Business owner proves himself a total with a new back injury

The commission affirmed an award of lifetime benefits for disability for a new back injury despite a tumultuous history of prior back problems, according to the recent  case Laster v Laster, 2013 MO WCLR Lexis 218 (December 5, 2013).

The tale begins in June 2005 when a 43-year old claimant states his back and leg hurt lifting a shop vac out of a van.   Claimant ultimately sought treatment in mid-July and by the end of the summer he was diagnosed with a disc herniation.  By January 2006 claimant had a L3-5 fusion.  In 2007 claimant was back in surgery again for a failed fusion and underwent revision surgery.   He described constant back and hip pain.  His surgeon felt he could work and could not explain claimant’s symptoms from a solid fusion.   Claimant, as the company owner, apparently self-directed care back to his own personal surgeons (Kennedy and Robson) and  pain management with Drs. Barry and Rachael Feinberg.  Claimant’s testimony was unchallenged that he earned $1000 a week despite the lack of any documentation. 

When the last accident was of a magnitude to render claimant disabled by itself  the prior conditions are ignored.   In this case after claimant’s accident in 2005 he treated for several years, underwent two multi-level back surgeries, and the specials approached $400,000.  Claimant described severe symptoms with any activity and a need to lie down frequently for pain relief.    ALJ Kohner noted it was “confusing” that Dr. Poetz alternately appeared to argue that that the Fund was liable, unless it wasn’t, and then the employer was liable.

Dr. Poetz, claimant’s expert, did not testify there was any synergistic effect with prior back disabilities to invoke any Fund liability.     In a different time this type of case was a slam dunk for fund liability with claimant's   7 year history of back pain, previous settlements for disability, a prior two-level fusion, and  an incapacity to work for most of the 4 ½ years before his latest accident.  The ALJ found Dr. Poetz’ opinions the last accident alone rendered claimant PTD was the only “clear forensic evaluation on this issue.”   The ALJ noted the testimony was apparently admitted without objection to Dr. Poetz’ qualifications and that he “appears” to be a licensed physician to render such opinions.

The ALJ awarded open medical and concluded expert testimony from Dr. Robson that he had nothing further to offer orthopedically could not be construed that claimant did not require any future care.  The ALJ accepted that claimant may require imaging studies and additional conservative treatment.  Claimant testified he treated his intractable back pain with Aleve and felt stronger medications impaired his ability to interact with his children. 

These facts beg the question whether claimant was not already an odd-lot total even before the latest accident if the only way he could work was by being his own boss.   The fact that claimant failed attempts to return to work after the 2005 accident appears to only reinforce that issue.  The ALJ noted claimant started his own firm because he could not find any job in the labor market with his restrictions and as the owner he had the unique ability to control his own accommodations and avoid activities.  Claimant had been out of work because of chronic back pain and had operated the business for only a few months before asserting he had a new injury. 

Commission finds worker a total for back strain despite reading problems

A claimant with reading difficulties was awarded total disability for a back strain.  Barker v Laclede County, 2013 MO WCLR Lexis 219 (December 9, 2013). The ALJ concluded the incapacity to work flowed from the last accident alone even though learning difficulties further impaired the worker's capacity to work or obtain vocational retraining.

Claimant, 62,  described disabling back symptoms  following a 2010 accident for a back strain superimposed on degenerative changes.  An FCE indicated he was limited to handling 14 pounds.  An annular tear was suspected but never confirmed on MRI.   Claimant obtained a report from Dr. Volarich who felt he had permanent partial disability and imposed various  restrictions.  Claimant's vocational expert concluded claimant was unemployable.    The employer contends claimant was able to return to driving a truck, an expert found he could work without restrictions, and claimant on his own  had a 35-head cattle farm.

The Commission affirmed the decision, without a separate opinion.  The decision contained a detailed discussion of the employer defense that any inability to work was not  the last accident alone because claimant's reading difficulties combined with his primary injury to limit his ability to work.  

The ALJ noted the employer failed in its burden to show that claimant's inability to work flowed from a combination of prior medical conditions.   No one established an inability to read flowed from a medical condition.   The fact that claimant attended special education classes according to school transcripts did not support the inference that he had a learning disability.  A vocational expert declined testify as to the specific diagnosis.  The ALJ further accepted that claimant's illiteracy was not a prior vocational barrier, even though the voc experts indicate the same condition after the accident is toxic to his ability to work or  his ability to retrain..

The employer offered literacy classes for claimant to read which claimant refused to attend.  The ALJ dismissed the offer as it  "occurred in the context of litigation and the employer and insurer defending against a claim of permanent total disability." It is unclear from the opinion whether this offer was a  tender of vocational services under 287.149.   Claimant denies he was offered any classes and the ALJ found he lacked credibility on this issue but his pain complaints were considered credible.    The ALJ  noted that it was "reasonable" for claimant to not pursue  to classes as the employer was not offering to pay claimant TTD at the same time.  It is "understandable" that he "would not be eager or desirous to pursue such a program...." and any failure to refuse could not infer a desire not to work." 

The case visits a familiar theme that if an ALJ believes claimant is in too much pain to work and finds at least one expert to agree the employer buys the claim even though the diagnosis is not typical for total disability or the claimant has a "egg-shell" skin, a weak spine more prone to injury, or only a few arrows in his educational quiver.  The employer was able to obtain only some prior school records (the fact it obtained any at all is somewhat amazing given claimant's age) but hit a profound tactical problem of blaming the Fund when the Fund was not even in the court room and had not been named as  a party. 
   
ALJ  Wilson
Atty:  Murphy, Barnhart
Experts:  Volarich, Eldred, England

Commission modifies award to allow total disability

The Commission modified an award of 50% BAW to Permanent Total Disability to a state employee of a prison who hurt her neck when she backed into a dock and found the employer's vocational testimony that jobs were available just wasn't enough that jobs were available for her.  Ketchum v Mo Dept. of Corrections, 2013 Mo. WCLR Lexis 215 (Nov. 22, 2013).

The case involved a 58-year old employee who was diagnosed with multi-level arthritis and a lateralized disc.  The employer's treating physician, Dr. Coyle, went ahead with a three-level fusion and released claimant 6 months after her surgery.  She returned to work for a month and then went on long-term disability.  She told her expert after the surgery she still felt horrible.   ALJ Strange awarded her 50% disability, and rejected opinions from claimant's vocational expert that she was unemployable.  Claimant's expert asserted that she had no prior disability and her neck before the accident was totally asymptomatic.

The Commission, however, modified the award to total disability.  The commission concluded that it was the employer's burden to rebut  a PTD case to show that claimant could work, that positions exist in significant numbers in the open labor market and the claimant could reasonably compete for positions.  The employer's vocational expert indicated claimant was capable of performing jobs such as a cashier, a home health care worker, and security work.  The Commission concluded it could not assume such factors without testimony apparently calling for too much of a leap of faith that Missouri has a lot of cashiers and home health care workers or to make an inference that a claimant can work certain jobs means a claimant can work certain jobs.  The case is a clear warning to prove every statutory defense explicitly instead of relying upon reasonable inference. 



ALJ  Strange
Atty:  Van Camp
Treaters:  Coyle, Guarino
Experts:  Eldred, England

IL Guarantee Fund must pay ongoing benefits owed by insolvent excess comp carrier

In a recent Illinois Supreme Court decision the question was who was going to keep paying a PTD  award related to a 1985 accident   with more than a million dollars in prior benefits when the excess carrier became insolvent and the Guarantee Fund refused to pay any more.  The case is Skokie Castings v Illinois Ins. Guarantee Fund, 2013 IL 113873 (October 18, 2013).

