The Commission stripped more than $100,000 in benefits awarded to a carpenter partially blinded when he was cutting wood and debris went into his eye. Billy Hood v Michael Menech and Vandalia Area Historical Society, Inj. No. 12-107135 (July 19, 2017) but allowed the claimant a second chance by converting an award from a final award to a temporary award.
Claimant required immediate surgery to repair a ruptured globe and a lens implant. He later pursued additional treatment after two additional accidents. He has not worked since 2012.
The ALJ issued a final award for permanent partial disability, temporary total disability benefits, past and future medical for $134,849.25. The Commission modified the award to about $28,000.
What happened?
The commission noted an absence of expert testimony or opinion to support some aspects of the award. The commission found that there was insufficient evidence that treatment beyond the initial medical care and surgery flowed from the accident and reduced the award of medical bills
The Commission rejected the defense, in part, that the claimant failed to advance testimony from a physician to show the medical conditions flowed from the accident. The Commission found the undisputed facts were self-proving that claimant had an accident, that he had a foreign object lodged in his eye, and that he required emergency room treatment and the prevailing factor in "some" disability but that claimant failed in proof to show how diagnosis of conjunctival neoplasm, uveitic cataract and retrocorneal membrane related to the accident.
The Commission noted issues of causation were complicated because of claimant's subsequent injuries to his eye occurred when he fell down two flights of steps stairs when he was "voluntarily" intoxicated on a bottle and a half of Jack Daniels and "dislodged" the lens after the fall.
The Commission noted some evidence that claimant was an independent contractor but the defendants did not preserve the issue on appeal if claimant was an employee or to reconcile confusing evidence which of the two co-defendants employed him. The claimant testified that he worked for Menech but that he was paid under the name of Vandalia Area Historical Society. He states Menech employed 20 to 25 people and would provide larger equipment for construction projects. He states he never received a W2 form. Menech asserted he was a self-employed manager of the historical society project.
The Commission affirmed an award for future (or open) medical noting that claimant had required a prosthesis (an implanted lens) and it was reasonable probable he would require care in the future. No medical record is identified for this conclusion. The ALJ ordered Menech to provide treatment which may be selected by the Claimant.
The Commission notes no doctor found MMI so the award of PPD and converted the case from a final to a temporary award.
The Commission found no party challenged the compensation rate, which was calculated based on the ALJ's "assumption" that claimant worked 40 hours.
The Fund was liable under 287.220.7 to pay for treatment to cure and relieve the effects of the injury for an uninsured employer. The legislature later limited the law to allow similar claims only arising prior to Jan 1, 2014. The employer represented itself without counsel and it's appeal was dismissed for the failure to post a bond. It remained unclear from the opinion whether the business was a going concern or whether the employer had any resources to pay any of the award.
ALJ Zerrer
Atty Laramore, Hanson
Wednesday, July 26, 2017
Benefits awarded for pain after "tilting" neck
The commission awarded 20% disability to a 65-year old state employee who alleges her neck felt funny when she bent it at work to clean a sink. Estes v State of MO., 2017 MO WCLR Lexis 36 (July 18, 2017).
"She tilted her neck such as to cause her to have pain in her neck and such that she "saw stars."
She reported the accident in May 2012 after a leave for other medical conditions. She initially declined an offer of treatment but later pursued injection and RFA on her own. She testified she had a limited capacity to lift. She subsequently had additional orthopedic surgery for her shoulder and knee. The employer designated doctor had recommended care and attributed a nominal amount of permanent disability to the incident.
The commission affirmed an award of 20%. The ALJ denied liability for the shoulder and denied a claim of PTD benefits.
ALJ House
Atty: Platter
Experts: Lennard, Parmet
"She tilted her neck such as to cause her to have pain in her neck and such that she "saw stars."
She reported the accident in May 2012 after a leave for other medical conditions. She initially declined an offer of treatment but later pursued injection and RFA on her own. She testified she had a limited capacity to lift. She subsequently had additional orthopedic surgery for her shoulder and knee. The employer designated doctor had recommended care and attributed a nominal amount of permanent disability to the incident.
