The cost of remarriage is getting a lot of attention in Missouri comp lately.
In the normal course of events, a surviving spouse who decides to remarry loses ongoing benefits but can receive a lump sum. That's section 287.240, for those keeping score.
The court of appeals recently decided how much remarriage costs a surviving spouse. It concluded that statute actually involved two different types of benefits for remarriage and survivor benefits, and decided the surviving spouse could receive the higher rate as a two-year survivor benefit because it found different methods of calculating compensation rate for each type of benefit. Ash v Millennium Restoration and Construction, SD 32381 (Mo.. App. August 27, 2013); 2013 Mo App. Lexis 1005,
In a new 2-1 Commission case, Shelton v Titan Plastics Group, 2013 MO WCLR Lexis 201 (Oct. 10, 2013), the Commission charts bold territory and decided in cases pending before June 26, 2008 a spouse who remarries doesn't lose any lifetime benefits at all. How can this be? The Commission decides the 287.240 doesn't apply at all the surviving spouses receiving benefits under Schoemehl because benefits paid after a death of a claimant just aren't death benefits.
The commission affirmed PTD benefits against the Fund. The Fund offers no medical evidence to defend its defense against PTD and argues on appeal the Commission should ignore the Supreme Court. The ALJ adopts the disability opinions of claimant's expert. The case arises from a 2003 accident in Butler County when the claimant had orthopedic injuries after he was injured by a forklift truck. He died nearly 9 years later before a hearing and was awarded permanent partial disability benefits against the employer and permanent total disability against the second injury fund.
Here's Schoemehl 101 : "In Schoemehl v Treasurer of State, 217 S.W.3d 900 (Mo. 2007), the Court stated, Section 287.240.4, which applies to the entire workers' compensation chapter, states that "[t]he word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, whole or part, upon his or her wages at the time of the injury." Emphasis added. As such, any "dependent" would have to be born and dependent at the time of the injury. The holding in Schoemehl was subsequently abrogated with the passage of Mo. Rev. Stat. 287.230.2,, which was effective June 26, 2008."
The case is a clear provocation to appeal and force the appellate court to directly address issue raised in White v Univ of Mo., 375 S.W.3d 908 (Mo. App. 2012) suggesting that remarriage divests any entitlement to ongoing benefits. The majority of the Commission suggested that the court of appeals really didn't mean it and it was all dicta.
A dissenting commissioner argued that Schoemehl decision provided a lamentable windfall and that the majority's interpretation to ignore the remarriage penalty was wrong. "If it is proper to use the favorable portions of the "dependent" definition to trigger the substitution of the dependent as the "employee" entitled to permanent total disability benefits, then it is equally proper to use the unfavorable portions of the definition to trigger the point at which the substitution and benefits end."
Shelton is more important as a reflection of trends of Missouri's new commissioner than for its general application as the decision which arguably matters only to workers that have had cases dragging on before June 2008. The fact that this case lingered more than 10 years before reaching any hearing is a clear warning just how many cases may be lurking in the shadows.
ALJ Strange
Atty: Little
Tuesday, October 22, 2013
SIF defense fails based on inconsistent medical history
The Commission affirms an award of permanent total disability against the Second Injury Fund for a 66-year old corrections officer who alleges her right knee popped when she twisted suddenly after she heard a loud noise descending steps. Simon v St. Louis County, 2013 MO WCLR Lexis 202 (Oct 11, 2013).
Claimant asserts the accident tore her meniscus and made her chondromalacia symptomatic.
The Commission rejected defenses of causation and considered the SIF's expert documented an incomplete medical history which did not fully describe a twisting episode. The defense was "undermined by his [Dr. Nogalski's] failure (for whatever reason) to obtain and/or to record an accurate history of injury." Claimant had treatment involving the leg knee and prior right leg issues related to a heart condition. The SIF did not dispute the occurrence of an accident. The employer settled the case prior to the hearing.
ALJ: Lane
Atty: Kendrick, Hudson
Experts: Volarich, Nogalski
Claimant asserts the accident tore her meniscus and made her chondromalacia symptomatic.
