The Commission affirmed a PTD award against the second injury fund despite a rating of 90% to the primary injury and claimant's attempts to minimize the impact of medical conditions prior to his accident.
Claimant alleges he hurt his back after pouring concrete for a boat ramp in 2006.
The ALJ awarded 55% for the primary case involving a back surgery. He experienced cauda equine syndrome and released with permanent lifting restrictions. He sought psychiatric counseling for a variety of psychiatric issues which he attributed to being in the "dumps" after the surgery.
The ALJ awarded PTD based on in part on vocational testimony that claimant was "bedridden" and dependent on narcotics. Claimant reported back and leg pain attributable to his recent accident and prior conditions including a previous back surgery. The ALJ found that the high rating of claimant's expert for the primary injury may have been based on incomplete information about prior conditions over-relied on claimant's own attempts to minimize their impact.
Head v Mo Department of Conservation, 2017 MO WCLR LEXIS _____.
Oct. 23, 2017
ALJ Spillars
Atty: Korte
Monday, October 30, 2017
Friday, October 27, 2017
Commission modifies credibility finding to award total
Wann v the Lawrence Group
2017 MO WCLR LEXIS
Inj. No. 12-0909608
Oct 11, 2017
The Commission modifies an award of permanent partial to permanent total and finds claimant was more credible how his "sleep issues" impacted his ability to work.
The Commission noted that it "ordinarily" deferred to a finding of credibility but in this case provided its own determination of credibility based on expert opinion
The Commission notes that Dr. Volarich's opinion is undisputed that claimant has sleep problems related to the accident and both vocational experts agreed that claimant could not work in the open labor market because employers would not accommodate a worker who needed to nap. Claimant asserts he was just too tired during the day and needed to rest because his shoulders hurt and disturbed continuous sleep.
Claimant reported his right arm continues to feel stiff even after right shoulder surgery and his left hand is stiff and painful. He treats his condition with ibuprofen.
The ALJ summarized the vocational opinion:
.....
"Ms. Abrams testified Claimant made a good first impression. She identified a number of jobs he could perform. These jobs will require him to learn new things, but he can be proficient in a few months. She opined napping three or four times a day could preclude his ability to get a job. She noted Claimant was not taking any over the counter or prescription pain medications."
The ALJ rejected the PTD claim:
"Claimant testified to sleep difficulties, but made no demonstrable attempt to alleviate his sleep disturbance. Sleep issues are not substantiated in the treatment records and are only found in the expert reports. Claimant’s expert opinions rely on Claimant’s assertion of a sleep deficit. The vocational experts opined Claimant has good WRAT scores, is articulate, has transferable skills, has no memory problems, and is able to learn new skills; yet, he has made no effort to seek employment other than one job through a family member."
The ALJ noted claimant did not have typical PTD presentations:
"ambulation deficits, narcotic pain regimens, inability to perform self-care, or marked sleep deficits. Claimant’s medical evidence contains none of these characteristics."
The Commission awarded the 59-year old open medical and noted he had qualified for social security. A doctor suggested he may ultimately need a joint replacement for arthritis.
ALJ Hart
Atty Niesen
Expert, Volarich, England
2017 MO WCLR LEXIS
Inj. No. 12-0909608
Oct 11, 2017
The Commission modifies an award of permanent partial to permanent total and finds claimant was more credible how his "sleep issues" impacted his ability to work.
The Commission noted that it "ordinarily" deferred to a finding of credibility but in this case provided its own determination of credibility based on expert opinion
The Commission notes that Dr. Volarich's opinion is undisputed that claimant has sleep problems related to the accident and both vocational experts agreed that claimant could not work in the open labor market because employers would not accommodate a worker who needed to nap. Claimant asserts he was just too tired during the day and needed to rest because his shoulders hurt and disturbed continuous sleep.
Claimant reported his right arm continues to feel stiff even after right shoulder surgery and his left hand is stiff and painful. He treats his condition with ibuprofen.
The ALJ summarized the vocational opinion:
"Mr. England testified Claimant will never be able to compete in the open labor market. Although Claimant has sleep disturbance, he takes no medication to help him sleep. He opined if Claimant were able to get a full night sleep, he could be a candidate for some jobs that do not involve much use of his arms."
.....
"Ms. Abrams testified Claimant made a good first impression. She identified a number of jobs he could perform. These jobs will require him to learn new things, but he can be proficient in a few months. She opined napping three or four times a day could preclude his ability to get a job. She noted Claimant was not taking any over the counter or prescription pain medications."
