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