The case involved an appeal by the Fund from summary judgment by the circuit court that it had to continue to pay benefits and reimburse the employer for benefits paid after its refusal.   The Guarantee Fund asserted it had no further obligations because of a  $300,000 cap on Guarantee Fund claims and an exception did not apply for "any workers compensation claims"  (215 ILCS 5/537.2) because the case involved an excess carrier. 

The employer had an excess policy with Home Ins.  It paid the first $200,000 based on its self-retention limits.  Home became insolvent before fulfilling its contractual obligations.    The Illinois Guarantee Fund stepped in and paid the next $300,000, and claiming the cap of 215 ILCS 5/537.2 applied.    The Fund refused to pay any more claiming the cap applied and the employer then stepped in and paid the next $500,000.

The court indicated the issue was resolved as a matter of insurance law. 

"For purposes of the Fund, a covered workers’ compensation claim is therefore an unpaid claim for a loss “arising out of and within the coverage of” a workers’ compensation insurance policy to which this portion of the Insurance Code applies and which is in force at the time of the occurrence giving rise to the unpaid claim."  The court concluded that the cap did not apply and the Fund's attempt to distinguish primary and excess coverage was untenable. The Guarantee Fund's should honor the excess carrier's obligations even if  they may exceed its $300,000 cap for non-comp claims. 

 

A dissent found the conclusion unsupported as a matter of statutory construction and contract interpretation  but praised the explanation of comp benefits as "intellectually enriching" and "alluring in its simplicity." 

 

 

 

 

 

 

 

 

 

 

 

 

Supreme Court announces new standards for Fund cases

The Missouri Supreme Court has now spoken on what prior injuries "count" for purposes of accessing second injury fund benefits in Missouri worker's compensation cases in 4 new cases appealed last year by the Fund:  Witte, Salviccio, Dyson and Buhlinger, in an en banc decision issued on November 12, 2013. (No. SC 92834, 92842, 92850, 92867). 

Since 1993 the legislature required numerical thresholds for an injured worker to access the Fund. This change was to limit access to the Fund by preventing de minimus injuries to trigger fund liability.  Section 287.220.1 provided an employee must have a prior injury of at least 15% of an extremity or 12 1/2% BAW. 

The question presented in these cases to the Supreme Court was whether each separate prior condition had to meet the threshold or whether they could be combined.  The Commission awarded benefits in all four cases and the awards were enhanced by stacking prior conditions that separately did not meet the threshold.  The Court affirmed the awards  in three of the four decisions.

The Supreme Court interpreted 287.220.1 to require proof of at least one single pre-existing  condition that meets the threshold to trigger the fund's liability.  After that requirement is satisfied,   all preexisting injuries must be considered in calculating the amount of compensation for which the fund is liable. 

The Court concludes that "section 287.220.1 does not require a disability from the last injury alone to meet  a numerical  threshold to trigger liability" and over-rules multiple court of appeals decisions supporting that requirement. 

The court concluded the Commission erroneously stacked disabilities to meet the initial threshold level based on the plain and unambiguous language which refers to disability in the singular and not in the plural form.  Similarly, the court found the Commission combining major extremity injuries to BAW injuries by using a common unit of measurement was not supported by the language of the statute.

The Court notes the legislative purpose behind having thresholds in the first place is "not clear".  The court notes the general legislative purpose of the Fund  is to encourage employment of individuals who are already disabled.  The purpose of thresholds clearly facilitates that purpose when the disability is obvious to a potential employer.  This made a lot of sense in 1943 when the Fund started before ADA, GINA and other limitations in inquiries about a job candidate's medical condition. 
There is no need for a Fund for this goal when the employer cannot inquire about medical conditions or the prior condition is so de minimus that no reasonable employer would perceive it to have any potential to combine with a new injury. 

The General Assembly in 2013 limited eligibility for the Second Injury Fund which take effect on January 1, 2014, but the changes have no retroactive effect. 

 The decision is early Christmas  for anyone with a pending SIF case with at least one prior condition that meets threshold as it creates an opportunity to enhance a Fund award by adding up minor conditions that would not otherwise qualify. The Fund is already burdened with millions of dollars in unpaid obligations for cases that met the previous statutory  threshold.  This latest decision greatly expands Fund liability. It is the legal equivalent of  a free round of drinks as the Titanic clips the iceberg. 


See also

   
Paule v Coibion Concrete, 2013 Mo WCLR Lexis 217 (Nov. 26, 2013). The commission approved a joint motion of resolution agreeing  that a prior disability of 10% for a back condition qualified for Fund benefits. 

'It's a trap!' : Procedural pitfalls

The court of appeals recently told a pro se worker that rules were rules and it was too bad that the Division sometimes seemed inappropriately rigid in a system what wasn’t supposed to get too hung up on technical rules.  Burchfield v Renard Paper Co., No. ED 99151 (Mo App. July 16, 2013), 2013 MO App. Lexis 837.

The Commission insists on proper procedure, at least, most of the time.

Depositions which contain a request for production of videos produces an ongoing duty to supplement evidence based on Rule 56.01(e), even in the absence of a separate subpoena duces tecum.   Burlison v Dept. of Public Safety, 2015 MO WCLR Lexis 10 (Feb. 6, 2015).   The employer indicated it had no duty to provide video obtained after the deposition because there was never a subpoena served nor any duty to supplement.  The ALJ found Rule 56.01(e) set forth a duty to seasonably amend a prior response to a request or production and excluded the video. As the employer did not produce video acquired after the deposition the ALJ barred use of two days of surveillance to defend a PTD claim from a person who stated she could not use her arm. 

The Commission insisted on a proper foundation to admit a deposition.  Walker v Bon Appetit Management, 2013 Mo WCLR Lexis 165 (August 29, 2013)

A deposition was properly excluded from evidence based on Rule 57.05 when deposition in Missouri taken by out of state notary public.  Lewis v City of Liberty, 600 S.W.2d 677 (MO App. 1980).  It was the employee's deposition and no one had appeared rom the employer and the court notes there were "vague and inconclusive charges and countercharges" between "counsel on both sides relative to whether the noticed deposition had been cancelled."

Medical records addressing pre-existing conditions were not newly discovered records and could not be submitted on appeal before the commission when the pro se claimant could have submitted the 650 pages of records at the hearing for PTD.  Hilderbrand v Fry Wagner Industrial  Moving, 2014 MO WCLR Lexis 108 (Sept. 5, 2014) (denying benefits).

The failure to make a timely offer of proof did not preserve error concerning the admission of exhibits which were not certified.  Calvert v Treasurer of the State of Mo., 2013 Mo. App. Lexis 1429 (Nov. 27, 2013) ("This Court assumes the absence of a reference to the exhibits in its Final Award Allowing Compensation was a de facto exclusion of those exhibits by the Commission.... Claimant's attempt to make an offer of proof by filing an "Offer of Proof as to Exhibits M, M, P, Q, R and T" with the Commission fails to preserve the issue for appeal.")

The failure to file a timely answer resulted in the alleged rate of maximum benefits whether that representation of earnings is accurate or not.  T.H. v. Sonic Drive In of High Ridge, 2012 Mo App Lexis 1585 (December 18, 2012); 2012 Mo WCLR Lexis 102, DOLIR 3-1-2013.   On the other hand, an allegation of a specific amount of disability on a claim form doesn’t work the same way.  Taylor v Labor Pros, 392 S.W.3d 39 (January 8, 2013).

The commission excluded a vocational report as hearsay when attached to the opinion of a medical expert.  Smith v Roberts Dairy, 2014 MO WCLR Lexis 81 (June 13, 2014).  The commission rejection an offer of a medical report which was attached to the brief and "inadvertently" excluded from the transcript.  "For obvious reasons, this purported report does not constitute evidence, nor can we consider it now."  Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84. 

