No scaffolding violation
The Commission reversed a penalty for an alleged employer safety violation. ALJ House noted "As is apparent from the testimony of both claimant and claimant's employer, claimant was working on scaffolding which broke when his employer attempted to walk on the same board occupied by claimant." the Commission noted the employee set up the boards which were 4 feet off the ground, he was aware of the defect, and the employer had no reason to know of any safety defect. The Commission awarded PTD against the Fund in the case. Moseley v Elite Stucco, 2014 Mo WCLR Lexis 48 (April 10, 2014). The Commission noted the absence of medical history did not preclude a finding of causation.
ALJ House
Atty: Pitts, Musick
No safety penalty for woman too big for her seat.
A 50-year old health care provider was awarded permanent and total disability benefits when she was driving a patient in West Plains, MO in 2009 to buy a soda, she became distracted by the patient, and struck a car resulting in leg injuries which placed her permanently in a wheelchair. Barton v Green Acres Home of West Plains and Newton Group Home, 2014 Mo WCLR Lexis 31 (March 7, 2014).
The Commission rejected the employer's arguments that claimant violated a safety policy by not wearing a seat belt and that her benefits should be reduced up to 50%. The Commission affirmed a finding by the ALJ that the employer failed in this affirmative defense by not showing that the lack of a seat belt caused the injuries in question. The ALJ alternately found that the employer did not "adopt" a policy to require its workers to wear seat belts and that a policy for employees to "obey the laws" was insufficient to invoke the penalty. Claimant asserts because she was 400 pounds that she was unable to use a standard seat belt and there was no attempt by the employer to provide her a larger one. She asserts that her chronic obesity of 400-450 pounds was never an obstacle or hindrance to her employment.
"The courts have recognized that there must be a causal connection between the violation of the employer's safety rule and the employee's injury. Davis v. Roadway Express, Inc., 764 S.W.2d 145 (Mo. App. S.D. 1989); and Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921 (Mo. App. S.D. 1985). The failure of an employee to obey a safety rule does not authorize the imposition of the penalty statute unless the injury is caused by the Employee's failure. Swillum v. Empire Gas Transport, Inc., supra. The statute itself dictates that the penalty shall apply only when the injury is caused by the employee's failure to obey the safety rule."
The ALJ further rejected the argument that claimant's accident did not arise from her employment and noted a heightened occupational risk because she drove more on the job and had a passenger at the time of the accident who required more attention.
The employer did not contest the finding of PTD on appeal and limited its alleged error to the safety penalty issue. Claimant was rendered temporarily disabled for 93 weeks and spent nearly a year in a nursing home after her accident because she was unable to take care of herself. The ALJ did not award Medicaid write-offs when there was no evidence that claimant remained personally liable on the balance.
ALJ Wilson
Atty: Alberhasky, Moberg
Experts: Koprivica, Swearingin
No safety penalty for sticking hand in machine
Claimant established that he was permanently and totally disabled when his dominant right hand became stuck in a gizzard machine resulting in degloving injuries, but the Commission affirmed a 25% reduction of benefits. Gonzales v Butterball, 2014 Mo WCLR Lexis 29 (3-5-2014)
"There is evidence that the claimant attended safety training for this machine and should have been aware of employer's safety policy to call a supervisor if the gizzards were stuck rather than trying to correct it on his own. There was also testimony by a coworker that most employees followed this protocol."
Claimant was a 66 year old immigrant who spoke limited English and had worked for the employer for several years included taking the guts, eggs, and hearts out of turkeys. Claimant also cut out the gizzard and other parts of the turkey. His job was hand intensive and after the accident he had hypersensitivity and reduced dexterity which delegated the injured hand to a 'helper' hand. The opinion provides extensive detail of the effort of more than an hour to extricate claimant's trapped hand in the evisceration department.
Commission strikes safety penalty on narrow reading of safety manual
Claimant hurt his foot by having it sticking out of a forklift. The safety manual required employees to keep their feet inside the forklift when traveling, but the employer failed to establish claimant was aware of a safety rule requiring him to keep arms hands and legs inside the forklift when it was not "traveling" in Greer v Sysco Food Service, 2014 Mo WCLR Lexis 41 (3-28-2014) and reversed a penalty by the administrative law judge. The commission affirmed a finding that claimant was partially disabled, rejecting vocational opinion based on self-reported limitations of a need to lie down. Affirmed ED 101389 (Mo App. 2014)(Nov. 18, 2014).
ALJ Kohner
Atty Margolis
Supreme Court leaves issue unresolved of what is "compensation" for penalty provision
When an employer was liable for a 15% safety penalty the penalty did not apply to additional compensation from the Second Injury Fund, according to the Missouri Supreme Court in Hornbeck v Spectra Painting Inc. No SC 92116 (Mo. July 31, 2012), affirming a decision from the court of appeals. Payment of such a penalty was inapplicable because it would penalize the employer for conditions it had no control and may deter employers from hiring workers with pre-existing disabilities.
The court of appeals awarded $11,578.94 in penalties by enhancing the award based on compensation paid in the form of medical and indemnity benefits. The Supreme Court indicated there was "no reason for this court to explore" what was meant by "compensation" because the issue was not a matter in controversy. "Spectra’s counsel conceded at oral arguments that, if the penalty is owed, it should apply to the compensation monies that Spectra voluntarily paid to Hornbeck before the Commission’s decision." The employer initially disputed whether any penalty applied but abandoned this issue. Claimant had recovered in addition to benefits against the employer an award of 42.4 weeks of compensation from the second injury fund.
In Hornbeck v Spectra Painting, ED 95680 (Mo. App 9-6-11) the court rejected the employer's argument that "compensation" subject to penalty did not include $32,801.15 in medical benefits already paid, $16,754.88 in TTD benefits paid, or a credit of $7000 against PPD in previously overpaid benefits. The court affirmed a Commission award of penalties under the Scaffolding Act relying upon 1919 precedent showing a fall is prima facie evidence of negligence in the absence of exculpatory showing on the part of the employer. The employer presented no such evidence. Claimant failed to persuade the Commission that he was permanently and totally disabled, that his subsequent biceps repair and back fusion flowed from the accident, or that the penalty should extend to SIF benefits without producing an incongruous result of punishing employers for pre-existing injuries. The decision puts to rest the argument whether medical benefits are compensation under the statute based on some equivocal statements in Thompson v ICI American Holding, WD 72374 (8-9-2011).
Strict findings required to invoke affirmative defense of safety penalty
The Commission on its third opinion on this case reversed its original imposition of a penalty against the employee and concluded that the employer failed to prove an affirmative defense that claimant violated a safety rule to support a 50% penalty. The employer offered testimony that there was no doubt that carrying a 100 pound bag up a 40 foot ladder was the prevailing cause of the injury. Claimant sustained a back injury, required surgery, developed CRPS, and was unable to return to his career as a roofer due to intractable pain. The commission concluded that the employer failed because it did not show that violation of a three point contact rule was the cause of the injury simply by showing the injury occurred during the violation of the rule. Carver v Delta Innovative, 2-14-13; 379 S.W.3d 869; 2013 Mo App. Lexis 129 (January 29, 2013) The award had applied the penalty to all "compensation" . The Commission found it lacked jurisdiction to grant relief of a credit or reimbursement between carriers for benefits voluntarily made under Kansas law. DOLIR 7-22-11.
ALJ McKeon
Atty: Kelly, Russell, Jurcyk, Dickson
Experts: Koprivica, Cordray, Abram
Treater: Kaufman, Drisko
Claimant's right hand was pulled into a pulley, when the claimant tried to work on a broken belt, he did not fully de-energize the equipment and tried to stop a blower with a broom handle instead. The Commission awarded benefits but allowed a 37 1/2% reduction against all benefits paid, allowing a credit for more than $25,000, about half of which was medical bills. The issue whether medical bills were compensation was not preserved on appeal. The court of appeals found that claimant's failure to follow lock-out safety rules was an efficient cause of the accident and did not have to be the sole cause. The court found the employer enforced the rule by training and monitoring employee compliance, and did not have show previous safety violations and consequent discipline. Claimant had attended annual training for 12 years. The court found a rational basis in the 2005 amendments to impose different penalties to employers and employees for noncompliance, noting that both parties were not similarly situated. Thompson v ICI American Holding, WD 72374 (8-9-2011)
The employer disputed if claimant's accident arose out of and in course of employment when she was asked to drive about 45 minutes to help staff another convenience store in Hollister. Claimant lost control of her car resulting in multiple injuries including the need for a ORIF hip. She was temporarily disabled for about 7 months. She reported since the surgery she had severe posture problems that limited her ability to drive, sit in front of a computer but could attend church. A vocational expert felt she could perform some sedentary work such as an illustrator because she previously worked 25 years as a graphic artist. ALJ Mahon concluded it was a close case but found that claimant was unemployable because of her limits with her posture and questionable capacity to maintain the pace of the employment.
The ALJ awarded $45,865.83 in penalties against the employer for unreasonable defense. Harness v Southern Copyroll, 291 S.W.3d 299 (Mo. App. 2009) found travel compensable when work requires travel away from the primary business. The ALJ found the travel between stores was for the sole benefit of the employer, and dismissed the argument the claimant violated company policy not to clock out once she left the store. The employer offered no evidence to contest the duration of TTD or amounts of medical bills. The employer had no basis to deny the 50% hip disability found by its own expert. "It is unconscionable to starve out the Claimant by continuing to deny medical care and temporary total disability once compensability is clear and the injuries are severe. The Commission affirmed an award of $229,373.12, which included the penalties, and awarded future medical including vehicle modification and permanent total benefits for the 49 year old claimant. Robin Johnson v Jared Enterprises, DOLIR 8-10-11.
ALJ: Mahon
Atty: Goodnight, Wesley
Experts: Koprivica, Swearingin, Hendler, Cordray
treaters: Wester
A sleeping b-driver on a truck claims she could never work again after she fell out of her bunk in 2001 when the truck braked suddenly. Although claimant was initially diagnosed with only multiple contusions, she continued to report for years chronic discomfort of her entire body. One physician provided 14 separate diagnosis and another pain management physician placed her fentanyl and methadone for primarily neck, back and shoulder symptoms. At the time of the hearing of the 2001 case, claimant was 60 years old. ALJ Wilson concluded claimant established that she was only permanently partially disabled, that she "overstated" her symptoms and an unrelated depression might impact her symptoms. The experts disputed whether or not fibromyalgia contributed to her symptoms. Claimant had worked only a week. The employer did not prevail on a safety penalty that claimant should have worn a seat belt, because the team driver training claimant apparently told claimant not to wear restraints, contrary to company policy. McPherson v New Prime Inc., DOLIR 3-9-11.
ALJ: Wilson
Atty: Pitts Law Office
Experts: Lennard, Paul
Claimant, a minor, sustained substantial injuries in a car accident while allegedly intoxicated, when he was working out of state and driving to Wal-mart to obtain supplies the next day for his employer. ALJ Mahon denied the employer's defense for drug and safety rule violations, and found that the employer failed to adopt or enforce any drug-free work place policy.
Claimant sustained more than $225,000 in medical bills, resulting in a ruptured spleen, forearm, fracture, and brain injury. The claimant asserts that the employer did not enforce its drug-free work place policy, that claimant's supervisor was drinking, and allowed claimant to drink before driving on his errand. The claimant further asserted that the employer waived any subrogation rights under a 'unclean hands' doctrine.
The Commission affirmed the award, which denied the defense of drug and safety penalties and declined a constitutional challenge on the penalty provisions as moot. The ALJ noted that the employer failed to introduce evidence that claimant's intoxication was illegal in the state where the accident occurred or that claimant accepted a drug-free policy when he was hired as he signed documents in 2005 but did not resign policy documents when he was re-hired in 2006. The case is Merkenson v Tap Enterprises, 4-29-10.
Safety penalty applies to medical bills
Claimant crushed both arms while working under a truck and the Commission affirmed a finding that he violated a safety penalty not to use supports under the truck. Claimant, 58, underwent 7-9 surgeries and restored limited use of his arms and was unable to return to work in his former job as a mechanic, which he had worked for 25 years. Judge Mieners awarded permanent total with disfigurement and did not apply a safety penalty against medical bills. The Commission modified the award and found the 30% penalty applied to all benefits, including medical, which in this case represented over $168,000. Stillwell v Knapheide Truck Equipment Commercial, DOLIR 3-23-10.
Safety penalty against employee for crush injury
Judge Miner applied a 37 1/2% penalty for all benefits including medical, disability and disfigurement when claimant injured his right hand when it was pulled into a machine and had not complied with all safety rules to de-energize and tag the machine.
Claimant retired from the employer after working nearly 40 years following the accident.
Claimant received 55% of right hand. Judge Miner deemed the safety breaches were not "egregious" to assert the maximum 50% penalty, which the employer had initially applied to paid benefits. The case is Thompson v ICI Starch, 3-16-10.
Procedural requirements for drug test
A drug-free work place policy that had zero tolerance and required random drug tests did not thwart benefits of a 23-year old framer who just said no to taking a drug test after a catastrophic injury. The Commission reversed a denial of benefits, noting that the employer failed to comply with a procedural twist how an employer requests a drug test in Roscom v Woodstone Builders, DOLIR 1-12-10.
Hospital nurses informed claimant that the carrier wanted a drug test and advised the claimant that he might want to talk to an attorney about his rights. The administrative law judge denied benefits, noting claimant had refused a drug test at the request of the employer and forfeited his right to benefits under 287.120.6. The commission reversed, noting there was no "request" nor evidence that the request was "of the employer" to invoke forfeiture of benefits under the compensation statute. The Commission further declined to adopt findings by the administrative law judge that the employer had a post-injury drug test policy.
The Commission issued a temporary award that the employer pay ongoing TTD benefits after July 2008, medical treatment including pain management and psychological treatment for claimant’s paraplegia, and deferred an award of past medical bills until the final award. The claimant asserts more than $150,000 in disputed unpaid bills.
