Commission affirms credit for missed appointment

The claimant alleges he knew nothing about 3 appointments he missed for  IMEs scheduled over a 5 month period.  The Commission affirmed an award with reductions for $300 in costs for the missed appointments.  The employer ultimately secured medical opinion from a different expert.  Moore v Delmar Gardens, 2014 MO WCLR Lexis 139 (December 9, 2014).

The Commission in a companion case more than doubled the award from the same judge for a claim involving the back injury from lifting a patient.   Claimant had undergone a two level fusion about 3 years after the accident but the employer disputed causation.  The ALJ had relied upon an opinion from a neurosurgeon that the accident had caused a lumbar strain.  The Commission noted claimant's reports of "significant" back pain after the accident.  A therapist appeared questioned the accuracy of the symptoms noting claimant had failed 21 validity indicators. 

ALJ:  Landolt
Atty:  Robbins, Temme
Experts:  Meyers, Kitchens
Treater:  Poulus

Hotel chain may be liable as joint employer when agency underpaid wages

The Supreme Court in a case involving Missouri’s minimum wage law dealt with the issue whether the plaintiff who cleaned hotel rooms worked as an employee for a staffing agency or for the hotel.  Tolentino v Starwood, No. SC 93379 (Aug 19, 2014), 2014 Mo Lexis 201.

Starwood paid Giant Labor Services, a staffing agency, $5.00 to clean each room.  The staffing agency paid its workers $3.50 a room.   Plaintiff cleaned 122 rooms over 2 weeks and received nothing.  The agency’s principals were convicted of labor racketeering when they deducted the balance of plaintiff's wages after paying taxes for an illegal  'visa' fee.    The worker then went after Starwood for his lost wages and restitution of $3150 and sued under the minimum wage law alleging the hotel was liable for basing rate on the volume of rooms cleaned and for illegal visa deductions. 

The hotel argued that the plaintiff was an employee only for the agency, the compensation scheme was reasonable, and the  were not responsible because the agency committed illegal deductions.   The circuit court agreed that the compensation was reasonable and the chain was not responsible for illegal deductions.   The Supreme Court reversed and found summary judgment improper because there remained material facts in dispute. 

The court noted that summary judgment on the factual issue of joint employment is improper and indicates the facts could support a finding that the hotel was a joint employer.  There were material issues in dispute to the extent the hotel controlled the plaintiff and that the hotel maintained control regarding the method of compensation by paying per room rather than hourly.  Plaintiff asserts that the hotel controlled his performance standards because it fired him within two weeks.

The Supreme Court indicated that the minimum wage law imposed an independent duty to pay minimum wage and they were not absolved by paying minimum wage to an agency if the agency failed to pay the wages.  The risk of non-payment falls on the business and not on the worker, according to Justice Tietelman.  Although the hotel was not 'responsible' for illegal deductions if they were a joint employer they were responsible that plaintiff received at least was a minimum wage which in the end produced the same result.

Several issues are important.

The hotel now has potential liability if it is found to be a joint employer for the company it keeps if its staffing agency underpays workers.  This case is not just a contract claim about 2 weeks of wages but a class action.     The only deep pocket left is the hotel itself. The claim involves practices from 8 years ago.  Like many class actions, this fight may be  more about attorney's fees than anything else.

The minimum wage law requires workers to earn at least minimum wage and that any entity that controls employment activity could not delegate that responsibility.

There may be more to this story.   Starwood  in January 2008 began cooperating with federal officials in an investigation of the agency for human trafficking and continued to work with the federal agency for another two years.  The plaintiff worked at the hotel in April 2008 for only two weeks.  The hotel knew it was dealing with an agency under investigation  before plaintiff ever cleaned a room at their facility.    Starwood has an astute control of its national brand image.  It is not clear why Starwood did not  abandon its relationship with the agency in January 2008 once it became aware of the investigation for practices if proven true would damage their image or why it was still working with the agency in April 2008 when the plaintiff first reported to clean rooms.  This case could the product of paying the price of staying with a questionable vendor.   There is another possibility too.   Maybe the feds encouraged Starwood  to continue the relationship while the feds sorted things out. 
 

Court ditches "actual and measurable" defense for Fund PTD

The second injury fund appealed a finding of permanent and total disability and asserted that claimant failed to establish an actual and measurable pre-existing disability at the time of the primary injury because the prior conditions were still receiving treatment and had not reached any maximum medical improvement.  The court of appeals affirmed the award.  Lewis v Treasurer of the State of Mo, 2014 Mo App. Lexis 730 (June 30, 2014).

Any award of second injury fund liability requires different proof for permanent partial and permanent total according to the Court.   In the context of a permanent total award, the court concluded claimant must only show that there is a prior condition that is an obstacle or hindrance to employment.  There is no requirement that it reaches a statutory threshold or is measurable. Section 287.220.1 provides: "If all of Claimant's disability is from the work injury, then there is no Fund liability. However, if there is any percentage of Claimant's disability that is not attributable to the work injury, then the Fund becomes liable for the difference."  The requirement to show actual and measurable disability enunciated in Messex v Sachs Electric Co., 989 S.W.2d 206 (Mo. App. 1999)  applies only in the context of permanent partial awards.  The claimant does not require proof a specific percentage of disability, but in this case such ratings supported the finding of a measurable disability.  Claimant testified  that the employer downgraded his position after 31 years demonstrated his ability to maintain the same production requirements.   Claimant testified that he was unable to meet the job requirements or find alternate work. 

The court describes several decisions which appear to support the Fund's defense but are distinguished as judicial "oversights" which do not appreciate a distinction between calculation of PPD and PTD. 

The employer at the time of the hearing settled the primary case which involved an alleged ganglion cyst.  The ALJ found the primary injury in the case resulted in 15% disability to the thumb.  The treating physician gave him a full duty release. 