The ALJ rejected the PTD claim:
"Claimant testified to sleep difficulties, but made no demonstrable attempt to alleviate his sleep disturbance. Sleep issues are not substantiated in the treatment records and are only found in the expert reports. Claimant’s expert opinions rely on Claimant’s assertion of a sleep deficit. The vocational experts opined Claimant has good WRAT scores, is articulate, has transferable skills, has no memory problems, and is able to learn new skills; yet, he has made no effort to seek employment other than one job through a family member."
The ALJ noted claimant did not have typical PTD presentations:
"ambulation deficits, narcotic pain regimens, inability to perform self-care, or marked sleep deficits. Claimant’s medical evidence contains none of these characteristics."
The Commission awarded the 59-year old open medical and noted he had qualified for social security. A doctor suggested he may ultimately need a joint replacement for arthritis.
ALJ Hart
Atty Niesen
Expert, Volarich, England
Court affirms denial for SIF on "working total" defense
Glasco v Treasurer of the State of MO
WD 80186 October 24 2017
The court of appeals affirms a denial of a PTD claim against the second injury fund.
The Commission noted it was "constrained" to deny the claim and revered an award of total.
The Court of Appeals noted the claimant's experts omitted critical information, "suggests" claimant misunderstood the nature of the stipulations at hearing, did not assert an alternate claim of partial against the fund, misunderstands the decision from the Commission and basis for the reversal, and raises points on appeal that are "difficult" to understand and without merit.
Claimant injured her left knee in 2011 from a fall. She had a history of constant pain in the left leg. She settled with Citicorp for 15% of the knee and pursed a claim of total against the Fund.
The issues at the hearing was whether she had a compensable injury, whether she had prior disability, and the liability of the second injury fund.
Claimant relied upon expert opinion of Dr. Zimmerman and Michael Dreiling, a vocational specialist. Zimmerman was unaware of the complete medial history which suggested she could not really do "anything" as a result of medical conditions that predated the accident. The vocational expert also relied upon an incomplete history that did not consider she had "severe" pain prior to the work accident and had recently received short term disability leading up to the accident. He conceded the prior back condition rendered her virtually unemployable due to her back condition.
The opinion lacks details about her job at the time of the accident but indicates she had returned from a recent short term leave.
Dr. Drisko indicated that she was totally disabled from the back condition alone. Dr. Thomas testified he did not feel the accident impacted her back condition.
The Commission reversed an award of total disability against the fund and found insufficient evidence to establish a combination effect to support fund benefits because the experts found the claimant disabled solely due to the pre-existing low back condition. The Commission noted no alternate claim of permanent partial disability benefits. The Commission noted the experts did not consider synergy because there was no claim for partial disability benefits.
The Commission applied "old law" unaffected by statutory changes after January 2014.
Claimant alleged the parties stipulated to permanent total based on overwhelming facts and had no additional burden to show synergy. The court found the stipulations never addressed the extent of disability or the Fund's liability and the issue of synergy only applied to a claim for partial disability, which was never asserted.
The decision distinguishes between being employed and being employable in the context of a total claim. A claimant could be employed in a limited capacity, sporadic work, highly accommodated, or back at work after an absence but may be unemployable in the open labor market but still be deemed totally disabled. The court defers to factual findings regarding employability and "when" someone is totally disabled.
The commission could find claimant was unemployable due to the pre-existing back condition alone unrelated to the accident and could discredit other opinion that were provided demonstrably and critically incorrect information.
The case was tried in 2015. The commission notes plaintiff counsel requested two extensions of time and then did not file a brief. 2016 MO WCLR Lexis 63. ALJ Rebman had awarded total disability against the Fund.
Hon. James Welsh
Experts: Zimmerman, Drieling
WD 80186 October 24 2017
The court of appeals affirms a denial of a PTD claim against the second injury fund.
The Commission noted it was "constrained" to deny the claim and revered an award of total.
The Court of Appeals noted the claimant's experts omitted critical information, "suggests" claimant misunderstood the nature of the stipulations at hearing, did not assert an alternate claim of partial against the fund, misunderstands the decision from the Commission and basis for the reversal, and raises points on appeal that are "difficult" to understand and without merit.
Claimant injured her left knee in 2011 from a fall. She had a history of constant pain in the left leg. She settled with Citicorp for 15% of the knee and pursed a claim of total against the Fund.
The issues at the hearing was whether she had a compensable injury, whether she had prior disability, and the liability of the second injury fund.
Claimant relied upon expert opinion of Dr. Zimmerman and Michael Dreiling, a vocational specialist. Zimmerman was unaware of the complete medial history which suggested she could not really do "anything" as a result of medical conditions that predated the accident. The vocational expert also relied upon an incomplete history that did not consider she had "severe" pain prior to the work accident and had recently received short term disability leading up to the accident. He conceded the prior back condition rendered her virtually unemployable due to her back condition.
The opinion lacks details about her job at the time of the accident but indicates she had returned from a recent short term leave.
