Reform didn't stop aggravation of pre-existing conditions

Claimant was a 63-year old career employee for City of DeSoto with a history of remote neck problems and states he hurt his neck in 2007 after moving heavy pieces of stone.   He went back to work on modified duty for about  1 1/2 years and states he retired prematurely. Maness v City of Desoto, DOLIR 5-24-2013.

The employer's expert, Dr. DeGrange, concluded that claimant only strained his neck and his multi-level cervical fusion flowed from prior degenerative conditions.  Dr. Rutz had diagnosed claimant with a disc herniation and ultimately proceeded with a c4-c7 fusion.  The surgeon never rendered any opinion regarding the cause of the disc herniation.   Claimant relied upon Dr. Kennedy who concluded the disc abnormalities were acute and Dr. Volarich who concluded the arthritic changes "became symptomatic" after the accident.   Claimant's vocational expert, Lalk, concluded claimant's need to recline made him unemployable.  

The parties disputed whether claimant's activities occurred on a the pled date. The ALJ resolved the dispute by finding the accident occurred on the pled date or the following date.  The ALJ awarded medical bills, but reduced the actual charges based on affidavit evidence that claimant was not responsible for any additional balances.  The  ALJ found the employer liable for 40% PPD and denied PTD benefits against the Fund.

On appeal, the Commission reversed. 

It affirmed a finding of 40% PPD and open medical against the employer.  It specifically rejected the defense as a matter of law that aggravation of a pre-existing condition was not compensable.  The Commission concluded that claimant had been asymptomatic for years prior to the most recent accident although it conceded claimant's testimony was not a model of clarity on this issue. In an unusual interpretation it concluded that claimant under statutory reform merely had to show  prevailing factor of a medical condition but it concluded that the statute never expressly excluded aggravation, and that aggravation  alone could be considered a medical factor. "We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287. We note also that the Court in Gordon regarded "aggravation" as shorthand for "something less than a prevailing factor." But as used by Dr. Volarich in this case, the word "aggravation" describes a medical condition, not a type of factor."

The Commission enhanced the award of medical bills even though claimant had no personal liability to pay the additional amount.   The Commission concluded that claimant was entitled to the original billed amount as reimbursement and that the ALJ erred reducing liability based on evidence that claimant was no longer liable for the difference between the billed amount and the paid amount.   The claimant was not required to interpret the medical bills, he was required only to indicate that he received them.    The decision never discusses Farmer-Cummings or its new novel interpretation on this issue.

"We conclude that the administrative law judge erred to the extent he reduced employee’s past medical award in reliance on testimony or an affidavit describing employee’s liability having been reduced in connection with payments by "insurance of the injured employee."

The commission further characterizes claimant's return to work as essentially a failed return to work because the employer accommodated him by letting other employees perform more strenuous tasks and it would be wrong to "penalize" claimant for trying to work.   This issue is part of  recurring theme in some recent cases from this Commission  that suggests  "working" is not "working in the open labor market" if the long-term  employer is provides accommodation in some fashion that might not be available from a potential new employer.   Such a position seems to run contrary to a public  policy to help career employees  instead of firing someone instantly they cannot produce a full, unrestricted release. 

ALJ  Robbins
Atty:  Christiansen, Tierney
Experts:  Volarich, DeGrange
Treaters:  Rutz

Court denies joinder of joint employer

In McGuire v Christian County and Missouri Association of Counties, 2014 Mo. App. Lexis 502 (May 5, 2014), the court of appeals affirmed the Commission which rejected joinder by Christian County of Ozark Baseball Club based on 287.130.  Claimant worked security at a baseball game after his regular job at Christian County, he sustained injuries dealing with an intoxicated suspect, and ultimately underwent multiple back surgeries and did not return to law enforcement.

The employer settled its claim but sought contribution from OBC of about $56,000 which was 14.8% of the settlement.  The court concluded that 287.130 allowed the claimant to join parties but did not allow a court to compel joinder and the employer could seek any remedies in separate legal proceedings.  "The omission of any joinder provision in  section 287.130 demonstrates that the legislature did not intend to authorize the joinder of any alleged joint employers against whom a claim had not been filed by the employee," when 287.040 had joinder language. 

The ALJ had allowed joinder noting that it was the "fair" thing to do. 
The Commission noted in DOLIR, 4-24-2013:  "The legislature gave the employee the option to decide against which of several joint employers he wishes to proceed. Here, employee chose CCSD. CCSD is bound by employee’s choice. But CCSD is not without a remedy, for CCSD can seek contribution against OBC in a "subsequent action for contribution." .... That being so, it is clear that OBC was not a necessary party to employee’s workers’ compensation claim."

The ALJ  granted joinder in an employer's motion filed years after a temporary award, and more than 5 years after the original accident based on an incorrect statutory provision, 287.040 rather than 287.130.  At the hearing for joinder, the ALJ noted that counsel for OBC failed to articulate any objection and asked for more time to research the issue.   The Commission found the ALJ erred as a matter of law permitting joinder in these circumstances and the decision violated due process and exceeded authority as it went beyond the issues stipulated at trial. 

ALJ Mahon
Atty:  Montgomery, Greenwald
Experts:  Bennoch

MO Supreme Court allows V.A. intervention in comp

The Veteran’s Administration can now intervene in Missouri’s worker’s compensation cases to try to collect payment for medical services provided to veterans, even when an employer never authorized the care, and there is no state rule to allow it, according to a recent case from the Missouri Supreme Court.  U.S. Dept. of Veterans Affairs v Boresi, No. SC 92541 (Mo. 2013); 2013 MO Lexis 25 (April 30, 2013).  The case involved a claim for reimbursement of about $19,000 in medical bills. 

The Supreme Court addressed whether the V.A. had a right to intervene, and reversed opinions of the circuit court and the court of appeals which denied intervention.  V.A. v Boresi, 2012 Mo. App. Lexis 341.  The court concluded that federal law was controlling and that 38 U.S.C. § 1729 allowed an unequivocal right to intervene in any action brought a veteran covered under a worker’s compensation law or plan. The Supremacy Clause trumped any state comp law.  The Missouri comp law had no provision for intervention in these circumstances, and the civil rules for intervention under Rule 52.12 did not apply. The Supremacy Clause is not exactly new ground for anyone who remembers anything about Constitutional Law.

The problem is that as a practical matter federalization of comp chips away at the employer’s state rights to designate a medical provider.  In this case there is no allegation that the employer failed or refused to provide treatment.  The court of appeals found there was no refusal or denial.  The Supreme Court leaves that issue unresolved.  The V.A. states it doesn’t know one way or the other.  The decision allows the V.A. to intervene, and kicks the can down the road whether the V.A. can actually collect anything.  The court rejected the defense that the V.A. really had any meaningful pleading requirement to show it had any right of recovery except that it had provided services and can assert that someone’s got to pay.

The court of appeals found that if the V.A. had no right to collect benefits since the treatment was not authorized and  it had no right to intervene.  Judge Romines indicated:  “even if the VA was allowed to step into Hollis' shoes, the VA would still not be entitled to receive payment. Thus, the federal statute cannot supply the VA with a right to intervene.” 

The takeaway is that attorneys for both sides need to pay more attention to the potential for V.A. claims whether or not a lien has been asserted.   As parties in comp have seen whenever the federal government gets involved, as in Medicare reimbursement, it grinds down the process and has unintended consequences.  Adding another chair at the negotiating table for the V.A. could easily have the same effect of delays from fighting over liens involving unauthorized treatment and payment of conditions unrelated to work injuries.