Experts:  Berkin, Poetz, Volarich, England
Panel:  Sullivan, Mooney, Dowd

Fallen tree branch costs city 1/4 million in comp benefits

The commission affirmed an award of disability for orthopedic and psychiatric injuries from lifting a tree branch in 2011 and rejects the defense based on expert diagnosis of a back strain on a degenerative 64-year old spine. 

The ALJ award close to 1/4 million dollars in disability and disputed medical expenses related to a fusion surgery.  The claimant was picking up storm debris when he fell down.  He was treated by a neurosurgeon and released with a finding a strain and disc protrusion.  He sought treatment on his own and obtained a fusion for disputed instability.  He saw two psychiatrists:  one concluded he had disability from an unrelated major depressive disorder, another concluded he had new post-accident pain and mood disorders. 

The employer disputed TTD on appeal.  The  Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum  at the beginning of the hearing.  The Commission further found the disputed bills to be reasonable, like the ALJ, but found the   ALJ based his opinion in part on a medical report that was not part of the evidence.  Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)

ALJ  Denigan
Atty:  Sievers
Experts:  Volarich, Stillings, Jarvis
Treaters:  Kitchen, Robson

Driver "totalled" by falling objects in a parked truck

Several unsecured totes inside a parked  truck on private property fell from a trailer and struck claimant in the head, resulting in permanent total disability when surgery for a neck injury did not cure her.  Cummins v Penske Logistics, 2014 MO WCLR Lexis 79 (June 13, 2014).

She asserted as a result of the accident she developed constant neck pain, post-concussive syndrome  and PTSD,  and required daily rest breaks.  Dr. Park had performed a multi-level cervical procedure. 

Dr. Koprivica was regarded as credible. Dr. Jackson indicated claimant could not return to driving a truck but was employable in the open labor market.  The vocational expert indicated at 61-years old claimant was unemployable, that her prior extensive medical experience in nursing was not a transferrable skill, and no one would hire her if she needed to lie down.

ALJ Cain
Experts:  Koprivica, Jackson; Drieling, Sprecke
Treater:  Dr. Park

It's a bird, it's a plane, it's superbill

There are, as they say, few certainties in life.  One that can be added to the list may be that any  claim that begins with a helicopter ride is not a good day for the injured worker or the risk manager.

Section 287.140 provides a transportation benefit and  requires employers to provide medical services including “ambulance” that “reasonably [may] be required after an injury or disability.”  Missouri employers may also face significant costs for ground or air ambulances for initially responding to an accident or as part of the ongoing cure or medical relief of injuries. 

Medicare regulations provide some interpretative guidance as to what might be reasonably related.  

 “After an injury or disability”

The employer does not owe a transportation benefit unless it responds to an “injury or disability”.  The court of appeals found an uninsured worker fainted at work, the ambulance was called over the objection of the worker’s spouse, and the court found the employer did not owe the ambulance bill  because the worker failed to prove her fall and any need for an ambulance flowed from a work injury.  Crumpler v Walmart, 286 S.W.3d 270 (Mo. App. 2009). 

 “Reasonably required”

 Medicare prohibits transportation benefits unless the need for transportation  relates to Medicare-covered services.  It’s one thing to have an air ambulance take a worker to a trauma one center.  It is quite another thing to ask a helicopter to drop a worker off at his house.  There is an actual federal regulation on this point.     Ground transportation may be a reasonable alternative if the distance to the appropriate medical facility is close.

 Medicare prohibits transportation benefits beyond the nearest “appropriate” facility. This is clearly defined in Chapter 10.3 of the Medicare Benefit Policy Manual that  “transport is covered to the nearest appropriate facility to obtain necessary diagnostic  and or therapeutic services.” Transportation to a more remote facility does not flow from medical necessity. 

Natural and probable consequence

 

Transportation in an ambulances and fixed or rotary wing aircraft represent unique risks.  From 2003 to 2008 a total of 125 people died in air ambulances.  The FAA Modernization and Reform Act of 2012 describes many risks different from the ordinary public such as flying into tall objects.   It requires pilots to figure out what tall objects might be in their flight path to avoid this type of thing from happening.  This is really a federal regulation. 

MSA my helicopter ride

 

An often-neglected aspect of the work comp MSA is for Medicare-covered  expenses for future transportation costs.  Missouri providers alone charged 19.9 million in transportation costs.  There are 6.5 million in helicopter rides for Missouri alone according to a Pro Publica report.  There may be an additional  future aspect for transportation costs which are not Medicare-covered as Medicare pays only 80% of its fee schedule. 

 Can fee resolution resolve a $30,000 helicopter bill?

Disputes for bills about air ambulances are likely pre-empted by  49 USC 41713.

 

The use of air ambulances provides unique capabilities of first responders to address life-threatening situations when an injured person is  far from an appropriate medical facility.  National fee schedules provide some basis to challenge skyhigh bills in the absence of a state fee schedule.  The reasonableness of calling ambulance services is often a matter of timing whether there is a bona-fide emergency or not. 

 

Additional Sources:

 http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AmbulanceFeeSchedule/

Section 4531 (b) (2) of the Balanced Budget Act (BBA) of 1997 added a new section 1834 (l) to the Social Security Act which mandated the implementation of a national fee schedule for ambulance services.

 

http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/AmbulanceFeeSched_508.pdf

Fee schedule under Medicare for fixed and rotary wing ambulance

 

One air ambulance provider in St. Louis submitted to Medicare charges to transported nearly 1300 patients, about half the number of the leading provider in Kansas city, according to Pro Publica.  http://projects.propublica.org/treatment/uniqservices/A0436/states/MO

 

 

 

 

 

Court allows voc expert to testify to "records review"

An ALJ did not exceed her jurisdiction to allow the SIF’s vocational expert to testify to opinions based on a records review.   Lutes v Schaefer, 2014 MO App. Lexis 564 (May 20, 2014). ED 103488.

