Wayne Terry v Rick Shipman Construction
Travelers Property Casualty
Release Date: Dec. 27, 2019 (Accident date Nov 23, 2014)
Venue: Jackson County, MO
Plot Summary: In a 2-1 vote, the Commission reverses a denial of benefits based on lack of timely notice for a claim of trigger finger injuries and awards medical bills but no disability. The ALJ felt claimant had a duty to provide notice after receiving treatment for both hands.
Cast:
Cain, ALJ
Pitts
Mullins
Hall
Comments: Claimant received a settlement for trigger finger injuries to the left hand and used the last date of employment at Rick Shipman on Nov. 24, 2014. About a month after the settlement he filed an occupational disease claim for trigger finger injuries to the right hand and amended the alleged date one day earlier as Nov. 23, 2014, which avoided duplication of claims.
Claimant relied on an opinion of Dr. Mullins who rated 42% of the hand and that claimant would possibly require surgery or an injection. Claimant had surgery performed in 2016. Dr. Hall felt the condition was related based on the "benefit of the doubt" but found other conditions not related and that the claimant was malingering.
The ALJ denied the claim for lack of timely notice and claimant's failure to show lack of prejudice. The ALJ felt the injury was reasonably discoverable in 2015 when claimant's exam findings were a basis for the earlier claim, and not tolled until Dr. Mullins in 2017 told him conditions on the "right" side were work related .
The ALJ considered the separate dates lacked justification in facts and the law. The ALJ raised concerns that the claim must be allowed to proceed under due process because no parties preserved an issue of judicial estoppel, even though the ALJ found the decision to file two separate claims was "fast and loose with the judicial process." The case of Vacca v Mo Dept of Labor and Industrial Relations is discussed in detail.
The commission noted neither party filed briefs. Claimant asserts he provided timely notice in 30 days They employer did not file an answer.
Dr. Hall did not rate disability but indicated claimant was at MMI. The Commission finds claimant at MMI. The Commission regarded Dr. Mullin's rating as "conditional" and "excessive." The Commission found no duty arose to provide notice until Dr. Mullin told claimant the condition was work related in 2017. The Commission questions the use of "reasonably discovery and apparent" analysis in statute of limitations to determine if notice is timely.
The Commission disclaimed the findings that different consecutive dates of accident were improper because it states there was "various competing authorities" on what date is proper in an occupational disease claim. The Commission further discounted the ALJ's comments on "judicial estoppel" but not because any error about judicial estoppel was not in controversy but because it questions whether estoppel even applies in comp. "Judicial estopped is a doctrine of equity; the Division of workers compensation and the Commission do not have general jurisdiction over equitable questions…."
The Commission awards $15,666.00 in past medical expenses, mileage, TTD and awards no disability. The treatment was at the V.A., there was no lien noted, but a finding that "there is no evidence that the V.A. waived its right to place a lien … or otherwise that employee's liability in connection with this treatment has been extinguished."
A dissent felt Dr. Hall's "reservations" about causation supported a denial of any benefits, despite comments that the doctor would give the 'benefit of the doubt that his middle and ring finger triggering flowed from his work as a carpenter.
Tuesday, December 31, 2019
Thursday, December 26, 2019
Complications from thoracic outlet surgery contribute to PTD
Marc Meng v SystemAire Inc.
Cincinnati Insurance
Release Date: Dec 12, 2019 (May 2006)
Venue: St. Louis County
Plot Summary: Claimant alleges injury by occupational disease from repetitive overhead work as a sheet metal worker resulting in surgical treatment to both wrists and elbows and thoracic outlet syndrome. He developed as a surgical complication of a phrenic nerve palsy after thoracic outlet surgery. The Commission affirms a finding that claimant is PTD on basis of TOS alone with complications of nerve palsy and finds the first of two employers liable under the last exposure rule.
Inj. No 06-068486, 08-121599
https://labor.mo.gov/sites/labor/files/decisions_wc/MengMarc06-06848612-12-19_0.pdf
Cast:
Teer, ALJ
Christiansen
Weinstock
Archer
Dreisher
Musich
Thompson
MacKinnon
Koo
Lalk
Blaine
Comments
Claimant worked 4-5 years at SystemAire and 7-8 months at Harke, where he was last employed. The ALJ found the condition disabling while employed with the first employer. The surgeon indicated both employments caused the thoracic outlet but the ALJ found the condition became disabling under SystemAire. The ALJ rejected the claim was inadequate because the allegation of BAW was sufficient to capture later refined allegations of thoracic outlet. The commission denied numerous constitutional challenges raised by defense counsel.