Missouri law amended §287.120 in 2005 to increase penalties for drug or alcohol use in conjunction with an accident from 15 to 50% and allowed complete forfeiture when proscribed use is the proximate cause of the injury. Roscom highlights new procedural traps for employers wanting to assert the drug use defense when a post-accident testing is not expressly indicated, a claimant’s consent is sought only after the accident, and the employer never directly requests the test. Missouri reform in 2005 changed the interpretation of the statute from "liberal" to "strict" construction to help Missouri business. This decision is one of many recent cases that has weakened employer’s defenses under the rubric of strict construction.
Friday, August 12, 2011
Friday, August 5, 2011
PTD: Narcotics, secondary effects
Court reduces narcotics
The court of appeals affirmed a decision to reduce a pain management drug cocktail, but the decision came with a twist with a warning about attorney’s fees.
In Noel v ABB Combustion Engineering, ED 98446 (Mo. App. 11-13-2012) the injured worker obtained a final award for permanent and total disability with open medical for a physical and psychiatric disability after 3 back surgeries. The employer paid benefits for several years and then refused to pay for multiple medications based on the recommendation of its IME doctor that some of the drugs had anything to do with claimant’s original lifting injury. The injured worker asked the Commission to re-open her case to prevent a change in medication and sought attorney’s fees for an unreasonable defense. The Commission concluded that the injured worker failed to show all of the medications were necessary for her work-related injuries and did not reach the issue whether the change in treatment would endanger her life, health or recovery.
Section 287.140.1 provides the employer the right to designate a provider to provide care as reasonably may be required to cure and relieve from the effects of the injury. Section 287.140.2 provides the employer may lose this option if the choice endangers the life, health or recovery of the employee. Section 287.560 provides for costs for an unreasonable defense.
The court of appeals found the Commission erred in part of its finding on the first issue and failed to make a finding on the second issue and remanded to “determine the extent” of the employer’s liability for fees. The court found the Commission considered conflicting evidence and supported the IME opinion that several medications did not flow from the work injury. The Court found that the Commission improperly disallowed two other medications based on insufficient evidence.
The claimant’s expert indicated that using cheaper medications would unequivocally risk claimant’s health. The employer had previously tried to wean claimant from narcotics and was ordered by an administrative law judge to prevent the action. In the original 2007 award a different administrative law judge admonished the employer not to change physicians to try to save money and warned an adverse medical response by the claimant could support an award for costs. Noel v ABB Combustion, 2007 MO WCLR Lexis 14.
Ultimately, the court affirmed a denial of fees. 2013 MO App. Lexis 1187 (Oct. 15, 2013).
This case is important in several regards. The case demonstrates the employer may designate a medical provider in a future medical award. Such decisions, however, are subject to review and potential penalties. Claimant must establish a need for treatment flows from a work injury. The claimant does not have to show the treatment cures or relieves the injury. The employer has the burden why it cut off medications, and the absence of specific evidence on each medication fails in that burden and may result in a claim for an unreasonable defense.
It has been well established that the employer owes for medical expenses when it neglects or refuses to provide care that flows from a work injury. The decision indicates the employer continues to have an obligation to provide care in the chronic pain patient even though treatment does not, as the statute requires, cure and relieve. What remains unanswered is whether this intepretation is applies only in the context of the chronic pain patient or more broadly imposes liability for medical costs in all cases even when there is limited or no efficacy to proposed or prior care.
Claimant sustained career-ending injuries from an auto accident arising from her duties as a nurse but failed to prove an award for past or future Percocet and Fentanyl from her personal physician when there was evidence for her to taper their use and her expert could not explain why claimant's pain could not be managed with other medications. The employer stipulated to open medical but disputed the use of these medications and the award for permanent total. The administrative law judge found claimant obtaining a master's degree after her accident not an indication of her employability because she completed studies at a slower pace and on-line. Meyer v Pyramid Construction, 2010 Mo WCLR Lexis 98.
ALJ: Tilley
Experts: Koprivica, Dreilin, Conway, Kane-Thale
Treaters: Gailbraith, Concannon, Gainor, Algen, Metzler
Attys: Collins, Huck
Claimant struck his head and states he developed dizzy spells, blurred vision and neck pain. He underwent extensive medical treatment on his own including multiple cervical steroid injections and use of narcotics from Dr. Padda, representing over $60,000 in disputed medical bills. Judge Kohner awarded 15% disability on the basis of grade I concussion and cervical strain, and noted Dr. Peeples' recommendation for only non-narcotic medication more credible due to his expertise. Claimant's expert attributed the need for some medications to his work injury and pre-existing cervical conditions. Claimant's medical history indicated that he reduced his use of cigarettes and alcohol and was 'down to 2 joints' per week. Hempel v Lincoln Couty Electric, 2010 MO WCLR Lexis 18.
The Commission in a 2-1 decision reversed a finding of liability against the second injury fund and found the employer liable for total disability as a result of the effects of medication which made her sleepy. The Commission finds use of carbamazepine and hydrodone caused memory loss and fatigue which caused her to sleep during the day incompatible with gainful employment.
Sartin v Manpower, 2015 Mo WCLR Lexis 49 (May 14, 2015)
The ALJ had found the Fund liable for total disability benefits. The employer had settled the case for 12 1/2% and would have been found liable for total disability benefits for the 51 year old claimant.
ALJ Fisher
Experts: Mullins, Eldred
Claimant fell off a ladder and sustained thoracic fractures, among other injuries. Claimant, 43, contends he was unemployable and has not looked for work after his MMI determination in 2004. ALJ Carlisle found claimant's expert, a neurologist, lacked credibility that claimant was unemployable and severely depressed when all of the treating physicians indicated claimant could work. The employer retained a psychiatrist who concluded claimant over-stated or falsely stated some symptoms. ALJ Carlisle discounted claimant's testimony that he needed to lie down most of time, when such limitations were not documented in many of the treating records. ALJ Carlisle summarized video evidence of claimant operating a motorcycle, made inaccurate representations had been made on a job application, and claimant earned income from e-bay.
The employer was ordered to provide pain medication, but made a finding that use of Oxycontin was not reasonable based on Dr. Coyle's testimony that long term use will "ruin" him. The case is Ward v Ameren, 2009 MO WCLR Lexis 119.
Claimant failed to establish he was PTD due to narcotic use despite contentious testimony from a vocational expert on the impact of narcotics on claimant's capacity to compete in the open labor market. "Claimant testified he was, in fact, on said narcotics. The cross-examination, which was contentious between Mr. Cordray and counsel, boarding on unprofessional in its' vulgarity, wherein Mr. Cordray was asked why he could not come to an opinion on the causal connection on the claimed mechanism of injury and the need for narcotics. Mr. Cordray remained adamant that he noted which narcotics the Claimant had been prescribed and how much he was taking and the effects which were the result of those narcotics, without attributing these to work-related injuries or preexisting or subsequent conditions." O'Connor v Construction Material Trucking, 2012 Mo WCLR Lexis 135 (July 3, 2012). Additional evidentiary objections were over-ruled that expert testimony was not "signed and read".
ALJ Siedlik (affirmed 2-0)
Experts: Stuckmeyer, Cordray
Claimant was PTD with entitlement to open medical after jumping over a 6 inch cone, resulting in three back surgeries and implantation of a spinal cord stimulator. Claimant's expert testified that fentanyl use precluded claimant's employment: "We're on a hundred micrograms every forty-eight hours. And she still has medications, Flexerill, Efexor that she uses as well. The doses, even with the activities that she has, is just--it's too high. I just think that she is not capable of working at all. I think that the -- if she tried to work even a couple of hours a day the doses would be off the charts and she would not be controlled even with the highest dose of Duragesic." The employer provided about $250,000 in medical and lost time benefits and offered employment with accommodation but argued in its brief that claimant was "content" to collect disability and not work. Pennewell v Hannibal Regional Hospital, 2012 Mo WCLR Lexis 117 (June 18, 2012). [Pennewell was appealed and is scheduled for oral argument on 1-15-2013, ED 98706]
ALJ: Dierkes
Atty: Morthland
Treaters: Abernathie, Kennedy, Feinberg
Experts: Cantrell, Blaine
Claimant was PTD after a roll-over truck accident that knocked his shoes off. He required conservative care and radio ablation for herniated discs in his back and neck. He reported he must lie down at times and that meds make him drowsy. The ALJ noted that a herniated disc is a "serious injury". Medical mileage was denied when it was not documented. Richardson v Ryan's Trucking, 2012 MO WCLR LEXIS 74.
ALJ Allen
Atty: Lewis
Tx: Ofori
Experts: Poppa, Munneke, Koprivica, Titterington, Dreiling
Claimant alleges the groggy effect of using tramadol daily precluded gainful employment. The commission rejected his claim of PTD, in a 2-1 vote, although the dissent noted the deleterious effect of claimant's medications on claimant's capacity to work. Claimant underwent 2 surgeries for a biceps injury after unloading timber from a truck and reported intractable pain that required him to take medications and daily naps. Patten v Cedar Creek, 2011 Mo WCLR Lexis 258 (Dec. 19, 2011)
ALJ Mahon
Atty: Wesley, Wohlford, Colburn
Experts: Bennoch, Cordray, Hedges, Woodward, Getter
A claimant alleges she was "constantly in a fog" due to lack of sleep and cannot drive due to pain in her back and knees and must lay down frequently. She alleges she hurt her knee in a self-defense class, and then subsequently developed chronic back and bilateral knee pain due to abnormal weight bearing. Arnold v Mo. Dept. of Correction, 2011 MoWCLR Lexis 201.
ALJ Tilley
Atty: Doug Van Camp, Gregg Johnson
Experts: Mace, Browning
A 49-year old nurse injured her back lifting a patient in 2002 and suffered chronic pain after three back surgeries, ultimately resulting in a 2-level 360 fusion and implantation of a morphine pump. Claimant's expert concluded medications impaired claimant's capacity to make any professional judgments. The Commission affirmed an award of permanent total with open medical, but reduced the compensation rate and concluded the ALJ could not award specific care based on a life care plan. The award for past medical included a staggering figure of $543,737.
ALJ Lane
Atty: Hennessey, Early
Experts Musich, England
Treaters: Coyle, Sheehan, Kennedy
A Dangerous Building Inspector was found unable to work as a result of a 2002 accident when his right foot became stuck in a hole, based on a 88-page opinion affirmed by the Commission. Pace v. St. Joseph,
2011 MO WCLR Lexis 166. Claimant, 59, developed a cascade of problems following a knee surgery for a torn meniscus: DVT, RSD, and reactive depression. His wife testified he is no longer a happy man and cannot play golf or scuba dive. As a result of instability, he describes several subsequent falls at work until he was fired in 2005. He states his leg continues to "kill" him and his world moves "in slow motion." The administrative law judge found claimant required "massive" amount of narcotics. Claimant states he subsequently fell and injured his shoulder and developed carpal tunnel from using crutches. The employer relied upon an expert who agreed claimant was unemployable, but attempted to apportion the condition in part to pre-existing conditions. A bone scan did not corroborate findings of complex regional pain syndrome and some of the doctors disputed the diagnosis and basis for claimant's complaints of chronic burning pain.
ALJ Miner
Atty: Creedy, Shine, Eisfelder
Experts: Abrams, Titterington, Koprivica
Claimant received PTD benefits flowing from a 1999 incident as a result of trying to move a 350 pound pump, resulting in treatment for chronic back pain, piriformis syndrome and depression. ALJ Meiner found claimant's symptoms credible that he could never return to work including his complaints of frequent pain, falling down, and heavy narcotic use of medication. Claimant consulted a doctor before the accident for radiculitis, and did not identify a work-history during two initial medical visits, but a company nurse and co-worker were aware of the accident. The employer had been ordered to provide treatment previously in a temporary award. It is not clear why the case took more than 10 years to proceed to a final hearing. The case is Gibbons v The Quaker Oats Co., 2010 MO Lexis WCLR 57.
Attorneys; Knepper, Johnson
Experts: Koprivica, Crislip, Abram, Schmidt, Titterington, Poppa, Montaya, Quintero
ALJ: Meiners - PTD
In Kuhnlein v City of Kansas City, 2010 MO WCLR Lexis 96, the adminstrative law judge found, in a second injury fund claim of PTD benefits, vocational testimony unpersuasive that claimant was permanently and totally disabled based on claimant's use of narcotic medication, when the use pre-dated the primary low back strain. The judge also found unpersuasive that claimant didn't introduce evidence of vocational test results becuase of his dependence on narcotics.
ALJ: Mueller
Expets: Titterton, Walker
Claimant preivously used narcotics "to work" supported claim for permanent and total disability benefits for claimant sawyer with chronic shoulder and back pain. Vermillion v The Layman Co., 2011 MO WCLR LEXIS 228 (11-10-11)
ALJ Holden
Atty: Wise
Experts: England, Eldred
Claimant did not establish that she was permanently and totally disabled due to chronic pain that required daily Fentanyl doses, although her expert testified that drug side effects and pain complaints precluded her capacity to work. The administrative law judge noted that claimant's reported "need to lie down" was not corroborated by medical recommendation or restriction. Claimant was a 63-year old card dealer injured in 3 accidents in 2002-2003 including a repetitive trauma claim to her shoulder from dealing cards and a back accident from falling at work. She ultimately underwent shoulder surgery for "calcium buildup" and percutaneous discectomy for markedly degenerative thoracic discs, with no prior history. The employer had advanced $20,000 for the 8 year old case. The Commission affirmed 2-1 in Carter v Harrah's North Kansas City, 2011 MO WCLR Lexis 5.
ALJ Miner
Atty: Manson, Fox, Fleet
Experts: Stuckmeyer, Condray, Clymer, Thomas
Claimant lost a permanent total claim against the second injury fund, due to lack of credibility that he needed to lie down during the day and that he had disabling anger management issues. Claimant settled with the employer and received a partial disability award against the second injury fund for prior psychiatric, hand and knee conditions.