The Commission enhanced an award for medical bills, rejecting a defense based on an affidavit that claimant no longer had liability for the repriced bills.  Maness v City of Desoto, 2013 Mo WCLR Lexis 184 (5-24-2013). The Commission reversed an award of nearly $53,000 in medical bills because the affidavits to the bills were incomplete, unsigned, contained unexplained redactions or were inconsistent with the page numbers of the exhibits. Bartels v McDonald, 2013 Mo WCLR Lexis 61 (3-27-2013).

The commission precluded an  employer from amending an answer to deny accident an hour after the hearing in a temporary award started.  The ALJ found the employer was bound by its earlier admission, and that additional facts supported the finding of accident.   Morris v Curators of the Univ. of Mo., 2013 MO WCLR Lexis 159 (August 22, 2013).

The Commission allowed  sanctions for denying benefits without proper explanation.  It is a paradigm of ‘show your work.’  Nouraie v Mo Baptist Hospital, DOLIR  2013 Mo WCLR Lexis 52 (3-13-2013).  The commission suggested the adjustor misinterpreted medical records as a basis to deny the claim. “We think employer's act of denying workers' compensation benefits to employee before even discussing the alleged injury with employee constituted an egregious offense.”

The ALJ rejected a 7 day rule objection based on new medical opinions about causation find that the rule did not apply to issues of causation.  Greer v Sysco Food, 2014 Mo WCLR Lexis 3-28-2014.  The expert conceded he never used the statutory language of prevailing factor in any of his reports.

In an unemployment case, an issue arose whether an appeal was filed by the correct business entity when there were two entities involved including the company (Joplin Stone)  and the parent company (Springfield Underground).   A HR manager for Springfield filed the appeal.  Claimant testified that the same manager worked for Joplin Stone.   Rule 5.29 allows appeals by an officer in managerial capacity of the business entity.    The court of appeals affirmed the Commission's objection to the Division's argument that the appeal lacked standing because the wrong entity filed an application and such a appeal constituted unauthorized practice of law.  The court of appeals rejected the Division of Employment Security's appeal for the same reason the Division objected to the appeal:  lack of standing.   There was no statutory basis for the Division to appeal its argument because issues about unauthorized practice should be pursued elsewhere and there was no standing as an "aggrieved" party under 288.210  for the Division itself to raise the party in this appeal.  In re Howard v Joplin Stone, SD 33251 (Sept. 24, 2014). 

In a tort case, an issue arose whether survivors could recover pre-judgment interest on a $15,000,000 bench verdict when the defendant admitted he drove recklessly causing a roll-over resulting in a fatality.  The prejudgment interest statute of 408.040 has specific procedural requirements and any demands must include  "for wrongful death, personal injury, and bodily injury claims, be accompanied by a list of the names and addresses of medical providers who have provided treatment to the claimant or decedent for such injuries, copies of all reasonably available medical bills, a list of employers if the claimant is seeking damages for loss of wages or earnings, and written authorizations sufficient to allow the party, its representatives, and liability insurer if known to the claimant to obtain records from all employers and medical care providers...."
The court noted the failure to provide the requisite releases precluded a claim for prejudgment interest based on legislative intent even if there was no prejudice.
Hawley v Tseona, WD 76358 (Mo. App. 2014).  (Nov. 25, 2014).  Interestingly, the Mo comp statute has no similar requirements for disclosure. 



 




 

Commission finds no remarriage penalty for PTD cases

The cost of remarriage is getting a lot of attention in Missouri comp lately.

In the normal course of events, a surviving spouse who decides to remarry loses ongoing benefits but can receive a lump sum.   That's section 287.240, for those keeping score.

The court of appeals recently decided how much remarriage costs a surviving spouse. It concluded that  statute  actually involved two different types of benefits for remarriage and survivor benefits, and  decided the surviving spouse could receive the higher rate as a two-year survivor benefit because it found different methods of calculating compensation rate for each type of benefit.    Ash v Millennium Restoration and Construction, SD 32381 (Mo.. App. August 27, 2013); 2013 Mo App. Lexis 1005,

In a new 2-1 Commission case,  Shelton v Titan Plastics Group, 2013 MO WCLR Lexis 201 (Oct. 10, 2013), the Commission charts bold territory and decided in cases pending before June 26, 2008 a spouse who remarries doesn't lose any lifetime benefits at all.  How can this be?   The Commission decides the 287.240  doesn't apply at all the surviving spouses receiving benefits under Schoemehl because benefits paid after a death of a claimant just aren't death benefits.

The commission  affirmed  PTD benefits against the Fund.  The Fund offers no medical evidence to defend its defense against PTD and argues on appeal the Commission should ignore the Supreme Court.  The ALJ adopts the disability opinions of claimant's expert.  The case arises from a 2003 accident in Butler County when the claimant had orthopedic injuries after he was injured by a forklift truck.  He died nearly 9 years later before a hearing and was awarded permanent partial disability benefits against the employer and permanent total disability against the second injury fund. 

Here's Schoemehl 101 :  "In Schoemehl v Treasurer of State, 217 S.W.3d 900 (Mo. 2007),  the Court stated, Section 287.240.4, which applies to the entire workers' compensation chapter, states that "[t]he word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, whole or part, upon his or her wages at the time of the injury." Emphasis added. As such, any "dependent" would have to be born and dependent at the time of the injury.  The holding in Schoemehl was subsequently abrogated with the passage  of Mo. Rev. Stat. 287.230.2,, which was effective June 26, 2008."

The  case is a clear provocation to appeal and force the appellate court to directly address  issue raised in White v Univ of Mo.,  375 S.W.3d 908 (Mo. App. 2012) suggesting that remarriage divests any entitlement to ongoing benefits. The majority of the Commission suggested that the court of appeals really didn't mean it and it was all dicta. 

A dissenting commissioner argued that Schoemehl decision provided a lamentable windfall  and that the majority's interpretation to ignore the remarriage penalty was wrong.  "If it is proper to use the favorable portions of the "dependent" definition to trigger the substitution of the dependent as the "employee" entitled to permanent total disability benefits, then it is equally proper to use the unfavorable portions of the definition to trigger the point at which the substitution and benefits end."
 Shelton is more important as a reflection of  trends of Missouri's new commissioner than for its general application as the decision which arguably matters only to workers that have had cases dragging on before June 2008.   The fact that this case lingered more than 10 years before reaching any hearing is a clear warning just how many cases may be lurking in the shadows.  

ALJ Strange
Atty:  Little

SIF defense fails based on inconsistent medical history

The Commission affirms an award of permanent total disability against the Second Injury Fund for a 66-year old corrections officer who alleges her right knee popped when she twisted suddenly after she heard a loud noise descending steps.  Simon v St. Louis County, 2013 MO WCLR Lexis 202 (Oct 11, 2013). 

Claimant asserts the accident tore her meniscus and made her chondromalacia symptomatic.
The Commission rejected defenses of causation and considered the SIF's expert documented an incomplete medical history which did not fully describe a twisting episode.  The defense was "undermined by his [Dr. Nogalski's]  failure (for whatever reason) to obtain and/or to record an accurate history of injury."  Claimant had treatment  involving the leg knee and prior right leg issues related to a heart condition.  The SIF did not dispute the occurrence of an accident.  The employer settled the case prior to the hearing. 

