The Commission affirms a PTD award without a separate opinion.
Claimant alleges in 2011 she fell backwards and hurt her back when she was engaged in defensive tactics training. Claimant alleged PTD benefits against the employer or SIF.
She was diagnosed with a L2 burst fracture. She retired from her job in 2013. She had previously orthopedic treatment for her low back leading up to 2008. She reports new intolerance to sitting and she must take naps regularly during the day.
Dr. Volarich testified claimant was totally disabled from the last accident alone due to the severity of symptoms and she required future medical. Claimant's vocational expert indicated that restrictions suggested by Dr. Volarich precluded her from sedentary work.
Dr. Coyle assigned partial disability and did not identify the need for future medical treatment.
The ALJ awarded total disability against the employer and found claimant's reports of severe pain when she attempted to return to work as evidence that she could not compete in the open labor market.
Connie Carty v Southeast Missouri Health
2018 MO WCLR LEXIS (1/18/2018)
Atty: Seufert, Harris, Kincade
Experts: Volarich, Gonzalez; Coyle, England
ALJ Tilley
Wednesday, January 31, 2018
Ankle injury spirals into PTD award
The commission affirms an award of permanent total without separate opinion.
Claimant reports he slipped off of a platform in October 2014.
Claimant treated initially for a metatarsal fracture and symptoms in his knee and back. Claimant had previously treated for a compression fracture and went to chiropractor periodically. Claimant hired Dr. Volarich who concluded claimant developed symptoms in both knees and his back. Claimant's vocational expert concluded that Dr. Volarich's restrictions rendered him unemployable in the open labor market.
The employer's expert concluded claimant could compete for low-skilled jobs.
The ALJ found claimant's accident caused injuries to the ankle, knee and back and that he was credible although he was "emotional" at the hearing. The ALJ ordered future medical.
The ALJ found the case was defended on reasonable grounds and rejected a claim for attorney's fees.
The ALJ sustained objections to exclude a vocational expert from reading summaries about a medical condition.
Hardwick v Conagra Foods Packaged Foods
2018 MO WCLR LEXIS ___ (1-25-2018)
Atty: Jackson, Walsh, Doner
Experts: Volarich, Snider, Skahan, Cordray, Climer
Claimant reports he slipped off of a platform in October 2014.
Claimant treated initially for a metatarsal fracture and symptoms in his knee and back. Claimant had previously treated for a compression fracture and went to chiropractor periodically. Claimant hired Dr. Volarich who concluded claimant developed symptoms in both knees and his back. Claimant's vocational expert concluded that Dr. Volarich's restrictions rendered him unemployable in the open labor market.
The employer's expert concluded claimant could compete for low-skilled jobs.
The ALJ found claimant's accident caused injuries to the ankle, knee and back and that he was credible although he was "emotional" at the hearing. The ALJ ordered future medical.
The ALJ found the case was defended on reasonable grounds and rejected a claim for attorney's fees.
The ALJ sustained objections to exclude a vocational expert from reading summaries about a medical condition.
Hardwick v Conagra Foods Packaged Foods
2018 MO WCLR LEXIS ___ (1-25-2018)
Atty: Jackson, Walsh, Doner
Experts: Volarich, Snider, Skahan, Cordray, Climer
Commission finds PTD despite return to work
Claimant alleges he injured his neck, back and head when he fell while trying to load an air conditioner unit in 2011.
The Commission modified the award to PTD against the second injury fund. The Commission noted that vocational issue is:
whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition and not simply what jobs a claimant "might" be able to perform given certain job restrictions.
The employer's willingness to accommodate claimant for more than a year after the accident did not necessarily establish he could compete for and maintain gainful employment.
The Commission found claimant's functional illiteracy at fourth grade level was supported by a learning disability rather than an inability to learn, and rejected the SIF that claimant was not impaired by the condition because he was employed for 30 years.
