To paraphrase an over-quoted Mark Twain saying, no business is really safe when the legislature is in session. Although no major legislative overall is on the table, Missouri has several important pending bills.1 It remains to be seen how many bills will move forward. Some of the proposals include:
* Increase death benefits for survivors of firefighters, police officers, paramedics, and corrections officers killed in the line of duty. Proposed benefits include a lump-sum that ranges from $25,000 (HB 580) to $15,000 (SB 332). The fiscal impact statement was originally calculated at $10,000 per payment and assumes benefits for the program would cap at $500,000 per year. On average about 15 people within these classes died per year. Missouri provides already preferred status to firefighters and police officers regarding proof of certain types of injuries. The bill raises concern of "mission creep" by expanding the size of other preferred classes.
* Allow the employee the right to choose his or her own physician. (HB 907). No fiscal impact statement is provided with the bill. (They are probably still adding it up!)
* Allow Medicaid a guaranteed recovery of any benefits paid to claimants on public assistance, and requires employers to give 30 days notice before settling cases and prevents judges from approving any settlements until medicaid provides releases (SB 552). This bill appears to be a state equivalent to the new Rule 111 provisions to capture Medicare payments and imposes similar delays to require agency response about conditional payments before any settlements. The bill further requires parties to allocate all medicaid payments separately in settlements, to avoid the recent findings that Medicaid routinely asserts unconstitutional liens against lump sum settlements discussed in Doran v Mo. Dept. of Social Services, 2008 WL 4151617, Med & Med GD (CCH) P 302,623 (W.D.Mo., Sep 02, 2008) (NO. 07-CV-04158-NKL).
Pending legislation limits awards of disfigurement without a finding that disfigurement is a hindrance to employment. (HB 932) (SB 323).
A house bill allows contractors not to provide benefits when subcontractors have opted out of the Act due to religious reasons. (HB 288).
The Second Injury Fund faces extinction under HB 522 according to bill opponents. The bill would cap benefits at $40,000, restrict attorneys fees at 15%, and stop benefits to claimants who are incarcerated or are illegal to work. Four out of five Fund claims receive some payment, and the bill seeks to lower the cap to protect the fund's solvency instead of raising the current premium cap of 3% surcharged on employers. Fiscal impact reports costs of approximately $1,000,000 a year for the next three years. Testifying against the proposal included several union groups and, not surprisingly, MATA.
1http://house.mo.gov/content.aspx?info=/bills091/sbjndx/sbj160.htm
Friday, March 13, 2009
Thursday, March 12, 2009
Judge awards medical bills but denies disability in recurrent disc herniation case
Claimant is 50 year old long-term employee who states he hurt his low back in 2004 moving a 35 pound mold, and subsequently underwent two back surgeries and never returned to work. Claimant states although he had prior back problems the 2004 work accident made him worse and he was unable to return to his job and went on social security disability. The administrative law judge concluded claimant proved entitlement to some of the medical bills and temporary total disability, but denied any claim for permanent partial or total disability. The case is the recent 3-0 Commission decision affirming an award by Judge Kasten, Johnny Wyatt v Blair Packaging, DOLIR 3-12-09. 1 The case was affirmed in a per curiam order, 10-20-09 (ED 92756).
Claimant's expert concluded under pre-2005 law that the work injury represented a substantial factor in his need for surgeries after 2004, but that claimant's two previous back surgeries also at L5-S1 were a substantial factor.2 The employer's expert, Dr. Lange, found work was not a substantial factor, at all, and that back surgery put claimant at increased risk of re-herniation. The employer originally accepted liability, but then denied the case after survellience of claimant "participating" at a racetrack two months after the reported work injury.
Judge Kasten concluded claimant established that his work accident was a substantial factor and further aggravated his prior symptomatic medical condition resulting in the need for his 2004 surgery (his 3rd surgery at L5-s1). However, the claimant failed to prove his fourth back surgery, in 2005 (at L5-s1, and L4-l5) was casually related to his 2004 injury due to a favorable discharge after the 2004 surgery and reported worsening of his symptoms after driving a truck for several weeks with a different employer.
The court found bills related to the 2004 surgery related but rejected bills related to the 2005 surgery. No medical bills were awarded for bills discharged in a post-accident bankrupcty. Some of the bills had not been discharged, and the court rejected the defense that claimant's liability had been extinguished merely because the charges had been adjusted.
The claimant's experts asserted claimant was unable to return to gainful employment due to his pain complaints. Claimant's vocational expert asserted that workers older than 50 had a lot of difficulty working any type of new job. The court denied permanent partial disability noting the lack of expert testimony to allocate what specific disability was caused related to the 2004 surgery that was found to be work related. Claimant had acknowledged receiving 38% ppd disability for back injuries before the 2004 accident for recurrent disc herniations at the same level, but contends that 2004 accident made him much worse. Claimant's expert Dr. Zoffuto, amazingly, was "unaware of any way that that he could assign a value to each individual surgical procedure" and failed to provide any opinion on future medical to support an award of open medical care.