ALJ:  Lane
Atty:  Kendrick, Hudson
Experts:  Volarich, Nogalski

SIF recovery fizzles from accident during a failed attempt to return to work

The typical SIF case involves recoveries where a pre-existing permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability.   227.220.1  What if the claimant is not "really" working in the open labor market at the time of the primary injury and  he doesn't have a prior permanent partial disability but a prior permanent total disability?  Hembree v Jerry Bennett Masonry, 2013 MO WCLR Lexis 199 (October, 3, 2013) deals just with that problem.    One can be working full-time but still deemed unable to work for purposes of being totally disabled under the Missouri comp statute.

In this case Mr. Hembree, a former bricklayer,  went back to work after a major 2006 accident as a tuck pointer and as a clean up man. He went back in work in January 2007 and continued until October 2008 about the time he developed a cyst on his non-dominant left hand.  Contrary to claimant's own position, the commission finds for 1 1/2 years he engaged in a failed return to work and he really wasn't working after all in the open labor market.     Since claimant was already totally disabled at the time of his October 2008 claim he couldn't access the second injury fund because he didn't have prior partial disability.  As a result, the Commission reversed an award of life-time benefits to the 61-year old claimant  against the fund.

Claimant's experts  revised their opinions to support a claim that the 2008 un-operated ganglion cyst combined with prior conditions to render claimant totally disabled, even though their earlier opinions attributed total disability to an 2006 accident.  Claimant had settled with the employer for both the 2006 and 2008 accidents. What is unclear from the opinion is whether or not claimant had a second injury fund recovery also in the 2006 accident based on allegations of total disability. That would make the decision of the Commission even clearer if claimant had already had one bite at the SIF apple. 

The court of appeals affirmed the decision on July 2, 2014 MO Lexis App. 747,and rejected the assertion that the denial  cannot be based on a credibility determination when the claimant offers a vocational expert and the SIF offers no expert. "the SIF was under no obligation to produce any evidence whatsoever regarding Claimant's workers' compensation claim, including any vocational expert testimony. Claimant cites us to no relevant legal authority holding otherwise." The commission was free to disbelieve  "self-serving testimony regarding the type and intensity of his employment following the 2006 Injury."

ALJ Wilson
Experts:  Koprivica, Lala

Other working total cases:


 In Scott v Treasurer of the State of Missouri, No. WD 76602 (Jan 14, 2014), 2014 MO App. Lexis 32, the Commission  denied benefits for a claim against the second injury fund on the defense that claimant was already a "working" total and not really working when he was hurt at work so he failed to prove his liability against the Fund from a combination of primary and prior impairments.  The proof of PTD is that in the ordinary course of business, no employer reasonably would be expected to hire the injured worker, given his present physical condition.  The court reversed the denial of Fund benefits.

Claimant operated heavy equipment and performed excavation and incorporated his business.  His brother, "wives" or other employees handled the paperwork.  Claimant stopped working in 2009 after a shoulder injury, after having sustained multiple previous injuries.  The court found that the Commission mischaracterized the record that claimant resumed only limited duties following a 2001 accident when he had broader activities of lifting, loading, and vehicle maintenance duties and that he would operate pieces of heavy equipment for as much as eight to twelve hours a day and the finding that claimant was told to stop working was not supported by evidence that claimant may have been to stop working so fast.  The court also noted that vocational testimony that claimant could not find work in the open labor market because of a need to change posture every 1-2 hours based its restrictions on limitations which arose after the primary injury.

The Scott decision is simple, in some respects.  The Commission didn't make findings consistent with the record.  Try again. 

 Claimant needs to prove for Fund liability prior hindrances or obstacles to his employment but not conditions that were so disabling that there was no combination with the primary injury.  Claimant introduced evidence of various prior conditions.  The vocational expert indicated that claimant
 is highly-accommodated and can't be considered really working because no reasonable employer would accommodate  him as much as when he acts as his own boss.  The court essentially noted that claimant is performing duties typical of his profession and hours typical of his profession and that self-accommodation arose after the last accident.

The better test to determine whether claimant is "really" working needs to depart from the fiction of what a "reasonable" employer would do and return to reality, as the court did in this case, to look at claimant's capacity to perform jobs and the type of schedule claimant worked.     There are  21 million self-employed businesses in this country and more than 237,000 micro business in Missouri with fewer than 10 employees.   A smaller business or self-employment by its nature may provide greater freedom and accommodation which might not be available in a bigger business.  The fact that there may be accommodation available in this setting misapplies the statute.   The suggestion by vocational testimony in so many cases  that running a small business is not really working in the open labor market may be to a shock to hard-working small business owners in Missouri.

In Scott v Scott Excavating, 2014 MO WCLR Lexis 73 (June 10, 2014) the Commission found PPD benefits from the second injury fund and that the primary accident combined synergistically with prior conditions, contrary to the opinion of the ALJ that claimant was not employed in the open labor market because he accommodated his performance through self-employment. 

A claimant who is working but not "really" working cannot have a new claim of disability if he is already disabled, according to a recent Missouri decision.  Archer v City of Cameron, 2014 Mo WCLR Lexis 15, and 2014 Mo WCLR Lexis 16 (Jan 30, 2014).

Archer hurt his back on two occasions while working for City of Cameron.  In 2008 he was driving a skid loader,  struck a manhole, and he hurt his spine.  He returned to  work  with 25-50 pound restrictions for another 2 years performing labor with the help of co-workers.   Claimant worked until 2010 when he had another accident to his back bending over and was placed on 5 pound lifting restrictions while treating for an acute  strain.

The ALJ concluded claimant reported increased symptoms after 2010 so he had a new 7 1/2% permanent disability  contrary to medical opinions.  The ALJ awarded  partial disability in the 2008 and 2010 accidents against the employer and   total disability against the second injury fund from the 2010 accident.

The Commission  reversed the award of  liability in the 2010 case against the employer and the second injury fund.  It relied upon medical opinion that claimant was totally disabled as a result of the 2008 accident  and shifts liability for a total from the financially challenged second injury fund to the employer.  It  found that the ALJ erred finding claimant employable in the open labor market in 2010  contrary to medical opinions that the 2008 accident rendered him totally disabled because claimant had gone back to work for 2 years.  The Commission concluded "We find that during employee's return to work, employee was not performing the usual duties of his employment in the manner that such duties are customarily performed by the average person engaged in such work. Consequently, employee's return to work did not constitute proof that employee could compete for work in the open labor market."  The Commission concludes that the degree of claimant's accommodation (taking breaks, obtaining help, missing days) would not be available to any other applicant in the open labor market in an arms length transaction.

 The Commission reached a similar conclusion in  Ives v Triple Crown Services, 102 Mo WCLR Lexis 26 (December 28, 2012) found a claimant who returned to work for 6 years wasn't really working and disregarded opinions of the ALJ that claimant worked in the open labor market.

  This case demonstrates a stronger exercise of the de novo powers by the Commission. Whether claimant is working or not "really" working based on the level of accommodation is a critical issue. The party facing a claim of total disability  ignores this issue at its peril.    The case  demonstrates the easy burden to show a return to work is a 'failed' return to work even in an economy where most people don't remain employed by the same business for life.  Employers who bring an injured worker back to work may received benefits of their experience but the benefit of returning an injured worker as a shield to a PTD claim may be a very weak one with the current Commission. 