Claimant alleges that he was totally disabled and sought to prevent an expert hired by the second injury fund to testify by deposition regarding his opinions based on a records review and effectively cut the second injury fund off at its knees.   The chief ALJ refused to quash the deposition. On appeal, the circuit court ordered  the Division to quash the notice of deposition of the expert  and take away any expert defense to the claims that the worker was employable. 

Claimant contends the judge exceeded her jurisdiction because there was no statutory power to order a vocational exam.   Claimant contends only an employer and insurer may obtain a vocational examination based on 287.143 (“testing” or “assessment”) and there is no statutory authority at the time for the Fund to obtain an exam or proceed with a deposition based on an exam.  The Fund argues that a records review is not an exam and it has broad rights of  discovery based on 287.560. The court relies upon statutory interpretation noting no provision that directly allows or prohibits the practice.  It criticizes both sides:  "the litigants dodge this step" and "evade the real issue."   The court agreed with the Fund that a records review is not an examination because the use of the term “examination” in other sections suggests something more than merely reading records.  If the legislature intended to prohibit a long-standing practice of experts testifying regarding a review of records, it failed to prohibit the practice in 2005 reforms.   The court notes that the Fund had its vocational expert review records without the consent or authorization of the worker. 
The court makes its finding narrow:  the Fund gets its depo, but the Fund may or may not be able to offer its depo into evidence.  Rule 56.01 has broad application beyond evidence which is admissible.  “Merely because the information is discoverable does not mean that such information is admissible….” 

Atty:  Roach, Morgan

Experts:  Dolan

Commission finds "same, just worse" enough to award benefits

Claimant established new disability from aggravation of prior conditions despite prior treatment and settlements for the same body parts, in Tabor v Clinton Schneider Foods, reversing a denial of benefits.  2014 MO WCLR 60, 61.

The Commission found claimant sustained new disabilities of 15% to the neck and 15% of the back based on the findings that claimant aggravated previous disc disease.  Claimant had a previous settlement for 20% BAW with a prior employer but reported symptoms worsened, and he had undergone additional treatment including facet blocks and therapy and had a new finding of a lumbar disc herniation.  The Commission regarded claimant's expert more credible based on more detailed  consideration of the specific job duties.

In a companion case,  2014 Mo WCLR Lexis 61, the commission found claimant's exposure taping boxes aggravated his bilateral carpal tunnel syndrome which had been diagnosed 5 years before his employment.  The ALJ had found no causation and that claimant's prior symptoms had never gone away.  Claimant had undergone a bilateral carpal tunnel release following a temporary award of benefits and the Commission reversed a denial of benefits and awarded 15% ppd of each wrist. 

The commission denied benefits in a third case, 2014 MO WCLR Lexis 59. Several of  claimant's own experts provided opinions which did not support the award of new disability allocated to that event. 

The commission made its own findings of facts in the cases and criticized the ALJ for not initially making all of the necessary findings and then not doing "something" for a year when the case was remanded.  It cited the "needless burden" the Commission incurred by having to make findings of fact and conclusions of law and criticized the ALJ for not disposing of matters "promptly, efficiently and fairly...." 

ALJ  Siedlik
Atty: Stanley, Wenger
Experts:  Koprivica, Swaim, Wheeler
Treater Guinn

Employer found directly liable for $24,000 award

 The employer's carrier became insolvent and the Commission found the employer directly liable pursuant to 287.300 because the employer  had too many assets to qualify for coverage under MIGA, the guarantee fund for insolvent carriers. 

Claimant alleged two injuries and asserted he was unemployable.  His claim was confounded by inconsistencies, poor histories, and the failure to identify a precipitating event as the cause of his second "accident."  He initially  fell from a 6-foot stepladder in 2002.  He fractured some ribs and caused a pneumothorax and a chronic pain syndrome.   Claimant failed to prove a sustained a second accident when he claims he experienced a sudden onset of symptoms sitting at work without any clear precipitating event.  "Claimant was looking at a computer with a co-worker when he felt a very severe pain in his head and neck and felt that the left side of his face was paralyzed and also felt pain and weakness on the left side of his body."  He ultimately underwent surgery for a herniated cervical disc. Roberts v Charter Communications, 2014 Mo WCLR Lexis 157.

ALJ Dierkes attributed partial disability for claimant's pain complaints but noted they were "grossly inordinate to his injuries," and that "there is a significant component psychologically in terms of the presentation".  The employer's expert indicated  there was "somatic reactivity and is likely to report subjective physical complaints well beyond those which can be physically or objectively confirmed, and that Claimant is prone to using his physical complaints to manipulate others and to control situations."

Atty:  Brown, Willer
Expert:  Dr. Koprivica , Dr. Pro, Dr. Stillings, Dr. Cantrell
Treater Dr. Oro, Burger

Saving the temporally atypical

There is the old joke that a guy who never shows up on time would be “late for his own funeral.”  Wouldn’t most people if they had a choice?

Everyone who has done comp for awhile knows some people   are temporally-challenged and others are not.  The autism world divides people as neuro typical and neuro atypical.  The same could apply to people who are temporally atypical.  Every court clerk has a post-it-note of shame of those attorneys who are “never on time.”    There are those who tardiness is not a badge of shame but a lifestyle.  There are those who find "clock" just not in their dictionary of life.    It has caused much stress to the defense, who often sigh outside chambers and look at their watches like they are producing a repetitive trauma disorder, while foot dragging attorneys circle the court house over and over again hunting for parking meters with time still left on them. 

Comp, thank goodness, has made great strides to accommodate the temporally atypical.  Rules that are  hard and fast like statute of limitations and notice are often only aspirational.     Many socially conscious judges understand that disparate impact these ‘rules’ have on people who can’t do anything on time.   No one has been more understanding  of helping those afflicted than the docket clerks who let cases go on for years because there’s no need to rush anything.  It might just give someone an ice cream headache.  This tendency to show up late has caused many atypicals to lose their jobs and swell the ranks of the chronically unemployed. 