The administrative law judge compared the impact of claimant's pre-existing conditions on his ability to compete for and maintain employment. Claimant sustained employment as an iron worker for 35 years prior to his accident. He pursued only minimal conservative treatment for his bulging disc , and he settled his claim against the employer for back and psychiatric disability for a "mere" 15%. Claimant's psychiatrist expert rated 40% pre-existing disability and included factors such as a prior "chaotic family" and personality disorder. A witness confirmed that police had been called at work because of claimant's anger management issues.
The administrative law judge considered claimant's prospects of future employment. Although the PTD statute considers "any" employment, claimant stated he would not consider jobs that did not pay an appropriate salary. The administrative law judge further concluded that more effective recent psychotropic drugs made "it is reasonable to believe Claimant’s chances of securing and maintaining employment in the future will improve."
Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117.
ALJ Landolt
Experts: Volarich, Stillings, Gonzalez
Atty: Sievers, Barnard
A 38-year old failed to convince the Commission that she was PPD and not PTD due to prior conditions which included substance abuse. The claimant argued the effect of narcotics impaired her capacity to concentrate and work with others and hindered her ability to return to a former job as an emergency dispatcher. Watson-Spargo v Treasurer of the State of Mo., 370 S.W.3d 292 (Mo. App. 2012). The dissent indicated no deference was required when the Commission based its opinions on flawed reasoning, and that the vocational expert relied upon in the decision never expressly made the finding that an employer would be reasonably expected to hire claimant.
Experts: Koprivica, Franks, Swearingin
A 56-year old claimant receives permanent and total disability benefits because she states she can't sleep, can't stand, and has to take narcotics every day as a result of an injury to her ankle when she fell on a shoe string while working as a housekeeper. The treating surgeon felt she required a cane following repair of her achilles' tendon repair and restricted climbing, prolonged standing, lifting, and carrying. Her employer wouldn't take her back to work with a cane and she went on social security disability. A vocational expert concluded she was unable to work due to a combination of her ankle injury and pre-existing conditions and that her restrictions limited her to less than full sedentary work. "Claimant's daily use of narcotic pain medications, sleep disturbances, and the need to recline are evidence that she is permanently and totally disabled as a result of the last injury alone." The ALJ limited future medical to physical therapy and ankle braces alone and declined open medical for narcotics. "[R]ecords indicate that the claimant was already on narcotic pain medication prior to the work injury" but "claimant was able to work in a Heavy physical demand level job without restriction prior to the injury of July 2, 2008. Mr. Eldred was unable to indicate any job duties claimant was unable to perform prior to July 2, 2008 based on her pre-existing conditions." Claimant states her left ankle swells unless she elevates it. The award indicates she is over 300 pounds and had just returned to work for the employer part-time following surgery to the left knee. Thompson v Frene Valley Healthcare, 2012 Mo. WCLR Lexis 134 (July 2, 2012).
ALJ Dierkes (2-0 affirmed)
Atty: Barnes
Experts: Eldred, Carr
Treater: Trevino
The court of appeals affirmed a decision to reduce a pain management drug cocktail, but the decision came with a twist with a warning about attorney’s fees.
In Noel v ABB Combustion Engineering, ED 98446 (Mo. App. 11-13-2012) the injured worker obtained a final award for permanent and total disability with open medical for a physical and psychiatric disability after 3 back surgeries. The employer paid benefits for several years and then refused to pay for multiple medications based on the recommendation of its IME doctor that some of the drugs had anything to do with claimant’s original lifting injury. The injured worker asked the Commission to re-open her case to prevent a change in medication and sought attorney’s fees for an unreasonable defense. The Commission concluded that the injured worker failed to show all of the medications were necessary for her work-related injuries and did not reach the issue whether the change in treatment would endanger her life, health or recovery.
Section 287.140.1 provides the employer the right to designate a provider to provide care as reasonably may be required to cure and relieve from the effects of the injury. Section 287.140.2 provides the employer may lose this option if the choice endangers the life, health or recovery of the employee. Section 287.560 provides for costs for an unreasonable defense.
The court of appeals found the Commission erred in part of its finding on the first issue and failed to make a finding on the second issue and remanded to “determine the extent” of the employer’s liability for fees. The court found the Commission considered conflicting evidence and supported the IME opinion that several medications did not flow from the work injury. The Court found that the Commission improperly disallowed two other medications based on insufficient evidence.
The claimant’s expert indicated that using cheaper medications would unequivocally risk claimant’s health. The employer had previously tried to wean claimant from narcotics and was ordered by an administrative law judge to prevent the action. In the original 2007 award a different administrative law judge admonished the employer not to change physicians to try to save money and warned an adverse medical response by the claimant could support an award for costs. Noel v ABB Combustion, 2007 MO WCLR Lexis 14.
Ultimately, the court affirmed a denial of fees. 2013 MO App. Lexis 1187 (Oct. 15, 2013).
This case is important in several regards. The case demonstrates the employer may designate a medical provider in a future medical award. Such decisions, however, are subject to review and potential penalties. Claimant must establish a need for treatment flows from a work injury. The claimant does not have to show the treatment cures or relieves the injury. The employer has the burden why it cut off medications, and the absence of specific evidence on each medication fails in that burden and may result in a claim for an unreasonable defense.
It has been well established that the employer owes for medical expenses when it neglects or refuses to provide care that flows from a work injury. The decision indicates the employer continues to have an obligation to provide care in the chronic pain patient even though treatment does not, as the statute requires, cure and relieve. What remains unanswered is whether this intepretation is applies only in the context of the chronic pain patient or more broadly imposes liability for medical costs in all cases even when there is limited or no efficacy to proposed or prior care.
Court limits scope of future medical for narcotics
Claimant sustained career-ending injuries from an auto accident arising from her duties as a nurse but failed to prove an award for past or future Percocet and Fentanyl from her personal physician when there was evidence for her to taper their use and her expert could not explain why claimant's pain could not be managed with other medications. The employer stipulated to open medical but disputed the use of these medications and the award for permanent total. The administrative law judge found claimant obtaining a master's degree after her accident not an indication of her employability because she completed studies at a slower pace and on-line. Meyer v Pyramid Construction, 2010 Mo WCLR Lexis 98.
ALJ: Tilley
Experts: Koprivica, Dreilin, Conway, Kane-Thale
Treaters: Gailbraith, Concannon, Gainor, Algen, Metzler
Attys: Collins, Huck
Claimant struck his head and states he developed dizzy spells, blurred vision and neck pain. He underwent extensive medical treatment on his own including multiple cervical steroid injections and use of narcotics from Dr. Padda, representing over $60,000 in disputed medical bills. Judge Kohner awarded 15% disability on the basis of grade I concussion and cervical strain, and noted Dr. Peeples' recommendation for only non-narcotic medication more credible due to his expertise. Claimant's expert attributed the need for some medications to his work injury and pre-existing cervical conditions. Claimant's medical history indicated that he reduced his use of cigarettes and alcohol and was 'down to 2 joints' per week. Hempel v Lincoln Couty Electric, 2010 MO WCLR Lexis 18.
The Commission in a 2-1 decision reversed a finding of liability against the second injury fund and found the employer liable for total disability as a result of the effects of medication which made her sleepy. The Commission finds use of carbamazepine and hydrodone caused memory loss and fatigue which caused her to sleep during the day incompatible with gainful employment.
Sartin v Manpower, 2015 Mo WCLR Lexis 49 (May 14, 2015)
The ALJ had found the Fund liable for total disability benefits. The employer had settled the case for 12 1/2% and would have been found liable for total disability benefits for the 51 year old claimant.
ALJ Fisher
Experts: Mullins, Eldred
Claimant fell off a ladder and sustained thoracic fractures, among other injuries. Claimant, 43, contends he was unemployable and has not looked for work after his MMI determination in 2004. ALJ Carlisle found claimant's expert, a neurologist, lacked credibility that claimant was unemployable and severely depressed when all of the treating physicians indicated claimant could work. The employer retained a psychiatrist who concluded claimant over-stated or falsely stated some symptoms. ALJ Carlisle discounted claimant's testimony that he needed to lie down most of time, when such limitations were not documented in many of the treating records. ALJ Carlisle summarized video evidence of claimant operating a motorcycle, made inaccurate representations had been made on a job application, and claimant earned income from e-bay.
The employer was ordered to provide pain medication, but made a finding that use of Oxycontin was not reasonable based on Dr. Coyle's testimony that long term use will "ruin" him. The case is Ward v Ameren, 2009 MO WCLR Lexis 119.
Claimant failed to establish he was PTD due to narcotic use despite contentious testimony from a vocational expert on the impact of narcotics on claimant's capacity to compete in the open labor market. "Claimant testified he was, in fact, on said narcotics. The cross-examination, which was contentious between Mr. Cordray and counsel, boarding on unprofessional in its' vulgarity, wherein Mr. Cordray was asked why he could not come to an opinion on the causal connection on the claimed mechanism of injury and the need for narcotics. Mr. Cordray remained adamant that he noted which narcotics the Claimant had been prescribed and how much he was taking and the effects which were the result of those narcotics, without attributing these to work-related injuries or preexisting or subsequent conditions." O'Connor v Construction Material Trucking, 2012 Mo WCLR Lexis 135 (July 3, 2012). Additional evidentiary objections were over-ruled that expert testimony was not "signed and read".
ALJ Siedlik (affirmed 2-0)
Experts: Stuckmeyer, Cordray
Claimant was PTD with entitlement to open medical after jumping over a 6 inch cone, resulting in three back surgeries and implantation of a spinal cord stimulator. Claimant's expert testified that fentanyl use precluded claimant's employment: "We're on a hundred micrograms every forty-eight hours. And she still has medications, Flexerill, Efexor that she uses as well. The doses, even with the activities that she has, is just--it's too high. I just think that she is not capable of working at all. I think that the -- if she tried to work even a couple of hours a day the doses would be off the charts and she would not be controlled even with the highest dose of Duragesic." The employer provided about $250,000 in medical and lost time benefits and offered employment with accommodation but argued in its brief that claimant was "content" to collect disability and not work. Pennewell v Hannibal Regional Hospital, 2012 Mo WCLR Lexis 117 (June 18, 2012). [Pennewell was appealed and is scheduled for oral argument on 1-15-2013, ED 98706]
ALJ: Dierkes
Atty: Morthland
Treaters: Abernathie, Kennedy, Feinberg
Experts: Cantrell, Blaine
Claimant was PTD after a roll-over truck accident that knocked his shoes off. He required conservative care and radio ablation for herniated discs in his back and neck. He reported he must lie down at times and that meds make him drowsy. The ALJ noted that a herniated disc is a "serious injury". Medical mileage was denied when it was not documented. Richardson v Ryan's Trucking, 2012 MO WCLR LEXIS 74.
ALJ Allen
Atty: Lewis
Tx: Ofori
Experts: Poppa, Munneke, Koprivica, Titterington, Dreiling
Claimant alleges the groggy effect of using tramadol daily precluded gainful employment. The commission rejected his claim of PTD, in a 2-1 vote, although the dissent noted the deleterious effect of claimant's medications on claimant's capacity to work. Claimant underwent 2 surgeries for a biceps injury after unloading timber from a truck and reported intractable pain that required him to take medications and daily naps. Patten v Cedar Creek, 2011 Mo WCLR Lexis 258 (Dec. 19, 2011)
ALJ Mahon
Atty: Wesley, Wohlford, Colburn
Experts: Bennoch, Cordray, Hedges, Woodward, Getter
A claimant alleges she was "constantly in a fog" due to lack of sleep and cannot drive due to pain in her back and knees and must lay down frequently. She alleges she hurt her knee in a self-defense class, and then subsequently developed chronic back and bilateral knee pain due to abnormal weight bearing. Arnold v Mo. Dept. of Correction, 2011 MoWCLR Lexis 201.
ALJ Tilley
Atty: Doug Van Camp, Gregg Johnson
Experts: Mace, Browning
A 49-year old nurse injured her back lifting a patient in 2002 and suffered chronic pain after three back surgeries, ultimately resulting in a 2-level 360 fusion and implantation of a morphine pump. Claimant's expert concluded medications impaired claimant's capacity to make any professional judgments. The Commission affirmed an award of permanent total with open medical, but reduced the compensation rate and concluded the ALJ could not award specific care based on a life care plan. The award for past medical included a staggering figure of $543,737.
ALJ Lane
Atty: Hennessey, Early
Experts Musich, England
Treaters: Coyle, Sheehan, Kennedy
A Dangerous Building Inspector was found unable to work as a result of a 2002 accident when his right foot became stuck in a hole, based on a 88-page opinion affirmed by the Commission. Pace v. St. Joseph,
2011 MO WCLR Lexis 166. Claimant, 59, developed a cascade of problems following a knee surgery for a torn meniscus: DVT, RSD, and reactive depression. His wife testified he is no longer a happy man and cannot play golf or scuba dive. As a result of instability, he describes several subsequent falls at work until he was fired in 2005. He states his leg continues to "kill" him and his world moves "in slow motion." The administrative law judge found claimant required "massive" amount of narcotics. Claimant states he subsequently fell and injured his shoulder and developed carpal tunnel from using crutches. The employer relied upon an expert who agreed claimant was unemployable, but attempted to apportion the condition in part to pre-existing conditions. A bone scan did not corroborate findings of complex regional pain syndrome and some of the doctors disputed the diagnosis and basis for claimant's complaints of chronic burning pain.
ALJ Miner
Atty: Creedy, Shine, Eisfelder
Experts: Abrams, Titterington, Koprivica
Claimant received PTD benefits flowing from a 1999 incident as a result of trying to move a 350 pound pump, resulting in treatment for chronic back pain, piriformis syndrome and depression. ALJ Meiner found claimant's symptoms credible that he could never return to work including his complaints of frequent pain, falling down, and heavy narcotic use of medication. Claimant consulted a doctor before the accident for radiculitis, and did not identify a work-history during two initial medical visits, but a company nurse and co-worker were aware of the accident. The employer had been ordered to provide treatment previously in a temporary award. It is not clear why the case took more than 10 years to proceed to a final hearing. The case is Gibbons v The Quaker Oats Co., 2010 MO Lexis WCLR 57.