1http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/WyattJohnny.htm
2 The Commission also recently affirmed a PTD award, finding a 2004 back injury a substantial factor in causing the need for anterior two level back surgery, when claimant had a previous one level posterior spinal fusion at one of the same levels. PTD benefits were awarded against the Fund, when claimant failed to return to work after a failed attempt. Kotraba v American Power Conversion, DOLIR 1-27-09 (Gorman) cf
Johnson v Duke Mfg., DOLIR 3-13-09 (involving prior and subsequent neck surgeries, and finding no causation on primary case to deny SIF benefits when recommendation for major surgery months before work injury).(Percy) Bowman v Radnor Holdings, DOLIR 3-13-09 (closed head injury, denying claim due to lack of supporting objective evidence and history of prior headaches and evidence of exaggeration.)
Claimant's expert concluded under pre-2005 law that the work injury represented a substantial factor in his need for surgeries after 2004, but that claimant's two previous back surgeries also at L5-S1 were a substantial factor.2 The employer's expert, Dr. Lange, found work was not a substantial factor, at all, and that back surgery put claimant at increased risk of re-herniation. The employer originally accepted liability, but then denied the case after survellience of claimant "participating" at a racetrack two months after the reported work injury.
Judge Kasten concluded claimant established that his work accident was a substantial factor and further aggravated his prior symptomatic medical condition resulting in the need for his 2004 surgery (his 3rd surgery at L5-s1). However, the claimant failed to prove his fourth back surgery, in 2005 (at L5-s1, and L4-l5) was casually related to his 2004 injury due to a favorable discharge after the 2004 surgery and reported worsening of his symptoms after driving a truck for several weeks with a different employer.
The court found bills related to the 2004 surgery related but rejected bills related to the 2005 surgery. No medical bills were awarded for bills discharged in a post-accident bankrupcty. Some of the bills had not been discharged, and the court rejected the defense that claimant's liability had been extinguished merely because the charges had been adjusted.
The claimant's experts asserted claimant was unable to return to gainful employment due to his pain complaints. Claimant's vocational expert asserted that workers older than 50 had a lot of difficulty working any type of new job. The court denied permanent partial disability noting the lack of expert testimony to allocate what specific disability was caused related to the 2004 surgery that was found to be work related. Claimant had acknowledged receiving 38% ppd disability for back injuries before the 2004 accident for recurrent disc herniations at the same level, but contends that 2004 accident made him much worse. Claimant's expert Dr. Zoffuto, amazingly, was "unaware of any way that that he could assign a value to each individual surgical procedure" and failed to provide any opinion on future medical to support an award of open medical care.
1http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/WyattJohnny.htm
2 The Commission also recently affirmed a PTD award, finding a 2004 back injury a substantial factor in causing the need for anterior two level back surgery, when claimant had a previous one level posterior spinal fusion at one of the same levels. PTD benefits were awarded against the Fund, when claimant failed to return to work after a failed attempt. Kotraba v American Power Conversion, DOLIR 1-27-09 (Gorman) cf
Johnson v Duke Mfg., DOLIR 3-13-09 (involving prior and subsequent neck surgeries, and finding no causation on primary case to deny SIF benefits when recommendation for major surgery months before work injury).(Percy) Bowman v Radnor Holdings, DOLIR 3-13-09 (closed head injury, denying claim due to lack of supporting objective evidence and history of prior headaches and evidence of exaggeration.)
No Rating Required for Disability Award in Leg Contusion
Two lower leg contusions with complications of cellulitis were causation issues within lay understanding and did not require any medical expert opinion to assess disability or apportion disability between the two events. In the case of Bock v City of Columbia,1 the Commission affirms the ALJ award of 7 1/2% disability on a recent remand from the western district,2 reversing its earlier denial of benefits.
The 2005 case involved a maintenance mechanic who struck his right shin with a pipe, tore some skin, and later developed some cellulitis. About two months later while still recovering, he bumped the leg again while getting out of a shower. He reported continuing symptoms that his muscle ached and he was sore when the weather changed. Judge Dierkes awarded benefits, and the Commission reversed the award.
More complex cases outside lay understanding require assessment and allocation by an expert.3 It is important to appreciate that Bock arose on July 28, 2005, about one month before statutory reform. One of the reform changes added 289.190.6(2) 4 which mandated "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician," raising an issue under new strict construction to what extent the new requirement of "demonstrated" undermines much of the precedent relied upon in Bock that lay testimony alone in some cases can support an award of disability. The argument could be made that a claimant now always fails to make a prima facie case without disability evidence "demonstrated" by a rating disability or when findings are adduced as "impairment" and not of "disability."
In a post-2005 amendment case, the Commission affirmed a 15% award to a claimant for complaints of fatigue and lack of stamina, following a traumatic brain injury caused by a fall from a roof. For reasons never explained, attorney Goodnight never offered a disability rating report against the uninsured construction company, even though specials exceeded $250,000 for hospitalization related to a prolonged coma. The SIF is liable for medical benefits but not for PPD. The admissibility was apparently never challenged by the employer at trial or on appeal, who failed to appear at the hearing. The case was Michael Skinner v Donnie Morgan, DOLIR 7-2-1-09.
In a related note, the Commission affirmed a denial of benefits against the second injury fund by ALJ Vacca based on lack of medical evidence of threshold disability or synergy, citing a pre-05 decision that synergy could be judicially found without medical evidence in "rather obvious" cases. The decision is Andrew Krausz v Krausz Corporation, DOLIR 7-24-09, involving a claimant with a catastrophic crush injury to the foot pursuing benefits against the second injury fund for prior asthma condition that was periodically symptomatic.
