The new maximum weekly comp rates effective July 1, 2013 are:
TTD/PTD/DEATH $853.08
PPD $446.85
MILEAGE .535
http://labor.mo.gov/DWC/Forms/2013SAWW.pdf
The Department now has now reached out to workers to explain many circumstances why they should hire lawyers to pursue their benefits such as being "uncomfortable" or "confused" and "not happy." The Department then goes on to explain not to get too upset with your comp lawyer handling because they are busy people and can only handle so many things at once.
"Remember that, while this is your only case, your lawyer has many cases and clients. After all, you wouldn’t want a lawyer who doesn’t have clients!"
MATA couldn't have written anything better!
Wednesday, July 3, 2013
Thursday, June 20, 2013
I'm Not Sleepy!
One of my favorite drug product warnings is on Demazin
infant drops that warns infants not to operate machinery or drive because the
medication may cause drowsiness.
Following a work injury, the issue of drowsiness may arise
in two cases.
One issue that arises is when a medicated worker returns to
work after a work injury and is fired for sleeping on the job. A claimant who is drowsy because of a medical
condition or medications generally is not engaging in willful misconduct. Each case is decided on individual circumstances,
however. The claimant who hides in a dark corner with an alarm clock, pillow and
blanket may be regarded entirely differently than someone else who nods off briefly because
of required pain killers.
“Employers have a right to expect employees to be conscious
during their scheduled shifts. Sleeping on the job would be a
"conscious" disregard of that standard,” Judge Romines noted in Nickless v St. Gobian Containers, 350 S.W.3d 871 (Mo. Ct. App.
2011). Claimant was not found credible
that he was merely resting his eyes after using eye drops when the claimant was
found in a dark room, sitting in a chair with his head to his chest and eyes
closed and did not respond when the door was slammed. The Western
District, however, has found exceptions based on the totality of the circumstances.
This analysis included
the nature of the employee's job responsibilities, the location where
the employee fell asleep, the employer's policy related to sleeping on the job,
whether prior warnings had been given to the employee, and any other
aggravating or mitigating circumstances.
In Richardson v Div. of Employment Security, 361 S.W.3d 425 (Mo Ct. App.
2011) the claimant was a night shift nurse who napped twice on the same shift
but argued that the employer “made” her work.
Illinois recently addressed a similar issue under 820 ILCS 405/602(A) and concluded that a security guard at O'Hare Airport who was caught sleeping on the job did not engage in willful misconduct to disqualify himself from receiving unemployment benefits. The court noted that the worker was in an upright position which showed less of an intent to fall asleep. A dissent argued that an employer performing security at an airport had a higher expectation of claimant not to return to work when he was tired. Universal Security Corporation v the Department of Employment Security, 2015 Il App. 133886 (Feb. 18, 2015).
These cases underscore the importance of employers before a work injury to highlight the obvious: Employees are expected to stay awake. We really mean it. Any employee who brings pillows, blankets to work may be subject to discipline, including termination. Really.
Illinois recently addressed a similar issue under 820 ILCS 405/602(A) and concluded that a security guard at O'Hare Airport who was caught sleeping on the job did not engage in willful misconduct to disqualify himself from receiving unemployment benefits. The court noted that the worker was in an upright position which showed less of an intent to fall asleep. A dissent argued that an employer performing security at an airport had a higher expectation of claimant not to return to work when he was tired. Universal Security Corporation v the Department of Employment Security, 2015 Il App. 133886 (Feb. 18, 2015).
These cases underscore the importance of employers before a work injury to highlight the obvious: Employees are expected to stay awake. We really mean it. Any employee who brings pillows, blankets to work may be subject to discipline, including termination. Really.
