisher
Experts: Mullins, Eldred
Claimant fell off a ladder and sustained thoracic fractures, among other injuries. Claimant, 43, contends he was unemployable and has not looked for work after his MMI determination in 2004. ALJ Carlisle found claimant's expert, a neurologist, lacked credibility that claimant was unemployable and severely depressed when all of the treating physicians indicated claimant could work. The employer retained a psychiatrist who concluded claimant over-stated or falsely stated some symptoms. ALJ Carlisle discounted claimant's testimony that he needed to lie down most of time, when such limitations were not documented in many of the treating records. ALJ Carlisle summarized video evidence of claimant operating a motorcycle, made inaccurate representations had been made on a job application, and claimant earned income from e-bay.
The employer was ordered to provide pain medication, but made a finding that use of Oxycontin was not reasonable based on Dr. Coyle's testimony that long term use will "ruin" him. The case is Ward v Ameren, 2009 MO WCLR Lexis 119.
Claimant failed to establish he was PTD due to narcotic use despite contentious testimony from a vocational expert on the impact of narcotics on claimant's capacity to compete in the open labor market. "Claimant testified he was, in fact, on said narcotics. The cross-examination, which was contentious between Mr. Cordray and counsel, boarding on unprofessional in its' vulgarity, wherein Mr. Cordray was asked why he could not come to an opinion on the causal connection on the claimed mechanism of injury and the need for narcotics. Mr. Cordray remained adamant that he noted which narcotics the Claimant had been prescribed and how much he was taking and the effects which were the result of those narcotics, without attributing these to work-related injuries or preexisting or subsequent conditions." O'Connor v Construction Material Trucking, 2012 Mo WCLR Lexis 135 (July 3, 2012). Additional evidentiary objections were over-ruled that expert testimony was not "signed and read".
ALJ Siedlik (affirmed 2-0)
Experts: Stuckmeyer, Cordray
Claimant was PTD with entitlement to open medical after jumping over a 6 inch cone, resulting in three back surgeries and implantation of a spinal cord stimulator. Claimant's expert testified that fentanyl use precluded claimant's employment: "We're on a hundred micrograms every forty-eight hours. And she still has medications, Flexerill, Efexor that she uses as well. The doses, even with the activities that she has, is just--it's too high. I just think that she is not capable of working at all. I think that the -- if she tried to work even a couple of hours a day the doses would be off the charts and she would not be controlled even with the highest dose of Duragesic." The employer provided about $250,000 in medical and lost time benefits and offered employment with accommodation but argued in its brief that claimant was "content" to collect disability and not work. Pennewell v Hannibal Regional Hospital, 2012 Mo WCLR Lexis 117 (June 18, 2012). [Pennewell was appealed and is scheduled for oral argument on 1-15-2013, ED 98706]
ALJ: Dierkes
Atty: Morthland
Treaters: Abernathie, Kennedy, Feinberg
Experts: Cantrell, Blaine
Claimant was PTD after a roll-over truck accident that knocked his shoes off. He required conservative care and radio ablation for herniated discs in his back and neck. He reported he must lie down at times and that meds make him drowsy. The ALJ noted that a herniated disc is a "serious injury". Medical mileage was denied when it was not documented. Richardson v Ryan's Trucking, 2012 MO WCLR LEXIS 74.
ALJ Allen
Atty: Lewis
Tx: Ofori
Experts: Poppa, Munneke, Koprivica, Titterington, Dreiling
Claimant alleges the groggy effect of using tramadol daily precluded gainful employment. The commission rejected his claim of PTD, in a 2-1 vote, although the dissent noted the deleterious effect of claimant's medications on claimant's capacity to work. Claimant underwent 2 surgeries for a biceps injury after unloading timber from a truck and reported intractable pain that required him to take medications and daily naps. Patten v Cedar Creek, 2011 Mo WCLR Lexis 258 (Dec. 19, 2011)
ALJ Mahon
Atty: Wesley, Wohlford, Colburn
Experts: Bennoch, Cordray, Hedges, Woodward, Getter
A claimant alleges she was "constantly in a fog" due to lack of sleep and cannot drive due to pain in her back and knees and must lay down frequently. She alleges she hurt her knee in a self-defense class, and then subsequently developed chronic back and bilateral knee pain due to abnormal weight bearing. Arnold v Mo. Dept. of Correction, 2011 MoWCLR Lexis 201.