Potts v State of MO Fulton State Hospital
2018 MO WCLR LEXIS (Jan 26, 2018)
ALJ Dierkes
Atty: Kiefer, McCain
The Commission modified the award to PTD against the second injury fund. The Commission noted that vocational issue is:
whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition and not simply what jobs a claimant "might" be able to perform given certain job restrictions.
The employer's willingness to accommodate claimant for more than a year after the accident did not necessarily establish he could compete for and maintain gainful employment.
The Commission found claimant's functional illiteracy at fourth grade level was supported by a learning disability rather than an inability to learn, and rejected the SIF that claimant was not impaired by the condition because he was employed for 30 years.
Potts v State of MO Fulton State Hospital
2018 MO WCLR LEXIS (Jan 26, 2018)
ALJ Dierkes
Atty: Kiefer, McCain
Video impeaches "severe and unrelenting pain" testimony
The Commission affirms an award of partial disability that claimant's assertion of unrelenting pain was inconsistent with surveillance video even though his expert suggested he should cut off his leg.
In 2008 claimant jumped out of a runaway truck resulting in injuries to his knee, ankle, and underwent multiple surgeries. The employer paid more than $300,000 in benefits for medical and TTD disability. Dr. Myers felt he was 100% disabled at the knee and he should consider an amputation.
Claimant alleges he rolled his ankle on a job in Texas in 2011 and aggravated a condition that was chronically painful.
The ALJ found his complaints of severe and unrelenting pain to lack credibility and that claimant failed to prove he was permanently and totally disabled. He awards 70% of the left ankle and 35% for the knee. He found the expert ratings of 20% for the knee to be inadequate. He awards open medical, noting hardware and an untreated ACL injury.
"The fact that Claimant claims to have experienced absolutely no pain relief from the fusion certainly raises a red flag. "
"The fact that Claimant continues to ride his motorcycle, in light of his complaints of severe, unrelenting ankle pain, raises another red flag. Claimant’s recent purchase of a Jeep with a manual transmission, requiring him to operate the clutch with his left foot, raises a red flag as well, as does Claimant’s operation of heavy equipment (excavator), as shown on the surveillance video.
The fact that Claimant has told medical and vocational experts that he must use a cane to get in and out of vehicles (due to his ankle pain), when that is clearly not the case (as evidenced by the surveillance video) raises yet another red flag."
"Additionally curious is Claimant's testimony that his use of narcotic medication makes him sleep and causes him a lack of concentration.
The ALJ noted claimant did not demonstrate any sleepiness or lack of concentration, although claimant stated his use of narcotic medication produced such symptoms. The ALJ noted "unless claimant is obtaining narcotic medication from a non-prescription source, he simply cannot be taking the large amounts to which he testified."
Page v OCCI (Travelers)
2018 MO WCLR LEXIS ____ (1/30/2018)
ALJ Dierkes
Atty: Holwick, Newmark, Doner
Experts: Hammond, Wiemholt, Myers, Thaler-Kane
Commission modifies SIF award to total for back surgery/psych
The Commission reverses a denial of benefits for a claimant bending over to change a hospital sheet/mattress and awards total disability against the fund and open medical and partial disability against the employer.
Claimant in 2012 reports she experience back pain and numbness down her legs while changing a bed sheet. The Commission characterized the accident as lifting a mattress in an awkward space.
She saw Dr. Robson who performed a multi-level fusion. She described continued difficulty walking, standing, and lifting.
Dr. Volarich felt she had 35% pre-existing disability. Dr. Bernardi felt her condition was long-standing and chronic.
The ALJ found Dr. Bernardi more credible and claimant failed to prove a injury arising out of and in the course of her employment.
The Commission noted claimant had treated for her back prior to the accident and had epidural injections. Prior to claimant's accident she had psychiatric symptoms but claims her psychiatric condition worsened after her accident. She remains under the care of a psychiatrist.
Dr. Robson, her treating physician, found the need for surgery flowed from the accident.
He did not feel she required additional medical care.
Dr. Volarich opined claimant required further medical care.
Dr. Bernardi conceded the accident aggravated her prior condition and made it symptomatic.
