White v Conagra Packaged Foods
2017 MO 585 (Dec. 19, 2017)
The Supreme Court affirms a denial of benefits in a death case in which a machinist with multiple cardiac risk factors died at work after working in a hot environment.
The ALJ and Commission denied benefits based on conflicting medical opinion about the cause of death.
" In the supplemental opinion, the Commission first determined White suffered an accident because White's "death at work was an unexpected traumatic event." Second, the Commission addressed the issue of medical causation. In doing so, the Commission answered the question of whether "work was the prevailing factor in causing the alleged accident." After weighing the expert testimony, the Commission concluded Claimant had not met her burden of establishing medical causation. The Commission relied on Dr. Farrar's testimony in concluding White's work activities were not the prevailing factor in causing his cardiovascular event. The Commission was not persuaded by Dr. Schuman's testimony because the Commission found he "did not possess the necessary factual foundation to support his theory,"
The court noted the correct standard in cardiac cases is a special section and not the general accident rubric:
"Even though the Commission failed to identify accurately the "accident" (i.e., the unusual strain on White due to the extraordinary heat) and the "injury" (i.e., death resulting from ischemia-induced arrhythmia), it accurately identified the key issue in this case, i.e., whether the accident was the prevailing factor in causing the injury."
"Section 287.020.3(4) provides that a death or other condition resulting from a cardiovascular event" suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition." § 287.020.3(4) (emphasis added). Accordingly, such cases are not exempt from the ordinary accident/injury rubric set forth in section 287.120.1, and section 287.020.3 addresses how that rubric is to apply in these special circumstances
The court found the decision properly imposed a burden of proof based on prevailing factor rather than a preponderance of the evidence and the commission could properly reject lay testimony to the extent that it tried to establish the length of exposure became sufficient to support a causation opinion in a complex medical issue.
Friday, December 29, 2017
Tuesday, December 19, 2017
Pro se claim fails in part without expert evidence
Claimant, pro se, caught her hair in conveyor rollers while crawling under machinery and claims hair was pulled from her head. She complained of persistent "explosions" in her head which her doctor told her occurred because her head was "re-attaching." She had additional treatment in pain management for her back about 9 months after the accident which she believes is related.
Zerwig v Verallia/St. Gobain, Inc. (Travelers), Inj. No. 13-022178 , D/A 4-2-2013 (decided 12/17/2017)
The ALJ denied the claim concerning the back based on the lack of expert opinion, the lack of admissible medical records, and disabling symptoms occurred 9 months later. The ALJ awarded 2% BAW and found testimony of hair loss and minor head contusion within the scope of lay testimony.
The claimant appealed and sought to introduce additional evidence. The motion to submit additional evidence did not meet the standards of 8 CSR 20-3.030(2) as the records she sought to introduce were not newly discovered evidence. The Commission found no reversible error on claimant's allegations that she did not receive a fair trial, that the judge would not let her offer evidence, and the judge "badgered" her, among other alleged errors.
Claimant had attempted to offer exhibits which did not comply with 287.140.7 or 287.210. The claimant objected that she was unable to read from her own narrative opinion because of "well-taken" objections by the employer.
ALJ Denigan
Zerwig v Verallia/St. Gobain, Inc. (Travelers), Inj. No. 13-022178 , D/A 4-2-2013 (decided 12/17/2017)
The ALJ denied the claim concerning the back based on the lack of expert opinion, the lack of admissible medical records, and disabling symptoms occurred 9 months later. The ALJ awarded 2% BAW and found testimony of hair loss and minor head contusion within the scope of lay testimony.
The claimant appealed and sought to introduce additional evidence. The motion to submit additional evidence did not meet the standards of 8 CSR 20-3.030(2) as the records she sought to introduce were not newly discovered evidence. The Commission found no reversible error on claimant's allegations that she did not receive a fair trial, that the judge would not let her offer evidence, and the judge "badgered" her, among other alleged errors.
Claimant had attempted to offer exhibits which did not comply with 287.140.7 or 287.210. The claimant objected that she was unable to read from her own narrative opinion because of "well-taken" objections by the employer.