What's it worth?
PTD for 57 year old claimant with >$400K in back benefits for medical/TTD
Cincinnati Insurance
Release Date: Dec 12, 2019 (May 2006)
Venue: St. Louis County
Plot Summary: Claimant alleges injury by occupational disease from repetitive overhead work as a sheet metal worker resulting in surgical treatment to both wrists and elbows and thoracic outlet syndrome. He developed as a surgical complication of a phrenic nerve palsy after thoracic outlet surgery. The Commission affirms a finding that claimant is PTD on basis of TOS alone with complications of nerve palsy and finds the first of two employers liable under the last exposure rule.
Inj. No 06-068486, 08-121599
https://labor.mo.gov/sites/labor/files/decisions_wc/MengMarc06-06848612-12-19_0.pdf
Cast:
Teer, ALJ
Christiansen
Weinstock
Archer
Dreisher
Musich
Thompson
MacKinnon
Koo
Lalk
Blaine
Comments
Claimant worked 4-5 years at SystemAire and 7-8 months at Harke, where he was last employed. The ALJ found the condition disabling while employed with the first employer. The surgeon indicated both employments caused the thoracic outlet but the ALJ found the condition became disabling under SystemAire. The ALJ rejected the claim was inadequate because the allegation of BAW was sufficient to capture later refined allegations of thoracic outlet. The commission denied numerous constitutional challenges raised by defense counsel.
What's it worth?
PTD for 57 year old claimant with >$400K in back benefits for medical/TTD
Tuesday, December 17, 2019
Commission awards surgery for aggravation of spinal disease
Charles Bourrage v General Motors
Self-insured
Release Date: Dec. 12, 2019 (Accident date July 25, 2015)
Venue: St. Charles
Plot Summary: Commission affirms a temporary award based on injury by accident to the back from pulling a heavy object and finds the claimant's need for surgery 2 1/2 years after the accident and the need for a revision surgery compensable based on aggravation and a progression of a pre-existing degenerative pars defect to progress to a spondylolisthesis.
15-053452
https://labor.mo.gov/sites/labor/files/decisions_wc/BourrageCharles15-05345212-12-19.pdf
Cast:
Landolt, ALJ
Gregory
Rommel
Curylo
Volarich
Rutz
Comments: Employer is ordered to pay back TTD since July 2017 when he went on short term disability/sick leave and has not worked since. Dr. Kitchens testifies the pars defect had worsened between 2015 and 2017. Employee sought treatment in 2015 when employer asserted the claim was not compensable. Dr. Volarich had initially found claimant at MMI in 2016 and when he re-examined him he "withdrew" his earlier opinions about PPD and MMI.
Self-insured
Release Date: Dec. 12, 2019 (Accident date July 25, 2015)
Venue: St. Charles
Plot Summary: Commission affirms a temporary award based on injury by accident to the back from pulling a heavy object and finds the claimant's need for surgery 2 1/2 years after the accident and the need for a revision surgery compensable based on aggravation and a progression of a pre-existing degenerative pars defect to progress to a spondylolisthesis.
15-053452
https://labor.mo.gov/sites/labor/files/decisions_wc/BourrageCharles15-05345212-12-19.pdf
Cast:
Landolt, ALJ
Gregory
Rommel
Curylo
Volarich
Rutz
Comments: Employer is ordered to pay back TTD since July 2017 when he went on short term disability/sick leave and has not worked since. Dr. Kitchens testifies the pars defect had worsened between 2015 and 2017. Employee sought treatment in 2015 when employer asserted the claim was not compensable. Dr. Volarich had initially found claimant at MMI in 2016 and when he re-examined him he "withdrew" his earlier opinions about PPD and MMI.
Thursday, December 12, 2019
Court finds claimant who lacks credibility fails to prove PTD Fund claim
Harold Williams, dec. v Treasurer of State of MO.