The Commission rejected defenses of causation and considered the SIF's expert documented an incomplete medical history which did not fully describe a twisting episode. The defense was "undermined by his [Dr. Nogalski's] failure (for whatever reason) to obtain and/or to record an accurate history of injury." Claimant had treatment involving the leg knee and prior right leg issues related to a heart condition. The SIF did not dispute the occurrence of an accident. The employer settled the case prior to the hearing.
ALJ: Lane
Atty: Kendrick, Hudson
Experts: Volarich, Nogalski
Wednesday, October 9, 2013
SIF recovery fizzles from accident during a failed attempt to return to work
The typical SIF case involves recoveries where a pre-existing permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability. 227.220.1 What if the claimant is not "really" working in the open labor market at the time of the primary injury and he doesn't have a prior permanent partial disability but a prior permanent total disability? Hembree v Jerry Bennett Masonry, 2013 MO WCLR Lexis 199 (October, 3, 2013) deals just with that problem. One can be working full-time but still deemed unable to work for purposes of being totally disabled under the Missouri comp statute.
In this case Mr. Hembree, a former bricklayer, went back to work after a major 2006 accident as a tuck pointer and as a clean up man. He went back in work in January 2007 and continued until October 2008 about the time he developed a cyst on his non-dominant left hand. Contrary to claimant's own position, the commission finds for 1 1/2 years he engaged in a failed return to work and he really wasn't working after all in the open labor market. Since claimant was already totally disabled at the time of his October 2008 claim he couldn't access the second injury fund because he didn't have prior partial disability. As a result, the Commission reversed an award of life-time benefits to the 61-year old claimant against the fund.
Claimant's experts revised their opinions to support a claim that the 2008 un-operated ganglion cyst combined with prior conditions to render claimant totally disabled, even though their earlier opinions attributed total disability to an 2006 accident. Claimant had settled with the employer for both the 2006 and 2008 accidents. What is unclear from the opinion is whether or not claimant had a second injury fund recovery also in the 2006 accident based on allegations of total disability. That would make the decision of the Commission even clearer if claimant had already had one bite at the SIF apple.
The court of appeals affirmed the decision on July 2, 2014 MO Lexis App. 747,and rejected the assertion that the denial cannot be based on a credibility determination when the claimant offers a vocational expert and the SIF offers no expert. "the SIF was under no obligation to produce any evidence whatsoever regarding Claimant's workers' compensation claim, including any vocational expert testimony. Claimant cites us to no relevant legal authority holding otherwise." The commission was free to disbelieve "self-serving testimony regarding the type and intensity of his employment following the 2006 Injury."
ALJ Wilson
Experts: Koprivica, Lala
Other working total cases:
In Scott v Treasurer of the State of Missouri, No. WD 76602 (Jan 14, 2014), 2014 MO App. Lexis 32, the Commission denied benefits for a claim against the second injury fund on the defense that claimant was already a "working" total and not really working when he was hurt at work so he failed to prove his liability against the Fund from a combination of primary and prior impairments. The proof of PTD is that in the ordinary course of business, no employer reasonably would be expected to hire the injured worker, given his present physical condition. The court reversed the denial of Fund benefits.
Claimant operated heavy equipment and performed excavation and incorporated his business. His brother, "wives" or other employees handled the paperwork. Claimant stopped working in 2009 after a shoulder injury, after having sustained multiple previous injuries. The court found that the Commission mischaracterized the record that claimant resumed only limited duties following a 2001 accident when he had broader activities of lifting, loading, and vehicle maintenance duties and that he would operate pieces of heavy equipment for as much as eight to twelve hours a day and the finding that claimant was told to stop working was not supported by evidence that claimant may have been to stop working so fast. The court also noted that vocational testimony that claimant could not find work in the open labor market because of a need to change posture every 1-2 hours based its restrictions on limitations which arose after the primary injury.
The Scott decision is simple, in some respects. The Commission didn't make findings consistent with the record. Try again.