ALJ Denigan
SIF asks Commission to "undo" its previous stipulation about MMI
The Second Injury Fund was ordered to pay permanent total benefits and appealed regarding the effective date when the benefits were due and alleged the finding that they wee due on January was an error, although the Fund stipulated to the same January date in the hearing. Michael Deters v Boeing Company, Inj. No. 14-091486 (Dec. 7 2017)
The parties had stipulated in the original hearing that the MMI date was January 2015 and had filed a motion using the later date in May 2015.
The commission rescinded the original stipulation that MMI was in January 2015, and granted an implicit request that MMI was May 2015, but notes the parties did not expressly stipulate that was the date of MMI. The Commission suggests the parties can modify prior stipulations in many circumstances but the proper inquiry was the date of MMI and not the indirect finding when PTD benefits were due.
The SIF offered no expert evidence to refute claimant's experts that claimant was PTD.
ALJ Baker.
Tuesday, December 5, 2017
Lessons on client image from drunk possums
Sure, there’s probably a lot of different Goggle hits that
match that search.
I am talking about the Thanksgiving Opossum, the one last
month that broke into Cash’s Liquor in Fort Walton Beach, Florida.
Some readers may have already heard the story of marsupial
mischief. The critter broke into a store
and knocked down a bottle right after Thanksgiving and was found literally at
the scene of the crime, passed out, probably after air guitaring all night to
Lynyrd Skynyrd songs.
In a rush to get the story first, some journalists spread
fake news that the girl opossum was chugging bourbon. Nothing was further from the truth. The bottle was cognac. There’s no point in slut shaming an opossum
that passes out and think she wasn’t drinking the best of the house.
How did they figure this out? According to a witness, the possum wasn’t
“acting normal.” This may be a low bar
among opossums. I suspect in the national expert
witness database there is probably an expert on opossums to define what is normal.
The opossum was returned to a safe place in the Emerald
Coast Wild Life Refuge to sober up and fly right and not cause any more shame
to her family of dumpster divers.
So what lessons can be drawn here for workers’ compensation?
Plenty.
Workers’ compensation, like other litigation, is about creating an image and telling the story on
most favorable terms that puts a client in the best light.
Take, for example, how the opossum story was reported. Some
versions of this show stock photos of a generic opossum, opossums that were cute and
cuddly that you turn them into a plush for your baby niece. On the other hand, other photos showed the
sad truth of the passed out opposum, life on opossum skid row; the opossum that life had turned to
shadows it could have its own film noir biopic.
The Daily Meal runs
the picture with the pretty fence climbing possum. One wonders why a story about opossums is in
a web site called the “daily meal” but that may be a story for another column which
might be best answered by a different Google search of “Beer, Possum, and
Louisiana.”
Sometimes new clients show up more like the opossum on the floor
than the happy one walking on sunshine. Zealous representation sometimes may call for a little spin and re-packaging. Let's just say some public defenders know how to rent suits.
Nothing makes a comp claim look like a passed out opossum than someone who cannot tell the truth, changes stories all the time, changes medical histories all the time, and changes
body parts all the time. Employers have a similar need to protect their brand. Pictures of opossum passed out might be a little funny, but are not quite so funny when it is an exhibit of a litigant from a Facebook account. Don't be the opossum that goes viral now becomes an example.
No matter how many breath mints, sometimes the story is still going to stink.
Friday, December 1, 2017
Surgery Center ordered to pay costs for misdirected medical fee dispute
Timberlake Surgery Center asserted it was entitled to more money when the insurance company re-priced its bill and cut about 70% of the original charges. Zerrer v Ahal Concrete Contractors, 2017 MOWCLR Lexis 54
The Center tried three times to contact the Division to identify the cause number to file a claim for a medical fee dispute involving a thumb surgery The Division reported it had no reported injury involving treatment for the thumb but only had an older case involving an elbow with a different named employer.
The Surgery Center relied upon the injury number in the earlier case and continued to prosecute the claim even when they had a chance to take a "fresh look" at their initial pleadings despite the evident difference in body parts, years of accident, and names of the employer and the prosecution changed from "reasonable" to unreasonable.
The ALJ declined to address the constitutional challenge regarding the notice procedure and addressed a portion of the legal fees.
ALJ Ottenad
Atty: Spooner, Sheehan
The Center tried three times to contact the Division to identify the cause number to file a claim for a medical fee dispute involving a thumb surgery The Division reported it had no reported injury involving treatment for the thumb but only had an older case involving an elbow with a different named employer.