In Bisby v Labor Ready Central, DOLIR 7-8-11, the Commission affirmed a denial of benefits to a pro se claimant who offered no medical evidence to establish a relationship between an admitted accident in which claimant treated once at an emergency room for a leg abrasion to subsequent symptoms regarding impaired capacity to walk and loss of grip. affirmed without opinion ED 97108 (Mo. App. 2012) 2012 Mo App. Lexis 280 (3-6-12).
1. Roger Bock v City of Columbia, DOLIR 3-11-09
http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/BockRoger.htm
2. WD 69674 (Mo. App. WD 12-30-08)
http://www.courts.mo.gov/file/Opinion_WD69674.pdf
3 Wyatt v Blair Packaging, DOLIR 3-12-09 (failure to allocate between two surgeries),
http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/WyattJohnny.htm
Pursifull v Braun Plaster, DOLIR 1-3-08. (two accidents)
http://www.dolir.mo.gov/lirc/wcdecisions/wcdec08/Pursifull,%20Michael.htm
4. 287.190.6
http://www.moga.mo.gov/statutes/c200-299/2870000190.htm
The 2005 case involved a maintenance mechanic who struck his right shin with a pipe, tore some skin, and later developed some cellulitis. About two months later while still recovering, he bumped the leg again while getting out of a shower. He reported continuing symptoms that his muscle ached and he was sore when the weather changed. Judge Dierkes awarded benefits, and the Commission reversed the award.
More complex cases outside lay understanding require assessment and allocation by an expert.3 It is important to appreciate that Bock arose on July 28, 2005, about one month before statutory reform. One of the reform changes added 289.190.6(2) 4 which mandated "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician," raising an issue under new strict construction to what extent the new requirement of "demonstrated" undermines much of the precedent relied upon in Bock that lay testimony alone in some cases can support an award of disability. The argument could be made that a claimant now always fails to make a prima facie case without disability evidence "demonstrated" by a rating disability or when findings are adduced as "impairment" and not of "disability."
In a post-2005 amendment case, the Commission affirmed a 15% award to a claimant for complaints of fatigue and lack of stamina, following a traumatic brain injury caused by a fall from a roof. For reasons never explained, attorney Goodnight never offered a disability rating report against the uninsured construction company, even though specials exceeded $250,000 for hospitalization related to a prolonged coma. The SIF is liable for medical benefits but not for PPD. The admissibility was apparently never challenged by the employer at trial or on appeal, who failed to appear at the hearing. The case was Michael Skinner v Donnie Morgan, DOLIR 7-2-1-09.
In a related note, the Commission affirmed a denial of benefits against the second injury fund by ALJ Vacca based on lack of medical evidence of threshold disability or synergy, citing a pre-05 decision that synergy could be judicially found without medical evidence in "rather obvious" cases. The decision is Andrew Krausz v Krausz Corporation, DOLIR 7-24-09, involving a claimant with a catastrophic crush injury to the foot pursuing benefits against the second injury fund for prior asthma condition that was periodically symptomatic.
In Bisby v Labor Ready Central, DOLIR 7-8-11, the Commission affirmed a denial of benefits to a pro se claimant who offered no medical evidence to establish a relationship between an admitted accident in which claimant treated once at an emergency room for a leg abrasion to subsequent symptoms regarding impaired capacity to walk and loss of grip. affirmed without opinion ED 97108 (Mo. App. 2012) 2012 Mo App. Lexis 280 (3-6-12).
1. Roger Bock v City of Columbia, DOLIR 3-11-09
http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/BockRoger.htm
2. WD 69674 (Mo. App. WD 12-30-08)
http://www.courts.mo.gov/file/Opinion_WD69674.pdf
3 Wyatt v Blair Packaging, DOLIR 3-12-09 (failure to allocate between two surgeries),
http://www.dolir.mo.gov/lirc/wcdecisions/WCDEC09/WyattJohnny.htm
Pursifull v Braun Plaster, DOLIR 1-3-08. (two accidents)
http://www.dolir.mo.gov/lirc/wcdecisions/wcdec08/Pursifull,%20Michael.htm
4. 287.190.6
http://www.moga.mo.gov/statutes/c200-299/2870000190.htm
Wednesday, February 25, 2009
Court defers constitutional challenge to 2005 amendments
The Missouri Supreme Court over a year ago heard oral arguments on a constitutional challenge of the 2005 amendments to the Missouri Workers' Compenation Act and concluded, after much delay, that they really couldn’t decide much of anything after all. The case is Missouri Alliance for Retired Americans v. Department of Labor and Industrial Relations, Division of Workers Compensation.1
A consortium of 71 organizations, including mostly labor unions, challenged the constitutionality of the changes and argued that the 2005 changes took away constitutional rights from workers and changed the original quid pro quo agreement when the Act was first enacted in 1926 that employees would be guaranteed certain rights in exchange for giving up common law remedies. The Missouri Supreme Court accepted the defense raised by the Division that the argument was not ripe for determination whether the challenged provisions were unconstitutional and so narrow or restrictive to deny an adequate remedy as no individual workers’ compensation claims were before the court. Nothing in the record indicated that the provisions had been interpreted or applied given the “draconian meaning” ascribed by the labor organizations. The court deferred any decision regarding the constitutionality until it is judged on individual basis.