Dr. Jarvis felt she had no psychiatric disability as a result of the accident.
Dr. Brockman felt that claimant required further psychiatric care based on the conclusion that the accident aggravated her prior psychiatric condition.
The Commission awarded permanent partial for orthopedic and psychiatric based on an aggravation theory, and open medical. The Commission reframes the findings that claimant attempted to lift a mattress.
The Commission ordered the employer to pay more than $109,000 in medical costs and rejected the defense that claimant did not ask for treatment.
Snezana Kalajdzic v St. Louis Children’s Hospital
2018 MO WCLR LEXIS ______ (1/30/2018)ALJ Landolt
Atty: Niesen, Kafoury
Experts: Robson, Volarich, Bernardi, Jarvis, Brockman
Opioid addiction considered an element to support PTD claim
Houchin v. Trimmasters
2018 MO WCLR LEXIS (Jan 25, 2018)
The Commission affirms an award of total disability based on the findings that:
"Ms. Houchen’s work-related injuries to her neck, shoulders, psychiatric injury and opioid dependency render her permanently and totally disabled. "
Claimant in 2006 was lifting sheets of plywood that were caught in the wind. At the time she was ripping plywood to build windows. She underwent surgery for a cervical fusion. She developed eye problems using Neurontin. She underwent surgeries to both shoulders. She reported symptoms in her arms and legs. She was diagnosed with depression and chronic pain disorder. Other profound non-occupational stressors are noted.
Her expert concluded PTD:
"taking into account her cervical conditions, bilateral shoulder conditions, visual difficulties and mental condition secondary to her work injury. Dr. Poppa and Dr. Caffrey concluded that the use of medications precludes sedentary work."
Surveillance showed her pushing a truck in a method that was inconsistent with her level of complaints treated only with opiates. She planned to go to California so some doctor could do multiple artificial discs. She was "fired" by pain management for not following a patient agreement. Another doctor suggested she wean herself from narcotics.
The ALJ noted:
"Houchen’s exaggerations do not negate her credibility or her injuries, the exaggerations merely go to the weight given her testimony."
The ALJ noted the only vocational expert regarded claimant credible and unemployable.
ALJ Rebman
Atty: Mandelbaum, Hallaron
Experts: Poppa, Wilson; Fielding, Wilson, Koprivica
2018 MO WCLR LEXIS (Jan 25, 2018)
The Commission affirms an award of total disability based on the findings that:
"Ms. Houchen’s work-related injuries to her neck, shoulders, psychiatric injury and opioid dependency render her permanently and totally disabled. "
Claimant in 2006 was lifting sheets of plywood that were caught in the wind. At the time she was ripping plywood to build windows. She underwent surgery for a cervical fusion. She developed eye problems using Neurontin. She underwent surgeries to both shoulders. She reported symptoms in her arms and legs. She was diagnosed with depression and chronic pain disorder. Other profound non-occupational stressors are noted.
Her expert concluded PTD:
"taking into account her cervical conditions, bilateral shoulder conditions, visual difficulties and mental condition secondary to her work injury. Dr. Poppa and Dr. Caffrey concluded that the use of medications precludes sedentary work."
Surveillance showed her pushing a truck in a method that was inconsistent with her level of complaints treated only with opiates. She planned to go to California so some doctor could do multiple artificial discs. She was "fired" by pain management for not following a patient agreement. Another doctor suggested she wean herself from narcotics.
The ALJ noted:
"Houchen’s exaggerations do not negate her credibility or her injuries, the exaggerations merely go to the weight given her testimony."
The ALJ noted the only vocational expert regarded claimant credible and unemployable.
ALJ Rebman
Atty: Mandelbaum, Hallaron
Experts: Poppa, Wilson; Fielding, Wilson, Koprivica
ALJ finds tinnitus claim timely when claim is filed after claimant's expert rated condition
Jimmie Holifield v Mississippi Lime Company
2018 MO WCLR LEXIS
Jan 18, 2018
ALJ Strange
Atty Meyers, Micherman
Experts: Mason, Mikulec
Claimant alleges tinnitus for occupational exposure since the 1980s and filed a claim in 2015.