In the second instance, the claimant alleges the desire to
nap renders him or her disabled. The claimant alleges back pain made her sleep on the job and the
claimant was fired for sleeping. Swartz v Nevada
Habitation Center,
2012 Mo. WCLR Lexis 140 (July 12, 2012).
ADA, by contrast, requires a higher standard of proof of a “serious
medical condition” and it must “severely” restrict an individual performing
activity of central importance. In a recent
district decision, the plaintiff failed to prove fatigue was a serious medical
condition to trigger benefits under ADA or FMLA.[1]
More than 1 in 4 Americans
have insomnia or sleep disturbance.[2] Drowsiness
may an unintended consequence of medications, fatigue or simply spending too much
time with lawyers and the court system. The allegation of disability from sleep deprivation requires further attention on a case by case basis.
It can be reasonably assumed most people some of the times aren’t
sleeping well and given a choice would rather have a nice story, a glass of cold
milk, and take a nap rather than finish the work day. If vocational disability is predicated on a desire to
nap then the concept of disability has lost any meaning.
Wednesday, June 12, 2013
It's Not Just 'Sunshine on my shoulders' that makes Floridians happy
The Sunshine State is back in the news again as Walgreens just agreed to pay an $80 million dollar fine to DEA involving an "unprecedented number" of record keeping and dispensing abuses of oxycodone. One store alone ordered 1.7 million units. The DEA alleged the prescriptions were being diverted for black-market use.
Missouri is the only state in the country to not adopt a prescription drug monitoring program. http://usatoday30.usatoday.com/news/nation/story/2011-10-13/pill-mill-drug-trafficking/50896242/1. Some folks in Jefferson City feel that the best government is no government. http://www.stltoday.com/news/opinion/columns/the-platform/editorial-why-is-missouri-so-friendly-to-the-pill-mill/article_df96f0cc-854d-539c-84d5-3118f1c4ce47.html
Legislative reform on this issue died once again in the 2013 legislative session (SB 233, HB 347). Perhaps more Missouri politicians should go rent Winter's Bone to fully appreciate the danger of Missouri getting burned if the politicians spend too much time with their head buried in the sand.
Last year Florida's CVS's pharmacy chain was in the news. One pharmacist was quoted that customers came in asking drugs by their "street names" that some medications were kept in the back for "real" patients.
CVS paid a $34 million settlement to DEA back in 2008 because of abusive prescription practices. The average pharmacy dispenses 69,000 oxycodone pills and one store in Orlando dispensed over 5 million units from 2008-2011. Orlando always has branded itself as the happiest place on Earth.
This, of course, brings to mind how often Missouri doctors prescribe excessive drugs for Missouri comp patients. Employers have an obligation to try to cure and relieve workers of their injuries. There is no statutory mandate to "light 'em up." The cost of this abuse goes beyond Big Pharma greed, bloated MSAs, and part D skyrocketing costs. It causes irreparable harm to workers. Missouri is the only state in the country to not adopt a prescription drug monitoring program. http://usatoday30.usatoday.com/news/nation/story/2011-10-13/pill-mill-drug-trafficking/50896242/1. Some folks in Jefferson City feel that the best government is no government. http://www.stltoday.com/news/opinion/columns/the-platform/editorial-why-is-missouri-so-friendly-to-the-pill-mill/article_df96f0cc-854d-539c-84d5-3118f1c4ce47.html
Legislative reform on this issue died once again in the 2013 legislative session (SB 233, HB 347). Perhaps more Missouri politicians should go rent Winter's Bone to fully appreciate the danger of Missouri getting burned if the politicians spend too much time with their head buried in the sand.
Wednesday, May 29, 2013
Reform didn't stop aggravation of pre-existing conditions
Claimant was a 63-year old career employee for City of DeSoto with a history of remote neck problems and states he hurt his neck in 2007 after moving heavy pieces of stone. He went back to work on modified duty for about 1 1/2 years and states he retired prematurely. Maness v City of Desoto, DOLIR 5-24-2013.
The employer's expert, Dr. DeGrange, concluded that claimant only strained his neck and his multi-level cervical fusion flowed from prior degenerative conditions. Dr. Rutz had diagnosed claimant with a disc herniation and ultimately proceeded with a c4-c7 fusion. The surgeon never rendered any opinion regarding the cause of the disc herniation. Claimant relied upon Dr. Kennedy who concluded the disc abnormalities were acute and Dr. Volarich who concluded the arthritic changes "became symptomatic" after the accident. Claimant's vocational expert, Lalk, concluded claimant's need to recline made him unemployable.