The court issued declaratory judgment and declared that workers excluded from the Act by a narrower definition of accident and injury have a right to bring suit under the common law, just as they did prior to the initial adoption of the Act, because they no longer fall within the exclusivity provisions of the Act. The Court declined to decide what injuries fall within the definition of “accident.”
Judge Wolff in a concurring opinion concluded the declaratory judgment was an abstract principle of law and was premature to indicate how it applied on the facts of individual cases.
Judge Tietelbaum wrote a long dissent and argued that the court should have addressed the constitutional challenge , and that the open courts provision required an adequate substitute remedy when the legislature abrogates a common law cause of action of personal injury. The 2005 amendments excluded "large classes" of workers from cases, suggesting that it deprived benefits now from workers whose injuries arose “in conjunction with” drug or alcohol, those workers who engaged in post-injury misconduct, and those workers who had idiopathic injuries or unduly burdened claimants with mostly subjective complaints. Judge Teitelbaum further suggests that “accident” now excludes all repetitive trauma claims, an issue Commissioner Hickey has mentioned in several dissenting commission opinions and not addressed in the majority. The dissent in its quid pro quo topic does not resolve an issue raised in the majority opinion, that comparisons between the 2005 amendments of the “bargain” struck by labor and business in the workers' compensation law is actually several “bargains” since the law has changed many times since 1926, including many provisions favorable to labor.
This decision cannot be celebrated as a victory for anyone, since it was a decision essentially not to decide anything. It re-iterates the existing case law that parties who have actions arising outside worker's compensation can proceed under common law remedies.2 The Supreme Court leaves questions regarding the new definition of accident unanswered, and may invite employers or employees to deny workers'compensation jurisdiction in claims as a test case to further define "accident" under the new law. The decision whether to deny a workers' compensation case under the new definition of accident clearly mandates a more careful investigation of tort defenses and consideration of potential liability if the client would proceed in civil court under tort recoveries.
1. No. 88368 (Mo. 2-24-09)
http://www.courts.mo.gov/file/Opinion_SC88368.pdf
2. Such jurisdictional battles over exclusive remedies are nothing new. The Commission has exclusive original jurisdiction to hear any claim where there is a question whether a condition resulting from an accident arises out of and in the course of employment. See Jones v Jay Truck Driver Training Center, 709 S.W.2d 114, 115 (Mo. banc 1986), Schopp v. Matlock , 880 S.W.2d 357, 359 (Mo.App.E.D. 1994).
A consortium of 71 organizations, including mostly labor unions, challenged the constitutionality of the changes and argued that the 2005 changes took away constitutional rights from workers and changed the original quid pro quo agreement when the Act was first enacted in 1926 that employees would be guaranteed certain rights in exchange for giving up common law remedies. The Missouri Supreme Court accepted the defense raised by the Division that the argument was not ripe for determination whether the challenged provisions were unconstitutional and so narrow or restrictive to deny an adequate remedy as no individual workers’ compensation claims were before the court. Nothing in the record indicated that the provisions had been interpreted or applied given the “draconian meaning” ascribed by the labor organizations. The court deferred any decision regarding the constitutionality until it is judged on individual basis.
The court issued declaratory judgment and declared that workers excluded from the Act by a narrower definition of accident and injury have a right to bring suit under the common law, just as they did prior to the initial adoption of the Act, because they no longer fall within the exclusivity provisions of the Act. The Court declined to decide what injuries fall within the definition of “accident.”
Judge Wolff in a concurring opinion concluded the declaratory judgment was an abstract principle of law and was premature to indicate how it applied on the facts of individual cases.
Judge Tietelbaum wrote a long dissent and argued that the court should have addressed the constitutional challenge , and that the open courts provision required an adequate substitute remedy when the legislature abrogates a common law cause of action of personal injury. The 2005 amendments excluded "large classes" of workers from cases, suggesting that it deprived benefits now from workers whose injuries arose “in conjunction with” drug or alcohol, those workers who engaged in post-injury misconduct, and those workers who had idiopathic injuries or unduly burdened claimants with mostly subjective complaints. Judge Teitelbaum further suggests that “accident” now excludes all repetitive trauma claims, an issue Commissioner Hickey has mentioned in several dissenting commission opinions and not addressed in the majority. The dissent in its quid pro quo topic does not resolve an issue raised in the majority opinion, that comparisons between the 2005 amendments of the “bargain” struck by labor and business in the workers' compensation law is actually several “bargains” since the law has changed many times since 1926, including many provisions favorable to labor.
This decision cannot be celebrated as a victory for anyone, since it was a decision essentially not to decide anything. It re-iterates the existing case law that parties who have actions arising outside worker's compensation can proceed under common law remedies.2 The Supreme Court leaves questions regarding the new definition of accident unanswered, and may invite employers or employees to deny workers'compensation jurisdiction in claims as a test case to further define "accident" under the new law. The decision whether to deny a workers' compensation case under the new definition of accident clearly mandates a more careful investigation of tort defenses and consideration of potential liability if the client would proceed in civil court under tort recoveries.