ALJ Tilley
Atty: Doug Van Camp, Gregg Johnson
Experts: Mace, Browning
A 49-year old nurse injured her back lifting a patient in 2002 and suffered chronic pain after three back surgeries, ultimately resulting in a 2-level 360 fusion and implantation of a morphine pump. Claimant's expert concluded medications impaired claimant's capacity to make any professional judgments. The Commission affirmed an award of permanent total with open medical, but reduced the compensation rate and concluded the ALJ could not award specific care based on a life care plan. The award for past medical included a staggering figure of $543,737.
ALJ Lane
Atty: Hennessey, Early
Experts Musich, England
Treaters: Coyle, Sheehan, Kennedy
A Dangerous Building Inspector was found unable to work as a result of a 2002 accident when his right foot became stuck in a hole, based on a 88-page opinion affirmed by the Commission. Pace v. St. Joseph,
2011 MO WCLR Lexis 166. Claimant, 59, developed a cascade of problems following a knee surgery for a torn meniscus: DVT, RSD, and reactive depression. His wife testified he is no longer a happy man and cannot play golf or scuba dive. As a result of instability, he describes several subsequent falls at work until he was fired in 2005. He states his leg continues to "kill" him and his world moves "in slow motion." The administrative law judge found claimant required "massive" amount of narcotics. Claimant states he subsequently fell and injured his shoulder and developed carpal tunnel from using crutches. The employer relied upon an expert who agreed claimant was unemployable, but attempted to apportion the condition in part to pre-existing conditions. A bone scan did not corroborate findings of complex regional pain syndrome and some of the doctors disputed the diagnosis and basis for claimant's complaints of chronic burning pain.
ALJ Miner
Atty: Creedy, Shine, Eisfelder
Experts: Abrams, Titterington, Koprivica
Claimant received PTD benefits flowing from a 1999 incident as a result of trying to move a 350 pound pump, resulting in treatment for chronic back pain, piriformis syndrome and depression. ALJ Meiner found claimant's symptoms credible that he could never return to work including his complaints of frequent pain, falling down, and heavy narcotic use of medication. Claimant consulted a doctor before the accident for radiculitis, and did not identify a work-history during two initial medical visits, but a company nurse and co-worker were aware of the accident. The employer had been ordered to provide treatment previously in a temporary award. It is not clear why the case took more than 10 years to proceed to a final hearing. The case is Gibbons v The Quaker Oats Co., 2010 MO Lexis WCLR 57.
Attorneys; Knepper, Johnson
Experts: Koprivica, Crislip, Abram, Schmidt, Titterington, Poppa, Montaya, Quintero
ALJ: Meiners - PTD
In Kuhnlein v City of Kansas City, 2010 MO WCLR Lexis 96, the adminstrative law judge found, in a second injury fund claim of PTD benefits, vocational testimony unpersuasive that claimant was permanently and totally disabled based on claimant's use of narcotic medication, when the use pre-dated the primary low back strain. The judge also found unpersuasive that claimant didn't introduce evidence of vocational test results becuase of his dependence on narcotics.