 ALJ Mieners
Atty:  Stracke, Kupin, Wiles
Experts: Stuckmeyer, Wheeler, Dreiling, England
Treater:  Middleton


**
A claimant who is working but is highly accommodated is still "working" based in part on her ability to maintain a full-time schedule. In Breese v SBC, 2014 MO App. Lexis 19 (Feb. 14, 2014) the Commission rejected  a SIF defense that claimant was already a working total before her bilateral carpal tunnel.  Claimant performed data entry but had impaired mobility, she required the use of a scooter, a handicap-equipped van, and required accommodation from co-workers who would file papers, fax items and provide other assistance.  Vocational experts provided conflicting testimony whether claimant's high level of accommodation prior the carpal tunnel condition allowed her to compete in the open labor market.  The ALJ found significant that claimant maintained a full-time schedule before the accident. Claimant's hand weakness after the accident required more assistance to help unloading her scooter.  The ALJ rejected the SIF defense of post-accident worsening based on lack of any medical evidence to support the position. 
ALJ Carlisle
Atty:  Moreland
Experts:  Musich, Wiemholt, England

**
In a new case, the commission had to decide whether running for local office was equivalent to working in the open labor market when it involved "door to door campaigning, attending parades, attending picnics, attending rallies, putting up a booth and walking and handing out literature.  [and at]picnics he walked around and talked to everyone he could." Robertson v D&S Enterprises, 2014 Mo WCLR Lexis 14 (Jan 23, 2014). 

The Commission concluded that campaigning  was not evidence that claimant was employable.  The commission agreed that  67 year old claimant was entitled to permanent partial  SIF benefits based in part on multiple prior comp settlements but he failed to establish that his current state of disablement flowed from a combination of a primary 2000 accident and pre-existing conditions.    The Commission concluded any PTD claim against the fund was undermined in part due to post-accident worsening of various conditions during the 12 years the case was pending between accident and the hearing.  

A dissent would have awarded total benefits to the claimant and indicated there was insufficient medical evidence to establish post-accident worsening.

The ALJ noted claimant's political activities running for County Commissioner 4 years after his accident were inconsistent with his level of reported symptoms.  He  found his medical experts less persuasive based on exams performed about  five years after the accident.

ALJ Robbins
Atty:  Morgan, Lintner

**

The Commission rejected the SIF defense that claimant was a "working total" and it had no liability.  Stewart v Subway, 2013 Mo WCLR Lexis 89 (June 14, 2013).

The claimant had sporadic employment for 12 years leading up to her 2009 accident. She had worked only 29 months out of 144 months and was on social security.   She made sandwiches for about 20 hours a week.  She fell in February 2009  on some water, had surgery for a SLAP tear, and was released without restrictions.  The ALJ concluded claimant sustained 20% new disability and concluded she was employed in the open labor market at the time of her accident, even though she was  working part-time.  Essentially she found her previous jobs were "real" and not "make-work" positions, noting they were real jobs defined by the DOT.

The Commission found the Second Injury Fund was available to people who had seriously limiting chronic conditions who worked part-time. The dissent argued that if claimant would be PTD with the same limitations after an accident, the same limitations should disqualify her from accessing the Fund even though claimant may have been tenacious or fortuitous enough to "eke out" a job on occasion.

The court of appeals affirmed, 2014 MO App Lexis 17 (Feb. 10, 2014).  It deferred to the Commission and noted reasonable minds could differ whether claimant was totally disabled before the last accident.  The issue was whether claimant could compete in the open labor market and claimant had competed to obtain jobs (answering job ads, filling applications) and maintained employment (part-time) despite substantial work absences from chronic serious medical conditions. 

 ALJ  Mahon
Atty:  Alberhasty


In Kist v Mo Lime Co., 2013 Mo WCLR Lexis 225 (December 12, 2013) the Commission essentially concluded that claimant was a working total and  affirmed a denial of benefits against the second injury fund for a 2000 accident when it already concluded claimant was already totally disabled from a 1999 accident.   Claimant had prior back discomfort that required pain management and changes in his job activities leading up to a 1999 accident when his vehicle hit a rock and he reinjured his back and then underwent additional spinal surgeries which failed to resolve intractable pain.   The second injury fund's own expert concluded claimant was unemployable in the open labor market.  Claimant had returned to work only briefly leading up to a 2000 accident when his expert alleged "shaking" ultimately caused the need for a disputed cervical fusion. 

ALJ  Robbins
Atty:  Moreland
Treaters:  Mirkin, Weatherington
Experts:  Musich, Bernardi, Robson

Feds block comp attys from seeing medicare data on-line

The Center for Medicare and Medicaid Services has issued new interim rules and provided a period for comment.  Federal Register 78-183 (Sept. 20, 2013).

The SMART Act  provided a web portal to access conditional payment amounts asserted by Medicare.   Finding out the amount of conditional payments and weeding unrelated medical claims has always been a wrench in the works of trying to efficiency resolve state comp claims.  Now people can go on one line and see what is being claimed.   That is, of course, unless the person is an attorney.   Under current regulations, attorneys who represent workers or employers must pre-register but can't access parts of the information because it violates federal rules of privacy.  (FISMA).   CMS in the proposed rules plans to get on that and fix the problem once they "develop a solution" and is sure they'll have something rolled out in January 2016, 3 years after the SMART Act provided access to make the process internet friendly and easy for everyone.   CMS proposes to "develop a solution" a new identify verification for attorneys because apparently attorneys need to be measured twice and cut once. 

Medicare wants plenty of time to let everyone know what it claims as conditional payments and now recommends 6 months in advance notice for anyone planning to settle a case.  Don't even think about settling it on the courthouse steps.    The new proposed rule allows various extensions including new enumerated reasons why Medicare should take longer just in case there is  terrorism, riots or fire beyond the "ordinary" control of government.  This avoids letters from angry citizens wondering why Big Gov is not doing its job when there are riots in the streets.  An attorney disputing any claim for unrelated items can do it "once and only once."  There is no administrative or judicial review of the claims dispute process. 

Attorneys can get a  pro rata reduction in accordance with 42 CFR 411.37 but indicates that new demand letters must obtained if the parties wait more than 30 days to report a settlement. CMS is still trying to figure out how parties can actually report it on line and are working on that too. Cases involving toxic exposure and joint replacement require additional reporting. 

Parties who wish to comment are instructed how to do so electronically, by mail, by overnight mail, or by hand.  Federal regulations prevent someone from delivering it by hand because access to the building is restricted.   The irony of such a statement is probably lost to CMS.   





  

Young woman who won't quit smoking awarded permanent total

The injured worker hurt her back lifting some books, had back surgery  and asserts she  was unable to work due to nonunion and intractable back pain.  The issue in the case was whether the employer owed for life-time benefits when her addiction to smoking prevented her from having another back surgery to improve her condition. Miller v Andersen Merchandisers, 2013 MO WCLR Lexis 163 (August 30, 2013).

An employer does not owe for compensation if it can prove the employee unreasonably refused treatment.  Section 287.140.5 provides:

No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued, or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division nor the commission, inconsiderable in view of the seriousness of the injury.

 The ALJ  concluded the employer failed in its burden to show the claimant's inability to stop smoking was "unreasonable" based on testimony that she had smoked for over a decade and was unable to stop and had attempted nicotine patch, hypnosis and participated in a smoke cessation programs offered by the employer. 

The ALJ further noted  that the employer technically had not "offered" surgery, because the two surgeons declined to offer it in claimant's current state of nicotine addiction.  The employer in the case stipulated claimant  was permanently and totally disabled and stipulated to  open medical. Both of claimant's medical experts concluded she was not at maximum medical improvement.

A dissent argued that claimant's smoking may have been a contributing factor to non-union in the first place and found claimant was not entitled to total disability because she would not quit smoking.  The Commission affirmed the ALJ opinion without comment.  The ALJ noted the statute essentially created bad public policy to reward someone for bad lifestyle choices but deferred to the legislature to address that issue.