The ALJ notes that proof of tinnitus does not have to be established by a medical doctor instead of an audiologist.
The ALJ rejected a notice and statute of limitations defense and the condition was not reasonably discoverable until 2015 when Dr. Mason diagnosed the condition as an occupational disease.
The ALJ awarded 5% BAW for tinnitus.
The Commission affirmed without a separate opinion.
The Commission in recent years has ruled on multiple claims of hearing loss and tinnitus with the same defendants, attorneys and experts with different results.
2018 MO WCLR LEXIS
Jan 18, 2018
ALJ Strange
Atty Meyers, Micherman
Experts: Mason, Mikulec
Claimant alleges tinnitus for occupational exposure since the 1980s and filed a claim in 2015.
The ALJ notes that proof of tinnitus does not have to be established by a medical doctor instead of an audiologist.
The ALJ rejected a notice and statute of limitations defense and the condition was not reasonably discoverable until 2015 when Dr. Mason diagnosed the condition as an occupational disease.
The ALJ awarded 5% BAW for tinnitus.
The Commission affirmed without a separate opinion.
The Commission in recent years has ruled on multiple claims of hearing loss and tinnitus with the same defendants, attorneys and experts with different results.
Tuesday, January 30, 2018
Court finds accident based on strain during usual job duties
Clark v Dairy Farmers of America
2018 MO APP. LEXIS 56 SD 34826
January 25, 2018
The employer appealed on the narrow issue whether the claimant suffered an unexpected traumatic event or unusual strain when she was performing her regular duties stirring cheese and she heard a pop in her ribs. Employer claims the claimant must prove a traumatic event as a prerequisite to accident.The court of appeals finds substantial evidence to support the finding that claimant sustained an unusual strain by mixing cheese curds and proved she had an accident.
The Court noted 287.120.1 requires proof in a disputed accident whether claimant sustained an unexpected traumatic event or an unusual strain. The commission did not expressly identify what was the "accident" and what was the "injury" and the court felt it was "unduly restrictive" for the employer to infer the Commission meant the injury was only the "pop" as an "unexpected event."
The court noted the facts supported claimant sustained an "unusual strain" and had an unordinary act of excessive physical or mental tension, difficult exertion, or violent or overtaxing effort. The court found an unusual strain could occur from regular activity and does not require something distinguishable from and in addition to routine work. Claimant testified it took a lot of force to use a 35 to 40 pound shovel when she was precariously balanced. These facts support an act of physical tension or unusual strain to fracture her rib even though the employer argued the Commission muddled its findings of what is an injury and what is an accident.
The court relied upon White v Conagra, 2017 MO Lexis 585, for the proposition that the Commission does not commit reversible error if it can identify the key issue in the case if the accident was the prevailing factor in causing the injury, even when the commission fails to accurate identify the accident. Similarly, the court notes Young v Boone Electric Coop, 462 S.W.3d 783 (Mo. App. 2015) held an award can be supported by an accident from an unusual strain even though it is not an unexpected event.
Clamant fractured a rib in the course of her duties. Claimant had a lytic lesion which can cause bone weakness.
The court limited its discussion of facts to the narrow issue regarding the interpretation of accident and whether the Commission reached the right result even if it gave a wrong or insufficient reason for its ruling without mentioning the elephant in the room that the fight was over $84,000 in bills that far exceeded customary medical bills for a rib fracture because claimant had a rare malignant lesion that was treated at the same time.
2018 MO APP. LEXIS 56 SD 34826
January 25, 2018
The employer appealed on the narrow issue whether the claimant suffered an unexpected traumatic event or unusual strain when she was performing her regular duties stirring cheese and she heard a pop in her ribs. Employer claims the claimant must prove a traumatic event as a prerequisite to accident.The court of appeals finds substantial evidence to support the finding that claimant sustained an unusual strain by mixing cheese curds and proved she had an accident.