The Surgery Center relied upon the injury number in the earlier case and continued to prosecute the claim even when they had a chance to take a "fresh look" at their initial pleadings despite the evident difference in body parts, years of accident, and names of the employer and the prosecution changed from "reasonable" to unreasonable.
The ALJ declined to address the constitutional challenge regarding the notice procedure and addressed a portion of the legal fees.
ALJ Ottenad
Atty: Spooner, Sheehan
Medical Releases
State ex rel Fennewald v. Hon. Patricia Joyce
533 S.W.3d 220 (Mo. 2017)
The Missouri Supreme Court granted a writ in prohibition to prevent a circuit judge from compelling release of "any and all" medical records in a wrongful death action.
Various medical providers were sued for wrongful death related to metastatic colon cancer. The medical providers sought a release of any and all records not only related to the colon cancer but to all records, all lab reports, all radiology, all pharmacy, all billing records and all documents including mental health, HIV-related information and drug or alcohol abuse.
The court noted that a party is entitled to discover those medical records that relate to the physical condition at issue under the pleadings, and the authorization should track plaintiff's allegation of injury in the petition and should be tailored to the pleadings which can be determined on a case by case basis. The physician-patient privilege impacts both the scope of permissible authorization and the process of determining the records to be produced. The request for "limitless" records and world-wide authorizations not directed to specific providers further create the potential release of information that remains privileged.
State ex rel Williams v Munton, 531 S.W.3d 643 (Mo. App. 2017) (S.D.)
The court of appeals prohibited a trial court from enforcing a subpoena compelling the release of plaintiff's prescription records for 6 years prior to ah accident in which a partially raised truck bed crushed him after the interlock switch was touched. The court found claimant's cognitive function was an issue in dispute a to the cause of the accident which permitted discovery regarding use of prescription medication, but the scope of waiver applied only to the use at or near the event.
533 S.W.3d 220 (Mo. 2017)
The Missouri Supreme Court granted a writ in prohibition to prevent a circuit judge from compelling release of "any and all" medical records in a wrongful death action.
Various medical providers were sued for wrongful death related to metastatic colon cancer. The medical providers sought a release of any and all records not only related to the colon cancer but to all records, all lab reports, all radiology, all pharmacy, all billing records and all documents including mental health, HIV-related information and drug or alcohol abuse.
The court noted that a party is entitled to discover those medical records that relate to the physical condition at issue under the pleadings, and the authorization should track plaintiff's allegation of injury in the petition and should be tailored to the pleadings which can be determined on a case by case basis. The physician-patient privilege impacts both the scope of permissible authorization and the process of determining the records to be produced. The request for "limitless" records and world-wide authorizations not directed to specific providers further create the potential release of information that remains privileged.
State ex rel Williams v Munton, 531 S.W.3d 643 (Mo. App. 2017) (S.D.)
The court of appeals prohibited a trial court from enforcing a subpoena compelling the release of plaintiff's prescription records for 6 years prior to ah accident in which a partially raised truck bed crushed him after the interlock switch was touched. The court found claimant's cognitive function was an issue in dispute a to the cause of the accident which permitted discovery regarding use of prescription medication, but the scope of waiver applied only to the use at or near the event.
Commission enhances PPD award for "not credible" claimant
Nance v Aramark Uniformed Services Corp.
Inj. No. 12-104863
DOLIR Nov. 30, 2017
The Commission increases an award of PPD on appeal for a 68 year claimant alleging an inability to work following a multi-level cervical fusion. The Commission deferred to the ALJ finding that the claimant's testimony was not convincing, credible or consistent.
The claimant was struck in the head between his eyes with a pipe in 2012 and the ALJ awarded 45% PPD. The 68 year old claimant describe acute onset of neck pain that he states after surgery still requires him to lie down during the day and take naps. He states he relies upon a cane to maintain his balance. He testified the employer forced an early resignation and refused to provide other benefits if he did not quit his job.
Claimant reported he did not report back or balance problems in the course of some of his treatment. He state he "forgot" about prior litigation involving claims of severe and disabling injuries and balance and sleep problems. Several witnesses provided conflicting evidence about prior job discipline or plans to retire.