Attorneys; Knepper, Johnson
Experts: Koprivica, Crislip, Abram, Schmidt, Titterington, Poppa, Montaya, Quintero
ALJ: Meiners - PTD
In Kuhnlein v City of Kansas City, 2010 MO WCLR Lexis 96, the adminstrative law judge found, in a second injury fund claim of PTD benefits, vocational testimony unpersuasive that claimant was permanently and totally disabled based on claimant's use of narcotic medication, when the use pre-dated the primary low back strain. The judge also found unpersuasive that claimant didn't introduce evidence of vocational test results becuase of his dependence on narcotics.
ALJ: Mueller
Expets: Titterton, Walker
Claimant preivously used narcotics "to work" supported claim for permanent and total disability benefits for claimant sawyer with chronic shoulder and back pain. Vermillion v The Layman Co., 2011 MO WCLR LEXIS 228 (11-10-11)
ALJ Holden
Atty: Wise
Experts: England, Eldred
Claimant did not establish that she was permanently and totally disabled due to chronic pain that required daily Fentanyl doses, although her expert testified that drug side effects and pain complaints precluded her capacity to work. The administrative law judge noted that claimant's reported "need to lie down" was not corroborated by medical recommendation or restriction. Claimant was a 63-year old card dealer injured in 3 accidents in 2002-2003 including a repetitive trauma claim to her shoulder from dealing cards and a back accident from falling at work. She ultimately underwent shoulder surgery for "calcium buildup" and percutaneous discectomy for markedly degenerative thoracic discs, with no prior history. The employer had advanced $20,000 for the 8 year old case. The Commission affirmed 2-1 in Carter v Harrah's North Kansas City, 2011 MO WCLR Lexis 5.
ALJ Miner
Atty: Manson, Fox, Fleet
Experts: Stuckmeyer, Condray, Clymer, Thomas
Claimant lost a permanent total claim against the second injury fund, due to lack of credibility that he needed to lie down during the day and that he had disabling anger management issues. Claimant settled with the employer and received a partial disability award against the second injury fund for prior psychiatric, hand and knee conditions.
The administrative law judge compared the impact of claimant's pre-existing conditions on his ability to compete for and maintain employment. Claimant sustained employment as an iron worker for 35 years prior to his accident. He pursued only minimal conservative treatment for his bulging disc , and he settled his claim against the employer for back and psychiatric disability for a "mere" 15%. Claimant's psychiatrist expert rated 40% pre-existing disability and included factors such as a prior "chaotic family" and personality disorder. A witness confirmed that police had been called at work because of claimant's anger management issues.
The administrative law judge considered claimant's prospects of future employment. Although the PTD statute considers "any" employment, claimant stated he would not consider jobs that did not pay an appropriate salary. The administrative law judge further concluded that more effective recent psychotropic drugs made "it is reasonable to believe Claimant’s chances of securing and maintaining employment in the future will improve."
Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117.
ALJ Landolt
Experts: Volarich, Stillings, Gonzalez
Atty: Sievers, Barnard
A 38-year old failed to convince the Commission that she was PPD and not PTD due to prior conditions which included substance abuse. The claimant argued the effect of narcotics impaired her capacity to concentrate and work with others and hindered her ability to return to a former job as an emergency dispatcher. Watson-Spargo v Treasurer of the State of Mo., 370 S.W.3d 292 (Mo. App. 2012). The dissent indicated no deference was required when the Commission based its opinions on flawed reasoning, and that the vocational expert relied upon in the decision never expressly made the finding that an employer would be reasonably expected to hire claimant.
Experts: Koprivica, Franks, Swearingin
A 56-year old claimant receives permanent and total disability benefits because she states she can't sleep, can't stand, and has to take narcotics every day as a result of an injury to her ankle when she fell on a shoe string while working as a housekeeper. The treating surgeon felt she required a cane following repair of her achilles' tendon repair and restricted climbing, prolonged standing, lifting, and carrying. Her employer wouldn't take her back to work with a cane and she went on social security disability. A vocational expert concluded she was unable to work due to a combination of her ankle injury and pre-existing conditions and that her restrictions limited her to less than full sedentary work. "Claimant's daily use of narcotic pain medications, sleep disturbances, and the need to recline are evidence that she is permanently and totally disabled as a result of the last injury alone." The ALJ limited future medical to physical therapy and ankle braces alone and declined open medical for narcotics. "[R]ecords indicate that the claimant was already on narcotic pain medication prior to the work injury" but "claimant was able to work in a Heavy physical demand level job without restriction prior to the injury of July 2, 2008. Mr. Eldred was unable to indicate any job duties claimant was unable to perform prior to July 2, 2008 based on her pre-existing conditions." Claimant states her left ankle swells unless she elevates it. The award indicates she is over 300 pounds and had just returned to work for the employer part-time following surgery to the left knee. Thompson v Frene Valley Healthcare, 2012 Mo. WCLR Lexis 134 (July 2, 2012).
ALJ Dierkes (2-0 affirmed)
Atty: Barnes
Experts: Eldred, Carr
Treater: Trevino
Wednesday, July 27, 2011
Fail to provide expert: lose case
The Commission affirmed an award of permanent and total disability benefits against the second injury fund, noting that the Fund failed to produce an expert witness to refute claimant's conclusions and failed to provide sufficient evidence to discredit her testimony. Thompson v Super 8 Motel, DOLIR 7-26-11.
Claimant was a hotel employee who reported she hurt her back when she fell backwards in 2002. Claimant treated with Dr. Straubinger, but the award does not identify other medical findings or treatment. The administrative law judge noted Dr. Straubinger treated her for a low back strain, and noted she had inconsistent findings but her symptoms might also be consistent with an annular tear. He couldn't comment on the significance of any annular tear. "Thus, I find that by his own testimony and records, Dr. Straubinger acknowledges and admits that he cannot fully assess the employee’s medical condition and how it relates to the work related injury."
ALJ: Strange
Atty: Green, Rodman
Experts: Cohen, Straubinger, Shea
The Commission reversed an award of benefits against the second injury fund due to lack of expert opinion to address claimant's prior loss of vision from amblyopia. A dissenting commissioner concluded claimant could testify about his pre-existing incapacity to see without the need for expert opinion on diagnosis. Gentry v Kraft Food Inc., DOLIR 8-11-11.
Claimant was a hotel employee who reported she hurt her back when she fell backwards in 2002. Claimant treated with Dr. Straubinger, but the award does not identify other medical findings or treatment. The administrative law judge noted Dr. Straubinger treated her for a low back strain, and noted she had inconsistent findings but her symptoms might also be consistent with an annular tear. He couldn't comment on the significance of any annular tear. "Thus, I find that by his own testimony and records, Dr. Straubinger acknowledges and admits that he cannot fully assess the employee’s medical condition and how it relates to the work related injury."
ALJ: Strange
Atty: Green, Rodman
Experts: Cohen, Straubinger, Shea
The Commission reversed an award of benefits against the second injury fund due to lack of expert opinion to address claimant's prior loss of vision from amblyopia. A dissenting commissioner concluded claimant could testify about his pre-existing incapacity to see without the need for expert opinion on diagnosis. Gentry v Kraft Food Inc., DOLIR 8-11-11.
Tuesday, July 19, 2011
287.220(5) interest: SIF liability
Claimant entitled to pre-judgment interest against second injury fund
A claimant may recover pre-judgment interest against the second injury fund under "liberal" construction for unpaid bills of an uninsured employer, according the western court of appeals, reversing the Commission which found interest owed only after an award. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012).
Judge Welsch noted that 287.220 did not expressly prohibit interest. The court applied the general interest statute and cases addressing interest against employers. Claimant must satisfy the three prong test of McCormack v. Stewart Enterprises, 956 S.W.2d 310 (Mo. App. 1997), which allowed interest in some cases against employers pursuant to 287.160. The expenses must have been due at the time of the demand, the amount of the expenses must have been readily ascertainable, and payment must have been demanded.In order to prove that expenses were "due" at the time of the demand, Eason must prove that he "paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay in payment. The Fund had stipulated or did not dispute claimant had a "loss", which was the first prong. The court noted that at oral argument, the parties were unable to explain the loss required to satisfy this element.
The court declined to address whether strict construction mandated by statutory reform would produce a different result. The Court found interest began to accrue potentially once the claimant added the Fund as a party while the case remained pending.
Claimant fell about 15 feet off of a car carrier and required ORIF for a tibia fracture, resulting in $46,802 in medical bills. The employer went into bankruptcy. The employer's Oklahoma insurance policy did not cover the accident which occurred in Missouri. The administrative law judge found the second injury fund liable for unpaid bills pursuant to 287.220(5) because the employer was uninsured. The administrative law judge awarded the medical bills with open medical but denied interest, a decision affirmed unanimously by the Commission.
The claimant asserted that 408.020 required the Fund to pay interest. The commission denied interest for two reasons: the Fund was not a "debtor" until after an award, when the administrative law judge found that a debt was owed. Second, the Fund's obligation to pay medical bills was not mandatory, unlike employers. The employer "shall" pay the bills under the mandate of 287.140.1. The second injury fund, however, is not obligated by similar mandatory language and 287.220.5 indicates that funds "may" be withdrawn. The commission noted it was well-established that the Fund could owe for interest under certain circumstances.
ALJ: Fisher
Atty: Doyle, Hammers
Experts: Geist
A claimant may recover pre-judgment interest against the second injury fund under "liberal" construction for unpaid bills of an uninsured employer, according the western court of appeals, reversing the Commission which found interest owed only after an award. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012).
Judge Welsch noted that 287.220 did not expressly prohibit interest. The court applied the general interest statute and cases addressing interest against employers. Claimant must satisfy the three prong test of McCormack v. Stewart Enterprises, 956 S.W.2d 310 (Mo. App. 1997), which allowed interest in some cases against employers pursuant to 287.160. The expenses must have been due at the time of the demand, the amount of the expenses must have been readily ascertainable, and payment must have been demanded.In order to prove that expenses were "due" at the time of the demand, Eason must prove that he "paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay in payment. The Fund had stipulated or did not dispute claimant had a "loss", which was the first prong. The court noted that at oral argument, the parties were unable to explain the loss required to satisfy this element.
The court declined to address whether strict construction mandated by statutory reform would produce a different result. The Court found interest began to accrue potentially once the claimant added the Fund as a party while the case remained pending.
Claimant fell about 15 feet off of a car carrier and required ORIF for a tibia fracture, resulting in $46,802 in medical bills. The employer went into bankruptcy. The employer's Oklahoma insurance policy did not cover the accident which occurred in Missouri. The administrative law judge found the second injury fund liable for unpaid bills pursuant to 287.220(5) because the employer was uninsured. The administrative law judge awarded the medical bills with open medical but denied interest, a decision affirmed unanimously by the Commission.
The claimant asserted that 408.020 required the Fund to pay interest. The commission denied interest for two reasons: the Fund was not a "debtor" until after an award, when the administrative law judge found that a debt was owed. Second, the Fund's obligation to pay medical bills was not mandatory, unlike employers. The employer "shall" pay the bills under the mandate of 287.140.1. The second injury fund, however, is not obligated by similar mandatory language and 287.220.5 indicates that funds "may" be withdrawn. The commission noted it was well-established that the Fund could owe for interest under certain circumstances.
ALJ: Fisher
Atty: Doyle, Hammers
Experts: Geist
Tuesday, June 14, 2011
287.140: Future treatment "as may reasonably be required"
The problem: Claimant has a knee injury at work but a menisectomy won't fix it because of arthritis. Does the employer owe for the more complicated surgery of a TKR? The Western District now says it does. The case is Tillotson v St. Joseph Medical Center, WD 72948 (Mo. App. 6-14-2011).
Claimant injured her knee when she lost her balance while moving a patient and tore her meniscus. The torn meniscus and degenerative changes both contributed to her pain and symptoms. The doctors agreed that claimant was not a candidate for an arthroscopy because of arthritis, and only a knee replacement would resolve her symptoms. The employer's expert concluded that the prevailing reason for the knee replacement flowed from her arthritis, and not the work injury. Claimant underwent a total knee replacement. Claimant returned to her regular job duties as a registered nurse for about 10 months after her surgery and retired. Claimant's expert concluded the accident caused the tear and caused the arthritis to progress.
The Division found that the accident was the prevailing factor in causing an acute lateral mensicus injury. The Commission found that Dr. Koprivica's causation opinions were less credible, noting the other experts were board certified and had practices centered on treating patients. The Commission noted that he was a well-qualified rating doctor. The Commission denied any claim for medical costs, TTD, future medical or PPD.
The Court of Appeals reversed and concluded that the Commission applied the wrong standard and a heightened burden of "prevailing factor" in 287.120.1 to interpret the requirements to provide medical care under 287.140.1, adopting the opinion of the dissenting commissioner. The parties agreed that the accident was the prevailing factor in the meniscus tear. The proper standard was whether the disputed treatment (TKR) was "reasonably required", not whether it was the "prevailing" factor. No expert indicated that it was not reasonably required, and the employer conceded such treatment was reasonable. The court noted as long as some portion of the treatment flowed from the accident, it is irrelevant whether such treatment also alleviates pre-existing conditions such as arthritis. No medical expert disputed that a total knee was the only effective available means to cure or relieve the effects of claimant's torn meniscus.
In Gordon v City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008) the Eastern District found claimant had failed to prove injury when a shoulder surgery identified no acute changes. The Western District concludes that Gordon did not involve construction of 287.140.1 but was an issue whether a compensable injury occurred. The court in Gordon, however, framed the issue whether the accident was the prevailing factor in causing claimant's need for shoulder surgery.
The court remanded the case for a determination of disability. Claimant's expert Dr. Koprivica assigned 50% but the Commission rejected his opinion because he did not allocate disability from the meniscus tear and total knee replacement. No other doctors furnished any PPD opinion. The court of appeals concluded the disabilities "coalesce" and apportionment was not required. The court concluded claimant established future medical care based on the uncontroverted opinion of Dr. Koprivica when other experts were silent on the subject whether or not future care was indicated or not.
