The Commission affirms a total award for a shoulder injury but modified an award of TTD while claimant also collected unemployment benefits. Duarte v Butterball Inc., 2018 MO WCLR LEXIS (May 10, 2018).
Claimant alleged repetitive trauma while working for several months to remove meat from turkeys. Claimant immigrated to the United States when he was 63 years old and speaks limited English. Claimant denied prior symptoms. He treated primarily for a cuff tear.
The ALJ found causation and awarded PTD and more than a year in temporary disability benefits. Claimant's expert, Dr. Volarich, imposed permanent restrictions and rated 40% PPD. Dr. Parmet attributed claimant's condition to arthritis. Eldred felt claimant's physical restrictions prevented him from working and no one would hire him. Drieling felt he was unemployable but not due to the last accident alone. Claimant contends the employer would not rehire him.
The ALJ awarded future medical and noted "hardware" from the surgical procedure. The summary of the two surgeries does not mention hardware so it is unclear what hardware was involved in a cuff tear.
The ALJ awarded benefits of PTD after 2010 noting the last date of a exam by the treating doctor despite the absence of a finding of MMI.
The employer appealed and claimed the lack of evidence to support MMI.
The Commission relied up a 2013 IME report from Dr. Volarich as a basis to make a finding of MMI.
The Commission modified an award of nearly a year of TTD benefits and agreed claimant was not entitled to collect TTD when he also collected unemployment benefits for periods in 2010 and 2011 based on 287.170.3.
ALJ Wood
Atty Newman, Bullock, Pierce
https://labor.mo.gov/sites/labor/files/decisions_wc/DuarteManuel.pdf
Tuesday, May 15, 2018
Wednesday, May 2, 2018
Commission awards nearly $300,000 in benefits after treating doctor finds MMI
Elford Crafton v UPS Freight
2018 MO WCLR LEXIS ___
May 2, 2018
Claimant had a 2011 motor vehicle accident and he was released with a 3% rating. A surgeon concluded his condition was MMI. Claimant sought additional treatment on his own for a 2-level lumbar fusion and the Commission affirms an award of medical and PPD.
The Commission noted the employer tendered a second opinion of Dr. Coyle, who found that claimant was not a surgical candidate, the spinal condition was degenerative and was not related to the auto accident, and he needed to lose 75 pounds. The Commission noted there was no binding agreement that the parties would be bound by Dr. Coyle's conclusion as a tie-breaker, and the claimant could proceed on his own with treatment, resulting in an award of more than $240,000 in medical and 30% PPD. The Commission found insufficient evidence to award all the TTD claimed because the length of the employment was not firmly established and testimony of pain was too speculative to affirm the TTD award The commission noted the claimant had understated the amount of medical due by about $2,000 and awarded the higher amount.
The commission noted the attorney who tried the case asked the ALJ to award the fee to other plaintiff counsel.
ALJ: Carlisle
Atty: Walkenhorst, Morgan, Neumeyer,
Treater: Robson
Experts: Woiteshek, Chabot, Coyle
2018 MO WCLR LEXIS ___
May 2, 2018
Claimant had a 2011 motor vehicle accident and he was released with a 3% rating. A surgeon concluded his condition was MMI. Claimant sought additional treatment on his own for a 2-level lumbar fusion and the Commission affirms an award of medical and PPD.
The Commission noted the employer tendered a second opinion of Dr. Coyle, who found that claimant was not a surgical candidate, the spinal condition was degenerative and was not related to the auto accident, and he needed to lose 75 pounds. The Commission noted there was no binding agreement that the parties would be bound by Dr. Coyle's conclusion as a tie-breaker, and the claimant could proceed on his own with treatment, resulting in an award of more than $240,000 in medical and 30% PPD. The Commission found insufficient evidence to award all the TTD claimed because the length of the employment was not firmly established and testimony of pain was too speculative to affirm the TTD award The commission noted the claimant had understated the amount of medical due by about $2,000 and awarded the higher amount.
The commission noted the attorney who tried the case asked the ALJ to award the fee to other plaintiff counsel.