Claimant had a C4-C7 fusion by Dr. Kennedy and Dr. Raskas. He had a revision surgery for pseudo-oarthrosis. Dr. Volarich testified that the accident aggravated an asymptomatic multi-level degenerative cervical spine and rated 85% for PPD.
Doctor Kennedy felt that claimant had limitations and that the "lack of full effort" noted during therapy evaluations was of limited importance. He felt the fusion was solid and the claimant was employable and that he did not need to lie down because of the surgery.
Doctor Kitchens felt claimant was employable and the three-level fusion would not cause any balance issues.
Gonzelez testifies that claimant was unemployable based on restrictions from Dr. Volarich that imposed less than sedentary capacity.
Jim England testified that claimant was employable within Dr. Volarich's restrictions, except for the toxic "need to lie down."
The ALJ found Dr. Volarich less credible and did not award future medical care. The ALJ noted claimant's credibility was substantially affected by inconsistencies on major issues such as the need to lie down, the conflicting medical opinions whether he has a myelo-radiculopathy, and found inconsistencies on other collateral issues such as withdrawing money from a retirement fund, and use of a computer. The ALJ found the testimony was not convincing, credible or consistent.
The Commission found that claimant's testimony lacked credibility but suggested inconsistencies may not be intentional and flow from some memory problems. The Commission stated it addressed credibility based on the medical testimony and found Dr. Kennedy persuasive that claimant was employable with restrictions. The Commission ordered open medical benefits open because of continued pain complaints from post-laminectomy syndrome.
AL Robbins
Atty: Hennessey, Amsler
Experts: Volarich, Gonzalez, Kitchen
Treater: Kennedy, Raskas
Inj. No. 12-104863
DOLIR Nov. 30, 2017
The Commission increases an award of PPD on appeal for a 68 year claimant alleging an inability to work following a multi-level cervical fusion. The Commission deferred to the ALJ finding that the claimant's testimony was not convincing, credible or consistent.
The claimant was struck in the head between his eyes with a pipe in 2012 and the ALJ awarded 45% PPD. The 68 year old claimant describe acute onset of neck pain that he states after surgery still requires him to lie down during the day and take naps. He states he relies upon a cane to maintain his balance. He testified the employer forced an early resignation and refused to provide other benefits if he did not quit his job.
Claimant reported he did not report back or balance problems in the course of some of his treatment. He state he "forgot" about prior litigation involving claims of severe and disabling injuries and balance and sleep problems. Several witnesses provided conflicting evidence about prior job discipline or plans to retire.
Claimant had a C4-C7 fusion by Dr. Kennedy and Dr. Raskas. He had a revision surgery for pseudo-oarthrosis. Dr. Volarich testified that the accident aggravated an asymptomatic multi-level degenerative cervical spine and rated 85% for PPD.
Doctor Kennedy felt that claimant had limitations and that the "lack of full effort" noted during therapy evaluations was of limited importance. He felt the fusion was solid and the claimant was employable and that he did not need to lie down because of the surgery.
Doctor Kitchens felt claimant was employable and the three-level fusion would not cause any balance issues.
Gonzelez testifies that claimant was unemployable based on restrictions from Dr. Volarich that imposed less than sedentary capacity.
Jim England testified that claimant was employable within Dr. Volarich's restrictions, except for the toxic "need to lie down."
The ALJ found Dr. Volarich less credible and did not award future medical care. The ALJ noted claimant's credibility was substantially affected by inconsistencies on major issues such as the need to lie down, the conflicting medical opinions whether he has a myelo-radiculopathy, and found inconsistencies on other collateral issues such as withdrawing money from a retirement fund, and use of a computer. The ALJ found the testimony was not convincing, credible or consistent.
The Commission found that claimant's testimony lacked credibility but suggested inconsistencies may not be intentional and flow from some memory problems. The Commission stated it addressed credibility based on the medical testimony and found Dr. Kennedy persuasive that claimant was employable with restrictions. The Commission ordered open medical benefits open because of continued pain complaints from post-laminectomy syndrome.