1. No. 88368 (Mo. 2-24-09)
http://www.courts.mo.gov/file/Opinion_SC88368.pdf
2. Such jurisdictional battles over exclusive remedies are nothing new. The Commission has exclusive original jurisdiction to hear any claim where there is a question whether a condition resulting from an accident arises out of and in the course of employment. See Jones v Jay Truck Driver Training Center, 709 S.W.2d 114, 115 (Mo. banc 1986), Schopp v. Matlock , 880 S.W.2d 357, 359 (Mo.App.E.D. 1994).
Thursday, February 5, 2009
Recent decisions bode winter of discontent for Missouri employers
CARPAL TUNNEL - CAUSATION FOUND FOR EMPLOYEES
Nurse awarded 17 1/2% left hand, 15% right hand for carpal tunnel with mild pre-op EMG findings, causation found based on history from "pulling and pushing files in a file cabinet, manually pumping blood pressure cuffs, pushing carts of laundry, lifting bags of laundry, keyboarding, giving injections, and performing ear lavage," Commission modified open medical award from medication only to all future medical. Brennell v Patients First, DOLIR 8-13-09 (Ruth)
Dock worker awarded benefits in temporary award for carpal tunnel and epicondylitis, where employer expert Dr. Brown relied upon video tape that was deemed an inaccurate representation of duties representing slower duties later in morning after dock was already loaded and when claimant alleges he worked more slowly due to wet ground. Lemmon v Copp, DOLIR 2-3-09 (Landolt)
Fire protection specialist who tested drains, removed padlocks, and removed chains established that work was "vigorous and repetitive", and awarded 20% BAW for carpal tunnel. The judge rejected the employer’s defense that the duties were not hand intensive, and concluded the employer’s expert relied upon videotape with incomplete representation of claimant’s duties. Cochran v Honeywell DOLIR 2-2-09 (Siedlik)
Residential care worker employed 2 years established her carpal tunnel arose from work related duties that involved preparing meals and doing laundry and cleaning. The judge found the description relied upon by employer expert was inaccurate. The Commission in a 2-1 vote rejected a claim of future medical, noting the absence of recent treatment. Fisher v Bristol Care, DOLIR 2-2-09 (Miner)
Clerical worker employed 5 years awarded disability for carpal tunnel syndrome, rejecting defense from employer retained expert that hand duties not sufficiently intensive. Marcinkiewicz v Dave Sinclair Lincoln Mercury, DOLIR 1-28-09 (Vacca)
CERVICAL - CAUSATION FOUND FOR EMPLOYEE BASED ON ROUGH ROAD
A truck driver with a prior neck fusion was awarded future medical benefits in a temporary award for a new neck fusion when he claims rough roadway jarred his neck based on his testimony that road was rough, contrary to photographs of the road produced by the employer. The judge sharply criticized that the adjustor had "meddled" when the treating physician Dr. Wilkey originally supported causation and changed his opinion, and that treating physician was "confused" and over-relied upon picture of roadway that was not a picture where claimant stated that the accident occurred. The employee's expert Dr. Kennedy found the reported torque of neck and acute changes in an EMG study more relevant than alleged road wear.
Harvath v UPS 2-2-09 (Vacca)
COURSE OF EMPLOYMENT/ARISING OUT OF
Benefits denied. Claimant failed to prove accident in course of employment when he was going home from party, based on an earlier admission that he was going home contary to testimony that he was traveling to work-related destination. Chokota v Independent Photo Art Supply, DOLIR 1-16-09 (Magruder)
Benefits denied. Clalmant failed to prove accident arose from fatigue after working double shift, rejecting application of Snowbarger. Storie v American Systems, DOLIR 1-16-09 (Kasten)
DEPENDENCY
Claimant dies after an accident and has no surviving spouse or children. Claimant lived with mother 6 months before the accident and sent her a $50 check to pay for cell phone. The evidence of a periodic payment did not support the mother's claim of dependency. Vice v Advantage Waste Service, DOLIR 2-2-09 (Mahon)
EMPLOYMENT
Claimant was awarded 14% PPD and found to be statutory employee when injured removing a tire from the truck of a customer. The judge criticized the employer for asserting its staff were all independent contractors and attempting to "evade" legal obligations and expenses. Burnfin v DJ&J Driveaway, DOLIR 1-16-09 (Allen)
Claimant was awarded medical bills against the second injury fund based on a finding that a sawmill job with no comp insurance was an employment subject to the Act under "relative nature of work test," but claimant was not entitled to pierce the veil of the 80% corporate owner where lack of insurance did not contribute itself to injury of tree falling on a claimant and causing head and neck injuries. Second Injury Fund was denied a right to a "credit" of $25,000 settlement against the putative employer, as the employer is not entitled to a credit under .270 and the Fund cannot assert defenses in an uninsured employer claim that would not be available to the employer. Goodson v GB Logging, DOLIR 1-29-09 (Kasten).
