Court frames SIF reform as intent the employer pay for more PTD cases

 Klecka v Treasurer of the State of MO as Custodian of SIF

Release Date:  June 22, 2021 (April 2014)

Venue:  Eastern District (Div. 3) 

Summary:  The Commission committed reversible error when it denied benefits on an alleged failure of proof that 287.220.3 allowed compensation only upon proof a qualifying primary injury and only one qualifying pre-existing disability when experts considered multiple pre-existing disabilities.  The court, citing Parker, found medical and non-medical factors could  be considered consistent with 287.020.6, including multiple prior conditions once claimant establishes at least one qualifying condition.  The Fund conceded factors such as age, skill, education and training could be properly considered in conjunction with applying 287.220.3. 

Dowd

Volarich

Gonzalez

England

Comments:   

The decision suggests there is legislative intent that the employer pay PTD by default when there is not a qualifying SIF prior. This conclusion may come as a surprise to many employers who backed statutory reform to stop the feeding frenzy and surcharges for pre-reform SIF cases. 

'The question that the court must decide whether the employer or the fund owes for the total.  "If the claimant is PTD and satisfies the requirements of section 287.220.3, the Fund pays. If not, the employer pays."  and the "tighter the restrictions"  then "the more PTD liability falls back on the employer." '

Commission affirms total on last accident alone for hernia/psych case

 Tucker v K&K Pallet Company 

Release Date 6 - 15 - 2021  (April 2001) 

Venue:  Warren County  

Background:  The case spans over 19 years with the company dissolved and the insurer in liquidation. Claimant alleges injuries throwing pallets, he was diagnosed with a hernia and underwent a hernia repair.  He underwent multiple further surgeries for recurrent hernia and abdominal pain with development of DVT. .  Claimant reported he developed depression due to chronic pain and had outpatient psychiatric care for 6 years.  

Cast

Kohner, ALJ 

Edelman

Poetz

Weimholt

Randolph

Pribor

England 

Comments:  Dr. Poetz concluded claimant was PTD from the last accident alone.  Dr. Pribor attributed 50% to pre-existing psychiatric conditions.  Claimant sought an award of about $85,000 in medicals bills which the ALJ awarded including future medical and PTD based on pain complaints and impact of sleep deprivation.  

A dissent would have awarded PTD against the Fund due to significant pre-existing disability. 

Commission finds "twisting" accident did not arise out of employment

 Sydney Durr v Americare Systems

Release Date:  6/16/2021  (March 2015)

Venue:  Wayne County 

Plot Summary:  A 30 yo CNA twisted her knee when her foot (wearing non-skid shoes) planted while stepping backwards out of a tight space between the bed and wall  and states that day she was "rushed" to distribute water to the residents.  The commission reversed an award of more than $30,000 in benefits and noted claimant failed to prove an injury arising out of her employment. 

Inj. No.  15-013660

Parties:

Byrne, ALJ

Schellhammer 

Kornblum

Woiteshek

Bagwe

Ritter

Comments:  The ALJ awarded approximately $22,000 in bills and reduced the award of TTD because claimant did not follow pre-op instructions and the surgery had to be rescheduled. The ALJ awarded 15% in PPD. 

The Commission, 2-1, indicated claimant did not identify any problem with lighting, or substance on floor to cause her to fall and she was not holding anything in her hands at the time.  The Commission found the injury did not arise out of employment because twisting and turning was not a condition of employment nor was the risk from twisting and turning distinguishable from similar movements outside of work.  

Commission allows full charges as reasonable in medical fee dispute

 James Noel v Mondelez International Inc.

Release Date:  June 9, 2021

Venue:  

Cast

Schaefer, ALJ 

Spooner (for Timberlake)

Schaller, employer 

Summary:  Timbercreek filed a medical fee dispute against employer and asserted the surgery center was underpaid about $30,000 related to fees for a rotator cuff repair performed 7 years ago after the carrier authorized the services.  The ALJ found the charges fair and reasonable and omissions in the application of the date the charges were disputed did not deprive the Division of jurisdiction.  Commission rejects employer's defense that reasonableness of bills is based on what is customarily received according to 287.140.3  (fee the provider "receives")  and not  what is customarily billed.   