2019 MO App. Lexis 1942
Release Date: Dec. 10, 2019 (Accident date Dec. 3, 2000)
Venue: Western District (Div 3)
Plot Summary: Court affirms a denial of a claim of PTD benefits against the Second Injury Fund after he fell at work and alleged his new back injury combined with a prior disability to his back which had required discectomy and resulted in a 20% settlement.
Cast:
Whitt, Hon.
Parmet
Cohen
Memorable quotes
" Williams bears the burden of demonstrating that his disabilities combined to render him unemployable on the open labor market. Williams notes that he was not gainfully employed following the Primary Injury. However, as detailed above, Williams spent the majority of his life following the Primary Injury incarcerated and just because a person is unemployed does not necessarily equate with being unemployable.
Comments:
The Commission found claimant was not credible, he failed to prove he had achieved MMI or established synergy to support a claim for Fund benefits. The claimant had raised issues of permanent partial and permanent total. The Court found claimant had the burden to show synergy only in partial claims, that the absence of synergy did not support a denial of PTD benefits, but that claimant did not preserve error on any issue related to synergy and a PPD claim. The court found a failure of proof that his asymptomatic medical conditions were made worse by the primary injury or were a hindrance or obstacle at the time of the compensable injury.
"The issue before us is not whether Williams presented sufficient evidence to support a finding of permanent total disability, the issue is whether the totality of the evidence supported the Commission's award. The Commission found that Williams was not a credible witness regarding his disabilities. The expert evidence that Williams put forth to support a finding of permanent and total disability was flawed. While Dr. Parmet did testify that Williams may have been permanently and totally disabled, in reaching this conclusion he relied on conditions that, by his own testimony, did not preexist the Primary Injury. Dr. Cohen testified that, although Williams was no longer employable in his previous profession as a truck driver, he could be employed in sedentary work. Additionally, the medical records of Dr. Komes supported a finding that Williams did not suffer from medical conditions that made him unemployable on the open market. The Commission did not err in finding that Williams did not meet his burden of establishing total permanent disability and therefore the Commission's award denying him coverage was supported by substantial evidence.
What's it worth?
33.7% right knee (CLSS)
5% left knee (CLSS)
15% BACK (CLSS)
7.5% hand (CLSS)
Saturday, December 7, 2019
Commission affirms award for sanctions for not providing care for mold/asthma
William Stratton v City of Odessa
Missouri Rural Service
Release Date: Nov. 14, 2019
Venue: Lafayette County
Plot Summary: Claimant alleges respiratory and psychological conditions associated with exposure to black mold. The Commission affirms a PPD award, medical, and penalties for an unreasonable defense under 27.560.
Inj. No 14-1037351
Cast:
Seidlik, ALJ
Thomas
Collier
Poppa
Wald
Shen
Memorable quotes:
"any actions prior to the initiation of the workers' compensation proceeding are not a basis for our finding that an award of costs is appropriate under§ 287.560."
Comments:
The Commission noted the tactical decision by a party not to present evidence does not support an award of sanctions under 287.560, but runs the risk the other party will satisfy the burden of proof. In this case, the commission accepted claimant's testimony that the employer did not tender care, an issue disputed by the employer, and found 287.560 sanctions were reasonable when Dr. Shen opined claimant had a work-related condition and the employer did not provide benefits and the employer continued to dispute liability.
"We do not find employer's defenses to the statute of limitations to be reasonable when employee filed his claim even before he had a firm medical opinion upon which it was reasonably discoverable and apparent that he had an occupational disease attributed to his work. We do not find employer's defense on the basis of challenge to medical charges to be reasonable when there are ways to address those issues short of denying all liability." The ALJ rejected that his liability was extinguished if the statute of limitations precluded any legal remedy for the provider, and awarded medical bills for a 2008 admission for empyema.
What's it worth?
20% respiratory 5% psych plus past medical
Missouri Rural Service
Release Date: Nov. 14, 2019
Venue: Lafayette County
Plot Summary: Claimant alleges respiratory and psychological conditions associated with exposure to black mold. The Commission affirms a PPD award, medical, and penalties for an unreasonable defense under 27.560.
Inj. No 14-1037351
Cast:
Seidlik, ALJ
Thomas
Collier
Poppa
Wald
Shen
Memorable quotes:
"any actions prior to the initiation of the workers' compensation proceeding are not a basis for our finding that an award of costs is appropriate under§ 287.560."