FUTURE MEDICAL - MASSAGES
Claimant was awarded 64% disability for an ankle injury when he fell from scaffolding, and an award for open medical that included massage therapy. Claimant described that massages several times a week made him feel better, including the 248 sessions he received over three years from his female massage therapist had never been ordered by a doctor. The treating physician, Dr. Burns, originally concluded such treatment was not necessary but conceded his position may need "rethinking." A pain management specialist retained by the employer dismissed the need for long-term massages as "touchy-feely" care. The judge accepted that such treatment at a minimum relieved claimant's symptoms and might reduce his swelling and daily use of several narcotics. The judge did not award the past medical bills related to the unauthorized care. Claimant, 27, states no one would hire him after the accident and he runs his own construction business and is a volunteer fire fighter. Castile v Sander Siding, DOLIR 1-27-09 (Robbins).
On remand from the court of appeals, the Commission ordered future medical care including total knee replacement because the need for treatment "flowed" in part from the original accident, despite prior degenerative conditions. The court of appeals found Dr. Jones' conclusion that claimant's meniscus tear was not a substantial factor in the need for future medical care inconsistent with earlier reports and not credible when he initially indicated that the work accident significantly aggravated his condition and should be considered part of a "persistent claim." Conrad v Jack Cooper Transport, DOLIR 2-13-09.
MEDICAID LIEN - EMPLOYER GETS STUCK WITH ORIGINAL CHARGES
Claimant awarded 65% PPD for back injury after fall from ladder and entire medical charges awarded, where employer offered no evidence that claimant would not be responsible when Medicaid repriced charges. Rector v Gary’s Heating & Cooling, DOLIR 1-23-09. (Fischer)
MMI
Benefits denied when claimant slipped and fell on dock, died from unrelated cancer, and disability opinion from claimant’s expert deemed speculative as to what minimum disability claimant ‘would have had’ if he proceeded with proposed surgery. Cantrell v Baldwin Transporation, DOLIR 1-27-09 (Mahon)
PTD
46 year old CNA awarded PTD after he injured back moving large patient and had ongoing symptoms from post-laminectomy syndrome after 2 surgeries, claimant testified he was going to get a morphine pump and needed to lie down during the day. The employer expert was criticized for waiting 2 years to render a disability opinion after his exam. Boler v Citizens Memorial Healthcare Foundation, DOLIR 1-23-09 (Zerrer)
Claimant awarded PTD after auto accident caused multiple fractures, claimant now must lie down 5-6 times a day. Judge criticizes AMA ratings. Employer argument that claimant’s PTD is not from accident alone but in part due to claimant’s old prior felony convictions rejected as "without merit". Steel v Air Serve Group, DOLIR 1-27-09 (Cain)
SIF PTD claim rejected, where phlebotomist sprayed with blood who developed hep c and nervous breakdown, failed to prove psychological condition prior to employment was sufficiently disabling to qualify for statutory benefits. Madison v NABI, DOLIR 1-27-09 (Mahon)
Thursday, January 22, 2009
Invasion of the Claimant Snatchers
Submitted for your approval: a claimant is injured on a perfectly ordinary bright sunny day in a perfectly ordinary Missouri town, but this time, the ‘accident’ is real, the symptoms are ‘real’, but the claimant is ‘not’.
Tonight, the story is not some crazy body-snatchers from outer space. Instead, the threat is more dangerous than Plan 9, or giant spiders, and will send any risk managers swinging their arms wildly shouting: "Warning, warning...."
Claimants are sometimes not whom they appear to be.
Many claims investigators often skip past the basic question: have you, Mr. Claimant, been known by any other name, alias, or ever used a different social security number? Plaintiff attorneys can often be duped by imposters by not using due diligence to investigate the identity of their own clients. Even many seasoned defense attorneys at the disability hearing never ask the question, where the claimant, under oath, can begin a story with the most fundamental form of perjury.
False identities usually do not begin with the slip and fall, but the "accident" when the claimant is first hired. False identities can arise from a variety of reasons among job applicants who want to hide their past from evading homeland security to avoiding child support or bench warrants. Some people may have previous awards for permanent partial or permanent total disability they wish to hide. The use of phony identities impairs proper discovery regarding prior medical conditions to accurately assess the value of the case. Plaintiffs who knowingly use an alias make unethical misrepresentations to the court.1 The worker's compensation fraud provisions do not specifically address identity fraud, although presenting a claim under a false name is a false claim and a false material statement subject to prosecution under 287.120. The use of false identities to pursue medical payments may further subject claimants to more onerous federal penalties for medicare fraud.2
Some claimants hired under legal names may still seek medical treatment under different names to avoid disclosure of non-occupational or pre-existing conditions, or simply to get some extra roxies for the weekend.
Some aliases may be innocent: misnomers, transposed social security numbers, or marital names changes. Some aliases are even sanctioned by the court: name abbreviations in sex crime cases,3 or new identities under witness protection plans.4
Recently, a petitioner in Illinois used a phony social security number and obtained benefits on a worker's compensation case, obfuscating the employer’s ability to fully investigate the claim. Smalley Steel Ring Co. v Illinois Workers Compensation Commission, No. 2-07-1050WC (December 12, 2008)5
The issue of identity fraud has surfaced, as well, in some Missouri compensation cases.
In Barber v Gilster Mary Lee, DOLIR, 6-21-01, claimant alleged permanent and total disability benefits but sought medical treatment under a false identity in order to avoid a bench warrant for outstanding parking tickets. This misrepresentaion was not his only credibility problem with a history of four "or five" prior felony convictions.