Claimant needs to prove for Fund liability prior hindrances or obstacles to his employment but not conditions that were so disabling that there was no combination with the primary injury. Claimant introduced evidence of various prior conditions. The vocational expert indicated that claimant
is highly-accommodated and can't be considered really working because no reasonable employer would accommodate him as much as when he acts as his own boss. The court essentially noted that claimant is performing duties typical of his profession and hours typical of his profession and that self-accommodation arose after the last accident.
The better test to determine whether claimant is "really" working needs to depart from the fiction of what a "reasonable" employer would do and return to reality, as the court did in this case, to look at claimant's capacity to perform jobs and the type of schedule claimant worked. There are 21 million self-employed businesses in this country and more than 237,000 micro business in Missouri with fewer than 10 employees. A smaller business or self-employment by its nature may provide greater freedom and accommodation which might not be available in a bigger business. The fact that there may be accommodation available in this setting misapplies the statute. The suggestion by vocational testimony in so many cases that running a small business is not really working in the open labor market may be to a shock to hard-working small business owners in Missouri.
In Scott v Scott Excavating, 2014 MO WCLR Lexis 73 (June 10, 2014) the Commission found PPD benefits from the second injury fund and that the primary accident combined synergistically with prior conditions, contrary to the opinion of the ALJ that claimant was not employed in the open labor market because he accommodated his performance through self-employment.
A claimant who is working but not "really" working cannot have a new claim of disability if he is already disabled, according to a recent Missouri decision. Archer v City of Cameron, 2014 Mo WCLR Lexis 15, and 2014 Mo WCLR Lexis 16 (Jan 30, 2014).
Archer hurt his back on two occasions while working for City of Cameron. In 2008 he was driving a skid loader, struck a manhole, and he hurt his spine. He returned to work with 25-50 pound restrictions for another 2 years performing labor with the help of co-workers. Claimant worked until 2010 when he had another accident to his back bending over and was placed on 5 pound lifting restrictions while treating for an acute strain.
The ALJ concluded claimant reported increased symptoms after 2010 so he had a new 7 1/2% permanent disability contrary to medical opinions. The ALJ awarded partial disability in the 2008 and 2010 accidents against the employer and total disability against the second injury fund from the 2010 accident.
The Commission reversed the award of liability in the 2010 case against the employer and the second injury fund. It relied upon medical opinion that claimant was totally disabled as a result of the 2008 accident and shifts liability for a total from the financially challenged second injury fund to the employer. It found that the ALJ erred finding claimant employable in the open labor market in 2010 contrary to medical opinions that the 2008 accident rendered him totally disabled because claimant had gone back to work for 2 years. The Commission concluded "We find that during employee's return to work, employee was not performing the usual duties of his employment in the manner that such duties are customarily performed by the average person engaged in such work. Consequently, employee's return to work did not constitute proof that employee could compete for work in the open labor market." The Commission concludes that the degree of claimant's accommodation (taking breaks, obtaining help, missing days) would not be available to any other applicant in the open labor market in an arms length transaction.
The Commission reached a similar conclusion in Ives v Triple Crown Services, 102 Mo WCLR Lexis 26 (December 28, 2012) found a claimant who returned to work for 6 years wasn't really working and disregarded opinions of the ALJ that claimant worked in the open labor market.
This case demonstrates a stronger exercise of the de novo powers by the Commission. Whether claimant is working or not "really" working based on the level of accommodation is a critical issue. The party facing a claim of total disability ignores this issue at its peril. The case demonstrates the easy burden to show a return to work is a 'failed' return to work even in an economy where most people don't remain employed by the same business for life. Employers who bring an injured worker back to work may received benefits of their experience but the benefit of returning an injured worker as a shield to a PTD claim may be a very weak one with the current Commission.