The Tillotson case is factually similar to an earlier western district case, Conrad v Jack Cooper Transport, 273 S.W.3d 49 (Mo. App. 2008) in a pre-reform case. "Conrad had a pre-existing condition, which is the primary reason he needs a future knee replacement, the undisputed evidence also establishes that, at the very least, his work related injury aggravated his pre-existing condition to the point that he will need a future knee replacement. Because Conrad's work related injury aggravated his pre-existing condition to the point that he will need future treatment, his future treatment is compensable under § 287.140.1." The court in Tillotson noted statutory reform did not change 287.140.1.
Tillotson shifts the fight to 287.020.3 and whether the accident was the most important factor to cause both the medical condition and disability and does not disturb defenses when there is evidence that an accident did not reasonably cause any need for a disputed surgery. The implications of the decision may have long term exposure for any arthritic employee applying the unfortunate adage : "You break it, you buy it."
Experts: Koprivica
Treaters: Van den Berghe
The Commission awarded future medical to a claimant who injured his neck working in a psychiatric unit and underwent a fusion, despite contrary evidence from an orthopedic surgeon that no further treatment was required. The ALJ found a specific need for prescription care. Claimant underwent a second surgery to the neck following a car accident. Harmon v Research Psychiatric Center, 2014 Mo WCLR Lexis 44 (March 28, 2014).
ALJ: McKeon
Atty: Slocum
Experts: Koprivica, Clymer
The Commission modified an award for future medical to include pain management, but reversed an award to include total knee replacement. Claimant prior to the accident was told he would need a knee replacement, and alleged he felt he needed it sooner because of the accident. The Commission in a separate 2-1 award found that the employer was not responsible for medical when an accident merely accelerated the time employee would agree to have a total knee replacement, as the need for treatment itself did not flow from the accident. The Commission awarded Dr. Volarich's rating when the employer offered no evidence on PPD. The award of the ALJ is not attached to the decision. Shelton v Levy Restaurant, DOLIR 5-25-11. affirmed without separate opinion, 2012 Mo. App. Lexis 50, ED 96886 (Mo. App. 1-17-2012).
ALJ: Denigan
Experts: Anderson, Kramer, Ralph, Volarich
The Commission awarded 10% PPD but denied future medical involving a back injury when claimant had a 5 year history of recurring back pain. The ALJ noted an acute onset of symptoms although the defense expert could find no basis on comparing MRIs to explain an acute change. Simpson v Lyon Sheet Metal, 2012 Mo WCLR Lexis 190 (Nov. 9, 2012)
Atty: Christianson
Experts: Volarich, Bernardi
Tx Crane
Adjacent disc
The claimant is entitled to more treatment at levels adjacent to an operated disc, according to Commission in a 2-1 decision which reversed a denial by the ALJ. Mueller v. Noranda Aluminum, 2013 Mo WCLR Lexis 144 (August 8, 2013).
This case begins more than 10 years ago in January 2003 when claimant lost control of a 90-pound block and hurt his back. Dr. Park performed L5-S1 fusion in 2003. His condition worsened after the surgery with chronic pain, radiculopathy and sexual dysfunction. Claimant underwent a second surgery to remove hardware, his condition did not improve, and he was admitted to a psychiatric ward. He received a spinal cord stimulator in 2005 and his doctor concluded he was unemployable. Dr. Coyle in 2010 removed the spinal cord stimulator and found claimant's findings contradictory. In 2010 claimant received injections at other disc levels. The employer cut off medical benefits, after paying more than $475,000 alone in medical, based on expert opinion that the broadening pain complaints at L3-4 and L4-5 more likely flowed from degenerative aging. The Commission disagreed: "We adopt Dr. Smith's opinion (and so find) that the work injury and fusion at L5-S1 put stress on the adjacent levels of employee's spine and caused the symptomatic degenerative pathology at L3-4 and L4-5."
The Commission further modified a 35% PPD award against the employer to an award of permanent total disability to the 59-year old claimant. A treating surgeon reviewed surveillance and concluded: "I would be surprised if anybody would look at those films and say this is somebody who is disabled". A majority of the commission noted the tapes were not persuasive as the employer had obtained days of footage with nothing persuasive. 310 hours of surveillance were condensed for the hearing.
ALJ Tilley
Atty Padberg, Rost
Experts: Volarich, Cantrell, Coyle
Aqua therapy
Claimant failed to establish that aqua therapy was reasonably required based on 4-year old medical report when claimant no longer used medications or clarified the current symptoms supported the prior recommendation. Smith v Roberts Dairy Co., 2014 MO WCLR Lexis 81 (June 13, 2014), affirmed a denial of future medical benefits.
ALJ Siedlik
Experts: Koprivica, Drieling
Bill for cardiac workup
This is a fight about who pays a large hospital bill. In Gonzales v Butterball, SD 22369 (Mo App. 2-11-2015), 2015 Mo App. Lexis 139; the worker claimed he had chest pain and was taken by ambulance from work to a hospital in Carthage and then transferred to a hospital in Joplin where he underwent a cardiac cath.
The Commission awarded benefits, and the court of appeals affirmed, based on expert testimony that bills totally nearly $20,000 were necessary and reasonable to treat his work injury from lifting a heavy turkey. The employer argued there was no medical evidence linking his treatment to any work injury and that he never had a work injury nor provided any timely written notice of an accident.
Claimant did not have any work-related cardiac condition from lifting a turkey and that the accident only strained a chest muscle which produced no permanent disability. The court of appeals concluded it was "not unreasonable" for the hospital to perform tests to rule out cardiac pain in "no doubt in an effort to mitigate the potentially fatal consequences of such a possible ailment" while the medical providers waited for an interpreter.
The employer has a statutory obligation to cure or relieve the effects of work-related injuries. In this case it appears the finding of a relationship between the symptoms and the reasonableness of medical treatment was not controverted by other medical evidence as the only expert identified is claimant's expert. The suggestion raised in the appeal is that the treating medical records may have been silent as to any relationship or specific history. The opinion highlights it is reasonable to perform a cardiac work-up for a worker with chest pain and the obligation appears independent of the determination whether there was any permanent work-related cardiac condition that needed any "cure" or "relief". The claimant's entire course of medical treatment was deemed reasonable to rule out an acute cardiac event which never existed.
The court rejected the employer's written notice defense and found there was a lack of prejudice as the employer's own representative called an ambulance and had actual knowledge of the incident.
The court further criticized the employer's argument regarding sufficiency of evidence that did not comply with its earlier 4-step model and identify by not fully identifying the supporting evidence or the credibility determination. The court identified the four step as:
"1. Identify a factual proposition needed to sustain the result;
2. Marshal all record evidence supporting that proposition;
3. Marshal contrary evidence of record, subject to the factfinder’s credibility determinations, explicit or implicit; and6
4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition. "
The court of appeals agreed that the ALJ erred to award TTD benefits based on medical discharge instructions to take off a week when claimant did not miss any time from work and conceded the error in his brief.
The Commission opinion provides some further details. In the case, 2014 MO WCLR Lexis 29, ALJ Fisher noted claimant had lifted an 80 pound turkey in June 26, 2009 and had immediate chest pain. The 66 year old claimant who did not speak English and had a 3rd grade education reported a second accident in August 2009 and was deemed totally disabled as a result of a crush injury to the dominant hand resulting in disuse atrophy or RSD. Butterball fired him a few months after the second accident
Claimant injured her knee when she lost her balance while moving a patient and tore her meniscus. The torn meniscus and degenerative changes both contributed to her pain and symptoms. The doctors agreed that claimant was not a candidate for an arthroscopy because of arthritis, and only a knee replacement would resolve her symptoms. The employer's expert concluded that the prevailing reason for the knee replacement flowed from her arthritis, and not the work injury. Claimant underwent a total knee replacement. Claimant returned to her regular job duties as a registered nurse for about 10 months after her surgery and retired. Claimant's expert concluded the accident caused the tear and caused the arthritis to progress.
The Division found that the accident was the prevailing factor in causing an acute lateral mensicus injury. The Commission found that Dr. Koprivica's causation opinions were less credible, noting the other experts were board certified and had practices centered on treating patients. The Commission noted that he was a well-qualified rating doctor. The Commission denied any claim for medical costs, TTD, future medical or PPD.
The Court of Appeals reversed and concluded that the Commission applied the wrong standard and a heightened burden of "prevailing factor" in 287.120.1 to interpret the requirements to provide medical care under 287.140.1, adopting the opinion of the dissenting commissioner. The parties agreed that the accident was the prevailing factor in the meniscus tear. The proper standard was whether the disputed treatment (TKR) was "reasonably required", not whether it was the "prevailing" factor. No expert indicated that it was not reasonably required, and the employer conceded such treatment was reasonable. The court noted as long as some portion of the treatment flowed from the accident, it is irrelevant whether such treatment also alleviates pre-existing conditions such as arthritis. No medical expert disputed that a total knee was the only effective available means to cure or relieve the effects of claimant's torn meniscus.
In Gordon v City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008) the Eastern District found claimant had failed to prove injury when a shoulder surgery identified no acute changes. The Western District concludes that Gordon did not involve construction of 287.140.1 but was an issue whether a compensable injury occurred. The court in Gordon, however, framed the issue whether the accident was the prevailing factor in causing claimant's need for shoulder surgery.
The court remanded the case for a determination of disability. Claimant's expert Dr. Koprivica assigned 50% but the Commission rejected his opinion because he did not allocate disability from the meniscus tear and total knee replacement. No other doctors furnished any PPD opinion. The court of appeals concluded the disabilities "coalesce" and apportionment was not required. The court concluded claimant established future medical care based on the uncontroverted opinion of Dr. Koprivica when other experts were silent on the subject whether or not future care was indicated or not.
The Tillotson case is factually similar to an earlier western district case, Conrad v Jack Cooper Transport, 273 S.W.3d 49 (Mo. App. 2008) in a pre-reform case. "Conrad had a pre-existing condition, which is the primary reason he needs a future knee replacement, the undisputed evidence also establishes that, at the very least, his work related injury aggravated his pre-existing condition to the point that he will need a future knee replacement. Because Conrad's work related injury aggravated his pre-existing condition to the point that he will need future treatment, his future treatment is compensable under § 287.140.1." The court in Tillotson noted statutory reform did not change 287.140.1.
Tillotson shifts the fight to 287.020.3 and whether the accident was the most important factor to cause both the medical condition and disability and does not disturb defenses when there is evidence that an accident did not reasonably cause any need for a disputed surgery. The implications of the decision may have long term exposure for any arthritic employee applying the unfortunate adage : "You break it, you buy it."
Experts: Koprivica
Treaters: Van den Berghe
The Commission awarded future medical to a claimant who injured his neck working in a psychiatric unit and underwent a fusion, despite contrary evidence from an orthopedic surgeon that no further treatment was required. The ALJ found a specific need for prescription care. Claimant underwent a second surgery to the neck following a car accident. Harmon v Research Psychiatric Center, 2014 Mo WCLR Lexis 44 (March 28, 2014).
ALJ: McKeon
Atty: Slocum
Experts: Koprivica, Clymer
The Commission modified an award for future medical to include pain management, but reversed an award to include total knee replacement. Claimant prior to the accident was told he would need a knee replacement, and alleged he felt he needed it sooner because of the accident. The Commission in a separate 2-1 award found that the employer was not responsible for medical when an accident merely accelerated the time employee would agree to have a total knee replacement, as the need for treatment itself did not flow from the accident. The Commission awarded Dr. Volarich's rating when the employer offered no evidence on PPD. The award of the ALJ is not attached to the decision. Shelton v Levy Restaurant, DOLIR 5-25-11. affirmed without separate opinion, 2012 Mo. App. Lexis 50, ED 96886 (Mo. App. 1-17-2012).
ALJ: Denigan
Experts: Anderson, Kramer, Ralph, Volarich
The Commission awarded 10% PPD but denied future medical involving a back injury when claimant had a 5 year history of recurring back pain. The ALJ noted an acute onset of symptoms although the defense expert could find no basis on comparing MRIs to explain an acute change. Simpson v Lyon Sheet Metal, 2012 Mo WCLR Lexis 190 (Nov. 9, 2012)
Atty: Christianson
Experts: Volarich, Bernardi
Tx Crane
Adjacent disc
The claimant is entitled to more treatment at levels adjacent to an operated disc, according to Commission in a 2-1 decision which reversed a denial by the ALJ. Mueller v. Noranda Aluminum, 2013 Mo WCLR Lexis 144 (August 8, 2013).
This case begins more than 10 years ago in January 2003 when claimant lost control of a 90-pound block and hurt his back. Dr. Park performed L5-S1 fusion in 2003. His condition worsened after the surgery with chronic pain, radiculopathy and sexual dysfunction. Claimant underwent a second surgery to remove hardware, his condition did not improve, and he was admitted to a psychiatric ward. He received a spinal cord stimulator in 2005 and his doctor concluded he was unemployable. Dr. Coyle in 2010 removed the spinal cord stimulator and found claimant's findings contradictory. In 2010 claimant received injections at other disc levels. The employer cut off medical benefits, after paying more than $475,000 alone in medical, based on expert opinion that the broadening pain complaints at L3-4 and L4-5 more likely flowed from degenerative aging. The Commission disagreed: "We adopt Dr. Smith's opinion (and so find) that the work injury and fusion at L5-S1 put stress on the adjacent levels of employee's spine and caused the symptomatic degenerative pathology at L3-4 and L4-5."
The Commission further modified a 35% PPD award against the employer to an award of permanent total disability to the 59-year old claimant. A treating surgeon reviewed surveillance and concluded: "I would be surprised if anybody would look at those films and say this is somebody who is disabled". A majority of the commission noted the tapes were not persuasive as the employer had obtained days of footage with nothing persuasive. 310 hours of surveillance were condensed for the hearing.