In Randolph v Western Union, 3-30-98, DOLIR 3-30-98, claimant provided a fake name to a hand surgeon because he wanted an "unbiased" opinion. The court denied his claim and refused to admit the report.
.
The use of phony names may not be a common fraud in workers compensation cases where it is much easier to exaggerate about subjective symptoms rather than to assume a new avatar. Medical providers should use Red Flag procedures before an IME to verify identity. Perhaps hips don’t lie, but some clients lie about the most fundamental thing: who they are. Better hiring practices and more thorough investigations can stop much of this problem. Ignoring the problem will not stop it. Medical identity fraud is not simply the stuff of late night paranoia of people who watch the night skies for saucers. Cases like Smalley Steel are cautionary tales much like the moral of the Invasion of the Body Snatchers: if people don’t seem right, things can quickly go very wrong indeed.
1. See Blankenship, Client Using an alias? It’s your duty to tell the court, FLORIDA BAR NEWS 2-15-08 (discussing rule 4-3.3(a)). The Florida bar is still debating this rule.
2. For example,18 USC 1028, imposes 15 year jail penalties and $250,000 fines, see also the Identity Theft Penalty Enhancement Act, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ275.108.pdf;
3. i.e. P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846 (Mo.App. 1996).
4. The Witness Security Program may provide entirely new identities. http://www.usmarshals.gov/witsec/index.html See also Lang v Auto Body, DOLIR 3-5-02 (crime victim stating he used fake name for protection)
5.http://www.state.il.us/court/OPINIONS/AppellateCourt/2008/2ndDistrict/December/2071050WC.pdf
Tonight, the story is not some crazy body-snatchers from outer space. Instead, the threat is more dangerous than Plan 9, or giant spiders, and will send any risk managers swinging their arms wildly shouting: "Warning, warning...."
Claimants are sometimes not whom they appear to be.
Many claims investigators often skip past the basic question: have you, Mr. Claimant, been known by any other name, alias, or ever used a different social security number? Plaintiff attorneys can often be duped by imposters by not using due diligence to investigate the identity of their own clients. Even many seasoned defense attorneys at the disability hearing never ask the question, where the claimant, under oath, can begin a story with the most fundamental form of perjury.
False identities usually do not begin with the slip and fall, but the "accident" when the claimant is first hired. False identities can arise from a variety of reasons among job applicants who want to hide their past from evading homeland security to avoiding child support or bench warrants. Some people may have previous awards for permanent partial or permanent total disability they wish to hide. The use of phony identities impairs proper discovery regarding prior medical conditions to accurately assess the value of the case. Plaintiffs who knowingly use an alias make unethical misrepresentations to the court.1 The worker's compensation fraud provisions do not specifically address identity fraud, although presenting a claim under a false name is a false claim and a false material statement subject to prosecution under 287.120. The use of false identities to pursue medical payments may further subject claimants to more onerous federal penalties for medicare fraud.2
Some claimants hired under legal names may still seek medical treatment under different names to avoid disclosure of non-occupational or pre-existing conditions, or simply to get some extra roxies for the weekend.
Some aliases may be innocent: misnomers, transposed social security numbers, or marital names changes. Some aliases are even sanctioned by the court: name abbreviations in sex crime cases,3 or new identities under witness protection plans.4
Recently, a petitioner in Illinois used a phony social security number and obtained benefits on a worker's compensation case, obfuscating the employer’s ability to fully investigate the claim. Smalley Steel Ring Co. v Illinois Workers Compensation Commission, No. 2-07-1050WC (December 12, 2008)5
The issue of identity fraud has surfaced, as well, in some Missouri compensation cases.
In Barber v Gilster Mary Lee, DOLIR, 6-21-01, claimant alleged permanent and total disability benefits but sought medical treatment under a false identity in order to avoid a bench warrant for outstanding parking tickets. This misrepresentaion was not his only credibility problem with a history of four "or five" prior felony convictions.
In Randolph v Western Union, 3-30-98, DOLIR 3-30-98, claimant provided a fake name to a hand surgeon because he wanted an "unbiased" opinion. The court denied his claim and refused to admit the report.
.
The use of phony names may not be a common fraud in workers compensation cases where it is much easier to exaggerate about subjective symptoms rather than to assume a new avatar. Medical providers should use Red Flag procedures before an IME to verify identity. Perhaps hips don’t lie, but some clients lie about the most fundamental thing: who they are. Better hiring practices and more thorough investigations can stop much of this problem. Ignoring the problem will not stop it. Medical identity fraud is not simply the stuff of late night paranoia of people who watch the night skies for saucers. Cases like Smalley Steel are cautionary tales much like the moral of the Invasion of the Body Snatchers: if people don’t seem right, things can quickly go very wrong indeed.
1. See Blankenship, Client Using an alias? It’s your duty to tell the court, FLORIDA BAR NEWS 2-15-08 (discussing rule 4-3.3(a)). The Florida bar is still debating this rule.
2. For example,18 USC 1028, imposes 15 year jail penalties and $250,000 fines, see also the Identity Theft Penalty Enhancement Act, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ275.108.pdf;
3. i.e. P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846 (Mo.App. 1996).