ALJ: Mueller
Expets: Titterton, Walker
Claimant preivously used narcotics "to work" supported claim for permanent and total disability benefits for claimant sawyer with chronic shoulder and back pain. Vermillion v The Layman Co., 2011 MO WCLR LEXIS 228 (11-10-11)
ALJ Holden
Atty: Wise
Experts: England, Eldred
Claimant did not establish that she was permanently and totally disabled due to chronic pain that required daily Fentanyl doses, although her expert testified that drug side effects and pain complaints precluded her capacity to work. The administrative law judge noted that claimant's reported "need to lie down" was not corroborated by medical recommendation or restriction. Claimant was a 63-year old card dealer injured in 3 accidents in 2002-2003 including a repetitive trauma claim to her shoulder from dealing cards and a back accident from falling at work. She ultimately underwent shoulder surgery for "calcium buildup" and percutaneous discectomy for markedly degenerative thoracic discs, with no prior history. The employer had advanced $20,000 for the 8 year old case. The Commission affirmed 2-1 in Carter v Harrah's North Kansas City, 2011 MO WCLR Lexis 5.
ALJ Miner
Atty: Manson, Fox, Fleet
Experts: Stuckmeyer, Condray, Clymer, Thomas
Claimant lost a permanent total claim against the second injury fund, due to lack of credibility that he needed to lie down during the day and that he had disabling anger management issues. Claimant settled with the employer and received a partial disability award against the second injury fund for prior psychiatric, hand and knee conditions.
The administrative law judge compared the impact of claimant's pre-existing conditions on his ability to compete for and maintain employment. Claimant sustained employment as an iron worker for 35 years prior to his accident. He pursued only minimal conservative treatment for his bulging disc , and he settled his claim against the employer for back and psychiatric disability for a "mere" 15%. Claimant's psychiatrist expert rated 40% pre-existing disability and included factors such as a prior "chaotic family" and personality disorder. A witness confirmed that police had been called at work because of claimant's anger management issues.
The administrative law judge considered claimant's prospects of future employment. Although the PTD statute considers "any" employment, claimant stated he would not consider jobs that did not pay an appropriate salary. The administrative law judge further concluded that more effective recent psychotropic drugs made "it is reasonable to believe Claimant’s chances of securing and maintaining employment in the future will improve."
Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117.
ALJ Landolt
Experts: Volarich, Stillings, Gonzalez
Atty: Sievers, Barnard
A 38-year old failed to convince the Commission that she was PPD and not PTD due to prior conditions which included substance abuse. The claimant argued the effect of narcotics impaired her capacity to concentrate and work with others and hindered her ability to return to a former job as an emergency dispatcher. Watson-Spargo v Treasurer of the State of Mo., 370 S.W.3d 292 (Mo. App. 2012). The dissent indicated no deference was required when the Commission based its opinions on flawed reasoning, and that the vocational expert relied upon in the decision never expressly made the finding that an employer would be reasonably expected to hire claimant.
Experts: Koprivica, Franks, Swearingin
A 56-year old claimant receives permanent and total disability benefits because she states she can't sleep, can't stand, and has to take narcotics every day as a result of an injury to her ankle when she fell on a shoe string while working as a housekeeper. The treating surgeon felt she required a cane following repair of her achilles' tendon repair and restricted climbing, prolonged standing, lifting, and carrying. Her employer wouldn't take her back to work with a cane and she went on social security disability. A vocational expert concluded she was unable to work due to a combination of her ankle injury and pre-existing conditions and that her restrictions limited her to less than full sedentary work. "Claimant's daily use of narcotic pain medications, sleep disturbances, and the need to recline are evidence that she is permanently and totally disabled as a result of the last injury alone." The ALJ limited future medical to physical therapy and ankle braces alone and declined open medical for narcotics. "[R]ecords indicate that the claimant was already on narcotic pain medication prior to the work injury" but "claimant was able to work in a Heavy physical demand level job without restriction prior to the injury of July 2, 2008. Mr. Eldred was unable to indicate any job duties claimant was unable to perform prior to July 2, 2008 based on her pre-existing conditions." Claimant states her left ankle swells unless she elevates it. The award indicates she is over 300 pounds and had just returned to work for the employer part-time following surgery to the left knee. Thompson v Frene Valley Healthcare, 2012 Mo. WCLR Lexis 134 (July 2, 2012).
ALJ Dierkes (2-0 affirmed)
Atty: Barnes
Experts: Eldred, Carr
Treater: Trevino