ALJ Mieners
Atty: Stracke, Kupin, Wiles
Experts: Stuckmeyer, Wheeler, Dreiling, England
Treater: Middleton
**
A claimant who is working but is highly accommodated is still "working" based in part on her ability to maintain a full-time schedule. In Breese v SBC, 2014 MO App. Lexis 19 (Feb. 14, 2014) the Commission rejected a SIF defense that claimant was already a working total before her bilateral carpal tunnel. Claimant performed data entry but had impaired mobility, she required the use of a scooter, a handicap-equipped van, and required accommodation from co-workers who would file papers, fax items and provide other assistance. Vocational experts provided conflicting testimony whether claimant's high level of accommodation prior the carpal tunnel condition allowed her to compete in the open labor market. The ALJ found significant that claimant maintained a full-time schedule before the accident. Claimant's hand weakness after the accident required more assistance to help unloading her scooter. The ALJ rejected the SIF defense of post-accident worsening based on lack of any medical evidence to support the position.
ALJ Carlisle
Atty: Moreland
Experts: Musich, Wiemholt, England
**
In a new case, the commission had to decide whether running for local office was equivalent to working in the open labor market when it involved "door to door campaigning, attending parades, attending picnics, attending rallies, putting up a booth and walking and handing out literature. [and at]picnics he walked around and talked to everyone he could." Robertson v D&S Enterprises, 2014 Mo WCLR Lexis 14 (Jan 23, 2014).
The Commission concluded that campaigning was not evidence that claimant was employable. The commission agreed that 67 year old claimant was entitled to permanent partial SIF benefits based in part on multiple prior comp settlements but he failed to establish that his current state of disablement flowed from a combination of a primary 2000 accident and pre-existing conditions. The Commission concluded any PTD claim against the fund was undermined in part due to post-accident worsening of various conditions during the 12 years the case was pending between accident and the hearing.
A dissent would have awarded total benefits to the claimant and indicated there was insufficient medical evidence to establish post-accident worsening.
The ALJ noted claimant's political activities running for County Commissioner 4 years after his accident were inconsistent with his level of reported symptoms. He found his medical experts less persuasive based on exams performed about five years after the accident.
ALJ Robbins
Atty: Morgan, Lintner
**
The Commission rejected the SIF defense that claimant was a "working total" and it had no liability. Stewart v Subway, 2013 Mo WCLR Lexis 89 (June 14, 2013).
The claimant had sporadic employment for 12 years leading up to her 2009 accident. She had worked only 29 months out of 144 months and was on social security. She made sandwiches for about 20 hours a week. She fell in February 2009 on some water, had surgery for a SLAP tear, and was released without restrictions. The ALJ concluded claimant sustained 20% new disability and concluded she was employed in the open labor market at the time of her accident, even though she was working part-time. Essentially she found her previous jobs were "real" and not "make-work" positions, noting they were real jobs defined by the DOT.
The Commission found the Second Injury Fund was available to people who had seriously limiting chronic conditions who worked part-time. The dissent argued that if claimant would be PTD with the same limitations after an accident, the same limitations should disqualify her from accessing the Fund even though claimant may have been tenacious or fortuitous enough to "eke out" a job on occasion.
The court of appeals affirmed, 2014 MO App Lexis 17 (Feb. 10, 2014). It deferred to the Commission and noted reasonable minds could differ whether claimant was totally disabled before the last accident. The issue was whether claimant could compete in the open labor market and claimant had competed to obtain jobs (answering job ads, filling applications) and maintained employment (part-time) despite substantial work absences from chronic serious medical conditions.
ALJ Mahon
Atty: Alberhasty
In Kist v Mo Lime Co., 2013 Mo WCLR Lexis 225 (December 12, 2013) the Commission essentially concluded that claimant was a working total and affirmed a denial of benefits against the second injury fund for a 2000 accident when it already concluded claimant was already totally disabled from a 1999 accident. Claimant had prior back discomfort that required pain management and changes in his job activities leading up to a 1999 accident when his vehicle hit a rock and he reinjured his back and then underwent additional spinal surgeries which failed to resolve intractable pain. The second injury fund's own expert concluded claimant was unemployable in the open labor market. Claimant had returned to work only briefly leading up to a 2000 accident when his expert alleged "shaking" ultimately caused the need for a disputed cervical fusion.