Many case managers who have an important job to do don't understand the temporally atypical worker.  They expect patients to be present on time, to show up for appointments, to give adequate time to get from point A to point B.  They get indignant at wounded workers and start talking about unreasonable refusal to treat or comply with care.    Some even cite 287.140.5 that not showing up and missing appointments is a “refusal” to treat to support suspending benefits.    Showing up late is rude.  It disrespects the physician who is trying to sandwich in another 999 surgeries before ending the work year in September and snowbirding to Naples.  But is it refusal?   Is singing “Sweet Home Alabama” acapella a “refusal” to taking a breathalyzer?  We all know the answer to that.

Some people lollygag and procrastinate.  Those people deserve to be tied to a whipping post. But the truly disabled afflicted with temporal atypicality deserve reasonable accommodation.  As long as they get to work before their lunch break should be good enough unless the employer gives them a schedule and underlines in red “we really mean it.”  Time clocks are the scarlet letter of discrimination.  Case managers need to get on board with this and inform them every appointment is actually 30 minutes earlier than it actually is so they show up on time.   They need special modifications on googlemaps that every trip is really twice as long.    Their marriages are often doomed without extra sessions of pre-cana  because mixing the typical and atypical is just like playing with antimatter. 

What do you do with a “problem” like the temporal atypical?  First they are not a ‘problem.’  They are only a ‘problem’ to the temporally minded world which cannot expect people who act, think and behave in a different temporal mode.    They are not a problem.  The problem is viewing them as a problem.     They are not a population who reads time management best sellers and suddenly is born again on time.  It is their nature.   It’s a right handed world lecturing southpaws to just “get over it”.   They cannot deny who they are.  Well now they know.  Let it go.  Let it go. 

Today is the time to make a difference.  And if today is not the day, then whenever. 

Light up, claimants

The Show Me State is now trying to get into the medical marijuana show.  SB 951 makes it very clear that this is medical and this isn’t just going to go to anyone.  We aren’t a bunch of hippies from the Mile High City. 

This program is  for only “debilitating” medical conditions.    "Debilitating medical condition" means certain delineated diseases like cancer, glaucoma and AIDs. But wait, there’s more.   It also includes other conditions that produce one or more conditions like pain or spasm.  That’s about 99% of every comp claim, but it’s different with medical pot because the doctor has to say the symptoms are “severe.”   Not to leave anyone out  there’s a catchall:  it also includes “any other serious condition” approved by an attending physician. 

An attending physician with a bonafide relationship must make a statement that pot is the best treatment choice at least once a year. 

A patient gets  only an "adequate supply".  Leave it to the legislature to define that term:   4 ounces, 3 mature plants, and 4 immature plants.  This is just like the 3-1-1- rule at the airports.   There is no truth to the “420” rumor that the original proposal allowed 4 ounces, 2 brownies and 0 roach clips. 

 One can see an entire cottage industry making billions of posters. It's like when Jeff City said everyone could lock and load their guns and every business owner put up a sign that said “not here, please.”  Maybe this time the posters could use some black light.   The bill even contemplates that prisons, and schools and public parks could be open for the compassionate use of marijuana as long as it’s done “in designated areas.” Really?    After all, everyone knows that smokin’ ain’t allowed in school.

Missouri is late to the party.  Illinois has  already proposed to cut prices for the first medical marijuana card from $150 to $100, and they’re even giving 50%  discounts to veterans.    This campaign  must involve public service announcements   to aggressively market medical pot just like the floating casinos  did for the public schools.      Maybe Missouri could some drive through daiquiri standards to push the product.  It creates jobs.  It creates revenue.   After all, it’s for the children. 

 In other news a bill has been introduced that jumping jacks will now the official state exercise.    It’s a shame no one can do them anymore because everyone has a "serious" medical condition.   


New Mexico now requires reimbursement for "medical" marijuana.  Vialpando v Ben's Automotive Servs., 2014 N.M. App. Lexis 50, rejected the defense that  employer could not be ordered to violate the federal Controlled Substance Act, 21 U.S.C. 811 even though the state decriminalized use through the state's Compassionate Use Act.   

'Chipping' Employees

The Missouri legislature has once again made the national news.  SB 523 recently  passed 90-56 to bar the use of school districts requiring RFID tags on their students.   This privacy bill  keeps Big Brother outside the dorms.  Anyone who wants to know where students are will have to check Instagram instead.

RFID tags transmit a unique signal to magnetic readers.  They can be implanted as micromodules. There has been some talk that chips as the new dog tags or required biomarker for high security clearance jobs.  They have been used for years with livestock, laboratory animals, and endangered species.  Missouri has drawn its line in the sand:  No chipping freshmen.   

This raises a concern in the battle against fraud in worker's comp whether  employers can require chipping their employees just like some federal employers so everyone is watched.

Missouri has been all over this issue.  In 2008 it passed HB2041 to be right behind privacy fighters in Wisconsin and North Dakota to stop chips in the work place.   Don’t even start talking about chipping our M14 sniper rifles.

285.035. 1. No employer shall require an employee to have personal identification microchip technology implanted into an employee for any reason.

2. For purposes of this section, "personal identification microchip technology" means a subcutaneous or surgically implanted microchip technology device or product that contains or is designed to contain a unique identification number and personal information that can be noninvasively retrieved or transmitted with an external scanning device.

3. Any employer who violates this section is guilty of a class A misdemeanor.

What does this mean to worker’s comp?   The fight against fraud is not going to be fought with chips.  It will be fought with secret microphones and mood rings.   Claimants can be reassured they not have been secretly implanted with invisible chips by IME doctors or being followed by Carrie Masterson.  Just don’t bring up the subject about drones behind “The Cloud.”