The parties disputed whether claimant's activities occurred on a the pled date. The ALJ resolved the dispute by finding the accident occurred on the pled date or the following date. The ALJ awarded medical bills, but reduced the actual charges based on affidavit evidence that claimant was not responsible for any additional balances. The ALJ found the employer liable for 40% PPD and denied PTD benefits against the Fund.
On appeal, the Commission reversed.
It affirmed a finding of 40% PPD and open medical against the employer. It specifically rejected the defense as a matter of law that aggravation of a pre-existing condition was not compensable. The Commission concluded that claimant had been asymptomatic for years prior to the most recent accident although it conceded claimant's testimony was not a model of clarity on this issue. In an unusual interpretation it concluded that claimant under statutory reform merely had to show prevailing factor of a medical condition but it concluded that the statute never expressly excluded aggravation, and that aggravation alone could be considered a medical factor. "We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287. We note also that the Court in Gordon regarded "aggravation" as shorthand for "something less than a prevailing factor." But as used by Dr. Volarich in this case, the word "aggravation" describes a medical condition, not a type of factor."
The Commission enhanced the award of medical bills even though claimant had no personal liability to pay the additional amount. The Commission concluded that claimant was entitled to the original billed amount as reimbursement and that the ALJ erred reducing liability based on evidence that claimant was no longer liable for the difference between the billed amount and the paid amount. The claimant was not required to interpret the medical bills, he was required only to indicate that he received them. The decision never discusses Farmer-Cummings or its new novel interpretation on this issue.
"We conclude that the administrative law judge erred to the extent he reduced employee’s past medical award in reliance on testimony or an affidavit describing employee’s liability having been reduced in connection with payments by "insurance of the injured employee."
The commission further characterizes claimant's return to work as essentially a failed return to work because the employer accommodated him by letting other employees perform more strenuous tasks and it would be wrong to "penalize" claimant for trying to work. This issue is part of recurring theme in some recent cases from this Commission that suggests "working" is not "working in the open labor market" if the long-term employer is provides accommodation in some fashion that might not be available from a potential new employer. Such a position seems to run contrary to a public policy to help career employees instead of firing someone instantly they cannot produce a full, unrestricted release.
ALJ Robbins
Atty: Christiansen, Tierney
Experts: Volarich, DeGrange
Treaters: Rutz
The employer's expert, Dr. DeGrange, concluded that claimant only strained his neck and his multi-level cervical fusion flowed from prior degenerative conditions. Dr. Rutz had diagnosed claimant with a disc herniation and ultimately proceeded with a c4-c7 fusion. The surgeon never rendered any opinion regarding the cause of the disc herniation. Claimant relied upon Dr. Kennedy who concluded the disc abnormalities were acute and Dr. Volarich who concluded the arthritic changes "became symptomatic" after the accident. Claimant's vocational expert, Lalk, concluded claimant's need to recline made him unemployable.
The parties disputed whether claimant's activities occurred on a the pled date. The ALJ resolved the dispute by finding the accident occurred on the pled date or the following date. The ALJ awarded medical bills, but reduced the actual charges based on affidavit evidence that claimant was not responsible for any additional balances. The ALJ found the employer liable for 40% PPD and denied PTD benefits against the Fund.
On appeal, the Commission reversed.
It affirmed a finding of 40% PPD and open medical against the employer. It specifically rejected the defense as a matter of law that aggravation of a pre-existing condition was not compensable. The Commission concluded that claimant had been asymptomatic for years prior to the most recent accident although it conceded claimant's testimony was not a model of clarity on this issue. In an unusual interpretation it concluded that claimant under statutory reform merely had to show prevailing factor of a medical condition but it concluded that the statute never expressly excluded aggravation, and that aggravation alone could be considered a medical factor. "We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287. We note also that the Court in Gordon regarded "aggravation" as shorthand for "something less than a prevailing factor." But as used by Dr. Volarich in this case, the word "aggravation" describes a medical condition, not a type of factor."