ALJ Robbins
Atty: Moreland
Treaters: Mirkin, Weatherington
Experts: Musich, Bernardi, Robson
In this case Mr. Hembree, a former bricklayer, went back to work after a major 2006 accident as a tuck pointer and as a clean up man. He went back in work in January 2007 and continued until October 2008 about the time he developed a cyst on his non-dominant left hand. Contrary to claimant's own position, the commission finds for 1 1/2 years he engaged in a failed return to work and he really wasn't working after all in the open labor market. Since claimant was already totally disabled at the time of his October 2008 claim he couldn't access the second injury fund because he didn't have prior partial disability. As a result, the Commission reversed an award of life-time benefits to the 61-year old claimant against the fund.
Claimant's experts revised their opinions to support a claim that the 2008 un-operated ganglion cyst combined with prior conditions to render claimant totally disabled, even though their earlier opinions attributed total disability to an 2006 accident. Claimant had settled with the employer for both the 2006 and 2008 accidents. What is unclear from the opinion is whether or not claimant had a second injury fund recovery also in the 2006 accident based on allegations of total disability. That would make the decision of the Commission even clearer if claimant had already had one bite at the SIF apple.
The court of appeals affirmed the decision on July 2, 2014 MO Lexis App. 747,and rejected the assertion that the denial cannot be based on a credibility determination when the claimant offers a vocational expert and the SIF offers no expert. "the SIF was under no obligation to produce any evidence whatsoever regarding Claimant's workers' compensation claim, including any vocational expert testimony. Claimant cites us to no relevant legal authority holding otherwise." The commission was free to disbelieve "self-serving testimony regarding the type and intensity of his employment following the 2006 Injury."
ALJ Wilson
Experts: Koprivica, Lala
Other working total cases:
In Scott v Treasurer of the State of Missouri, No. WD 76602 (Jan 14, 2014), 2014 MO App. Lexis 32, the Commission denied benefits for a claim against the second injury fund on the defense that claimant was already a "working" total and not really working when he was hurt at work so he failed to prove his liability against the Fund from a combination of primary and prior impairments. The proof of PTD is that in the ordinary course of business, no employer reasonably would be expected to hire the injured worker, given his present physical condition. The court reversed the denial of Fund benefits.
Claimant operated heavy equipment and performed excavation and incorporated his business. His brother, "wives" or other employees handled the paperwork. Claimant stopped working in 2009 after a shoulder injury, after having sustained multiple previous injuries. The court found that the Commission mischaracterized the record that claimant resumed only limited duties following a 2001 accident when he had broader activities of lifting, loading, and vehicle maintenance duties and that he would operate pieces of heavy equipment for as much as eight to twelve hours a day and the finding that claimant was told to stop working was not supported by evidence that claimant may have been to stop working so fast. The court also noted that vocational testimony that claimant could not find work in the open labor market because of a need to change posture every 1-2 hours based its restrictions on limitations which arose after the primary injury.
The Scott decision is simple, in some respects. The Commission didn't make findings consistent with the record. Try again.
Claimant needs to prove for Fund liability prior hindrances or obstacles to his employment but not conditions that were so disabling that there was no combination with the primary injury. Claimant introduced evidence of various prior conditions. The vocational expert indicated that claimant
is highly-accommodated and can't be considered really working because no reasonable employer would accommodate him as much as when he acts as his own boss. The court essentially noted that claimant is performing duties typical of his profession and hours typical of his profession and that self-accommodation arose after the last accident.
The better test to determine whether claimant is "really" working needs to depart from the fiction of what a "reasonable" employer would do and return to reality, as the court did in this case, to look at claimant's capacity to perform jobs and the type of schedule claimant worked. There are 21 million self-employed businesses in this country and more than 237,000 micro business in Missouri with fewer than 10 employees. A smaller business or self-employment by its nature may provide greater freedom and accommodation which might not be available in a bigger business. The fact that there may be accommodation available in this setting misapplies the statute. The suggestion by vocational testimony in so many cases that running a small business is not really working in the open labor market may be to a shock to hard-working small business owners in Missouri.