ALJ Tilley
Atty Padberg, Rost
Experts: Volarich, Cantrell, Coyle
Aqua therapy
Claimant failed to establish that aqua therapy was reasonably required based on 4-year old medical report when claimant no longer used medications or clarified the current symptoms supported the prior recommendation. Smith v Roberts Dairy Co., 2014 MO WCLR Lexis 81 (June 13, 2014), affirmed a denial of future medical benefits.
ALJ Siedlik
Experts: Koprivica, Drieling
Bill for cardiac workup
This is a fight about who pays a large hospital bill. In Gonzales v Butterball, SD 22369 (Mo App. 2-11-2015), 2015 Mo App. Lexis 139; the worker claimed he had chest pain and was taken by ambulance from work to a hospital in Carthage and then transferred to a hospital in Joplin where he underwent a cardiac cath.
The Commission awarded benefits, and the court of appeals affirmed, based on expert testimony that bills totally nearly $20,000 were necessary and reasonable to treat his work injury from lifting a heavy turkey. The employer argued there was no medical evidence linking his treatment to any work injury and that he never had a work injury nor provided any timely written notice of an accident.
Claimant did not have any work-related cardiac condition from lifting a turkey and that the accident only strained a chest muscle which produced no permanent disability. The court of appeals concluded it was "not unreasonable" for the hospital to perform tests to rule out cardiac pain in "no doubt in an effort to mitigate the potentially fatal consequences of such a possible ailment" while the medical providers waited for an interpreter.
The employer has a statutory obligation to cure or relieve the effects of work-related injuries. In this case it appears the finding of a relationship between the symptoms and the reasonableness of medical treatment was not controverted by other medical evidence as the only expert identified is claimant's expert. The suggestion raised in the appeal is that the treating medical records may have been silent as to any relationship or specific history. The opinion highlights it is reasonable to perform a cardiac work-up for a worker with chest pain and the obligation appears independent of the determination whether there was any permanent work-related cardiac condition that needed any "cure" or "relief". The claimant's entire course of medical treatment was deemed reasonable to rule out an acute cardiac event which never existed.
The court rejected the employer's written notice defense and found there was a lack of prejudice as the employer's own representative called an ambulance and had actual knowledge of the incident.
The court further criticized the employer's argument regarding sufficiency of evidence that did not comply with its earlier 4-step model and identify by not fully identifying the supporting evidence or the credibility determination. The court identified the four step as:
"1. Identify a factual proposition needed to sustain the result;
2. Marshal all record evidence supporting that proposition;
3. Marshal contrary evidence of record, subject to the factfinder’s credibility determinations, explicit or implicit; and6
4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition. "
The court of appeals agreed that the ALJ erred to award TTD benefits based on medical discharge instructions to take off a week when claimant did not miss any time from work and conceded the error in his brief.
The Commission opinion provides some further details. In the case, 2014 MO WCLR Lexis 29, ALJ Fisher noted claimant had lifted an 80 pound turkey in June 26, 2009 and had immediate chest pain. The 66 year old claimant who did not speak English and had a 3rd grade education reported a second accident in August 2009 and was deemed totally disabled as a result of a crush injury to the dominant hand resulting in disuse atrophy or RSD. Butterball fired him a few months after the second accident
Thursday, June 9, 2011
Appeals
Employer criticized for unsupported argument
The Commission awarded the ratings of claimant's expert in a slip and fall parking lot case which included a trimalleolar fracture, a SI joint strain and a "possible" meniscus tear. The Commission criticized the employer for advancing legal arguments which its counsel conceded were not supported by the record and making "personal attacks" on the ALJ. A dissent noted the employer demonstrated a "lack of candor toward this tribunal to be emblematic of employer's overall approach to this case" including not responding to requests for treatment. Whorton v Silgan Container, 2014 Mo WCLR Lexis 97 (Aug 1, 2014).
ALJ Rebman
Atty: McNamara, Billam
Experts: Kneidel, Clymer
Confusing standard of review
The Court found the award by the Commission that affirmed PTD against the Fund did not warrant de novo review because the SIF did not invoke a question of law instead of a battle of credibility of the experts even though they 'packaged' their appeal to suggest otherwise. The court identified evidence that the commission found partial disability from the last accident alone, noting among other evidence that claimant before the accident complained regularly about his symptoms to a coworker, was "short-tempered" and visited a chiropractor regularly. Brandenburg v Treasurer of the state of Mo, No. SD 32849 (Mo. App. 4-18-2014).
Preserving an issue on appeal
The court of appeals sharply criticized the second injury fund because it barely complied with rules on appeal to state an alleged error with "specificity," its appeal was not a model of clarity, and it barely satisfied the statutory requirements in the "thinnest way" possible. Claimant objected to the Fund's appeal on lack of "jurisdiction" but had not raised the issue in a motion to dismiss the application. The court distinguished between whether there was jurisdiction (based on the timeliness of the appeal) and authority (based on preserving the alleged error). The court did not adopt the argument that the Fund had taken inconsistent positions and was estopped by alleging claimant was not PTD originally and later blaming any PTD on the last accident alone. Payne v Treasurer of the State of MO, 2014 MO. App. Lexis 35 (January 14, 2014).
Appeal to commission that ALJ is not impartial
The Commission rejected the employer's appeal that the ALJ Meiner adopted a proposal from claimant's counsel and was not impartial. Courtney v Clay County Health System, 2013 Mo WCLR Lexis 222 (Dec. 11, 2013). The Commission added additional findings that claimant's testimony was consistent with her medical records and rejected contrary testimony of two witnesses: "employer/insurer points to the seemingly crystal clear memories of two co-workers who purport to have mentally processed and stored minute details of what the co-workers describe as a non-event. Experience tells us that individuals seldom recall insignificant events in such great detail."
Atty: Kelly, Richerson
Appeal to Commission to add social security addendum
Zorich v Anheuser Busch, DOLIR 3-27-2013.
Lack of clarity in claimant's brief did not warrant dismissal
The court of appeals declined to dismiss an appeal by a claimant even though the brief is not a "model of clarity" and allegedly violated Rule 84.04(d)(2). Dillon v Archetectual Materials Co., SD 31908; 2013 MO App. Lexis 264 (March 4, 2013).
Employer criticized for poorly written brief
The employer disputed liability for PTD benefits for a worker who reports he has to rest 2-3 times a day due to unresolved pain after a back surgery. Claimant's expert contended he was not a candidate for rehabilitaton due to chronic pain and reactive depression. The employer relied upon a FCE releasing claimant to medium work and a records review from a vocational expert who concluded claimant could work. The court of appeals affirmed the PTD award and criticized the employer's brief for poor organization, citing irrelevant authority and citing errors which were not preserved for appeal regarding admission of testimony of an expert with limited credentials. The court considered the argument without merit that limitations from claimant's age or education shielded the employer from liability for the 'last accident alone'. Grauberger v Atlas Van Lines, 2013 Mo App. Lexis 265.
Experts: Russell, Bennoch, Eldred
SIF Appeal criticized for errors and omissions
The second injury fund brief failed to comply with briefing rules, does not contain a proper statement of facts, distorts the record and mischaracterizes testimony. The Commission affirms a finding that the 57 year old claimant is a PTD combo. He had incurred more than 1/4 million in medical charges for multiple surgeries. Claimant asserts that he is unemployable due to the last injury alone, contrary to the opinion of his own experts. Wheat v State of Mo., 3-1-2013.
Atty Van Camp , Thudium, Nelson
ALJ Zerrer
Experts: Volarich, Eldrid
Application of review limits issues in dispute
The party waived an claim for medical bills when the issue was not preserved on the application for review. Abt v Miss. Lime Co., 2013 MO WCLR 51 (3-6-13) The Commission "re-considered" the evidence on remand and concurred claimant continued to fail to prove PTD despite supplemental medical reports from his expert supporting the claim.
Failure to object to evidence waives error
The failure to object to the omission of the CV of the claimant's expert did not preverse the objection that claimant failed to produce a complete medical report. Claimant attempted to supplement the record with the CV after the record closed. Allgier v Claru Deville Healthcare, 2013 MO WCLR Lexis 32.
No error based on ineffective assistance of counsel
Claimant failed to prove his bilateral hip surgeries as a result of avascular necrosis flowed from activities at work moving 300 pounds of material, when his treating surgeon testified that's not "how it works" and had more knowledge of claimant's symptoms of prior problems. Claimant stated he woke up the next day with pain. Claimant appealed alleging ineffective assistance of counsel, and had attempted to rely upon the opinion of his expert, a neurologist, and research from Wickipedia. Claimant failed to preserve as error when no parties appeared in response to subpoena. The case is Hayden v Ameriwood Industries, Mo WCLR Lexis 115.
ALJ Kohner
Experts: Cohen
Treaters: Albus
Failure to explain error.
Claimant alleges the Commission wrongfully denied her benefits when she was walking down the hall when her knee popped out of place, and that her case was distinguishable from Miller v Mo. Highway and Transportation. The court concluded claimant's case may be distinguishable, but found under its limited standard of review sufficient competent evidence to support the denial even if claimant had offered some evidence to contradict the factual finding. Claimant failed to explain why she believed there was not competent evidence to support the decision. Bailey v Phelps County Regional Medical Center, 328 S.W.3d 770 (Mo. App SD 2010)
Atty: Logan, Beekley, McChesney
Judge: Rahmeyer
No proof that Commission abused its power dismissing appeal
Claimant offered no proof that the Commission abused its power dismissing an appeal, or even preserved the error, in an appeal from a slip and fall on a sidewalk case that the Court describes as indecipherable. Dickens v Hannah's Enterprises, 360 S.W.3d 810 (Mo. App. SD 2012), 2012 Mo. App. Lexis 100
Atty: Easter, Musick
Strict construction - no separate credibility finding required
The Commission reversed an award of disability and concluded that claimant failed to prove that his cervical disc surgery or undiagnosed symptoms of impaired ability to speak, hear or talk flowed from lifting a box or working 13 years as a library assistant due to inconsistent medical histories. The Court of Appeals rejected the legal argument that strict construction prevented the Commission from denying the claim and reversing a credibility finding without a separate hearing, a position established under the former liberal construction standards since 1931. Snyder v Consolidated Library District No. 3, 306 S.W.3d 133 (Mo. App WD 2010)
Penalties for appeal
The western court of appeals awarded $81,609 in attorney’s fees for making a constitutional challenge that the employer had a right to appeal a temporary award, contrary to a state rule and unfavorable precedent. Motor Control Specialties, Inc. And the Ohio Casualty Ins. Co. v. Labor and Industrial Relations Commission, State of Mo., Stephen M. Petelik, 323 S.W3d 843 (Mo. App. 2010) The Commission in 2008 sanctioned the employer $228,000 for not complying with a temporary award.
Petelik reached the court of appeals 3 times since 2006. The court originally dismissed the appeal in 2006 due to lack of jurisdiction because the award was not final and the employer was not denying all liability. The employer sought a declaratory judgment that a state rule limiting appeals until a “final” award has been entered is unconstitutional. The court of appeals in 2008 reversed a dismissal of a declaratory judgment. The employer appealed a third time in 2010 when the trial court found the state rule limiting appeals constitutional and awarded attorney’s fees.
The case involved a 2003 back injury, in which the 41-year old claimant was found in a final 2008 award to be permanently and totally disabled for low back syndrome following a fusion. The employer did not dispute accident and had made nominal medical payments, but disputed causation based on late notice and belated symptoms until claimant went on a fishing trip several days later. The employer waived defenses to any factual claims in the petition as a result of a late answer. The administrative law judge in the final award opined the employer’s defenses were questionable, but not unreasonable, and did not awarded attorney’s fees. The Division doubled an award for non-compliance of the original temporary award ordering benefits and medical treatment, resulting in a final award of permanent total at $388.78 per week for life, future medical, $457,845 of past accrued benefits, including about 238 weeks of TTD and $272,000 in medical and penalties. Claimant went into bankruptcy following the accident, and obtained a two-level fusion through his wife’s insurance.
The court of appeals affirmed the denial of declaratory judgment; based on de novo review the trial court did not misapply the law. The employer has no constitutional right for review of intermediate decision making, and the rule did not thwart judicial review of a final decision.
The employer argued that the statute to allow review of “any” awards conflicted with a rule limiting review only of final awards. The court construed legislative intent through other provisions to distinguish between final and temporary awards. The court noted that §287.490 only provided review of “final awards” to the court of appeals, and it was “absurd” to allow review of temporary awards to the Commission and not to the court of appeals. The court noted the statute distinguished when an ALJ could modify a temporary or final award.
The trial court did not exceed its mandate to award attorney’s fees, when the mandate was a “general” mandate. The award of attorney’s fees fell within an exception to the general American rule based on the collateral litigation exception. Judge Newton considered the “equities” between the parties supported the award of attorney’s fees, the employer/insurer was “well-funded” and the claimant was not; the employer breached a statutory duty and “reneged” to pay an injured worker who receives an award; and the employer pursued injunctive relief instead of complying with the temporary award. Claimant was deemed a “prevailing party” as the employer originally named him as a party, but then dismissed claimant from the appeal.
ALJ: Landolt, Wenman
Attorneys: Leahy, Layton, Brown, Morgan, McClitis
Experts: Curylo, Poetz
Claimant, 37, alleges he developed reactive airway disease from ammonia fumes while working in old warehouses and from a sudden "burst" exposure in 2008Fall v Matt Miller, 2014 Mo WCLR Lexis 37, (March 17, 2014)
Claimant underwent testing suggesting reactive airway dysfunction syndrome. The treating physician did not provide a causation opinion. Dr. Koprivica indicated that claimant's exposure was a plausible explanation for his symptoms. The employer offered no medical opinion, although it obtained a medical exam but never produced the report. The ALJ found the employer's chemical engineering expert relied upon inaccurate assumptions regarding the remediation process with water instead of a vacuum device.