Judicial notice and the 'known knowns.'

“A court may take judicial notice of facts generally known and accepted and have been duly authenticated in repositories of fact open to all, and especially so of facts of official, scientific or historical character as the same may be set down and recorded in encyclopedias, dictionaries, and the like to which the court may turn to verify its information or refresh its recollection”.   State of Mo ex rel Hostetter, etal, 104 S.W.2d 671 (Mo. 1937).

In 1937 an entry of encyclopedia made a difference whether or not a claimant could recover from a work injury when lightning struck a building because the court used judicial notice that barns are a “peculiar object of the destructive force of lightening.”    Hostetter, supra.

Any request for judicial notice must be preserved on a timely basis.  Shelton v City of Springfield, 2003 Mo WCLR Lexis 38 (rejecting admission of ordinances which were not newly discovered evidence).

Judicial notice has been used as a tool of statutory interpretation when the legislature fails to define its own terms.    Miller v Mo Highway Transportation Commission, 2008 MO WCLR Lexis 113 (event, traumatic, external, violence);  Peery v Mid Continental Industrial, 2008 MO WCLR Lexis 43 (medical abbreviations);  Rader v Werner Enterprises, 2010 Mo WCL Lexis 161 (own);  Ahern v P & H, 2007 MO WCLR Lexis 177 (idiopathic); Carter v Terminix, 2008 MO WCLR Lexis 146 (automobile), Hammonds v Columbia Mall Car Wash, 2009 Mo WCLR Lexis 168 (shift); Johnson v Town & Country, 2007 Mo WCLR Lexis 232 (hazard).

 The doctrine may arise regarding disputes concerning pleadings and mileage. Judicial notice allows a judge to take “notice” of its own file.  Judicial notice can also resolve mileage disputes.  The Commission has recognized the distance between cities as a matter of judicial notice.  Woods  Brauer Supply, 2004 Mo WCLR Lexis 30.  In Illinois, the Commission found Mapquest sufficiently reliable to invoke judicial notice.   The court noted it calculated its own search to verify mileage claimed and noted only a “negligible” difference in the calculation when the calculation was not part of the record itself.  Shaffer v Contech Construction, 2007 Ill. Wrk. Comp. Lexis 986.

The quest to find the “known knowns” can produce curious results.    Librarians apparently are known to  fall more than the average member of the public,  Keyster v Univ. School District, 2004 Mo WCLR Lexis 173. A claimant who did not have hemoglobin would be “deemed a vampire.”  Collier v A.G. Edwards and Sons, 2004 Mo WCLR Lexis 12.    Clearly, if Collier  had been written in 2014 some clerk at the Commission  would have probably cited Wikipedia.


**

The Commission disclaimed a finding by a judge that breast cancer caused or worsened a worker's depression because the conclusion was based on the judge's own "lay" opinion.  Smith v Dannie Gilder, 2014 MO WCLR Lexis 106 (Aug 26, 2014). 

Court rejects rehashed standing argument

An employer once again attempted to withdraw a settlement proposal for a lump sum of a permanent total award when a claimant with an unrelated  stage 4 cancer died while the contract was awaiting approval.  In its second visit to the court of appeals on this case, the employer once again failed to persuade the court that it could walk away from the deal.  Nance v Maxon Electric, WD 76587 (April 8, 2014), 2014 Mo App. Lexis 400. 

The employer argued the surviving spouse lacked standing to enforce the agreement because the commission had not formally ordered the widow to be substituted as a party after a motion had been filed to substitute parties.  The court noted the same argument was raised  for the first time in oral argument in the first appeal and had also been rejected in post-opinion motions in the first appeal.  The law of the case precluded re-examination of the issue.  The employer failed to preserve its belated argument that claimant was not a "party."  The employer failed to preserve any point to reject the proposed settlement based on the limited criteria of 287.390:   undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement.   The court rejected a request for sanctions against the employer. 

The not so unusual facts of Nance highlight the importance to reflect the intent of the parties how to handle contingencies in the event of unexpected death  when dealing with a party with  a known life-threatening illness.  This case has been in litigation on appeals since claimant died in October 2011 when the settlement for $181,434 was submitted by both parties.   The case flowed from a 1989 accident in which the employer had repeatedly sought approval to reduce to a lump sum.
Maxon I, WD 74942 (Nov. 6, 2012). 

Atty:  Murphy, Reynolds

Do "illegal" workers get Medicare Set Asides?

Let’s just assume for the sake of argument there are some people who work without proper immigration status.   Let’s assume some of those workers sustain injuries.  Can the employer in Missouri refuse to fund a Medicare Set Aside  based on an immigration defense?

Let’s call them the "Undocumented Working Person" (UWP).  The Associated Press last year decreed it is not apropos to use the phrase “illegal immigrants” because people are not illegal and only acts are illegal.   This is not surprising in a world of political correctness.  People who file claims can no longer be called claimants but "injured workers" if they are injured or not.  "Claimant" is too pejorative like someone is  "claiming" something. Don’t even  ask about old legal classifications of “idiots, imbeciles and morons.” 

Let’s take another wild assumption.  Our UWP is already collecting government benefits.  Somehow he is on social security and has a Medicare card because he used a false identity.   “This could never happen!” you object.  Just play along. 

There are 7.3 million American workers whose earnings were reported and did not match their claimed social security numbers.  There is apparently a term of art called an “earnings suspense file.”  Despite policies not to pay benefits to UWPs,   Medicare reports it has paid 29 million from 2009 to 2011 to more than 4000 UWPs who were able to make 279,056 drug claims.    Estimates are Medicare could save $67 million in over five years if the agency properly enforced the 1996 law to deny benefits for those UWP unlawfully present in the United States. 

Missouri provides access to worker’s compensation statutory benefits to employees regardless of immigration status.