Comments:  Employer argued the provider normally discounted its services at 47% of billed charges and to charge the "full" price was unreasonable fee when it produced a charge of  $338 a minute.  Employer introduce evidence of 1300 bills for similar services received similar reductions based on 287.140.3 that recovery is not "greater than the usual and customary fee the provider receives...."  It also notes the surgery center added 150% mark up on its supplies. 

The provider indicates it did not reduce claimant's liability from full charges, that it required claimant to agree to unconditionally pay any balance as a condition of services, and that a customary reduction to other patients was irrelevant to the issue of claimant's liability.  The Commission recognized the principal that employer can reduce liability with evidence that personal liability is extinguished if the provider allowed write offs and reductions for their own purpose 

The provider reportedly "marked up" the cost of implants  150%,  but the employer did not show that the mark-up was different from other provider.  The employer offered no evidence that it was surprised by the bill or evidence of prior transactions with the center to address reasonableness of pricing. 

The commission found no statutory authority to award interest in a medical fee dispute.

The Commission does not explain how it applies statutory interpretation rules to construe "receives" in 287.140.3 to mean "billed" for the purposes and relies upon Farmer-Cummings which is a pre-reform case which shifted the burden of proof in Missouri comp compared to tort recovery to start with the position that any billed amount is reasonable rather than the collected amount more accurate reflects reasonableness.

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Commission rejects "smoke and mirrors" argument that knee injury at work arose out of employment from "walking"

 Jamie Overstreet v TAMKO Building 

Release date:  June 8, 2021 (Feb. 2018) 

Venue: Joplin

summary:  Claimant alleges injuries to the left knee from twisting while walking on a level surface and his knee surgery flowed from the accident.  Claimant failed to show that changing directions while walking was a hazard he would not have equally encountered outside of work to establish a work related risk arising out of employment.  Claimant acknowledged similar exposure of walking on asphalt and changing directions in public parking lots while shopping and failed in his burden of persuasion from "smoke and mirrors" testimony  that walking over "more" uneven surfaces at work or wearing boots contributed to an increased risk hazard. 

Cast 

Fisher

Peterson

Sparlin 

Koprivica 

Comments    An operations manager testified  regarding his personal knowledge of the condition of the place of the alleged accident and similar asphalt lots in he community and opined there was no material difference. 

The dissent felt claimant established increased hazard through cracked, uneven, inclined and low lit asphalt surface.  

Commission excludes prior statement in SIF total.

Kevin Young v Linmark Products

Release date:  June 7, 2021

Venue:  Franklin County

Summary:  Claimant sought second injury fund benefits following a claim of cubital tunnel syndrome and recurrent carpal tunnel  settled with the employer.  The court affirms a PTD award against the Fund.

Claimant sought benefits for sleep apnea, herniated cervical disc, exacerbation of herniated disc, carpal tunnel and thoracic compression fracture and relies upon expert opinion from Dr. Poetz that claimant has greater than 100% pre-existing disability.  It appears the SIF defense was based on vocational opinion to argue post-accident worsening or 'some other condition' was involved.

Inj. No. 03-051173

Cast:

Kohner

Edelman

Poetz

England

Hogan

Cantrell

Wagner

Weimholt

Comments:  The ALJ noted claimant was vocationally impaired by the use of narcotic medication and the need to lie down and difficulty staying alert.  The ALJ found plaintiff's vocational expert based opinion on more comprehensive review of evidence.   The SIF sought to introduce a statement from claimant to a doctor purporting to assert that his carpal tunnel was not work related.  The commission  found the an attempted  "use" of the statement by the fund or reference to the statement in evidentiary depositions was barred as it was not produced in a timely fashion after a statement request.   

 

Pro se prosecution fails after claimant 'hangs up' on judge.

 Gerald Wedel v Bigfoot on the Strip LLC

Release Date  June 3rd, 2021

Venue: Taney County

Summary:  Pro se claimant fails in his burden of proof to show injury by accident in bizarre claim that "rough riding" caused him to  fracture his foot.  He put forth no admissible evidence and insisted everything he needed to prove was in his "affidavit of truth"  which he claims was "filed" but never admitted into evidence.

Claimant failed to appear in person for his "final" hearing and hung up when the judge called him and told him his "affidavit of truth" was not going to be enough.   The employer offered various medical records into evidence and statements from three witnesses that claimant was limping around at work but never attributed his condition to a work injury and had sent the employer a copy of his "affidavit of truth" also.  Claimant failed in his burden production that any injury arose out of and in the course of employment to support a claim of PPD or TTD. Employer raised notice as a defense.   