The commission affirmed an award of 20%. The ALJ denied liability for the shoulder and denied a claim of PTD benefits.
ALJ House
Atty: Platter
Experts: Lennard, Parmet
Thursday, July 20, 2017
Total for slip and fall injury
Barahona v Hilton Hotel
July 7, 2017
10-043312, 10-110361, 10-111518, 11-031709
The Commission affirmed an award of total disability to a kitchen employee who slipped and fell in 2011, hit her head, twisted her back and required knee surgery.
The claimant had four claims of orthopedic injuries over a period of about 10 months in 2010-2011.. The Commission determined the last accident alone produced her work limitations based on the opinion of Dr. Volarich, although he Commission noted some of the functional limitations identified by the ALJ appeared to combine pre-accident and post-accident symptoms. Her vocational expert concluded she was a total due a combination of old and new impairments.
The Commission noted:
"For example, employee’s current and ongoing need for assistance with activities of daily living; her need for daily narcotic medications in connection with multiple pain-generating conditions; and her limitations with regard to prolonged sitting and standing would all appear to involve at least some component of disability referable to employee’s preexisting injuries and disability conditions.
Likewise, employee’s bilateral ankle problems clearly involve disability referable to her prior work injuries of June and July 2010 affecting the right ankle. Accordingly, we must disclaim, from the numbered list spanning pages 49 and 50, the above-mentioned items, as we are convinced each involve some component of disability or impairment not referable solely to the effects of the last work injury."
Claimant described headaches, memory loss, back pain, and capacity to stand only a matter of seconds without pain. The employer-designated doctor felt she was capable of sedentary work. The ALJ noted she is 55 years old, has an eighth grade education from Honduras, she is unable to spell, she has poor concentration and orientation, she was depressed, she requires narcotics and rest breaks, among other limitations.
The ALJ noted that Dr. Kitchens concluded claimant's back findings were degenerative in nature and disputed claimant's theory that she had a traumatic annular tear as the source of her numerous symptoms. In addition, the Commission affirmed 3 additional PPD awards for accidents preceding the last accident.
ALJ Fischer
Atty: Newman
Experts: Volarich, Eldrid, Olive, Kitchens, England
July 7, 2017
10-043312, 10-110361, 10-111518, 11-031709
The Commission affirmed an award of total disability to a kitchen employee who slipped and fell in 2011, hit her head, twisted her back and required knee surgery.
The claimant had four claims of orthopedic injuries over a period of about 10 months in 2010-2011.. The Commission determined the last accident alone produced her work limitations based on the opinion of Dr. Volarich, although he Commission noted some of the functional limitations identified by the ALJ appeared to combine pre-accident and post-accident symptoms. Her vocational expert concluded she was a total due a combination of old and new impairments.
The Commission noted:
"For example, employee’s current and ongoing need for assistance with activities of daily living; her need for daily narcotic medications in connection with multiple pain-generating conditions; and her limitations with regard to prolonged sitting and standing would all appear to involve at least some component of disability referable to employee’s preexisting injuries and disability conditions.
Likewise, employee’s bilateral ankle problems clearly involve disability referable to her prior work injuries of June and July 2010 affecting the right ankle. Accordingly, we must disclaim, from the numbered list spanning pages 49 and 50, the above-mentioned items, as we are convinced each involve some component of disability or impairment not referable solely to the effects of the last work injury."
Claimant described headaches, memory loss, back pain, and capacity to stand only a matter of seconds without pain. The employer-designated doctor felt she was capable of sedentary work. The ALJ noted she is 55 years old, has an eighth grade education from Honduras, she is unable to spell, she has poor concentration and orientation, she was depressed, she requires narcotics and rest breaks, among other limitations.
The ALJ noted that Dr. Kitchens concluded claimant's back findings were degenerative in nature and disputed claimant's theory that she had a traumatic annular tear as the source of her numerous symptoms. In addition, the Commission affirmed 3 additional PPD awards for accidents preceding the last accident.