4. The Witness Security Program may provide entirely new identities. http://www.usmarshals.gov/witsec/index.html See also Lang v Auto Body, DOLIR 3-5-02 (crime victim stating he used fake name for protection)
5.http://www.state.il.us/court/OPINIONS/AppellateCourt/2008/2ndDistrict/December/2071050WC.pdf
Wednesday, January 7, 2009
Court Excuses Claimant for Not Filing Timely Claim in Bankruptcy Proceedings
The Western District slams the Guarantee Fund on public policy grounds for denying a hearing loss claim on a notice defense.
Claimant established hearing loss of 15.77% BAW after working for an employer for 34 years, but the Commission reversed his award as he neglected to file a timely claim against the bankruptcy court after his employer became insolvent in 2001. The court of appeals reversed and found section 287.865.5 did not bar his claim and re-instated the original disability award, in Jones v GST Steel, No. 69299 (Mo. App. WD 1-6-2009).
Claimant was terminated in 2001 when his company went into bankruptcy. He obtained a diagnosis of work-related hearing loss a few days before the bankruptcy filing. The Guarantee Fund defended his claim that it owed nothing as claimant did not preserve a claim with the bankruptcy court during the 6 years the employer’s bankruptcy remained pending.
The court considered the requirements of 287.865.5 that the employee must make timely claim for such payments. The legislature purpose to allow an insolvent employer to pay liability before making claims against the Guarantee Fund could have been achieved, the court explains, if the Guarantee Fund had provided notice itself to the bankruptcy estate after it received claimant's comp claim in 2003. The court liberally construes benefits under 287.800 and found the construction advanced by the Guarantee Fund placed unsophisticated claimants in a trap.
The notice provided to claimant that he needed to file a claim in bankruptcy was “inadequate” and did not provide the claimant adequate clarification how to proceed. It imposed a deadline that he file a claim in July 2001, months before he was legally entitled to file a comp claim for his hearing loss in November 2001 (287.197.7 at the time required 6 month separation rule). The court found the Guarantee Fund never provided him a clearer notice of his rights, and noted it was their statutory responsibility to do so under 287.872. The court cited legislative changes in 2005 requiring notice requirements only of “open” claims and not “potential” claims.
The court discusses similarities to the Wire Rope case, in which claimants in both cases lacked adequate information and clarification how to proceed. In the earlier case, the court criticized the Guarantee Fund for taking a defense that “spits” in the face of public policy and causes unjustified anxiety of workers.
In a similar case, Soligo v GSTY Steel Co., DOLIR 3-24-10, the court awarded against the Guarantee Fund benefits of 35% PPD based on Dr. Koprivica's rating for an unoperated rotator cuff tear, and rejected the Fund's jurisdictional defense that claimant failed to provide notice to the bankruptcy court, when claimant asserted he had never received any letter requiring him to provide such notice. The commission reversed an award of attorney's fees of $3381 assessed by ALJ Siedlik, noting the unsuccessful defense was not so egregious to warrant costs.
Claimant established hearing loss of 15.77% BAW after working for an employer for 34 years, but the Commission reversed his award as he neglected to file a timely claim against the bankruptcy court after his employer became insolvent in 2001. The court of appeals reversed and found section 287.865.5 did not bar his claim and re-instated the original disability award, in Jones v GST Steel, No. 69299 (Mo. App. WD 1-6-2009).
Claimant was terminated in 2001 when his company went into bankruptcy. He obtained a diagnosis of work-related hearing loss a few days before the bankruptcy filing. The Guarantee Fund defended his claim that it owed nothing as claimant did not preserve a claim with the bankruptcy court during the 6 years the employer’s bankruptcy remained pending.
The court considered the requirements of 287.865.5 that the employee must make timely claim for such payments. The legislature purpose to allow an insolvent employer to pay liability before making claims against the Guarantee Fund could have been achieved, the court explains, if the Guarantee Fund had provided notice itself to the bankruptcy estate after it received claimant's comp claim in 2003. The court liberally construes benefits under 287.800 and found the construction advanced by the Guarantee Fund placed unsophisticated claimants in a trap.
The notice provided to claimant that he needed to file a claim in bankruptcy was “inadequate” and did not provide the claimant adequate clarification how to proceed. It imposed a deadline that he file a claim in July 2001, months before he was legally entitled to file a comp claim for his hearing loss in November 2001 (287.197.7 at the time required 6 month separation rule). The court found the Guarantee Fund never provided him a clearer notice of his rights, and noted it was their statutory responsibility to do so under 287.872. The court cited legislative changes in 2005 requiring notice requirements only of “open” claims and not “potential” claims.
The court discusses similarities to the Wire Rope case, in which claimants in both cases lacked adequate information and clarification how to proceed. In the earlier case, the court criticized the Guarantee Fund for taking a defense that “spits” in the face of public policy and causes unjustified anxiety of workers.
In a similar case, Soligo v GSTY Steel Co., DOLIR 3-24-10, the court awarded against the Guarantee Fund benefits of 35% PPD based on Dr. Koprivica's rating for an unoperated rotator cuff tear, and rejected the Fund's jurisdictional defense that claimant failed to provide notice to the bankruptcy court, when claimant asserted he had never received any letter requiring him to provide such notice. The commission reversed an award of attorney's fees of $3381 assessed by ALJ Siedlik, noting the unsuccessful defense was not so egregious to warrant costs.
Subscribe to:
Posts (Atom)