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.