AL Robbins
Atty: Hennessey, Amsler
Experts: Volarich, Gonzalez, Kitchen
Treater: Kennedy, Raskas
Medical bills improperly admitted as outside scope of pleadings
Schieffer v Tomas DeCleene, ED 105243
Nov. 14, 2017
The court of appeals reversed a finding based on error alleged by the plaintiff in which he judge allowed introduction of the plaintiff's medical bills in a negligence claim involving an auto accident when the plaintiff originally plead the bills as special damages and then later deleted any claim for medical bills in his second amended petition filed on the morning of the trial.
The court found the admission of the bills was outside of the scope of the pleading and the trial judge abused his discretion to admit such evidence in finding his expenses of $14,743.75 was admissible. The trial court has no discretion to admit evidence of bills when it is outside the scope of the pleadings. A claim for medical bills must be stated in the petition as special damages.
The deletion of the evidence eliminated the concern that a jury would consider what his insurance company paid (or repriced) for the treatment. Plaintiff alleged general damages including pain and suffering and the cost of a future surgery. Plaintiff was offered surgery twice but cancelled it because of concerns about surgical risks.
The court noted a party cannot implicitly consent to trying an issue outside the pleadings unless the consented to evidence would have been irrelevant to the issues that were contained within the pleadings.
The judge found the bills admissible because they "shed probative legal and factual evidence" whether the treatment was for the alleged injuries or in part due to prior impairments related to a prior disc herniation and auto accident. The judge found under 490.715.5 any party may introduce evidence whether treatment rendered was reasonable, necessary and a proximate cause. The defense attempted to introduce the records to differentiate the costs. The court of appeals did not conclude it was necessary to address the second point of alleged error.
The plaintiff had sought damages of $300,000. The jury returned a verdict of $25,000.
Nov. 14, 2017
The court of appeals reversed a finding based on error alleged by the plaintiff in which he judge allowed introduction of the plaintiff's medical bills in a negligence claim involving an auto accident when the plaintiff originally plead the bills as special damages and then later deleted any claim for medical bills in his second amended petition filed on the morning of the trial.
The court found the admission of the bills was outside of the scope of the pleading and the trial judge abused his discretion to admit such evidence in finding his expenses of $14,743.75 was admissible. The trial court has no discretion to admit evidence of bills when it is outside the scope of the pleadings. A claim for medical bills must be stated in the petition as special damages.
The deletion of the evidence eliminated the concern that a jury would consider what his insurance company paid (or repriced) for the treatment. Plaintiff alleged general damages including pain and suffering and the cost of a future surgery. Plaintiff was offered surgery twice but cancelled it because of concerns about surgical risks.
The court noted a party cannot implicitly consent to trying an issue outside the pleadings unless the consented to evidence would have been irrelevant to the issues that were contained within the pleadings.
The judge found the bills admissible because they "shed probative legal and factual evidence" whether the treatment was for the alleged injuries or in part due to prior impairments related to a prior disc herniation and auto accident. The judge found under 490.715.5 any party may introduce evidence whether treatment rendered was reasonable, necessary and a proximate cause. The defense attempted to introduce the records to differentiate the costs. The court of appeals did not conclude it was necessary to address the second point of alleged error.
The plaintiff had sought damages of $300,000. The jury returned a verdict of $25,000.
Commission modifies denial and orders treatment for housekeeper's deQuervains.
Shegog v SSM Health
Nov. 14, 2017
ALJ Kohner
The Commission reverses a denial of benefits and orders a temporary award to provide treatment for deQuervain's based on claimant's testimony about her job duties and medical opinion of her expert, Dr. Schlafly.
Claimant had long-standing symptoms in both arms, including a prior settlement, but the commission finds the deQuervain's a new occupational diseased despite medical opinion of her treating physician that the condition did not flow from her employment.
Claimant alleges she developed bilateral carpal tunnel syndrome and DeQuervain's tenosynovitis arising from her job duties as a housekeeper in 2012. The employer denied the case and provided no benefits and relied upon medical opinions of Dr. Brown and Dr. Dysarz. Claimant had worked for the employer for about a year and reports she used her hands 90% of the time.
She underwent a right carpal tunnel release in 2012. She treated with injection or left deQuervains. She disputed the medical history in records documenting chronic symptoms with both hands. She had a prior settlement in both wrists on the basis of earlier claims of carpal tunnel syndrome. The ALJ found her credibility was "diminished" based on such inconsistencies.