ALJ: Carlisle
Atty: Walkenhorst, Morgan, Neumeyer,
Treater: Robson
Experts: Woiteshek, Chabot, Coyle
Commission finds causation although expert "could have been more thorough"
Barnett v Harley Davidson
May 1, 2018
2018 MO WCLR LEXIS ___
The Commission affirms an award of 25% for disability benefits from repetitive overhead trauma and treatment related to a herniated cervical disc.
The Commission relies upon an expert who it concludes "could have been more thorough" but found sufficient evidence to adduce prevailing factor even the absence of articulating that conclusion with the "magic" statutory words and relied upon treating records which did not clearly document a work onset. The court noted that proof of repetitive trauma required expert testimony, but there was enough expert opinion to reach a conclusion. The commission suggested Dr. Bailey, the defense expert, over-relied on a written job description. Claimant performed overhead work with his hands as an assembler and stated he had to keep his neck in an awkward position.
The Commission rejected the alleged error that the ALJ failed to credit an offset for PTO benefits when the issue was not preserved at hearing and the application for review raised the issue but failed to articulate the time period which was being asserted. The employer did not show specific payment figures and testimony that claimant received "around $300" was insufficient to show a credit or to show an exception to 287.270.
The Commission considered the merits of the brief but noted the application did not comply with state rules because it was argumentative and not a fair and concise statement of facts "without argument."
The award represented about $47,000.
ALJ Pottenger
Atty: Spooner, Billam
Experts: Bailey, Hopkins
May 1, 2018
2018 MO WCLR LEXIS ___
The Commission affirms an award of 25% for disability benefits from repetitive overhead trauma and treatment related to a herniated cervical disc.
The Commission relies upon an expert who it concludes "could have been more thorough" but found sufficient evidence to adduce prevailing factor even the absence of articulating that conclusion with the "magic" statutory words and relied upon treating records which did not clearly document a work onset. The court noted that proof of repetitive trauma required expert testimony, but there was enough expert opinion to reach a conclusion. The commission suggested Dr. Bailey, the defense expert, over-relied on a written job description. Claimant performed overhead work with his hands as an assembler and stated he had to keep his neck in an awkward position.
The Commission rejected the alleged error that the ALJ failed to credit an offset for PTO benefits when the issue was not preserved at hearing and the application for review raised the issue but failed to articulate the time period which was being asserted. The employer did not show specific payment figures and testimony that claimant received "around $300" was insufficient to show a credit or to show an exception to 287.270.
The Commission considered the merits of the brief but noted the application did not comply with state rules because it was argumentative and not a fair and concise statement of facts "without argument."
The award represented about $47,000.
ALJ Pottenger
Atty: Spooner, Billam
Experts: Bailey, Hopkins
Tuesday, May 1, 2018
No reversible error by failure to plead specific diagnosis
The commission affirms an award for a right wrist injury after a "pop" based on the rating for a wrist fracture of the claimant's expert and an offset to short term disability benefits paid by the employer. Thomas Penning v Harley Davidson, April 25, 2018 DOLIR 2018 MOWCLR LEXIS __
Claimant was doing assembly work in 2013 and was treated for carpal tunnel and scaphoid fracture and underwent a carpal tunnel release and fusion to the wrist. He was rated with a 35% disability by his own expert for the fusion.. Dr. Guinn testified the accident caused the fracture. The ALJ found Dr. Toby's opinions disputing causation about the fracture was based on an inaccurate history. The employer offered no evidence to dispute the disability opinions of Dr. Poppa who rated 35% for the fusion and 25% for the carpal tunnel. The ALJ awarded open medical for the fracture, noting a "prn" release, but did not award open medical for carpal tunnel based on the testimony that claimant may require further testing.
The Commission noted a sudden onset of symptoms was consistent to support a medical opinion that accident caused a fracture or destabilized a previously asymptomatic fracture and either scenario supported proof of a change in pathology which caused a need for treatment. The Commission notes a finding in a radiology report that a fracture was "healing" to infer an acute onset.
The Commission rejected the defense argument that claimant was procedurally barred from pursing benefits for carpal tunnel because he did not plead a carpal tunnel injury. The Commission further noted no basis in the regulations for the defense to object to the submission of a proposed award. There was no error alleged regarding the award of temporary total and future medical.
ALJ Heffner, Billam
Atty: Perkins
Experts: Poppa, Guin
Treater Bagby
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