The Commission reversed a denial of fees requested by the claimant and awarded $1200 for the cost of the appeal based on a rate of $200 an hour. It noted the brief "does not raise an argument premised on any evidence in the record or supported by any legal authority. In the Motion, employee argues that employer ignores controlling case law authority as to the issue of notice." It notes the "offense is egregious. In its brief and at oral argument in this matter, employer failed to advance a single colorable argument that would support our disturbing the administrative law judge's award in any way. Employer's counsel conceded that employer did not provide any expert medical testimony to rebut that advanced by employee, but argued that the issue in this case is whether the Commission can rely on "pure opinion" evidence in resolving issues of medical causation. We are perplexed by this statement, as it seems to ignore fifty years of Missouri case law...."
ALJ Wilson
Atty: Alberhasky, Wendler
Experts: Koprivica
Illinois mail box rule rejected or appeals to circuit court.
Appealing a decision of the commission to the circuit court was out of time when the circuit clerk file stamped the documents 24 days later because the documents were not "within 20 days of the receipt of notice of the decision", rejecting application of the mailbox rule. As 19(f)(1) did not create an express exception for the mailbox rule, the circuit court lacked jurisdiction. A dissent noted this was inconsistent as the mailbox rule was applied when appealing a decision of the arbitrator or the circuit court. Gruszecka v The Illinois Workers' Compensation Commission, etal, 2012 Ill. App 2d Lexis 107.
The western court of appeals strictly enforces a rule that requires a party to state specifically what is wrong with an award on an appeal to the Commission, shutting down the employer's right to contest an award of permanent and total disability benefits, medical charges and costs, in the recent case of Jones v Lico Steel, No. WD69637, 280 S.W.3d 713 ( Mo. Ct. App. 2009).
In the case, the Commission dismissed an appeal where the employer argued that the award was "contrary to medical and expert evidence." The Missouri rule 3.030 requires a party to state any points of error with specificity and not to merely state the findings and conclusions are not supported by the evidence. The Eastern District had liberally allowed an appeal to go forward with similar allegations in Isgriggs v. Pacer Industries, 869 S.W.2d 295, 296 (Mo. App. E.D. 1994) The Western District in Jones found the argument that the decision was not supported by the medical evidence violated the rule to argue that the decision was not supported by the evidence when most of the evidence in the case was medical evidence.
In Jones, Judge Smart in a concurring opinion suggested rigorous enforcement of the rule may create no prejudice when a party can provide further specificity in oral arguments or by filing a brief with the Commission but noted the public policy to avoid meritless appeals and
"is to deter employers/insurers from petitioning for review merely for purposes of delay or negotiation when the employer/insurer has no good faith opinion that grounds of appeal exist. In such a case, the employer/insurer may simply hope to later scan the transcript to find something to argue in order to delay the ultimate resolution, in hope that the claimant is under such financial distress that the claimant allow a significant discount in the award just to avoid the delay of an appeal." The award of costs in the case suggests possible issues regarding the merits of the employer's earlier defenses. The court of appeals could have clearly awarded further costs if it considered an appeal frivilous without the draconian measure of shutting down an opportunity for review of a permanent total award.
This case is a clear warning to employers to state specifically what is wrong with a decision early in the appeal, and to demand similar strict compliance when an employee's sloppy applications for review lack specific details.
The Commission awarded the ratings of claimant's expert in a slip and fall parking lot case which included a trimalleolar fracture, a SI joint strain and a "possible" meniscus tear. The Commission criticized the employer for advancing legal arguments which its counsel conceded were not supported by the record and making "personal attacks" on the ALJ. A dissent noted the employer demonstrated a "lack of candor toward this tribunal to be emblematic of employer's overall approach to this case" including not responding to requests for treatment. Whorton v Silgan Container, 2014 Mo WCLR Lexis 97 (Aug 1, 2014).
ALJ Rebman
Atty: McNamara, Billam
Experts: Kneidel, Clymer
Confusing standard of review
The Court found the award by the Commission that affirmed PTD against the Fund did not warrant de novo review because the SIF did not invoke a question of law instead of a battle of credibility of the experts even though they 'packaged' their appeal to suggest otherwise. The court identified evidence that the commission found partial disability from the last accident alone, noting among other evidence that claimant before the accident complained regularly about his symptoms to a coworker, was "short-tempered" and visited a chiropractor regularly. Brandenburg v Treasurer of the state of Mo, No. SD 32849 (Mo. App. 4-18-2014).
Preserving an issue on appeal
The court of appeals sharply criticized the second injury fund because it barely complied with rules on appeal to state an alleged error with "specificity," its appeal was not a model of clarity, and it barely satisfied the statutory requirements in the "thinnest way" possible. Claimant objected to the Fund's appeal on lack of "jurisdiction" but had not raised the issue in a motion to dismiss the application. The court distinguished between whether there was jurisdiction (based on the timeliness of the appeal) and authority (based on preserving the alleged error). The court did not adopt the argument that the Fund had taken inconsistent positions and was estopped by alleging claimant was not PTD originally and later blaming any PTD on the last accident alone. Payne v Treasurer of the State of MO, 2014 MO. App. Lexis 35 (January 14, 2014).
Appeal to commission that ALJ is not impartial
The Commission rejected the employer's appeal that the ALJ Meiner adopted a proposal from claimant's counsel and was not impartial. Courtney v Clay County Health System, 2013 Mo WCLR Lexis 222 (Dec. 11, 2013). The Commission added additional findings that claimant's testimony was consistent with her medical records and rejected contrary testimony of two witnesses: "employer/insurer points to the seemingly crystal clear memories of two co-workers who purport to have mentally processed and stored minute details of what the co-workers describe as a non-event. Experience tells us that individuals seldom recall insignificant events in such great detail."
Atty: Kelly, Richerson
Appeal to Commission to add social security addendum
Zorich v Anheuser Busch, DOLIR 3-27-2013.
Lack of clarity in claimant's brief did not warrant dismissal
The court of appeals declined to dismiss an appeal by a claimant even though the brief is not a "model of clarity" and allegedly violated Rule 84.04(d)(2). Dillon v Archetectual Materials Co., SD 31908; 2013 MO App. Lexis 264 (March 4, 2013).
Employer criticized for poorly written brief
The employer disputed liability for PTD benefits for a worker who reports he has to rest 2-3 times a day due to unresolved pain after a back surgery. Claimant's expert contended he was not a candidate for rehabilitaton due to chronic pain and reactive depression. The employer relied upon a FCE releasing claimant to medium work and a records review from a vocational expert who concluded claimant could work. The court of appeals affirmed the PTD award and criticized the employer's brief for poor organization, citing irrelevant authority and citing errors which were not preserved for appeal regarding admission of testimony of an expert with limited credentials. The court considered the argument without merit that limitations from claimant's age or education shielded the employer from liability for the 'last accident alone'. Grauberger v Atlas Van Lines, 2013 Mo App. Lexis 265.
Experts: Russell, Bennoch, Eldred
SIF Appeal criticized for errors and omissions
The second injury fund brief failed to comply with briefing rules, does not contain a proper statement of facts, distorts the record and mischaracterizes testimony. The Commission affirms a finding that the 57 year old claimant is a PTD combo. He had incurred more than 1/4 million in medical charges for multiple surgeries. Claimant asserts that he is unemployable due to the last injury alone, contrary to the opinion of his own experts. Wheat v State of Mo., 3-1-2013.
Atty Van Camp , Thudium, Nelson
ALJ Zerrer
Experts: Volarich, Eldrid
Application of review limits issues in dispute
The party waived an claim for medical bills when the issue was not preserved on the application for review. Abt v Miss. Lime Co., 2013 MO WCLR 51 (3-6-13) The Commission "re-considered" the evidence on remand and concurred claimant continued to fail to prove PTD despite supplemental medical reports from his expert supporting the claim.
Failure to object to evidence waives error
The failure to object to the omission of the CV of the claimant's expert did not preverse the objection that claimant failed to produce a complete medical report. Claimant attempted to supplement the record with the CV after the record closed. Allgier v Claru Deville Healthcare, 2013 MO WCLR Lexis 32.
No error based on ineffective assistance of counsel
Claimant failed to prove his bilateral hip surgeries as a result of avascular necrosis flowed from activities at work moving 300 pounds of material, when his treating surgeon testified that's not "how it works" and had more knowledge of claimant's symptoms of prior problems. Claimant stated he woke up the next day with pain. Claimant appealed alleging ineffective assistance of counsel, and had attempted to rely upon the opinion of his expert, a neurologist, and research from Wickipedia. Claimant failed to preserve as error when no parties appeared in response to subpoena. The case is Hayden v Ameriwood Industries, Mo WCLR Lexis 115.
ALJ Kohner
Experts: Cohen
Treaters: Albus
Failure to explain error.
Claimant alleges the Commission wrongfully denied her benefits when she was walking down the hall when her knee popped out of place, and that her case was distinguishable from Miller v Mo. Highway and Transportation. The court concluded claimant's case may be distinguishable, but found under its limited standard of review sufficient competent evidence to support the denial even if claimant had offered some evidence to contradict the factual finding. Claimant failed to explain why she believed there was not competent evidence to support the decision. Bailey v Phelps County Regional Medical Center, 328 S.W.3d 770 (Mo. App SD 2010)
Atty: Logan, Beekley, McChesney
Judge: Rahmeyer
No proof that Commission abused its power dismissing appeal
Claimant offered no proof that the Commission abused its power dismissing an appeal, or even preserved the error, in an appeal from a slip and fall on a sidewalk case that the Court describes as indecipherable. Dickens v Hannah's Enterprises, 360 S.W.3d 810 (Mo. App. SD 2012), 2012 Mo. App. Lexis 100
Atty: Easter, Musick
Strict construction - no separate credibility finding required
The Commission reversed an award of disability and concluded that claimant failed to prove that his cervical disc surgery or undiagnosed symptoms of impaired ability to speak, hear or talk flowed from lifting a box or working 13 years as a library assistant due to inconsistent medical histories. The Court of Appeals rejected the legal argument that strict construction prevented the Commission from denying the claim and reversing a credibility finding without a separate hearing, a position established under the former liberal construction standards since 1931. Snyder v Consolidated Library District No. 3, 306 S.W.3d 133 (Mo. App WD 2010)
Penalties for appeal
The western court of appeals awarded $81,609 in attorney’s fees for making a constitutional challenge that the employer had a right to appeal a temporary award, contrary to a state rule and unfavorable precedent. Motor Control Specialties, Inc. And the Ohio Casualty Ins. Co. v. Labor and Industrial Relations Commission, State of Mo., Stephen M. Petelik, 323 S.W3d 843 (Mo. App. 2010) The Commission in 2008 sanctioned the employer $228,000 for not complying with a temporary award.
Petelik reached the court of appeals 3 times since 2006. The court originally dismissed the appeal in 2006 due to lack of jurisdiction because the award was not final and the employer was not denying all liability. The employer sought a declaratory judgment that a state rule limiting appeals until a “final” award has been entered is unconstitutional. The court of appeals in 2008 reversed a dismissal of a declaratory judgment. The employer appealed a third time in 2010 when the trial court found the state rule limiting appeals constitutional and awarded attorney’s fees.
The case involved a 2003 back injury, in which the 41-year old claimant was found in a final 2008 award to be permanently and totally disabled for low back syndrome following a fusion. The employer did not dispute accident and had made nominal medical payments, but disputed causation based on late notice and belated symptoms until claimant went on a fishing trip several days later. The employer waived defenses to any factual claims in the petition as a result of a late answer. The administrative law judge in the final award opined the employer’s defenses were questionable, but not unreasonable, and did not awarded attorney’s fees. The Division doubled an award for non-compliance of the original temporary award ordering benefits and medical treatment, resulting in a final award of permanent total at $388.78 per week for life, future medical, $457,845 of past accrued benefits, including about 238 weeks of TTD and $272,000 in medical and penalties. Claimant went into bankruptcy following the accident, and obtained a two-level fusion through his wife’s insurance.
The court of appeals affirmed the denial of declaratory judgment; based on de novo review the trial court did not misapply the law. The employer has no constitutional right for review of intermediate decision making, and the rule did not thwart judicial review of a final decision.
The employer argued that the statute to allow review of “any” awards conflicted with a rule limiting review only of final awards. The court construed legislative intent through other provisions to distinguish between final and temporary awards. The court noted that §287.490 only provided review of “final awards” to the court of appeals, and it was “absurd” to allow review of temporary awards to the Commission and not to the court of appeals. The court noted the statute distinguished when an ALJ could modify a temporary or final award.
The trial court did not exceed its mandate to award attorney’s fees, when the mandate was a “general” mandate. The award of attorney’s fees fell within an exception to the general American rule based on the collateral litigation exception. Judge Newton considered the “equities” between the parties supported the award of attorney’s fees, the employer/insurer was “well-funded” and the claimant was not; the employer breached a statutory duty and “reneged” to pay an injured worker who receives an award; and the employer pursued injunctive relief instead of complying with the temporary award. Claimant was deemed a “prevailing party” as the employer originally named him as a party, but then dismissed claimant from the appeal.
ALJ: Landolt, Wenman
Attorneys: Leahy, Layton, Brown, Morgan, McClitis
Experts: Curylo, Poetz
Claimant, 37, alleges he developed reactive airway disease from ammonia fumes while working in old warehouses and from a sudden "burst" exposure in 2008Fall v Matt Miller, 2014 Mo WCLR Lexis 37, (March 17, 2014)
Claimant underwent testing suggesting reactive airway dysfunction syndrome. The treating physician did not provide a causation opinion. Dr. Koprivica indicated that claimant's exposure was a plausible explanation for his symptoms. The employer offered no medical opinion, although it obtained a medical exam but never produced the report. The ALJ found the employer's chemical engineering expert relied upon inaccurate assumptions regarding the remediation process with water instead of a vacuum device.