The court of appeals has previously found that a claimant who failed to  make lifestyle changes such as losing weight or quit smoking was an unreasonable refusal  to deny benefits under  287.140.    Sutton v Vee Jay Cement Contracting, 37 S.W.3d 803 (Mo. App. 2000), Kern v General Installation, 740 S.W.3d 691 (Mo. App. 1987).   This was not an issue in Miller as the employer stipulated to open medical and claimant demonstrated both a need for surgical treatment and non-surgical pain management with narcotics.

The case is important in several respects.

The employer stipulated it owes for future medical but didn't owe for total disability because claimant did not succeed in smoke cessation programs.   The Commission appears to construe 287.140.5 that if the worker makes a good faith effort (as in this case with use of hypnosis, nicotine patches,  and participating in the smoke cessation program etc.) the refusal is not unreasonable.   Claimant stated she wanted to have the surgery.  Arguably, the result could have been the same even if claimant stated she didn't want the surgery and elected to treat conservatively based on testimony that nearly a third of re-do surgeries fail even in optimal circumstances of a non-smoking patient.

The only issue in Miller was whether the employer owed for total or for partial disability. The Second Injury Fund was not a party and typically has liability in cases in which a prior disability combines with a current injury to render a worker unemployable. 

ALJ Ruth
Atty:  Moreland, Shelledy
Experts: Musich, Woiteshek, Polinsky, Weimholt

When an employer is gone who directs medical?

Do insurers gain the right to select a medical provider when the employer is no longer in business?  In Lyman v Missouri Employer's Mutual Insurance Company, 407 S.W.3d 130 (Mo. App. 2013) 2013 Mo App. Lexis 970 (August 23, 2013), the court of appeals reversed a summary judgment in favor of the employer which found the insurer had the right to direct care. Section 287.140  expressly grants that right to employers.

Claimant obtained a judgment for permanent and total disability with open medical flowing from a 2002 accident when he fell from a ladder.   He claimed the carrier was responsible for unauthorized chiropractic treatment because the statute only provided the employer the right to direct care and the employer was no longer in business. 

The issue was one of first impression.  The court  declined to decide it and found summary judgment was inappropriate because the issue was not ripe. The parties agreed that the employer was out of business,.  The court noted that members of an LLC can still make some decisions even after dissolution, and summary judgment was inappropriate when there was an unresolved material fact if anyone with the employer was willing or able to make such a decision.  The court noted the lack of evidence of articles of termination, even though termination was not a disputed issue.

Missouri is unique among many states as the employer has the right to direct medical care. This case demonstrates a fascinating problem who manages medical decisions when the employer is no longer around. Practitioners trying permanent total cases or drafting settlement contracts with open medical should carefully consider whether to reserve the employer's right to direct medical care, and contingency plans if the employer is no longer around.  

J Burrell
Atty:  Bowles, Platter

Employer owes total for failed knee surgery

A claimant who had unresolved knee pain and became depressed recovered permanent total benefits against the employer, according to the court of appeals in Palmentere Bros. Cartage Service, 2013 Mo. App. Lexis 1021 (September 3, 2013).

In this case a 42-year old woman had multiple physical injuries when a tractor trailer went off the road in Kansas.  She spent the next 4 years undergoing 3 different knee surgeries, including a partial knee replacement.  She states she was unable to tolerate prolonged standing, operate a clutch, and had constant pain.  She treated with a psychiatrist and was hospitalized due to severe depression and anxiety disorder.  She returned to work for about another 3 years but reached a point where a doctor concluded she was unemployable because of her emotional state.

The Commission affirmed an award against the employer for permanent and total disability benefits because of the combined orthopedic injuries to the neck, back and left leg and her psychiatric condition as she "presents  for employment utilizing a cane for ambulation and has a depressed emotional state." 

Dr. Jones examined claimant as court-ordered exam pursuant to her companion case for benefits in Kansas. He felt she could work sedentary positions and didn't need any more treatment for the knee.

The Commission found the overwhelming evidence supported the last accident alone caused claimant's total disability, and found less credible evidence from a doctor and a vocational expert that any disability flowed from a combination and not the last accident alone. Interestingly, the Commission felt the ALJ was unduly harsh for criticizing the methodology when the experts "failed" to perform certain testing, lacked corroborating records, and did not even meet with the claimant.  This case  demonstrates an interesting tension between the court of appeals deferring to findings of credibility and the commission feeling restrained to question or document how experts reached their opinions even when methodology impaired their credibility. 

The employer argued that the court  had to follow uncontroverted vocational opinion even though this position was contrary to  Carkeek v Treasurer of the State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo. App. 2011).  The Angus v Second Injury Fund, 393 S.W.3d 294 (Mo. App. 2004) did not eliminate the Commission's discretion to evaluate the extent of disability from the last accident alone.

The court noted the experts who supported liability for the Second Injury Fund were found by the Commission not to be credible, their opinions were not based on any records of a prior condition causing any obstacle or hindrance to employment, and claimant's own testimony denied any significant prior symptoms and described substantial post accident treatment including multiple surgeries and hospitalization for suicide ideation.

J:  Hardwick
Atty:  Greenwalk, Landham, Lowe, Taylor
Experts:  Keenan, Jones, Drieling
Treaters:  Robichaux, Arretteig


Commission case

http://www.labor.mo.gov/LIRC/Forms/DownLoadManager.asp?file=X12/WrightWanda.pdf

Court declines to limit remarriage benefits

Missouri worker's compensation law allows a two-year lump-sum benefit to a surviving spouse who remarries.  The Missouri Court of Appeals addressed  whether a surviving spouse receives the full amount of the remarriage benefit  if the surviving spouse was not entitled to 100% of the death benefits. 

In Ash v Millennium Restoration and Construction, SD 32381 (Mo. Ct. App. August 27, 2013); 2013 Mo App. Lexis 1005,  the court construed 287.240(4) clause "the benefits due for a period of two years" to mean the full weekly compensation rate of $742.72 for remarriage benefits, and not the lower amount of $247.57 that had been allocated to the spouse as survivor benefits.

The statute addresses two separate benefits including periodic death benefits and a remarriage benefit.  The provision addressing death benefits contains a provision regarding allocation. The court declined to construe the same provision to remarriage benefits.

"Section 287.240 does not contain any language which expressly indicates that the remarriage benefit should be calculated based only on the amount of the weekly death benefits attributable to the remarrying spouse."  Applying strict construction, the court concludes the employer's argument would require the court to add a limitation not expressly indicated.   The surviving spouse received more than another $50,000 as a statutory  benefit lump-sum for remarrying. 

The  CDC reports more than half of surviving spouses will remarry within a ten year period, depending on age.    http://www.cdc.gov/nchs/data/ad/ad323.pdf.  

J. Burrell

Atty:  Platter ,Clinkenbeard

 

 

 
 

Doctor not paid, employer does not have to pay twice

Claimant had an accident in 2007 and his plastic surgeon was not paid for more than $23,000 in billed services.  The doctor was listed as a creditor which was discharged in claimant's bankruptcy in August 2008.  The case proceeded to hearing in 2010 when claimant was awarded benefits and received payment for about $40,000 representing the charges in dispute.  No money was every distributed the medical provider. In November 2012 the provider filed an application for direct benefit to be paid.

The carrier had no obligation to pay the provider twice the disputed charges.  Concannon had waited 22 months after the award, and nearly 5 years after the treatment to pursue payment without clear evidence was it was every authorized in the first place.   Schwab v Lamb Construction, 2013 Mo WCLR Lexis 136 (August 1, 2013). 

It does beg the question why the carrier did not dispute liability for medical bills in the hearing if the debt had already been discharged in the chapter 7 bankruptcy.