The Court noted 287.120.1 requires proof in a disputed accident whether claimant sustained an unexpected traumatic event or an unusual strain. The commission did not expressly identify what was the "accident" and what was the "injury" and the court felt it was "unduly restrictive" for the employer to infer the Commission meant the injury was only the "pop" as an "unexpected event."
The court noted the facts supported claimant sustained an "unusual strain" and had an unordinary act of excessive physical or mental tension, difficult exertion, or violent or overtaxing effort. The court found an unusual strain could occur from regular activity and does not require something distinguishable from and in addition to routine work. Claimant testified it took a lot of force to use a 35 to 40 pound shovel when she was precariously balanced. These facts support an act of physical tension or unusual strain to fracture her rib even though the employer argued the Commission muddled its findings of what is an injury and what is an accident.
The court relied upon White v Conagra, 2017 MO Lexis 585, for the proposition that the Commission does not commit reversible error if it can identify the key issue in the case if the accident was the prevailing factor in causing the injury, even when the commission fails to accurate identify the accident. Similarly, the court notes Young v Boone Electric Coop, 462 S.W.3d 783 (Mo. App. 2015) held an award can be supported by an accident from an unusual strain even though it is not an unexpected event.
Clamant fractured a rib in the course of her duties. Claimant had a lytic lesion which can cause bone weakness.
The court limited its discussion of facts to the narrow issue regarding the interpretation of accident and whether the Commission reached the right result even if it gave a wrong or insufficient reason for its ruling without mentioning the elephant in the room that the fight was over $84,000 in bills that far exceeded customary medical bills for a rib fracture because claimant had a rare malignant lesion that was treated at the same time.
Monday, January 29, 2018
Commission reprimands employer for deplorable conduct
Beard v Harley Davidson
2017 MOWCLR LEXIS 60 (Dec. 28, 2017)
The commission affirmed a temporary award for bilateral carpal tunnel for a woman employed 7 months and chastised the employer and its carrier Trumball Insurance for deplorable conduct in its defense.
The commission noted limits in statutory authority under 287.560 to sanction "methods and conduct" which it deemed deplorable in the context of a reasonable, but unsuccessful, defense. The defense relied upon a doctor who asserted claimant's condition was idiopathic.
The ALJ quoted the defense counsel in deposition stating: "bite me" and to "shut the hell up" and that the claimant "needed to understand plain English." The deposition inquires that counsel was "not doing okay" and "not controlling anger." The attorney responded: "Are you bleeding on the floor? I'm controlling my anger then."
The Commission finds "no place for name-calling and gratuitous comments of this nature in the profession of law."
The court discussed prior cases and notes the high burden to impose sanctions unless the refusal to provide benefits was egregious.
The ALJ had awarded costs and fees based on the unchallenged assertion of attorney's fees at $200 an hour.
ALJ Heffner
Iezzi (Boyd, Kenter for employee)
Experts: Rosenthal, Miller
2017 MOWCLR LEXIS 60 (Dec. 28, 2017)
The commission affirmed a temporary award for bilateral carpal tunnel for a woman employed 7 months and chastised the employer and its carrier Trumball Insurance for deplorable conduct in its defense.
The commission noted limits in statutory authority under 287.560 to sanction "methods and conduct" which it deemed deplorable in the context of a reasonable, but unsuccessful, defense. The defense relied upon a doctor who asserted claimant's condition was idiopathic.
The ALJ quoted the defense counsel in deposition stating: "bite me" and to "shut the hell up" and that the claimant "needed to understand plain English." The deposition inquires that counsel was "not doing okay" and "not controlling anger." The attorney responded: "Are you bleeding on the floor? I'm controlling my anger then."
The Commission finds "no place for name-calling and gratuitous comments of this nature in the profession of law."
The court discussed prior cases and notes the high burden to impose sanctions unless the refusal to provide benefits was egregious.
The ALJ had awarded costs and fees based on the unchallenged assertion of attorney's fees at $200 an hour.