Missouri, in fact, no longer requires an injured worker to disclose a  complete social security numbers.   It’s only half the fraud when using four fake numbers than nine, right?

In Missouri the legal issue is whether the “injured worker” is an employee and not a “legal” undocumented working person.   The Missouri Commission addressed this issue and stated the claimant must only show proof of employment under 287.020 and there was no need to prove “legal” employment.  Vega-Rivera v Hyatt Corporation, 2011 Mo WCLR Lexis 149. In the case claimant did not admit she was an “illegal alien” but admitted she crossed the border illegally and was "sorting out"  her status. 

Chapter 287 requires an employer to provide medical care, including future medical in some cases, to people injured at work.  The word “illegal” is not used in the section, so under strict construction the legislature clearly intended to extend benefits to everyone.   This is Missouri, after all, where the state makes it unequivocal that English is the official language and the House makes it clear that no law, even comp law, is going to be governed by Sharia.   If the House intended to put their finger on the dike in comp they certainly know what finger to use.

The answer to MSA obligations is no where in Chapter 287.  The chapter doesn't even define MMI and isn't about to touch MSA.

Medicare’s interests must be considered and the likelihood that some injured workers will be on the Medicare boat if they are not already.   Immigration enforcement is for people at much higher pay grades, like the ones in D.C.  writing checks to dead people.  The employer may not think that is fair, but the word fair is not in chapter 287 either.  One cannot assume a fair result under strict construction when the word fair is not used in the statute. 

The Missouri employer can always leave medical open and designate providers.  As a practical matter if the UWP has the minimalist of contacts in Missouri he may disappear again and it may be an award which is never enforced.   While some employee may disappear, Medicare is the gorilla in the room like an unemployed houseguest that isn’t going anywhere.   

Several risks need to be considered:

Risk #1:  The parties did not consider Medicare’s interests to fund claims of UWPs who may not be entitled to receive benefits under federal law. 

Risk #2:  Medicare in its infinite wisdom will continue to pay people who are not entitled to benefits.

Risk #3:  Medicare will seek reimbursement for conditional payments it should never pay in the first place.

Funding a Medicare Set Aside is one mechanism to shut down future medical.  This is an attractive solution to the open-ended medical award or lump sum settlement for Missouri employers even if the employer is asking Medicare with a wink and a nod to approve a deal with a UWP who may not be entitled to benefits in the first place to close down its statutory liability for future medical.   

Careful drafting might suspend  future obligations if the injured worker becomes disqualified from Medicare benefits, incarcerated, deported, or drag races while intoxicated in Miami while singing "Baby." A settlement agreement to advance future Medicare obligations may also become a classic buyer’s regret for the employer if the UWP is thrown off the Medicare rolls the moment it is approved.    There is no immigration discount to calculate the MSA, such as using a coded age like someone with some horrible terminal illness.   An entitlement to MSA is an entitlement for life.   There is no assumption that after 5 years or 10 years someone at INS, DHS, CMS, or NSA might take someone off the rolls which doesn’t belong.  The employer’s obligations to pay UWP is based on life expectancy, because there is the presumption the government will remain inefficient to enforce its immigration laws and tighten eligibility for government benefits for the reasonable life expectancy of any claimant.   The immigration issue is not a defense in medical liability in Missouri comp.  That, in the classic government excuse, is someone else’s job.

The employer who has lax policies hiring undocumented workers may have a very high price to pay at the end because someone in the government benefits department has been lax about doing their job too.   

 

Sources for statistical information

Dinan, Medicare paid millions to dead patients, illegal immigrants, probe finds, Washington Times  (Oct. 31, 2013).

Harper, Associated Press Bans the phrase ‘illegal immigrant, Washington Times (April 2, 2013)

Pear, Crackdown Proposed to Prevent Illegal Immigrants from Obtaining Medicare, New York Times (March 3 2014)

Solane, Illegal Immigrants Give Billions to Medicare, Social Security with no hope of benefit, Medicare News Group (Jan 7, 2013).

corporate designee depositions

The Commission in a recent case indirectly addressed the issues whether the employer had to disclose witnesses and produce a corporate designee.    Lawrence v New Bloomfield R-3 School District, 2014 Mo WCLR Lexis 22 (Feb. 20, 2014); affirmed without opinion, 2015 MO App. Lexis 25. 

In the case claimant deposed 7 employees who provided unfavorable testimony.  The claimant sought to depose a corporate designee.  The ALJ twice quashed claimant's request for a corporate designee deposition and over-ruled claimant's objection when the employer produced an "undisclosed" witness who further impeached claimant regarding the extent of pre-existing symptoms

 The Commission concludes any error regarding both issues was not prejudicial and ultimately affirmed the holding.  The Commission indicated the ALJ has discretion regarding the scope of discovery, but it did not make unequivocal findings whether it considered there was an abuse of discretion that after 7 depositions enough was enough.  In the case the Commission expresses "concern" about not allowing more discovery and that claimant could have been "potentially" prejudiced because "at minimum, employee should have been given an opportunity prior to hearing to discover employer's  intended witnesses, verify the general nature of their anticipated testimony, and/or obtain copies of recorded statements."  The Commission does not discuss why the goals could not have been achieved in 7 prior depositions and only through a corporate designee deposition under 57.03(b)(4).

Rule 57.03(b)(4) provides "A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

Claimant arguably sought information regarding anyone with knowledge about the claim.   The need for such inquiries under Rule 57.03(b)(4) are probably unnecessary if the Commission allowed discovery  through Rule 57(a) interrogatories.   The ruling from the ALJ potentially could have been more favorable  for the employee if that had been the 1st deposition rather than the 8th.   The simple takeaway of the opinion  is there was no abuse of discretion and the rulings were proper.  The dicta is more ominous that  employers better get ready to be sworn in and get their witness lists prepared sooner than later. 