Atty:  Bridges, Thompson

Nurse awarded disability for helping difficult child birth

A nurse  held a patient's head for a long time during a difficult child birth and as a result she developed permanent disability in her back.  The Commission agreed, affirming an award of nearly $168,000.  Beatrice v Univ. of Mo., 2013 Mo WCLR Lexis 134 (Aug 2, 2013).

The employer disputed the need for surgery based on normal studies.  Claimant reported pain and underwent a two level anterior fusion although multiple  pre-operative studies showed no evidence of neural compression or disc pathology.  Claimant reported the surgery did little to improve her intractable back pain.   The ALJ noted that claimant reported  improved symptoms with incontinence even though the procedure had incomplete resolution of her back pain and she still required narcotics.

Dr. Highland concluded the claimant had  positive pre-operative discogram  and dismissed a prior "normal" discogram because the prior study did not use  contrast dye.   The employer raised concerns about psychiatric sources of claimant's pain but claimant refused to attend a psychiatric IME. any psychiatric conditions.

The  ALJ in a prior temporary award ordered the employer to provide a discogram to evaluate claimant's condition and treatment.  He  found the employer was not liable for fees because it had reasonable grounds to dispute its liability.  The level of PPD awarded was based on claimant's own expert.  

On appeal, the court of appeals affirmed the award.  Beatrice v Curators of the University of Missouri, 2014 MO App. Lexis 839 (Aug 5, 2014) and indicated  in a case of conflicting medical opinions the Commission was within its discretion to accept the opinion of a surgeon who performed a disputed two level anterior fusion compared to 5 other experts and disregard the employer's argument that the claimant  "was able to fake her bladder symptoms because of her knowledge as a nurse and her prior employment at a law firm and the Litigation Management firm."

ALJ Dierkes
Atty:  Rotts, Cline, Montgomery
Experts:  Highland, Coyle

No civil suit against contractor after comp settlement

Can a worker pursue a civil suit against a contractor when he has settled the comp case against the subcontractor involving the same accident because of statutory requirement of strict construction?  No, according to the court of appeals in Shaw v Mega Industries, No.  75501 (WD Mo. App. July 30, 2013).

Shaw is the sole owner of RLS.  He was hired as a subcontractor by Mega Industries.  In 2009 he settled a case between RLS and himself for injuries one of his employees dropped a phone booth on him.   Claimant/owner settled against his company's work comp carrier and then sued the company that hired his own company to perform the work.   Claimant appeals the summary judgment against him when he filed a civil claim against Mega after settling the comp case. 

The claimant argued contrary to a Supreme Court decision from 1938 involving similar facts.  "A statutory employer was immune from common law actions even if the statutory employer faced no liability for workers' compensation benefits because the injured worker was insured by his immediate supervisor."  The exclusive provisions apply even when the Act did not require payment and that Mega was deemed an employer under the Act even though it pays no compensation. 

Commission reverses future medical award

The Commission reversed an award of open medical and concluded that any need for future medical treatment flowed from the worker's pre-existing COPD because her work-related pneumonia had resolved.   Claimant sprayed hog barns at Premium Stand Farms and states her job exposed her to water spray, manure, urine and afterbirth.  Navis v Premium Standard Farm, 2013 MO WCLR Lexis 128 (July 18, 2013), affirmed WD 76756 (May 20, 2014).

Premium Stand Farms processed 110,000 sows and 18 million pigs a year.  the ALJ found she developed legionella bacteria  which likely arose from her exposure at work, even though she had other risk of infection.  The ALJ found claimant 50% disabled from her work exposure and totally disabled against the Fund due to prior COPD.

Claimant denied prior symptoms. The ALJ noted:   "She wishes to have her total disability assessed against the employer alone. I do not know if the claimant is mistaken or if she is not being truthful and afraid she would not receive compensation due to the current financial condition of the Second Injury Fund."  The ALJ further rejected her allegations of new and old psychiatric injury.  "I also do not believe that she has any psychological problems that combined with her existing disabilities that caused an increase in her disability. All of the conditions causing the claimant to be unable to work are not involved with her psychological condition. I did not find Mr. Schmidt's testimony correct or relevant to this Award."

 The experts disagreed on the correct respiratory diagnosis or whether the employer's use of super-heated hoses essentially eliminated any  risk of exposure.  A dissenting commissioner felt claimant failed to prove work was a substantial factor in her medical condition. 

Carrier owes past benefits despite 3rd party settlement

In Demore v Demore Enterprises, 2013 Mo App. Lexis 834, remanded to Commission by Supreme Court for settlement, SC 93640. (June 2014), claimant received an award for about $91,000 in past medical benefits plus future medical.  The carrier contended that it could take a credit or offset against he award for past benefits because claimant had already received an $80,000 settlement.   The court of appeals affirmed the commission, denying such a credit. 

The Commission construed 287.150 to handle credits differently if the award is limited to past liquidated damages only  or includes past and future damages.  In the second case, a third party settlement applies only to future obligations and excuses an employer's obligation to provide treatment up to the extent of the credit.  At the time of the third party settlement the carrier/employer had not paid any benefits. "By statute and case law, this settlement money is treated as Insurer's "advance payment ... of any future installments of compensation ...."

The court further affirmed that the employer, and not the insurer, has the statutory authority to designate a medical provider.

Many comp cases often involve some degree of future medical exposure either by agreement or by the requirements of Medicare.  In such cases an agreement in the contracts  to "protect subrogation interests" may not reflect the true intent of the parties and best practices should designate how any subrogation applies regarding past obligations. 

No waiver of control of future medical care

Claimant was hurt while en route to investigate a vandalism of property owned by her family's business.  The court of appeals affirms an award of benefits to claimant and her parents.   Demore v Demore Enterprises, 2013 Mo App. Lexis 835 (SD July 15, 2013), appealed and argued before supreme court 4-23-2014 (SC 93640).

The primary fight in this case centers on whether the accident arose out of the employment and who makes the decisions regarding future medical treatment.

The Commission found the employer/insurer did not waive a right to control future medical, and the court of appeals deferred to that factual finding.  The court of appeals found the commission incorrectly found that the insurer committed no waiver, when the statutory right to designate a doctor flowed solely from the employer.  This was a point the insurer conceded.   The decision indirectly recognizes the  different role of an injured working while working for her own family business and asks whether the claimant really "seriously questions the medical care offered by her family-owned business."

The court of appeals affirms the Commission's denial of about $40,000 as sanctions for an unreasonable defense, reversing an award of fees by the ALJ.   The Commission noted the defense was not unreasonable because of the unsettled state of law about arising out of defenses produced by statutory reform and application of strict construction.  The court rejects arguments from the carrier and provides several instructions on more effective appellate practice. 

In the original case, 2012 MO WCLR Lexis 171  American First Ins. Co.  asserts that claimant, a bookkeeper,  was running a personal errand. ALJ Wilson sharply noted that the  denial for 2 1/2 years shifted more than $100,000 medical expenses to claimant (and Medicare).

Trip and Fall is "last straw" for lab tech

A broken hip rendered claimant totally disabled  after he tripped  while using crutches at work  for a pre-existing condition.  Short v Mo Baptist Medical Center, 2013 Mo WCLR Lexis 103 (June 28, 2013),  (2-1 decision.)

Claimant indicated after a Feb. 2004 accident he could no longer perform his essential job functions as  a lab tech.  When he previously used crutches, he now relied upon a wheelchair and the employer had to hire additional staff to perform the duties.  Claimant remained employed about another 2 years after his accident but asserts it was only because the employer substantially accommodated him. The ALJ reported claimant "lost the position due to an error in a report that went out with the claimant's initials" and he elected to pursue social security disability rather than pursue other positions.   Claimant used  vicodin, had  disturbed sleep and states he lays down an hour a day.  His expert  defined toxic work restrictions which were unavailable in the job market.
 Claimant states he was also depressed after the accident.   The ALJ noted the employer offered no other medical opinions to contest causation or the diagnosis  even though "a different evaluation would have been welcome."  A dissenting commissioner indicated that the diagnosis of a work related depression was "belied by other evidence in the record" and claimant was diagnosed only after his employment ended. 