In Scott v Scott Excavating, 2014 MO WCLR Lexis 73 (June 10, 2014) the Commission found PPD benefits from the second injury fund and that the primary accident combined synergistically with prior conditions, contrary to the opinion of the ALJ that claimant was not employed in the open labor market because he accommodated his performance through self-employment.
A claimant who is working but not "really" working cannot have a new claim of disability if he is already disabled, according to a recent Missouri decision. Archer v City of Cameron, 2014 Mo WCLR Lexis 15, and 2014 Mo WCLR Lexis 16 (Jan 30, 2014).
Archer hurt his back on two occasions while working for City of Cameron. In 2008 he was driving a skid loader, struck a manhole, and he hurt his spine. He returned to work with 25-50 pound restrictions for another 2 years performing labor with the help of co-workers. Claimant worked until 2010 when he had another accident to his back bending over and was placed on 5 pound lifting restrictions while treating for an acute strain.
The ALJ concluded claimant reported increased symptoms after 2010 so he had a new 7 1/2% permanent disability contrary to medical opinions. The ALJ awarded partial disability in the 2008 and 2010 accidents against the employer and total disability against the second injury fund from the 2010 accident.
The Commission reversed the award of liability in the 2010 case against the employer and the second injury fund. It relied upon medical opinion that claimant was totally disabled as a result of the 2008 accident and shifts liability for a total from the financially challenged second injury fund to the employer. It found that the ALJ erred finding claimant employable in the open labor market in 2010 contrary to medical opinions that the 2008 accident rendered him totally disabled because claimant had gone back to work for 2 years. The Commission concluded "We find that during employee's return to work, employee was not performing the usual duties of his employment in the manner that such duties are customarily performed by the average person engaged in such work. Consequently, employee's return to work did not constitute proof that employee could compete for work in the open labor market." The Commission concludes that the degree of claimant's accommodation (taking breaks, obtaining help, missing days) would not be available to any other applicant in the open labor market in an arms length transaction.
The Commission reached a similar conclusion in Ives v Triple Crown Services, 102 Mo WCLR Lexis 26 (December 28, 2012) found a claimant who returned to work for 6 years wasn't really working and disregarded opinions of the ALJ that claimant worked in the open labor market.
This case demonstrates a stronger exercise of the de novo powers by the Commission. Whether claimant is working or not "really" working based on the level of accommodation is a critical issue. The party facing a claim of total disability ignores this issue at its peril. The case demonstrates the easy burden to show a return to work is a 'failed' return to work even in an economy where most people don't remain employed by the same business for life. Employers who bring an injured worker back to work may received benefits of their experience but the benefit of returning an injured worker as a shield to a PTD claim may be a very weak one with the current Commission.
ALJ Mieners
Atty: Stracke, Kupin, Wiles
Experts: Stuckmeyer, Wheeler, Dreiling, England
Treater: Middleton
**
A claimant who is working but is highly accommodated is still "working" based in part on her ability to maintain a full-time schedule. In Breese v SBC, 2014 MO App. Lexis 19 (Feb. 14, 2014) the Commission rejected a SIF defense that claimant was already a working total before her bilateral carpal tunnel. Claimant performed data entry but had impaired mobility, she required the use of a scooter, a handicap-equipped van, and required accommodation from co-workers who would file papers, fax items and provide other assistance. Vocational experts provided conflicting testimony whether claimant's high level of accommodation prior the carpal tunnel condition allowed her to compete in the open labor market. The ALJ found significant that claimant maintained a full-time schedule before the accident. Claimant's hand weakness after the accident required more assistance to help unloading her scooter. The ALJ rejected the SIF defense of post-accident worsening based on lack of any medical evidence to support the position.
ALJ Carlisle
Atty: Moreland
Experts: Musich, Wiemholt, England
**
In a new case, the commission had to decide whether running for local office was equivalent to working in the open labor market when it involved "door to door campaigning, attending parades, attending picnics, attending rallies, putting up a booth and walking and handing out literature. [and at]picnics he walked around and talked to everyone he could." Robertson v D&S Enterprises, 2014 Mo WCLR Lexis 14 (Jan 23, 2014).