Comments:
The Commission noted the tactical decision by a party not to present evidence does not support an award of sanctions under 287.560, but runs the risk the other party will satisfy the burden of proof. In this case, the commission accepted claimant's testimony that the employer did not tender care, an issue disputed by the employer, and found 287.560 sanctions were reasonable when Dr. Shen opined claimant had a work-related condition and the employer did not provide benefits and the employer continued to dispute liability.
"We do not find employer's defenses to the statute of limitations to be reasonable when employee filed his claim even before he had a firm medical opinion upon which it was reasonably discoverable and apparent that he had an occupational disease attributed to his work. We do not find employer's defense on the basis of challenge to medical charges to be reasonable when there are ways to address those issues short of denying all liability." The ALJ rejected that his liability was extinguished if the statute of limitations precluded any legal remedy for the provider, and awarded medical bills for a 2008 admission for empyema.
What's it worth?
20% respiratory 5% psych plus past medical
Commission affirms PPD that hauling trucks caused repetitive disc protrusions/herniations
Thomas Fenwick v The Doe Run Company
American Zurich Ins. Co.
Release Date: Dec 4, 2019
Venue: Iron County
Plot summary: Claimant alleges multiple spinal injuries from being "bounced around" in a truck. Commission affirms award that "hauling trucks" produced repetitive trauma to spine resulting in 9 disc protrusions or herniations based on opinion of claimant's expert Dr. Volarich.
Cast:
Kasten, ALJ
Seufert
Volarich - 67 1/2% rating
Chabot - 0% pre-existing
Coyle
Cantrell - cervical sprain
Comments: A dissenting commissioner found claimant's credibility impacted by his lack of candor about prior severe symptoms, a delay in manifestation of symptoms, and inconsistencies between degree of subjective symptoms and objective exam findings.
What's it Worth?
22% PPD BAW neck, thoracic and lumber
American Zurich Ins. Co.
Release Date: Dec 4, 2019
Venue: Iron County
Plot summary: Claimant alleges multiple spinal injuries from being "bounced around" in a truck. Commission affirms award that "hauling trucks" produced repetitive trauma to spine resulting in 9 disc protrusions or herniations based on opinion of claimant's expert Dr. Volarich.
Inj. No. 15-0292171
Cast:
Kasten, ALJ
Seufert
Volarich - 67 1/2% rating
Chabot - 0% pre-existing
Coyle
Cantrell - cervical sprain
Comments: A dissenting commissioner found claimant's credibility impacted by his lack of candor about prior severe symptoms, a delay in manifestation of symptoms, and inconsistencies between degree of subjective symptoms and objective exam findings.
What's it Worth?
22% PPD BAW neck, thoracic and lumber
Commission affirms award and declines sanction for "deficient" brief
Thomas Fenwick v Doe Run
American Zurich Ins. Co.
Release Date: Dec. 4, 2019 (Accident Date May 22, 2014)
Venue: Iron County
Plot summary: Claimant alleges injury by occupational disease to both wrists from working as a miner, roofer, truck driver and heavy equipment operator. The Commission affirms the award and finds moot the objection that the employer's brief did not comply with the statement of facts was not fair and concise without argument despite the "deficiencies."
Inj. No. 14-0364621
https://labor.mo.gov/sites/labor/files/decisions_wc/FenwickThomas14-03646212-04-19.pdf
Cast:
Strange, ALJ
Seufert
Lory
Volarich
Crandall
Comments:
"Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(8), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission."
What's it worth?
20% of each wrist (CTS)
American Zurich Ins. Co.
Release Date: Dec. 4, 2019 (Accident Date May 22, 2014)
Venue: Iron County
Plot summary: Claimant alleges injury by occupational disease to both wrists from working as a miner, roofer, truck driver and heavy equipment operator. The Commission affirms the award and finds moot the objection that the employer's brief did not comply with the statement of facts was not fair and concise without argument despite the "deficiencies."
Inj. No. 14-0364621
https://labor.mo.gov/sites/labor/files/decisions_wc/FenwickThomas14-03646212-04-19.pdf
Cast:
Strange, ALJ
Seufert
Lory
Volarich
Crandall
Comments:
"Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(8), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission."
What's it worth?