The Commission reversed a denial of fees requested by the claimant and awarded $1200 for the cost of the appeal based on a rate of $200 an hour. It noted the brief "does not raise an argument premised on any evidence in the record or supported by any legal authority. In the Motion, employee argues that employer ignores controlling case law authority as to the issue of notice." It notes the "offense is egregious. In its brief and at oral argument in this matter, employer failed to advance a single colorable argument that would support our disturbing the administrative law judge's award in any way. Employer's counsel conceded that employer did not provide any expert medical testimony to rebut that advanced by employee, but argued that the issue in this case is whether the Commission can rely on "pure opinion" evidence in resolving issues of medical causation. We are perplexed by this statement, as it seems to ignore fifty years of Missouri case law...."
ALJ Wilson
Atty: Alberhasky, Wendler
Experts: Koprivica
Illinois mail box rule rejected or appeals to circuit court.
Appealing a decision of the commission to the circuit court was out of time when the circuit clerk file stamped the documents 24 days later because the documents were not "within 20 days of the receipt of notice of the decision", rejecting application of the mailbox rule. As 19(f)(1) did not create an express exception for the mailbox rule, the circuit court lacked jurisdiction. A dissent noted this was inconsistent as the mailbox rule was applied when appealing a decision of the arbitrator or the circuit court. Gruszecka v The Illinois Workers' Compensation Commission, etal, 2012 Ill. App 2d Lexis 107.
The western court of appeals strictly enforces a rule that requires a party to state specifically what is wrong with an award on an appeal to the Commission, shutting down the employer's right to contest an award of permanent and total disability benefits, medical charges and costs, in the recent case of Jones v Lico Steel, No. WD69637, 280 S.W.3d 713 ( Mo. Ct. App. 2009).
In the case, the Commission dismissed an appeal where the employer argued that the award was "contrary to medical and expert evidence." The Missouri rule 3.030 requires a party to state any points of error with specificity and not to merely state the findings and conclusions are not supported by the evidence. The Eastern District had liberally allowed an appeal to go forward with similar allegations in Isgriggs v. Pacer Industries, 869 S.W.2d 295, 296 (Mo. App. E.D. 1994) The Western District in Jones found the argument that the decision was not supported by the medical evidence violated the rule to argue that the decision was not supported by the evidence when most of the evidence in the case was medical evidence.
In Jones, Judge Smart in a concurring opinion suggested rigorous enforcement of the rule may create no prejudice when a party can provide further specificity in oral arguments or by filing a brief with the Commission but noted the public policy to avoid meritless appeals and
"is to deter employers/insurers from petitioning for review merely for purposes of delay or negotiation when the employer/insurer has no good faith opinion that grounds of appeal exist. In such a case, the employer/insurer may simply hope to later scan the transcript to find something to argue in order to delay the ultimate resolution, in hope that the claimant is under such financial distress that the claimant allow a significant discount in the award just to avoid the delay of an appeal." The award of costs in the case suggests possible issues regarding the merits of the employer's earlier defenses. The court of appeals could have clearly awarded further costs if it considered an appeal frivilous without the draconian measure of shutting down an opportunity for review of a permanent total award.
This case is a clear warning to employers to state specifically what is wrong with a decision early in the appeal, and to demand similar strict compliance when an employee's sloppy applications for review lack specific details.
Friday, June 3, 2011
Employer/employee status
Insufficient number of employees
The Commission affirmed a denial of benefits from a slip and fall noting the uninsured employer did not have five or more employees subject to the Act. Burton v Burton, 2014 Mo WCLR Lexis 38 (March 20, 2104).
Exercising control
Claimant ran his own lawn care business but periodically performed light and sound work for his former employer, a nightclub. He hurt his foot on elevated steps leading up to a cage for a mixed martial arts fight, and the nightclub disputed about $28,000 in medical bills and contended that he was an independent contractor. The Commission affirmed a finding of employment, noting that claimant's election to use a 1099 was not determinative and analyzed unrebutted testimony describing the working relationship to establish the claimant was an employee because the nightclub exercised control regarding which songs to play, the volume of the songs, and the lighting even though he performed tasks generally without supervision. Cutsinger v Area 151 Nightclub, 3-14-2013.
ALJ Mahon
Atty: Korte
Uninsured trolley owner exercising control
Claimant operated a trolley and was struck by a hit-and-run drunk driver. The year before the accident the defendant company had declared its employees would be regarded as independent contractors to save money. The ALJ found the employer maintained control by designating the route, the hours of operation, and where to fuel the vehicles. The ALJ indicated there were many "legitimate" questions about the relationship of the accident and shoulder surgery 3 years later, but the employer presented no medical evidence to challenge claimant's expert, and the ALJ ordered 10% body, 40% of the shoulder, and ordered the second injury fund to pay nearly $160,000 in medical bills for shoulder surgery with complications of MRSA. A dissent would have awarded additional interest on the unpaid medical bills. Harrah v Tour St. Louis, 2013 Mo. WCLR Lexis 115 (July 2, 2013).
ALJ Boresi
Atty: Christianson
Insufficient number of employees
Claimant failed to prove defendant was subject to the Act, nor did he identify a statutory basis to "pierce the corporate veil." Lowe v Kelly Cattle Co., Inc., 2012 Mo WCLR Lexis 123 (June 19, 2012).
ALJ: Wilson
Atty: Alberhasty, Powell, Elliott
Experts: Swiam, Nogalski
Juror
The Commission in a case of first impression decision concluded a prospective juror who fell on a parking lot before reporting to jury duty was an employee entitled to benefits under the Act. Claimant worked as an insurance agent but fell while reporting to jury duty. ALJ Wilson concluded claimant did not have any contract of employment but was acting under "appointment" to discharge city services, he was in a position of trust, and the city potentially exercised control over his activities. Claimant was sent home and never served when he reported the morning that he fell, and never received pay for reporting as a juror. ALJ Wilson in the temporary award deferred any decision to allow parties to brief the impact of the Pile decision whether a fall in a parking lot was compensable or not. Roemisch v Green County, DOLIR 4-14-11.
ALJ Wilson Atty Mills, Vessell
Mail Carrier
A letter carrier failed in a pro se claim against the Second Injury Fund alleging permanent total benefits from post traumatic stress disorder, but failed to show he was an employee covered under the Act as he was a federal employee and 287.110 excluded coverage except for cases covered by "federal law." Claimant refused to identify at hearing the issues in dispute, and relied entirely upon a meandering affidavit he prepared explaining why he felt he was disabled and unfairly treated. Hughes v United States Postal Service, DOLIR 12-7-10.
ALJ Carlisle
Atty: pro se, Schulte
Professional Athlete
Claimant is a professional athlete who sustained back and hip injuries in a scrimmage and was awarded $30,767 in disability benefits with open medical related to the 2002 accident. The Commission modified the award and found the employer was entitled to a credit for $105,667 in medical benefits paid pursuant to 287.270 and should be applied against future medical. The case is McClellon v Kansas City Chiefs, DOLIR 3-29-11. The employer had paid over $200,000 in benefits for medical and lost wages. Claimant underwent two surgeries and stated he sustained a career-ending injury.
ALJ Meiners
Atty Round
Treater: Phillipon
Independent contractor
A pro se claimant failed to prove he was an employee under the act to qualify for benefits against the second injury fund. Claimant signed a document indicating he was an independent contractor, exercised control how he performed the work, and provided his own equipment. The "employer" had settled the case. Thompson v Corporate Transit of America, 2011 MOWCLR LEXIS 221 (Nov. 8, 2011).
Claimant worked for the employer for 6-8 years driving a truck and then entered an agreement to purchase the truck, pay his own expenses, receive a higher pay rate and reclassify himself as an independent contractor. The employer asserted that this agreement under claimant’s "own free will" precluded benefits for permanent and total disability following an 2003 injury when a keg fell on him. The case is Rader v Werner Enterprises, DOLIR 10-29-10. affirmed 2012 Mo. App. Lexis 24 ED 95905 (Jan. 10, 2012)
Whether a claimant is an employee depends whether an employer has the right to control the means and manner of service. An employment contract is only one of eight factors to consider, and classification in a contract as an independent contractor is not conclusive. The Commission examined the parties actual practices and concluded that Werner continued to control claimant’s activities after the agreement.
The Commission further rejected the defense under 287.020.1 that claimant was not an employee because he was an "owner operator", noting the employer did not establish ownership of the truck because of inconclusive evidence of an attempted conveyance. Werner’s counsel testified that a certificate of title proved ownership. Portions of the title transfer remained incomplete such as missing a date or signature of the claimant. The agreement further limited claimant’s capacity to use or convey the trailer.
The employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits. The employer had previously conceded employee status for years in various "signings."
ALJ Lane
Atty: Thurmer, Evans, Barnard
Experts: Volarich, England
Treaters: Esses, Lloyd, Hackbarth
The Commission affirmed a denial of benefits from a slip and fall noting the uninsured employer did not have five or more employees subject to the Act. Burton v Burton, 2014 Mo WCLR Lexis 38 (March 20, 2104).
Exercising control
Claimant ran his own lawn care business but periodically performed light and sound work for his former employer, a nightclub. He hurt his foot on elevated steps leading up to a cage for a mixed martial arts fight, and the nightclub disputed about $28,000 in medical bills and contended that he was an independent contractor. The Commission affirmed a finding of employment, noting that claimant's election to use a 1099 was not determinative and analyzed unrebutted testimony describing the working relationship to establish the claimant was an employee because the nightclub exercised control regarding which songs to play, the volume of the songs, and the lighting even though he performed tasks generally without supervision. Cutsinger v Area 151 Nightclub, 3-14-2013.
ALJ Mahon
Atty: Korte
Uninsured trolley owner exercising control
Claimant operated a trolley and was struck by a hit-and-run drunk driver. The year before the accident the defendant company had declared its employees would be regarded as independent contractors to save money. The ALJ found the employer maintained control by designating the route, the hours of operation, and where to fuel the vehicles. The ALJ indicated there were many "legitimate" questions about the relationship of the accident and shoulder surgery 3 years later, but the employer presented no medical evidence to challenge claimant's expert, and the ALJ ordered 10% body, 40% of the shoulder, and ordered the second injury fund to pay nearly $160,000 in medical bills for shoulder surgery with complications of MRSA. A dissent would have awarded additional interest on the unpaid medical bills. Harrah v Tour St. Louis, 2013 Mo. WCLR Lexis 115 (July 2, 2013).
ALJ Boresi
Atty: Christianson
Insufficient number of employees
Claimant failed to prove defendant was subject to the Act, nor did he identify a statutory basis to "pierce the corporate veil." Lowe v Kelly Cattle Co., Inc., 2012 Mo WCLR Lexis 123 (June 19, 2012).
ALJ: Wilson
Atty: Alberhasty, Powell, Elliott
Experts: Swiam, Nogalski
Juror
The Commission in a case of first impression decision concluded a prospective juror who fell on a parking lot before reporting to jury duty was an employee entitled to benefits under the Act. Claimant worked as an insurance agent but fell while reporting to jury duty. ALJ Wilson concluded claimant did not have any contract of employment but was acting under "appointment" to discharge city services, he was in a position of trust, and the city potentially exercised control over his activities. Claimant was sent home and never served when he reported the morning that he fell, and never received pay for reporting as a juror. ALJ Wilson in the temporary award deferred any decision to allow parties to brief the impact of the Pile decision whether a fall in a parking lot was compensable or not. Roemisch v Green County, DOLIR 4-14-11.
ALJ Wilson Atty Mills, Vessell
Mail Carrier
A letter carrier failed in a pro se claim against the Second Injury Fund alleging permanent total benefits from post traumatic stress disorder, but failed to show he was an employee covered under the Act as he was a federal employee and 287.110 excluded coverage except for cases covered by "federal law." Claimant refused to identify at hearing the issues in dispute, and relied entirely upon a meandering affidavit he prepared explaining why he felt he was disabled and unfairly treated. Hughes v United States Postal Service, DOLIR 12-7-10.
ALJ Carlisle
Atty: pro se, Schulte
Professional Athlete
Claimant is a professional athlete who sustained back and hip injuries in a scrimmage and was awarded $30,767 in disability benefits with open medical related to the 2002 accident. The Commission modified the award and found the employer was entitled to a credit for $105,667 in medical benefits paid pursuant to 287.270 and should be applied against future medical. The case is McClellon v Kansas City Chiefs, DOLIR 3-29-11. The employer had paid over $200,000 in benefits for medical and lost wages. Claimant underwent two surgeries and stated he sustained a career-ending injury.
ALJ Meiners
Atty Round
Treater: Phillipon
Independent contractor
A pro se claimant failed to prove he was an employee under the act to qualify for benefits against the second injury fund. Claimant signed a document indicating he was an independent contractor, exercised control how he performed the work, and provided his own equipment. The "employer" had settled the case. Thompson v Corporate Transit of America, 2011 MOWCLR LEXIS 221 (Nov. 8, 2011).
Claimant worked for the employer for 6-8 years driving a truck and then entered an agreement to purchase the truck, pay his own expenses, receive a higher pay rate and reclassify himself as an independent contractor. The employer asserted that this agreement under claimant’s "own free will" precluded benefits for permanent and total disability following an 2003 injury when a keg fell on him. The case is Rader v Werner Enterprises, DOLIR 10-29-10. affirmed 2012 Mo. App. Lexis 24 ED 95905 (Jan. 10, 2012)
Whether a claimant is an employee depends whether an employer has the right to control the means and manner of service. An employment contract is only one of eight factors to consider, and classification in a contract as an independent contractor is not conclusive. The Commission examined the parties actual practices and concluded that Werner continued to control claimant’s activities after the agreement.
The Commission further rejected the defense under 287.020.1 that claimant was not an employee because he was an "owner operator", noting the employer did not establish ownership of the truck because of inconclusive evidence of an attempted conveyance. Werner’s counsel testified that a certificate of title proved ownership. Portions of the title transfer remained incomplete such as missing a date or signature of the claimant. The agreement further limited claimant’s capacity to use or convey the trailer.
The employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits. The employer had previously conceded employee status for years in various "signings."
ALJ Lane
Atty: Thurmer, Evans, Barnard
Experts: Volarich, England
Treaters: Esses, Lloyd, Hackbarth
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