ALJ Fischer
Atty: Newman
Experts: Volarich, Eldrid, Olive, Kitchens, England
Tuesday, July 11, 2017
Commission affirms 20% load on SIF claim
Satterfield v Carlisle Power Transmission
2017 MO WCLR LEXIS
13-098713 (July 7, 2017)
The ALJ awards partial SIF benefits on the basis of bilateral hand condition combined with a primary metatarsal fracture.
Claimant alleges her foot was yanked underneath a pallet while she was working production at a job in Greene County. Claimant produced expert opinion that severe arthritis in both hands. The ALJ found a "unique" instance to award the 72 year old claimant disability of 25% of each wrist and a a 20% loading factor.
The award does not identify any expert opinion offered by the fund.
ALJ Mahon
Atty: Newman
2017 MO WCLR LEXIS
13-098713 (July 7, 2017)
The ALJ awards partial SIF benefits on the basis of bilateral hand condition combined with a primary metatarsal fracture.
Claimant alleges her foot was yanked underneath a pallet while she was working production at a job in Greene County. Claimant produced expert opinion that severe arthritis in both hands. The ALJ found a "unique" instance to award the 72 year old claimant disability of 25% of each wrist and a a 20% loading factor.
The award does not identify any expert opinion offered by the fund.
ALJ Mahon
Atty: Newman
Court declines to compel SIF to pay interest on awards
Deckard v Eric Schmitt Treasurer,
WD 80154 (July 11, 2017).
The second injury fund failed has had insolvency problems for years and was sued for contempt when it failed to pay judgments and interest on several permanent total awards. The only issue remaining on appeal was unpaid interest.
The workers sued, seeking a writ of mandamus and an order of contempt. The workers lost in a motion for summary judgment. The court of appeals affirmed and concluded the appellants could not appeal an interlocutory order and the appellants had not preserved for appellate review by obtaining an evidentiary hearing on the issue of contempt.
The legislature adopted a surcharge to attempt to solve the insolvency of the Fund and adopted a list of priority creditors or payments. The surcharge applies through 2021. The list is in section 287.220.15.
The court found purposeful legislative intent for the provision to apply retroactively by the use of the word "any." The court found that appellants failed to establish they had a clear, unequivocal right to require respondents to pay interest. Section 287.220.15 set a list of priorities to satisfy Fund obligations and the statutory obligation was below 5th out of 5 other priorities.
The fund is paid through a surcharge on employers and "ran out of money" to meet its obligations and is not funded out of general state revenue.
Hon Gabbert
Atty: Ieezi, Harris
WD 80154 (July 11, 2017).
The second injury fund failed has had insolvency problems for years and was sued for contempt when it failed to pay judgments and interest on several permanent total awards. The only issue remaining on appeal was unpaid interest.
The workers sued, seeking a writ of mandamus and an order of contempt. The workers lost in a motion for summary judgment. The court of appeals affirmed and concluded the appellants could not appeal an interlocutory order and the appellants had not preserved for appellate review by obtaining an evidentiary hearing on the issue of contempt.
The legislature adopted a surcharge to attempt to solve the insolvency of the Fund and adopted a list of priority creditors or payments. The surcharge applies through 2021. The list is in section 287.220.15.
The court found purposeful legislative intent for the provision to apply retroactively by the use of the word "any." The court found that appellants failed to establish they had a clear, unequivocal right to require respondents to pay interest. Section 287.220.15 set a list of priorities to satisfy Fund obligations and the statutory obligation was below 5th out of 5 other priorities.
The fund is paid through a surcharge on employers and "ran out of money" to meet its obligations and is not funded out of general state revenue.
Hon Gabbert
Atty: Ieezi, Harris
Thursday, July 6, 2017
Governor signs new comp bill
Missouri Governor Greitens on July 5, 2017 signed Senate Bill 66 to change the worker's compensation law.
The bill changes the law regarding hardship claims, drug penalties, retaliatory discharge and others areas.
A new book RUB SOME DIRT ON IT! talks about how the changes may create new problems and unintended consequences.
The bill changes the law regarding hardship claims, drug penalties, retaliatory discharge and others areas.
A new book RUB SOME DIRT ON IT! talks about how the changes may create new problems and unintended consequences.
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