20% of each wrist (CTS)
Second Injury fund "total" related to OD claim denied based on 2014 filing date
Lisa Coffer v Health Mgmt Assoc (Twin Rivers) and Treasurer of MO
Liberty Ins. Corporation
Release Date: Nov 25 2019 (stipulated accident date Dec 13, 2013)
Venue: Dunklin County
Plot summary: Claimant was a long-term PBX operator who developed bilateral carpal tunnel, settled with the employer, and then sought PTD benefits against the Fund. The Commission finds 287.220.3 applies as the claim was filed after Jan 1, 2014 and reverses an award of benefits. "We understand this language to mean that when one (a) files a workers' compensation claim (b) against the Second Injury Fund where (c) the subsequent compensable injury is an occupational disease and (d) the filing date is after January 1, 2014, then § 287.220.3 RSMo, applies." The Commission finds as a matter of law a failure of proof that claimant's pre-existing medical conditions are "qualified" medial conditions under section 3. .
https://labor.mo.gov/sites/labor/files/decisions_wc/CofferLisa13-10424011-25-19.pdf
Inj. No. 13-10424011
Cast
Kasten, ALJ
Edwards, atty
Harris, atty
Hinton
Poetz
Shea
Comments: The ALJ found Dr. Poetz's report was admissible despite his unavailability due to death as the Fund had reasonable opportunity to depose him and the court construed the obligations of 287.210.7 to require only a duty to make the expert reasonably available. Dr. Poetz had rated claimant with a cumulative prior disability exceeding 100% BAW related to mental, neck back, arm and colon conditions.
The ALJ found "Based on my ruling that Ms. Coffer's primary occupational injury occurred on December 13, 2013 which was prior to January 1, 2014, I find that Section 287.220.2 RSMo applies to her Claim against the Second Injury Fund. The Commission held the filing date was determinative and found insufficient evidence that claimant's prior conditions qualified under section 3 which provides:
" (a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear"
What's it worth? (no SIF PPD opinion )
18.75% BAW (plus set aside) (by settlement)
Commission 20%, and 22.75% for CTS
Liberty Ins. Corporation
Release Date: Nov 25 2019 (stipulated accident date Dec 13, 2013)
Venue: Dunklin County
Plot summary: Claimant was a long-term PBX operator who developed bilateral carpal tunnel, settled with the employer, and then sought PTD benefits against the Fund. The Commission finds 287.220.3 applies as the claim was filed after Jan 1, 2014 and reverses an award of benefits. "We understand this language to mean that when one (a) files a workers' compensation claim (b) against the Second Injury Fund where (c) the subsequent compensable injury is an occupational disease and (d) the filing date is after January 1, 2014, then § 287.220.3 RSMo, applies." The Commission finds as a matter of law a failure of proof that claimant's pre-existing medical conditions are "qualified" medial conditions under section 3. .
https://labor.mo.gov/sites/labor/files/decisions_wc/CofferLisa13-10424011-25-19.pdf
Inj. No. 13-10424011
Cast
Kasten, ALJ
Edwards, atty
Harris, atty
Hinton
Poetz
Shea
Comments: The ALJ found Dr. Poetz's report was admissible despite his unavailability due to death as the Fund had reasonable opportunity to depose him and the court construed the obligations of 287.210.7 to require only a duty to make the expert reasonably available. Dr. Poetz had rated claimant with a cumulative prior disability exceeding 100% BAW related to mental, neck back, arm and colon conditions.
The ALJ found "Based on my ruling that Ms. Coffer's primary occupational injury occurred on December 13, 2013 which was prior to January 1, 2014, I find that Section 287.220.2 RSMo applies to her Claim against the Second Injury Fund. The Commission held the filing date was determinative and found insufficient evidence that claimant's prior conditions qualified under section 3 which provides:
" (a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear"
What's it worth? (no SIF PPD opinion )
18.75% BAW (plus set aside) (by settlement)
Commission 20%, and 22.75% for CTS
Failure of proof supports denial of trigger finger claim
Gina Beaman v Lowe's Home Center Inc.