Missouri law requires an initial  determination whether the last accident alone renders claimant unemployable before examining  any  pre-existing conditions.  This case is unique as the treating surgeon identifies primary impairment of limited mobility caused by current and pre-existing medical conditions of bilateral polyneuropathy.    The cases demonstrates how little a Missouri  employer can rely upon the Second Injury Fund when a claimant with substantial pre-existing disabilities sustains a new injury at work.  The claimant's own  expert conceded that  claimant had 50% BAW disability due to the pre-existing condition of polyneuropathy , and all of his various pre-existing conditions cumulatively were more than 100% BAW disability.
 
The 2 member commission was presumably "tied" until the appointment of a third commissioner in June 2013.  The case had been originally decided by the ALJ in Feb. 2012, nearly  1 1/2 years ago. 

ALJ  Kohner
Atty:  Edelman
Experts:  Poetz, Weimholt
Treater:  Johnston

Comp rates increased

The new maximum weekly comp  rates effective July 1, 2013  are:


TTD/PTD/DEATH  $853.08
PPD                          $446.85
MILEAGE                       .535

http://labor.mo.gov/DWC/Forms/2013SAWW.pdf

The Department now has now reached out to workers to explain many circumstances why they should hire  lawyers to pursue their benefits such as being "uncomfortable" or "confused" and "not happy."    The Department then goes on to explain not to get too upset with your comp lawyer handling  because they are busy people and can only handle so many things at once.

 "Remember that, while this is your only case, your lawyer has many cases and  clients. After all, you wouldn’t want a lawyer who doesn’t have clients!"

MATA couldn't have written anything better!

I'm Not Sleepy!

One of my favorite drug product warnings is on Demazin infant drops that warns infants not to operate machinery or drive because the medication may cause drowsiness. 

Following a work injury, the issue of drowsiness may arise in two cases.

One issue that arises is when a medicated worker returns to work after a work injury and is fired for sleeping on the job.  A claimant who is drowsy because of a medical condition or medications generally is not engaging in willful misconduct.  Each case is decided on individual circumstances, however.  The claimant who hides in a dark corner with an alarm clock, pillow and blanket may be regarded entirely differently than someone else who nods off briefly because of required pain killers.

“Employers have a right to expect employees to be conscious during their scheduled shifts. Sleeping on the job would be a "conscious" disregard of that standard,” Judge Romines  noted in Nickless v St. Gobian Containers, 350 S.W.3d 871 (Mo. Ct. App. 2011).  Claimant was not found credible that he was merely resting his eyes after using eye drops when the claimant was found in a dark room, sitting in a chair with his head to his chest and eyes closed and did not respond when the door was slammed.   The Western District, however, has found exceptions based on the totality of the circumstances.   This analysis included the nature of the employee's job responsibilities, the location where the employee fell asleep, the employer's policy related to sleeping on the job, whether prior warnings had been given to the employee, and any other aggravating or mitigating circumstances.   In Richardson v Div. of Employment Security, 361 S.W.3d 425 (Mo Ct. App. 2011) the claimant was a night shift nurse who napped twice on the same shift but argued that the employer “made” her work.

Illinois recently addressed a similar issue under 820 ILCS 405/602(A) and concluded that a security guard  at O'Hare Airport who was caught sleeping on the job did not engage in willful misconduct to disqualify himself from receiving unemployment benefits.  The court noted that the worker was in an upright position which showed less of an intent to fall asleep.  A dissent argued that an employer performing security at an airport had a higher expectation of claimant not to return to work when he was tired.  Universal Security Corporation v the Department of Employment Security, 2015 Il App. 133886 (Feb. 18, 2015). 

These cases underscore the importance of employers before a work injury  to highlight the obvious:  Employees are expected to stay awake.  We really mean it.  Any employee who brings pillows, blankets to work may be subject to discipline, including termination.  Really.

In the second instance, the claimant alleges the desire to nap renders him or her disabled. The claimant alleges back pain made her sleep on the job and the claimant was fired for sleeping.   Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012).

ADA, by contrast, requires a higher standard of proof of a “serious medical condition” and it must “severely” restrict an individual performing activity of central importance.    In a recent district decision, the plaintiff failed to prove fatigue was a serious medical condition to trigger benefits under ADA or FMLA.[1]

More than 1 in 4 Americans have insomnia or sleep disturbance.[2] Drowsiness may an unintended consequence of medications, fatigue or simply spending too much time with lawyers and the court system.   The allegation of disability from sleep deprivation  requires further attention on a case by case basis.  It can be reasonably assumed most people some of the times aren’t sleeping well and given a choice would rather have a nice story, a glass of cold milk, and take a nap rather than finish the work day.  If vocational disability is predicated on a desire to nap then the concept of disability has lost any meaning.  

---

[1] http://www.ca4.uscourts.gov/opinions/Unpublished/112195.u.pdf

 

[2] http://www.cnn.com/2011/09/01/health/insomnia-cost-productivity

 

It's Not Just 'Sunshine on my shoulders' that makes Floridians happy

The Sunshine State  is back in the news again as Walgreens just agreed to pay an $80 million dollar fine to DEA involving an "unprecedented number" of record keeping and dispensing abuses of oxycodone.  One store alone ordered 1.7 million units.  The DEA alleged the prescriptions were being diverted for black-market use. 

 http://articles.orlandosentinel.com/2013-06-11/news/os-walgreens-dea-oxycodone-fine-20130611_1_kermit-crawford-walgreens-pharmacies      

 

Last year Florida's CVS's pharmacy chain was in the news.  One pharmacist was quoted that customers came in asking drugs by their "street names" that some medications were kept in the back for "real" patients.  

 http://articles.orlandosentinel.com/2012-10-28/news/os-cvs-dea-oxycodone-ban-20121028_1_sanford-cvs-sanford-pharmacies-sanford-stores  

CVS paid a $34 million settlement to DEA back in 2008 because of abusive prescription practices. The average pharmacy dispenses 69,000 oxycodone pills and one store in Orlando dispensed over 5 million units from 2008-2011.  Orlando always has branded itself as the happiest place on Earth.  

http://articles.orlandosentinel.com/2012-02-06/health/os-dea-cvs-controlled-substance-20120206_1_dea-s-miami-cvs-pharmacies-cvs-stores.                                                                                          

This, of course, brings to mind how often Missouri doctors  prescribe excessive drugs for Missouri comp patients.   Employers have an obligation  to try to cure and relieve workers of their injuries.  There is no statutory mandate to "light 'em up."   The cost of this abuse goes beyond Big Pharma greed, bloated MSAs, and part D skyrocketing costs. It causes irreparable harm to workers. 

Missouri is the only state in the country  to not adopt a prescription drug monitoring program. http://usatoday30.usatoday.com/news/nation/story/2011-10-13/pill-mill-drug-trafficking/50896242/1. Some folks in Jefferson City feel that the best government is no government.  http://www.stltoday.com/news/opinion/columns/the-platform/editorial-why-is-missouri-so-friendly-to-the-pill-mill/article_df96f0cc-854d-539c-84d5-3118f1c4ce47.html
Legislative reform on this issue died once again in the 2013 legislative session   (SB 233, HB 347). Perhaps more Missouri politicians should go rent Winter's Bone to fully appreciate the danger of Missouri getting burned if the politicians spend too much time with their head buried in the sand.