Dr. Drisko indicated that she was totally disabled from the back condition alone. Dr. Thomas testified he did not feel the accident impacted her back condition.
The Commission reversed an award of total disability against the fund and found insufficient evidence to establish a combination effect to support fund benefits because the experts found the claimant disabled solely due to the pre-existing low back condition. The Commission noted no alternate claim of permanent partial disability benefits. The Commission noted the experts did not consider synergy because there was no claim for partial disability benefits.
The Commission applied "old law" unaffected by statutory changes after January 2014.
Claimant alleged the parties stipulated to permanent total based on overwhelming facts and had no additional burden to show synergy. The court found the stipulations never addressed the extent of disability or the Fund's liability and the issue of synergy only applied to a claim for partial disability, which was never asserted.
The decision distinguishes between being employed and being employable in the context of a total claim. A claimant could be employed in a limited capacity, sporadic work, highly accommodated, or back at work after an absence but may be unemployable in the open labor market but still be deemed totally disabled. The court defers to factual findings regarding employability and "when" someone is totally disabled.
The commission could find claimant was unemployable due to the pre-existing back condition alone unrelated to the accident and could discredit other opinion that were provided demonstrably and critically incorrect information.
The case was tried in 2015. The commission notes plaintiff counsel requested two extensions of time and then did not file a brief. 2016 MO WCLR Lexis 63. ALJ Rebman had awarded total disability against the Fund.
Hon. James Welsh
Experts: Zimmerman, Drieling
Friday, October 20, 2017
Commission affirms temporary award for pop to knee
Candy Myers v Quanta Services
Inj. No. 15-099678
affirmed Oct 18, 2017.
The Commission affirmed a temporary award for benefits for a 57-year old who experienced a pop in her knee while unplugging a device, and the commission rejected a medical causation defense based on mechanism of accident. .
Claimant testified in 2015 she was under her desk unplugging computer cords and heard a pop in her knee. She was moving her work station. An MRI identified a meniscus and ACL tear and marked degenerative changes.
Dr. Hopkins provided a report on behalf of the claimant that the accident was the direct and prevailing factor in a torn meniscus because claimant would have been symptomatic from the nature of the tear. He concurred with the treating physician that the only way to repair the knee was a total knee replacement because of the prior degenerative conditions.
The employer relied upon expert opinion of Dr. Strange who felt she had prior ACL and meniscus tears that were not caused by the accident based on the mechanism of injury. The ALJ noted the expert went through "unusual effort" to dismiss the mechanism of injury. Claimant asserted she was asymptomatic from a prior surgery to the same knee. The ALJ felt the variances in the documented medical histories were not material.
The ALJ relied upon Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011) as a basis to award further medical care to cure and relieve the effects of the injury, including the cost of a total knee replacement.
ALJ Siedlik
Atty: Alvarez, Walsh
Experts: Paul, Hopkins, Strong
Inj. No. 15-099678
affirmed Oct 18, 2017.
The Commission affirmed a temporary award for benefits for a 57-year old who experienced a pop in her knee while unplugging a device, and the commission rejected a medical causation defense based on mechanism of accident. .
Claimant testified in 2015 she was under her desk unplugging computer cords and heard a pop in her knee. She was moving her work station. An MRI identified a meniscus and ACL tear and marked degenerative changes.
Dr. Hopkins provided a report on behalf of the claimant that the accident was the direct and prevailing factor in a torn meniscus because claimant would have been symptomatic from the nature of the tear. He concurred with the treating physician that the only way to repair the knee was a total knee replacement because of the prior degenerative conditions.
The employer relied upon expert opinion of Dr. Strange who felt she had prior ACL and meniscus tears that were not caused by the accident based on the mechanism of injury. The ALJ noted the expert went through "unusual effort" to dismiss the mechanism of injury. Claimant asserted she was asymptomatic from a prior surgery to the same knee. The ALJ felt the variances in the documented medical histories were not material.
The ALJ relied upon Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011) as a basis to award further medical care to cure and relieve the effects of the injury, including the cost of a total knee replacement.
ALJ Siedlik
Atty: Alvarez, Walsh
Experts: Paul, Hopkins, Strong
Tuesday, October 17, 2017
Commission affirms temporary award to treat frozen shoulder after a lifting accident
Leech v Phoenix Home Care
2017 MOWCLR LEXIS 45 (Oct 12, 2017)
The Commission affirms a temporary award for benefits for an 2015 injury to the right shoulder while a loading a tub into a vehicle which included an award of more than a year in unpaid temporary disability benefits.
The issues in dispute were medical causation, the obligation to pay temporary total and medical benefits and attorney's fees.
The claimant is a 49 year old home health care worker employed in Greene County.
