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.