ALJ Heffner
Iezzi (Boyd, Kenter for employee)
Experts: Rosenthal, Miller
Monday, January 15, 2018
PTD "demonstrated" and "certified" by reasonable inference of evidence
Moss v Treasurer of the State of MO
2018 MO App. Lexis 1663
Dec. 26, 2018
The Court rejects the alleged error that claimant failed to prove the statutory elements of 287.190.6(2) for a physician to certify and demonstrate disability and affirms the award of benefits against the fund for total disability. The court found the requirement to demonstrate and certify total disability can be determined through vocational opinion even if the opinion is supported by inference from medical opinion.
"The term "certify" means "to attest as being true or as meeting certain criteria." Certify, Black's Law Dictionary (10th ed. 2014). And "demonstrate" means "to show clearly . . . to prove or make clear by reasoning or evidence . . . to illustrate and explain especially with many examples,"
"The Commission concluded that § 287.190.6(2) "does not imply or mandate any requirement that a medical expert . . . specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied." The Commission further explained that analysis of the extent of disability involves evaluating issues such as job requirements and availability, transferrable skills, and retraining prospects; it also noted, "[i]n many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment." The Commission then did "as [they] have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill [its] fact-finding duty to determine the nature and extent of [the] employee's disability." After doing so, the Commission concluded that § 287.190.6(2)'s requirement to demonstrate and certify was satisfied."
"We reject the Fund's contention that a finding of permanent and total disability can be made in only cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work."
The court relied in part on expert opinion from the Fund's own vocational expert that claimant was unemployable in the open labor market.
Dennis Moss v Dept. of Corrections
DOLIR 1-10-2018
ALJ Miner
Atty: Kiefer, McCain
The Commission affirmed an award of total benefits against the second injury fund and rejected an argument that medical evidence which did not expressly state claimant was totally disabled did not certify or demonstrate an incapacity to work.
The claimant was awarded 32.5% of the shoulder following two shoulder surgeries including a replacement. Claimant testified that the surgeries did not alleviate his severe pain. The Commission noted it would have increased the PPD award if the finding had been appealed as claimant had no meaningful use of the arm because it became symptomatic with minor activities such as lifting a gallon of milk.
The ALJ found claimant established he was PTD against the Fund, and found sufficient and competent evidence to support the award.
The Fund argued that no physician "certified" or "demonstrated" total disability. The Commission rejected the argument:
"It would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases."
"While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record."
2018 MO App. Lexis 1663
Dec. 26, 2018
The Court rejects the alleged error that claimant failed to prove the statutory elements of 287.190.6(2) for a physician to certify and demonstrate disability and affirms the award of benefits against the fund for total disability. The court found the requirement to demonstrate and certify total disability can be determined through vocational opinion even if the opinion is supported by inference from medical opinion.
"The term "certify" means "to attest as being true or as meeting certain criteria." Certify, Black's Law Dictionary (10th ed. 2014). And "demonstrate" means "to show clearly . . . to prove or make clear by reasoning or evidence . . . to illustrate and explain especially with many examples,"
"The Commission concluded that § 287.190.6(2) "does not imply or mandate any requirement that a medical expert . . . specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied." The Commission further explained that analysis of the extent of disability involves evaluating issues such as job requirements and availability, transferrable skills, and retraining prospects; it also noted, "[i]n many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment." The Commission then did "as [they] have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill [its] fact-finding duty to determine the nature and extent of [the] employee's disability." After doing so, the Commission concluded that § 287.190.6(2)'s requirement to demonstrate and certify was satisfied."
"We reject the Fund's contention that a finding of permanent and total disability can be made in only cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work."
The court relied in part on expert opinion from the Fund's own vocational expert that claimant was unemployable in the open labor market.
Dennis Moss v Dept. of Corrections
DOLIR 1-10-2018
ALJ Miner
Atty: Kiefer, McCain
The Commission affirmed an award of total benefits against the second injury fund and rejected an argument that medical evidence which did not expressly state claimant was totally disabled did not certify or demonstrate an incapacity to work.