The Commission enhanced the award of medical bills even though claimant had no personal liability to pay the additional amount. The Commission concluded that claimant was entitled to the original billed amount as reimbursement and that the ALJ erred reducing liability based on evidence that claimant was no longer liable for the difference between the billed amount and the paid amount. The claimant was not required to interpret the medical bills, he was required only to indicate that he received them. The decision never discusses Farmer-Cummings or its new novel interpretation on this issue.
"We conclude that the administrative law judge erred to the extent he reduced employee’s past medical award in reliance on testimony or an affidavit describing employee’s liability having been reduced in connection with payments by "insurance of the injured employee."
The commission further characterizes claimant's return to work as essentially a failed return to work because the employer accommodated him by letting other employees perform more strenuous tasks and it would be wrong to "penalize" claimant for trying to work. This issue is part of recurring theme in some recent cases from this Commission that suggests "working" is not "working in the open labor market" if the long-term employer is provides accommodation in some fashion that might not be available from a potential new employer. Such a position seems to run contrary to a public policy to help career employees instead of firing someone instantly they cannot produce a full, unrestricted release.
ALJ Robbins
Atty: Christiansen, Tierney
Experts: Volarich, DeGrange
Treaters: Rutz
Monday, May 6, 2013
Court denies joinder of joint employer
In McGuire v Christian County and Missouri Association of Counties, 2014 Mo. App. Lexis 502 (May 5, 2014), the court of appeals affirmed the Commission which rejected joinder by Christian County of Ozark Baseball Club based on 287.130. Claimant worked security at a baseball game after his regular job at Christian County, he sustained injuries dealing with an intoxicated suspect, and ultimately underwent multiple back surgeries and did not return to law enforcement.
The employer settled its claim but sought contribution from OBC of about $56,000 which was 14.8% of the settlement. The court concluded that 287.130 allowed the claimant to join parties but did not allow a court to compel joinder and the employer could seek any remedies in separate legal proceedings. "The omission of any joinder provision in section 287.130 demonstrates that the legislature did not intend to authorize the joinder of any alleged joint employers against whom a claim had not been filed by the employee," when 287.040 had joinder language.
The ALJ had allowed joinder noting that it was the "fair" thing to do.
The Commission noted in DOLIR, 4-24-2013: "The legislature gave the employee the option to decide against which of several joint employers he wishes to proceed. Here, employee chose CCSD. CCSD is bound by employee’s choice. But CCSD is not without a remedy, for CCSD can seek contribution against OBC in a "subsequent action for contribution." .... That being so, it is clear that OBC was not a necessary party to employee’s workers’ compensation claim."
The ALJ granted joinder in an employer's motion filed years after a temporary award, and more than 5 years after the original accident based on an incorrect statutory provision, 287.040 rather than 287.130. At the hearing for joinder, the ALJ noted that counsel for OBC failed to articulate any objection and asked for more time to research the issue. The Commission found the ALJ erred as a matter of law permitting joinder in these circumstances and the decision violated due process and exceeded authority as it went beyond the issues stipulated at trial.
ALJ Mahon
Atty: Montgomery, Greenwald
Experts: Bennoch
The employer settled its claim but sought contribution from OBC of about $56,000 which was 14.8% of the settlement. The court concluded that 287.130 allowed the claimant to join parties but did not allow a court to compel joinder and the employer could seek any remedies in separate legal proceedings. "The omission of any joinder provision in section 287.130 demonstrates that the legislature did not intend to authorize the joinder of any alleged joint employers against whom a claim had not been filed by the employee," when 287.040 had joinder language.
The ALJ had allowed joinder noting that it was the "fair" thing to do.