Release Date: Nov. 14, 2019 (Accident date Sept. 12, 2012)
Venue: Taney County
Plot summary:
The Commission affirms an award of benefits related to the right wrist but denies benefits to the left wrist and associated trigger finger release. The Commission notes the employee on appeal waived any claim of error related to synergy of the right wrist when the points of error were limited to the left wrist. The Commission found a failure of proof of credible medical opinion on the left wrist and noted that causation could not be inferred by an assessment of disability based on claimant's "perception" of a causal relationship.
https://labor.mo.gov/sites/labor/files/decisions_wc/BeamanGina12-06765211-14-19_0.pdf
Comments:
Claimant, 57, alleges injury by occupational disease while removing supplies from high racks. She had a TFCC repair and reported increased symptoms after an auto accident. The employer relied on a defense of intervening accident and was ordered to provide treatment and an MRI in a temporary award. The MRI did not support a need for more treatment. The ALJ found the intervening accident was not a factor in a temporary or final award. The claimant failed to prove a need for surgery for a trigger finger flowed from her injury, her expert opinion over-relied on an x-ray instead of the MRI findings, and a causation opinion that a relationship "may' exist was not substantial evidence. Expert opinion based solely on a separate 2014 claim did not support causation.
What's it worth?
25% PPD plus disfigurement (TFCC)
Release Date: Nov. 14, 2019 (Accident date Sept. 12, 2012)
Venue: Taney County
Plot summary:
The Commission affirms an award of benefits related to the right wrist but denies benefits to the left wrist and associated trigger finger release. The Commission notes the employee on appeal waived any claim of error related to synergy of the right wrist when the points of error were limited to the left wrist. The Commission found a failure of proof of credible medical opinion on the left wrist and noted that causation could not be inferred by an assessment of disability based on claimant's "perception" of a causal relationship.
https://labor.mo.gov/sites/labor/files/decisions_wc/BeamanGina12-06765211-14-19_0.pdf
Cast
Mahon, ALJ
Murphy, atty
Dolence, atty for carrier
Paul
Cleveland Clinic
Comments:
Claimant, 57, alleges injury by occupational disease while removing supplies from high racks. She had a TFCC repair and reported increased symptoms after an auto accident. The employer relied on a defense of intervening accident and was ordered to provide treatment and an MRI in a temporary award. The MRI did not support a need for more treatment. The ALJ found the intervening accident was not a factor in a temporary or final award. The claimant failed to prove a need for surgery for a trigger finger flowed from her injury, her expert opinion over-relied on an x-ray instead of the MRI findings, and a causation opinion that a relationship "may' exist was not substantial evidence. Expert opinion based solely on a separate 2014 claim did not support causation.
What's it worth?
25% PPD plus disfigurement (TFCC)
Friday, December 6, 2019
Depression after fall at work renders claimant unemployable
Jeanie-Herberlie-Whistler v Riverview on the Park and Treasurer of MO.
Release Date: Dec 2, 2019 (Accident date Nov 9, 2013)
Venue: Ste. Genevieve County
Length: 35 pages
Plot summary:
Commission affirms a denial of a PTD claim against the second injury fund and finds her last accident alone rendered a 62-year-old nurse unemployable based on anxiety and depression following an arm fracture.
Inj. No. 13-084576
https://labor.mo.gov/sites/labor/files/decisions_wc/Heberlie-WhistlerJeannie13-084576120219.pdf
Cast:
Robbins, ALJ
Weiss
Rhoades
Dr. Hagen
Dr. Berkin
Dr. Jordan
Dr. Smith
Dr. Liss
Dr. Sky
Lalk
Comments:
In a Fund-only claim, the Commission finds the employee failed to show pre-existing psych conditions represented a hindrance or obstacle to employment. Claimant contends her life was ruined because she had to retire 3 years earlier than she expected due to her unrelenting arm pain following a fracture in her humerus and “cascading” problems including depression/anxiety. One doctor felt she was not medically safe for surgery because of her mental state. Another felt she likely had a somatization disorder.
The Commission found the employee truthful “to the best of her recollection” despite statements that are inconsistent and conflicting. The commission criticized the ALJ’s opinion for its prolixity.
Memorable quotes
“She was a "fragile egg" who did not have the inner resources, given her pre-existing level of disability, to recover from her work-related injury.
“She is angry and resentful that she did not receive home health assistance post discharge, though she did not request it.”
What’s it worth?
$150,000 (CLSS by E/i)
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