ALJ Ruth

Appeals court reverses denial of SIF PTD on post-accident worsening defense

A claimant in a 2001 accident established he was totally disabled after a second round with the court of appeals in Abt v Mississippi Lime Co., ED 99779 (Mo. App. 2-18-2014);

The injured worker sustained multiple injuries from a collision between a locomotive and a truck, but  returned to work for about 4 years after his accident until he states worsening symptoms prevented him from gainful employment.  The ALJ found claimant unemployable due to post-accident worsening but awarded partial benefits against the employer and the SIF, and did not adopt the finding's of claimant's expert that claimant was a SIF total due to a combination. 

The court concluded that no party disputed whether claimant was PTD but only the cause of the condition as post-accident worsening or from a SIF combination.   In the original appeal the court remanded the case and found the Commission erred by disregarding Dr. Poetz' opinion that claimant was totally disabled due to a combination and misread the record that Dr. Poetz' opinion was based on an incomplete medical history.   The determination that claimant's disability flowed from post-accident worsening was not supported by substantial evidence because none of the medical experts supported that conclusion.

The opinion distinguishes between the amount of disability and the cause of disability.  Both parties conceded that claimant was totally disabled but the SIF disputed the cause.  The defense of post-accident worsening in this type of case required expert testimony and the Fund failed to introduce such evidence to support its defense in the primary case or on remand.  As no party disputed that claimant was unemployable, the only issue was the cause the disability. 

The Commission later affirmed a finding of PTD, 2014 MO WCLR Lexis 63 (May 7, 2014). 

Award supported by "subjective" symptoms

Missouri courts once again wrangle in  the old grudge match between the evidentiary weight given to subjective and objective symptoms.  Reformers thought they had put an end to those types of fights by indicating that "where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings."  287.190.6. 

In Ballard v Woods Supermarkets, 2014 Mo App. Lexis 93 (January 29, 2014) the Southern District was asked to reverse a finding of permanent and total disability to a 58 worker who had a two-level back surgery because her "subjective" symptoms such as a need to lie down precluded gainful employment and her surgeon found no "objective" neurological deficits to explain her symptoms.  The court affirmed benefits and found the employer's argument without any merit.  

The court of appeals indicates the commission properly applied  287.190.6 as the finding was based on objective findings of a failed laminectomy surgery with scarring.  Both medical experts agreed that her post-surgical condition could be a source of pain.  Both vocational experts regarded any need to lie down was toxic and she was unemployable in the open labor market. Pain is a logically related to the diagnosis.  The court didn't want to deal with deciding how much someone hurts and deferred the finding as a matter of credibility to be determined by the Commission.

A similar issue previously surfaced in the Eastern District in which the employer also lost an argument that an objective finding from an FCE regarding a capacity to work had greater evidentiary weight than claimant's subjective limitations due to pain.  In Reichardt claimant was awarded total disability benefits based on pain complaints after a back surgery and a reported need to lie down.  Both vocational experts in Reichardt, as in Ballard, concluded claimant could not work if he needed to lie down.  The Commission found that the FCE did not assess pain so there was no conflict.    Reichardt v Industrial Sheet Metal Workers,  2011 MO WCLR Lexis 226, 367 S.W.3d 650 (Mo. App. 2012), affirmed without an opinion. 

Both the court in Ballard and the commission in Reichardt assume that pain cannot be measured without any expert ever addressing that issue directly.   Subjective and objective findings both warrant some evidentiary weight to assess disability.  The difference between subjective and objective is not always clear. 

 Ballard  reaches a predictable conclusion that 287.190.6 does not preclude an award of total disability  based on subjective reports of pain.    Section 287.190.6 appears to still require a worker to  show that pain logically flows from an objective condition, but the claimant does not have to objectively prove the degree of pain or explain why a degree of pain may be higher than expected. In the civil context, this is an issue about  damages and not the issue of liability.  The suggestion that pain cannot be measured or quantified is over-simplistic.  Therapists quantify pain every day.   Pick a number between 1 and 10. How much do you hurt now?  How about now when you bend this far?  The real issue is that the degree of pain is sometimes psychosocial and may not have a good medical explanation. To demand a medical explanation would make comp unavailable to a population of workers with the highest level of pain complaints that are difficult to treat.


***

Commission discounts FCE findings and modifies SIF award from PPD to PTD based on subjective complaints and conflicting expert opinion. The Commission "impliedly" finds the pain complaints credible despite an expert opinion of a normal exam and solicits admissions from employer's counsel in argument that the claimant was "credible" during the hearing.     Ponticello v D&D Distributors, 2015 MO WCLR Lexis ---- (9/4/2015)
ALJ  Landolt
Atty:  Haupt, Banahan, Daugherty
Experts:  Volarich, Burke, England

PTD award supported without a physical exam

The Commission reversed a denial of benefits and found that a psychiatrist's opinion supported an award of PTD benefits against the Second Injury Fund for a combination of prior psychiatric conditions and new orthopedic injuries even though the expert performed no physical exam. of  the 41 year old claimant for his orthopedic injuries.   Phillips v M&S Painting Ins., DOLIR 1-14-2014.

The ALJ found claimant's expert was not credible.  "Dr. Liss summarily concluded Claimant was PTD due to the bipolar condition and the work injury without explaining how he reached the conclusion. This is especially important in light of Dr. Liss’ opinion that Claimant’s bipolar condition alone resulted in "significant disability.""  Claimant's own treating physician concluded claimant could return to work without restrictions from the orthopedic injury. An expert who examined the orthopedic injuries did not indicate unequivocally that claimant was unemployable.   The ALJ found claimant's expert lacked  the qualifications to render a vocational opinion. 

The Commission acknowledged the expert is not "entitled to great weight" but is not rebutted or impeached anywhere in the record and claimant can rely upon expert medical opinion to establish PTD without additional vocational opinions.   The takeaway from the case is the need to present contrary expert opinion, an element often lacking in many second injury fund defenses.