The Commission noted in DOLIR, 4-24-2013: "The legislature gave the employee the option to decide against which of several joint employers he wishes to proceed. Here, employee chose CCSD. CCSD is bound by employee’s choice. But CCSD is not without a remedy, for CCSD can seek contribution against OBC in a "subsequent action for contribution." .... That being so, it is clear that OBC was not a necessary party to employee’s workers’ compensation claim."
The ALJ granted joinder in an employer's motion filed years after a temporary award, and more than 5 years after the original accident based on an incorrect statutory provision, 287.040 rather than 287.130. At the hearing for joinder, the ALJ noted that counsel for OBC failed to articulate any objection and asked for more time to research the issue. The Commission found the ALJ erred as a matter of law permitting joinder in these circumstances and the decision violated due process and exceeded authority as it went beyond the issues stipulated at trial.
ALJ Mahon
Atty: Montgomery, Greenwald
Experts: Bennoch
Wednesday, May 1, 2013
MO Supreme Court allows V.A. intervention in comp
The Veteran’s Administration can now intervene in Missouri’s
worker’s compensation cases to try to collect payment for medical services
provided to veterans, even when an employer never authorized the care,
and there is no state rule to allow it, according to a recent case from the Missouri Supreme Court. U.S.
Dept. of Veterans Affairs v Boresi, No. SC 92541 (Mo. 2013); 2013 MO Lexis 25 (April 30, 2013). The case
involved a claim for reimbursement of about $19,000 in medical bills.
The Supreme Court addressed whether the V.A. had a right to
intervene, and reversed opinions of the circuit court and the court of appeals
which denied intervention. V.A. v Boresi, 2012 Mo. App. Lexis 341. The court concluded that federal law was controlling
and that 38 U.S.C. § 1729 allowed an unequivocal right to intervene in any
action brought a veteran covered under a worker’s compensation law or plan.
The Supremacy Clause trumped any state comp law. The Missouri comp law had no provision for intervention
in these circumstances, and the civil rules for intervention under Rule 52.12
did not apply. The Supremacy Clause is not exactly new ground for anyone who
remembers anything about Constitutional Law.
The problem is that as a practical matter federalization of
comp chips away at the employer’s state rights to designate a medical provider. In this case there is no allegation that the
employer failed or refused to provide treatment. The court of appeals found there was no
refusal or denial. The Supreme Court
leaves that issue unresolved. The V.A.
states it doesn’t know one way or the other.
The decision allows the V.A. to
intervene, and kicks the can down the road whether the V.A. can actually
collect anything. The court rejected the
defense that the V.A. really had any meaningful pleading requirement to show it had any right of recovery except
that it had provided services and can assert that someone’s got to pay.
The court of appeals found that if the V.A. had no right to
collect benefits since the treatment was not authorized and it had no right to intervene.
Judge Romines indicated: “even
if the VA was allowed to step into Hollis' shoes, the VA would still not be
entitled to receive payment. Thus, the federal statute cannot supply the VA
with a right to intervene.”
The takeaway is that attorneys for both sides need to pay
more attention to the potential for V.A. claims whether or not a lien has been
asserted. As parties in comp have seen
whenever the federal government gets involved, as in Medicare reimbursement, it
grinds down the process and has unintended consequences. Adding another chair at the negotiating table
for the V.A. could easily have the same effect of delays from fighting over
liens involving unauthorized treatment and payment of conditions unrelated to
work injuries.
Friday, April 19, 2013
Editorial: Why Do Comp Claimants Hire Attorneys?
Every
so often a pro se case comp case
makes its way to the Commission or the court of appeals. Invariably, the court dumps the
unrepresented worker for not knowing the rules, for making incomprehensible
arguments, and tosses the claimant into the streets.
Toxic case
This
brings to mind the question, what was the claimant thinking?
Many
attorneys concentrate their practice in comp.
There is no shortage of public information where to find lawyers. It’s hard to get through the morning news
without some lawyer on the screen.
So why do some workers go it alone and others get attorneys?