Claimant's treating physician, Dr. Dysarz, concluded that the work duties were not the prevailing factor in her carpal tunnel or deQuervain's based on her history and that he personally observed her job duties. He noted her job description identified "frequent" lifting, carrying and pushing and pulling.
Dr. Schlafly noted in an earlier exam in 2006 that she had carpal tunnel syndrome and would probably require surgery. At the time of his 2014 exam he recommended surgery he recommended left carpal tunnel release and left deQuervain's release.
Dr. Brown concurred with the diagnosis of carpal tunnel syndrome and deQuervain's, but did not find the current employment to be the prevailing factor because the carpal tunnel was previously diagnosed in the earlier records.
The ALJ found the defense based on statute of limitations was moot because he found the conditions were not compensable.
The Commission found the work as a housekeeper exposed claimant to the risk of DeQuervain's, it accepted her testimony and the job description that her activities were "frequent" physical requirements of the job, and gave little weight to Dr. Dyserz's opinions about his own personal observations. The Commission further accepted Dr. Schlafly's conclusions that there was a recognized link between hand motions in the job and the development of DeQuervain's, a conclusion that Dr. Dysarz indicated was controversial. The commission gave little weight to Dr. Brown's "normal" exam of the wrist, when other doctors found the wrist with positive findings and Dr. Brown did not address "whether it is possible to rule out the continued existence of a left deQuervain's tenosynovitis based on a one-time negative clinical presentation."
The Commission further addressed the statute of limitations issue that was not addressed by the ALJ and concluded that it was reasonably discoverable that an injury had been sustained.
The Commission did not disturb the denial of allegations of bilateral carpal tunnel syndrome.
Nov. 14, 2017
ALJ Kohner
The Commission reverses a denial of benefits and orders a temporary award to provide treatment for deQuervain's based on claimant's testimony about her job duties and medical opinion of her expert, Dr. Schlafly.
Claimant had long-standing symptoms in both arms, including a prior settlement, but the commission finds the deQuervain's a new occupational diseased despite medical opinion of her treating physician that the condition did not flow from her employment.
Claimant alleges she developed bilateral carpal tunnel syndrome and DeQuervain's tenosynovitis arising from her job duties as a housekeeper in 2012. The employer denied the case and provided no benefits and relied upon medical opinions of Dr. Brown and Dr. Dysarz. Claimant had worked for the employer for about a year and reports she used her hands 90% of the time.
She underwent a right carpal tunnel release in 2012. She treated with injection or left deQuervains. She disputed the medical history in records documenting chronic symptoms with both hands. She had a prior settlement in both wrists on the basis of earlier claims of carpal tunnel syndrome. The ALJ found her credibility was "diminished" based on such inconsistencies.
Claimant's treating physician, Dr. Dysarz, concluded that the work duties were not the prevailing factor in her carpal tunnel or deQuervain's based on her history and that he personally observed her job duties. He noted her job description identified "frequent" lifting, carrying and pushing and pulling.
Dr. Schlafly noted in an earlier exam in 2006 that she had carpal tunnel syndrome and would probably require surgery. At the time of his 2014 exam he recommended surgery he recommended left carpal tunnel release and left deQuervain's release.
Dr. Brown concurred with the diagnosis of carpal tunnel syndrome and deQuervain's, but did not find the current employment to be the prevailing factor because the carpal tunnel was previously diagnosed in the earlier records.
The ALJ found the defense based on statute of limitations was moot because he found the conditions were not compensable.
The Commission found the work as a housekeeper exposed claimant to the risk of DeQuervain's, it accepted her testimony and the job description that her activities were "frequent" physical requirements of the job, and gave little weight to Dr. Dyserz's opinions about his own personal observations. The Commission further accepted Dr. Schlafly's conclusions that there was a recognized link between hand motions in the job and the development of DeQuervain's, a conclusion that Dr. Dysarz indicated was controversial. The commission gave little weight to Dr. Brown's "normal" exam of the wrist, when other doctors found the wrist with positive findings and Dr. Brown did not address "whether it is possible to rule out the continued existence of a left deQuervain's tenosynovitis based on a one-time negative clinical presentation."
The Commission further addressed the statute of limitations issue that was not addressed by the ALJ and concluded that it was reasonably discoverable that an injury had been sustained.
The Commission did not disturb the denial of allegations of bilateral carpal tunnel syndrome.
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