ALJ Carlisle

Court finds delay to investigate claim constitutes a denial of treament

An employer has an obligation to provide treatment for a work-related injury, and the duty may arise even though claimant does not  prove the condition is work-related when requesting care, according to the recent court of appeals case, Downing v. McDonald's Sirloin Stockade, 2014 Mo App. Lexis 37 (Jan 15, 2014). 

Downing involved a waitress who had back surgery and the carrier would not authorize it because the carrier wanted more time to investigate the claim.   Claimant  initially attributed the symptoms to an accident months earlier bending over a table and she later hired an expert who attributed her disc herniation to an occupational disease.  At the time of her request for care the treating physician indicated that her condition was chronic but did not attribute it to an occupational disease. 

When claimant requested care several months later, the employer authorized claimant to have an MRI and see a surgeon but declined to authorize surgery to investigate the claim.  Dr. Ibsen recommended surgery on June 14, claimant was told it would was denied pending investigation in a conversation on June 20, and claimant proceeded with surgery immediately resulting in two operations.     The ALJ inferred a finding the employer's physician regarded the condition work-related by referring claimant to a surgeon.  The claimant's expert concluded claimant herniated a disc from repetitive bending in her job as a waitress.  The employer's manager testified that the waitresses complain their backs hurt  all the time and he rubs them to help their various aches and pains. The ALJ   awarded the rating provided by claimant's expert and adopted the causation opinion as the employer offered no expert opinion.  The ALJ found that the employer in these circumstances had not denied or neglected to provide care and had previously tendered evaluations with an MRI and a surgeon. 

The Commission reversed and awarded further payment of the medical bills.  It noted the employer had a duty to provide care when it received a request for care.  In this case, there was no evidence of an election for claimant to seek her own doctor for treatment when she treated with the doctor selected by the employer.   The Commission noted it was a "reasonable concern" that the employer might delay authorization to develop a defense. "We do not believe that employer's statutory right to direct treatment invested this employer with the right to tell employee to ignore the recommendation from Dr. Ipsen and wait, in severe and unrelenting pain, for no other reason than to allow Ms. Henderson time to build her case for denying the claim altogether."  The ALJ had found claimant's own expert testified the need for surgery was not an immediate "emergency" treatment  2013 MO WCLR 65, suggesting the Commission may have made its own finding that the pain was unrelenting. 
The court of appeals rejected  the employer's appeal  that claimant had to prove authorization or a need for emergency treatment to order payment of the bills.  The employer did not contest claimant had an occupational disease or that the treatment was unreasonable or that additional investigation would have changed that determination.  Unlike other cases, claimant had sought treatment from a physician selected by the employer and provided notice of her intention to proceed with immediate treatment after the employer had tendered evaluations with other providers.   The Court did not adopt the  Commission's finding that the claimant had  unrelenting pain or the Commission's implication that the employer was contriving an excuse not to pay benefits. 

Two days later the court of appeals recalled this decision and issued Downing v McDonald's Sirloin Stockade, 2014 Mo. App. Lexis 41 (January 17, 2014).  Notably, the court substituted its previous findings that the evidence supported a finding of an "occupational disease" to a "medical condition."  The new opinion further deletes reference to the original accident of leaning over a table and an explanation why  the employer questioned whether the symptoms were related to this specific incident.  Claimant's expert concluded that the "work" caused the disc herniation according to both opinions. 

The takeaway from the case is that a Missouri employer  who has the right to select a comp provider can be on the hook when its own expert recommends surgery and has to decide quickly to fish or cut bait. 

Editorial: Fund reform still allows recovery for systemic illness.

On January 1, 2014 the Missouri legislature made a New Year's Resolution that the Second Injury Fund was going into a new fitness plan: it was going to be tighter, leaner, and meaner.  Those crazy bygone days of spending its money recklessly  on partials are gone and the Fund eligibility on a total is harder.  It was no longer going to be the laughing stock in the locker room.

SB 1 reform did trim away recoveries from SIF for claims of partial disability.  Despite the fancy new gym clothes that made it look like it was serious, reform did little to limit SIF recoveries for claims of total disability.  In the end, it was  like giving up snacking between meals but still booking a lot cruises with 24-hour buffets.

Of course, there are statutory examples that reportedly limit qualifying PTD disability.  It states it  can flow from a prior military duty, or a prior case, or from opposing extremities or an opposite eye or ear.  There is a glaring exception:  287.220.3(a)a.(iii)  allows a prior disability which is  "Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury...."  http://www.moga.mo.gov/statutes/C200-299/2870000220.HTM

So what does that mean?

None of these terms are defined in the statute.  Accelerate generally means to "cause to occur sooner than expected."  Aggravate means to "make worse or more serious."   The word "significantly" is used in one clause but omitted from the following clause.  It is not clear whether this has any significance and adds little to the meaning.  It is like two young siblings arguing:  "You are BOTHERING me," and 30 seconds later:  "Now you are SIGNIFICANTLY bothering me."

Our Commission last year in the Maness v City of Desoto  noted that the word "aggravation" never appears in the statute. 'We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287." One of the major reforms was  to redefine injury by accident to require something more than just showing up at work.

The takeaway is the expert proving up SIF liability now must say the magic words:  "significantly aggravates." Wow, that just stopped the world, didn't it?

Let's take for example some of the more popular systemic diseases in the Midwest like obesity, cancer, or heart disease.    Take, for example, a familiar factual allegation:  someone hurts his back, has surgery, and ends up with lifting restrictions which prevent return to former employment.   Is it really that hard to find an expert to conclude that heart disease or obesity doesn't make it just a little harder to bounce back from that three-level fusion?    It's like serving dinner on smaller plates and going back for seconds.

A happy New Year, let's hope it's a good one....