She lifted a 20-25 pound plastic tub into the trunk of a patient's car and slipped causing a jerking motion to he right shoulder. The treating doctor identified adhesive capsulitis. The ALJ noted about a month later the doctor "changed" his diagnosis to "diabetic" frozen shoulder and placed her at MMI. The doctor found no traumatic pathology within the shoulder. She denied prior symptoms.
Dr. Putnam concluded that claimant's accident was the prevailing factor in her frozen shoulder, although diabetes placed her at greater risk to develop adhesive capsulitis, which occurs idiopathically or from trauma.
The ALJ found the employer expert, Dr. Roeder, to be less persuasive and "inconsistent at best". The ALJ found the employer was not subject to sanctions for unreasonable defense because it could reasonably rely upon the medical expert. The ALJ rejected the employer's request for a "credit" for cancellation of a deposition of its own expert "by claimant's attorney."
ALJ Fischer
Atty: Winget, Vessell
Experts: Roeder, Putnam
2017 MOWCLR LEXIS 45 (Oct 12, 2017)
The Commission affirms a temporary award for benefits for an 2015 injury to the right shoulder while a loading a tub into a vehicle which included an award of more than a year in unpaid temporary disability benefits.
The issues in dispute were medical causation, the obligation to pay temporary total and medical benefits and attorney's fees.
The claimant is a 49 year old home health care worker employed in Greene County.
She lifted a 20-25 pound plastic tub into the trunk of a patient's car and slipped causing a jerking motion to he right shoulder. The treating doctor identified adhesive capsulitis. The ALJ noted about a month later the doctor "changed" his diagnosis to "diabetic" frozen shoulder and placed her at MMI. The doctor found no traumatic pathology within the shoulder. She denied prior symptoms.
Dr. Putnam concluded that claimant's accident was the prevailing factor in her frozen shoulder, although diabetes placed her at greater risk to develop adhesive capsulitis, which occurs idiopathically or from trauma.
The ALJ found the employer expert, Dr. Roeder, to be less persuasive and "inconsistent at best". The ALJ found the employer was not subject to sanctions for unreasonable defense because it could reasonably rely upon the medical expert. The ALJ rejected the employer's request for a "credit" for cancellation of a deposition of its own expert "by claimant's attorney."
ALJ Fischer
Atty: Winget, Vessell
Experts: Roeder, Putnam
Monday, October 9, 2017
Driver fails to prove TBI without expert opinon
Parr v Bobby Boatright and Frozen Food Express
October 5 2017 Mahon
The Commission affirms a denial of benefits for a neck strain following an auto accident.
Claimant fell asleep on the road while operating a truck, he initially denied any injuries at the scene, and the vehicle went into a ditch and sustained only minor damage. The ALJ noted the claimant then performed his own research on the internet and became convinced that he had a traumatic brain injury. Claimant offers no expert opinion that he is totally disabled from this accident although he qualified for social security disability benefits and asserts he is limited in his ability to stand or walk.
Dr. Strang felt his symptoms were "related" to the accident. Dr. Cantrell found no evidence of brain injury or need for surgery for the 62 year old claimant or permanent injury from a neck strain.
Claimant objected on the basis of the seven-day rule that records had not been furnished seven day sin advance. The ALJ found no seven day rule applied for the service of medial "records", but if records being offered were not medical records they were subject to the seven day rule of business records in 490.692.
Claimant failed in a burden of proof without expert opinion to show the demand for TTD was because of medical injury or to explain why left sided cervical findings would explain right-sided symptoms.
ALJ Mahon
Experts Strange, Cantrell.
October 5 2017 Mahon
The Commission affirms a denial of benefits for a neck strain following an auto accident.
Claimant fell asleep on the road while operating a truck, he initially denied any injuries at the scene, and the vehicle went into a ditch and sustained only minor damage. The ALJ noted the claimant then performed his own research on the internet and became convinced that he had a traumatic brain injury. Claimant offers no expert opinion that he is totally disabled from this accident although he qualified for social security disability benefits and asserts he is limited in his ability to stand or walk.
Dr. Strang felt his symptoms were "related" to the accident. Dr. Cantrell found no evidence of brain injury or need for surgery for the 62 year old claimant or permanent injury from a neck strain.
Claimant objected on the basis of the seven-day rule that records had not been furnished seven day sin advance. The ALJ found no seven day rule applied for the service of medial "records", but if records being offered were not medical records they were subject to the seven day rule of business records in 490.692.
Claimant failed in a burden of proof without expert opinion to show the demand for TTD was because of medical injury or to explain why left sided cervical findings would explain right-sided symptoms.
ALJ Mahon
Experts Strange, Cantrell.
Subscribe to:
Posts (Atom)