The claimant was awarded 32.5% of the shoulder following two shoulder surgeries including a replacement. Claimant testified that the surgeries did not alleviate his severe pain. The Commission noted it would have increased the PPD award if the finding had been appealed as claimant had no meaningful use of the arm because it became symptomatic with minor activities such as lifting a gallon of milk.
The ALJ found claimant established he was PTD against the Fund, and found sufficient and competent evidence to support the award.
The Fund argued that no physician "certified" or "demonstrated" total disability. The Commission rejected the argument:
"It would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases."
"While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record."
Commission notes lack of authority in case to dismiss Fund claim
Arthur Lewis v Cassens Transportation Co.
Jan 11, 2018
ALJ Hart
The Commission notes the ALJ lacked authority to "dismiss" a second injury fund claim as part of an award that denied a claim for benefits of a primary accident.
The Commission noted an ALJ had authority to dismiss only in limited circumstances:
The Commission ultimately affirmed the denial of benefits under the Fund claim based on a notice defense and that claimant cannot have a subsequent compensable claim if the first claim is not compensable.
Jan 11, 2018
ALJ Hart
The Commission notes the ALJ lacked authority to "dismiss" a second injury fund claim as part of an award that denied a claim for benefits of a primary accident.
The Commission noted an ALJ had authority to dismiss only in limited circumstances:
(1) upon an employee’s failure to prosecute the claim, pursuant to § 287.655; or (2) upon the voluntary motion of the employee prior to the introduction of evidence at a hearing, pursuant to 8 C.S.R. 50-2.010(12)(A). Additionally, an administrative law judge may strike pleadings and enter awards against any party who fails or refuses to comply with a lawful order of the Division of Workers’ Compensation, pursuant to § 287.650 RSMo.
The Commission ultimately affirmed the denial of benefits under the Fund claim based on a notice defense and that claimant cannot have a subsequent compensable claim if the first claim is not compensable.
Commission affirms SIF total with admonition to properly defining issues in dispute
Hood v City of Kansas City
ALJ Rebman - affirmed
Atty: Downing, Roberson, Colling
Experts: Koprivica, Drieling, Wheeler
Treater: Reintjes
DOLIR 1-10-2018
Claimant, 66, alleges he injured his neck and back from mopping 2 1/2 hours in his job a a stock clerk and the ALJ awarded 15% PPD with a PTD award against the Fund based on medical opinion of his expert, Dr. Koprivica.
The Commission rejected the Fund's argument that the new statutory standards applied, and found the pre-reform standard applied in the case because claimant's disability predated the effective date of reform. The fund's appeal was contrary to the holding in Gattenby, 516 S.W.3d 819 (Mo. App. 2017)
Claimant relied upon multiple prior comp settlements in part as his basis to prove up the extent of prior disability.
The Commission noted the ALJ resolved the case by finding the claimant's expert more credible on the issue of causation, No party identified causation as a disputed issue.
"The parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial."
"nor has any party suggested the administrative law judge’s award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.
We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."
The Commission noted the parties incorrectly asked whether claimant had an accident arising out of and in the scope of his employment when the correct inquiry was whether there was an injury arising out of employment. It noted the phrase "scope" was not within the statutory definitions.
ALJ Rebman - affirmed
Atty: Downing, Roberson, Colling
Experts: Koprivica, Drieling, Wheeler
Treater: Reintjes
DOLIR 1-10-2018
Claimant, 66, alleges he injured his neck and back from mopping 2 1/2 hours in his job a a stock clerk and the ALJ awarded 15% PPD with a PTD award against the Fund based on medical opinion of his expert, Dr. Koprivica.
The Commission rejected the Fund's argument that the new statutory standards applied, and found the pre-reform standard applied in the case because claimant's disability predated the effective date of reform. The fund's appeal was contrary to the holding in Gattenby, 516 S.W.3d 819 (Mo. App. 2017)
Claimant relied upon multiple prior comp settlements in part as his basis to prove up the extent of prior disability.