Inj. No.  18-031902

2021 MO WCLR LEXIS 35

Comments: 

The case raises an interesting tactical decision why after a failure of the case in chief  of any admissible evidence to prove accident the defense did not merely rest the case and or ask for sanctions.  Live witnesses, even without cross exam, can sometimes present problems.  It is not clear why the award did not deny accident and find all other issues moot.   Rate was listed as "undetermined" rather than the statutory minimum. 

Cast:

Elmer, ALJ

Koller, atty

Experts, none identified 

Plaintiff expert found not credible due to sketchy findings in second report

 Sullier v SSM Health

Release Date June 8, 2021

Venue:  St. Louis County

Summary:  Claimant alleges injuries to her elbow while working as a nurse when a patient using a commode grabbed her arm.   The commission affirmed a denial based on the failure in the burden of persuasion by the claimant's testimony and expert testimony which were not found to be credible.  The claimant had two accidents involving the same arm with conflicting medical opinion which event caused epicondylitis and the need for surgery.    (Inj. No. 13-064888)

Cast

Ottenad

Swaney

Leahy 

Woiteshek

Hobbs

Strecker

Comments:  The ALJ notes claimant is "confused" by the time line, and her assertion she did not have a second injury is inconsistent with other evidence.  The ALJ finds claimant's testimony confused but sufficient to establish a 2013 accident but not credible to determine her condition flowed from the 2013 event as asserted by her expert.  (Dr. Strecker attribute the 2014 as the likely source).

The ALJ notes it is troubling whether claimant's expert saw claimant twice as he reported, and that he was not credible to support claimant's burden of persuasion.  He notes the expert changed dates and had strikingly identical clinical findings reported from "both" exams and excluded history and findings that would have been expected if he actually saw her a second time. 

The ALJ had "doubts" whether claimant's amendment was untimely when the claim was amended 5 years later but did not reach a decision on the merits.  The Commission declined to consider the issue as any alleged error was not preserved in the application.  

Commission reverses temporary award for shoulder injury

 Pamela Boyer v Red Wing Shoe Company

Release Date:  June 8, 2021

Venue:  Iron County 

Summary:  Claimant alleges she struck her shoulder on a dye plate and was diagnosed with a cuff tear. She did not initially provide a history of accident until the doctor explored various possible sources of trauma. The ALJ found the accident the likely cause of the cuff tear without dislocation  and noted the absence of prior symptoms. The commission reversed the temporary award based on expert testimony that the mechanism of injury was unlikely to produce the tear and more likely related to risk factor of arthritis and smoking. The ALJ found claimant was not credible and failed to prove injury.  

18-035982 

Cast

Young, ALJ

Ellen Morgan

Karie Casey

Welder found total due to 'post-laminectomy' syndrome

 Roy Franklin v Mitchell Mill Systems

Release Date:  May 27, 2021

Venue:  Southern District

Plot Summary:  Court affirms a permanent and total award against employer for last accident alone based on "post laminectomy" syndrome.   (SD 36898) 

Cast

Rahmeyer, Hon. 

Koprivica

Eldred

Skahan 

Comments:  Claimant pursued a claim of injury by occupational disease and underwent back surgery and was unable to return to work as a welder but was able to return to work after his 6 "major" prior surgeries.  The commission had noted Dr. Koprivica's alternative explanations during cross exam were not inconsistent or rendered his opinions to lack credibility.  

"We do not consider Dr. Koprivica’s additional alternative analyses inconsistent, but rather merely his effort to respond to [E]mployee’s attorney’s diligent questioning designed to anticipate and address every possible liability scenario under § 287.220.3 RSMo. We further rely on the opinion of vocational expert Phillip Eldred that medical restrictions resultant from [E]mployee’s primary injury rendered him unable to compete for work in the open labor market. We conclude [E]mployee’s fifty-eight hour a week job as a welder for [E]mployer from 2006 to 2014, frequently lifting fifty or more pounds, carrying, squatting and kneeling was the sole cause of his permanent and total disability.' 

The ALJ made a specific credibility finding that claimant was honest, reliable, genuine and trustworthy. 

Some of claimant's prior conditions were found to impact his employability, but the postural restrictions flowing from post-laminectomy syndrome alone rendered him unemployable according to the opinions.