In the recent case Burchfield v Renard Paper Co., No. ED 995151 (Mo App. July 16, 2013), the court affirmed a denial of benefits noting the pro se claimant did not offer admissible medical records and that his asserted error that the ALJ was just being too "inappropriately" rigid did not constitute reversible error. The court noted that the claimant had to follow the rules of evidence, although it was "not unsympathetic" to claimant's plight. The court made an unusual distinction that comp did not strictly apply "technical" rules of evidence but it characterized laying a foundation as something that just wasn't all that technical. Toxic case
Some
workers don’t get attorneys because attorneys don’t want the cases. There is no constitutional right to have
appointed counsel in a worker’s comp matter.
That issue was actually advanced at the court of appeals recently.
Some
people go the dance alone, and they go home alone. There’s nothing wrong with that. Some people, frankly, are lousy dancers.
The idea of an "open court" system means something more than just an opportunity to use limited judicial resources to rant. That is what public parks are for. People around Hyde Park learned that a long time ago. It is an inherent procedural weakness of the comp
system that pro se claimants can clog up the system without the deterrents of
civil procedure such as summary judgment and taxed costs.
Seasoned
attorneys recognize the early warning signs not to take such cases. Life is
too short. Attorneys should realize they can only help some workers only so much without
a license to dispense medicine.
Self-appointed expert
Fans of
Bullwinkle may remember Mr. Know It All. The astute Moose had nothing in the Age of
Wikipedia, when the truth is out there for anyone. There is a difference between, for example, seeing
an ice skate and knowing what to do with it.
Much of the same could be said of the do-it-yourself comp litigant who
may underestimate the complexity of some cases involving arcane comp issues and
complicated medical disputes that may arise even in an informal, summary and
‘no-fault’ system. Sure, there are forms on-line for comp, just like do-it-yourself divorce kits. You-Tube has a bunch of videos from the state trying to make the system more user friendly. It gives everything that warm and fuzzy feeling. Consider the last
exposure rule? Pull that one out of your
hat.
Penny-pinching claimant
In a bad economy some people may not obtain counsel because they fear it costs too much or may have some adverse consequences on their employment. Comp
isn’t criminal law. There is no retainer. Federal courts have just raised their filing
fees again; comp still charges nothing. Costs are
not taxed. Attorneys work on
contingency. We don’t get paid, unless
you do. It can’t get any cheaper, except by using
double coupons. Yet some workers won't bite.
The real
issue in cost is not the cost involved to start the process such as a filing fee but the time to end the process. This is the classic case of the new
client who has two initial questions:
what is the case worth, and how soon can I get my money? Everyone knows which question is most
important. In a comp system where months can turn into years, a lawyer who wants to fully work up
a case is merely a roadblock to that type of claimant who wants a settlement check yesterday.
I don’t like lawyers
There
is the perception that some lawyers, simply, do not add value to the case. Others just look at lawyers like patients think
about recommendations for colonoscopies: it might be a good idea in abstract for some people but
they’d rather just not go there.
The “litigant” personality
The
need to identify who litigates is important to redistribute resources to cases
that require more attention. The truth is most cases don't end in litigation. The other truth is most injured workers get better and don't litigate unlike the many medical journals of comp patients who over-utilize medical resources. The other more challenging issue is if claimants fairly represent the broader population of all injured workers. To this
extent, there maybe certain “red flags” important to attorneys trying to identify such people early in the process:
1.
Financial
distress from injuries.
2.
Perceptions of unequal bargaining power.
3.
Perceptions of being treated unfairly.
4.
Desire to pursue some abstract justice (“it’s
not about the money”)
5.
It really is about the money.
6.
Prior experience with the litigation system
7.
Influence of relatives/peers/coworkers to
'lawyer-up.'
8.
Television commercials always direct their major life
decisions.
9.
Distrust in doctors who didn’t make
them perfect.
10.
See
DSM-5.
The pro se comp worker is not per se incapable of competent self-representation. One could argue the risk of bad decisions in comp is less of a life risk that pro se litigants in criminal law or divorce law. Many workers are satisfied with settlements and their ability to advocate their positions. The
danger is when the pro se claimant
encounters something more difficult, and doesn't see it coming.
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