The Commission noted the ALJ resolved the case by finding the claimant's expert more credible on the issue of causation, No party identified causation as a disputed issue.
"The parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial."
"nor has any party suggested the administrative law judge’s award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.
We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."
The Commission noted the parties incorrectly asked whether claimant had an accident arising out of and in the scope of his employment when the correct inquiry was whether there was an injury arising out of employment. It noted the phrase "scope" was not within the statutory definitions.
Wednesday, January 3, 2018
Proposed new comp reform seeks to close St. Louis Division office.
House Bill 1693, introduced by representative DeGroot, seeks to change 17 provisions of the workers compensation act.
Among the proposals
abolish the additional benefits for toxic torts.
eliminate the reactivation provision to allow claims to be re-opened for various reasons related to prosthetics and life threatening procedure
Redefine prevailing factor to compare occupational causes compared to all non-occupational combined rather than a single non-occupational factor
eliminate one criteria for finding recreational activities compensable when the employee is paid wages or travel expenses.
Restore subrogation rights of employers in wrongful death claims from toxic exposure
Requires all parties to be "automatically retained" on any appeal
Allow review of temporary awards by an appellate court when the employer disputes all liability
Caps the cost for prosecution or defense on unreasonable ground based on the costs paid by the employer to defend the claim.
Bars admission in a civil court in a claim of discrimination under 287.780 that the employer sought a resignation as a condition of settlement.
These changes may have profound effects on employees obtaining current benefits under the Act.
Will it pass? Who knows. One might not easily dismiss what can happen or not happen in the capital.
But let's talk about something even more important. DeGroot wants to move the city office of the Division so he can have a new Division in his own district in Chesterfield.
Section 287.640 deletes the current statutory requirement to keep an office in St. Louis and instead adds a new office in Chesterfield.
Section 287.640 indicates the Division gets 7 offices and 2 optional offices. The seven offices are currently designated as the state capital, St. Louis, St. Joseph, Cape Girardeau, Joplin, Springfield, and Kansas City.
It is unclear why no one in the legislature seems to know the "state capital" is Jefferson City, and refers to it on as "state capital" while identifying the other cities. That may be the topic for another column. This may be part of deep government to have a secret state capital somewhere else like the governor's basement.
The bill allows the Division discretion to add other offices "in such other places, not to exceed two, as the division deems necessary for the efficient disposition of the business of the division."
The bill if passed means there must be a new office in Chesterfield, and that the office in the city of St. Louis is no longer required but optional under the two option policy. The Division already exercised its two optional offices and maintains an optional office in Columbia and has cases now in a re-opened office in St. Charles. So one of those must go away or the bill change to add the number of options.
The Division always could have opened its own office in Chesterfield if it wanted to, but clearly a house representative knows their needs better than they do.
So long St. Louis city division. We hardly knew you.
One might dismiss DeGroot as a troll.
The provision is buried deep in the bill, page 23, so it is probably not click bait but a secret sleeper provision like half the things in the new tax code. "Was that in there? How was I to know that? It's a really thick bill."
This maybe is payback to the loyal 14,000 republicans in the 101st who put him in office by new construction and new state funded jobs. This is just what drain the swamp voters want when they clamor and holler for smaller government for everyone else.
Why not give his supporters the best like a new Division with fresh paint with that new state building smell?
But the bill would mean city people might have to travel to the county for court appearances. Remember the great debate when highway 40 was demolished whether or not it might be a good idea to extend a Metrolink out to the county since the highway was already a pile of dirt. Train people? In Chesterfield? Oh my!
Everyone knows how people in Chesterfield have to rough it with their long commutes to nice safe neighborhoods and good schools. It must be exhausting! It is about time they deserve a break today so they don't have to drive into an urban environment like St. Louis city and get confused by the new credit card parking meters and risk inter-acting with the bottom 99%.
If the bill has a disparate impact to move the Division from the city to far west county, that is a small price to pay for the happiness of Chesterfield. People who live in St. Louis city and rely on public transportation to get to court can just not get injured at work.
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