The Commission concluded that campaigning was not evidence that claimant was employable. The commission agreed that 67 year old claimant was entitled to permanent partial SIF benefits based in part on multiple prior comp settlements but he failed to establish that his current state of disablement flowed from a combination of a primary 2000 accident and pre-existing conditions. The Commission concluded any PTD claim against the fund was undermined in part due to post-accident worsening of various conditions during the 12 years the case was pending between accident and the hearing.
A dissent would have awarded total benefits to the claimant and indicated there was insufficient medical evidence to establish post-accident worsening.
The ALJ noted claimant's political activities running for County Commissioner 4 years after his accident were inconsistent with his level of reported symptoms. He found his medical experts less persuasive based on exams performed about five years after the accident.
ALJ Robbins
Atty: Morgan, Lintner
**
The Commission rejected the SIF defense that claimant was a "working total" and it had no liability. Stewart v Subway, 2013 Mo WCLR Lexis 89 (June 14, 2013).
The claimant had sporadic employment for 12 years leading up to her 2009 accident. She had worked only 29 months out of 144 months and was on social security. She made sandwiches for about 20 hours a week. She fell in February 2009 on some water, had surgery for a SLAP tear, and was released without restrictions. The ALJ concluded claimant sustained 20% new disability and concluded she was employed in the open labor market at the time of her accident, even though she was working part-time. Essentially she found her previous jobs were "real" and not "make-work" positions, noting they were real jobs defined by the DOT.
The Commission found the Second Injury Fund was available to people who had seriously limiting chronic conditions who worked part-time. The dissent argued that if claimant would be PTD with the same limitations after an accident, the same limitations should disqualify her from accessing the Fund even though claimant may have been tenacious or fortuitous enough to "eke out" a job on occasion.
The court of appeals affirmed, 2014 MO App Lexis 17 (Feb. 10, 2014). It deferred to the Commission and noted reasonable minds could differ whether claimant was totally disabled before the last accident. The issue was whether claimant could compete in the open labor market and claimant had competed to obtain jobs (answering job ads, filling applications) and maintained employment (part-time) despite substantial work absences from chronic serious medical conditions.
ALJ Mahon
Atty: Alberhasty
In Kist v Mo Lime Co., 2013 Mo WCLR Lexis 225 (December 12, 2013) the Commission essentially concluded that claimant was a working total and affirmed a denial of benefits against the second injury fund for a 2000 accident when it already concluded claimant was already totally disabled from a 1999 accident. Claimant had prior back discomfort that required pain management and changes in his job activities leading up to a 1999 accident when his vehicle hit a rock and he reinjured his back and then underwent additional spinal surgeries which failed to resolve intractable pain. The second injury fund's own expert concluded claimant was unemployable in the open labor market. Claimant had returned to work only briefly leading up to a 2000 accident when his expert alleged "shaking" ultimately caused the need for a disputed cervical fusion.
ALJ Robbins
Atty: Moreland
Treaters: Mirkin, Weatherington
Experts: Musich, Bernardi, Robson
Wednesday, September 25, 2013
Feds block comp attys from seeing medicare data on-line
The Center for Medicare and Medicaid Services has issued new interim rules and provided a period for comment. Federal Register 78-183 (Sept. 20, 2013).
The SMART Act provided a web portal to access conditional payment amounts asserted by Medicare. Finding out the amount of conditional payments and weeding unrelated medical claims has always been a wrench in the works of trying to efficiency resolve state comp claims. Now people can go on one line and see what is being claimed. That is, of course, unless the person is an attorney. Under current regulations, attorneys who represent workers or employers must pre-register but can't access parts of the information because it violates federal rules of privacy. (FISMA). CMS in the proposed rules plans to get on that and fix the problem once they "develop a solution" and is sure they'll have something rolled out in January 2016, 3 years after the SMART Act provided access to make the process internet friendly and easy for everyone. CMS proposes to "develop a solution" a new identify verification for attorneys because apparently attorneys need to be measured twice and cut once.
Medicare wants plenty of time to let everyone know what it claims as conditional payments and now recommends 6 months in advance notice for anyone planning to settle a case. Don't even think about settling it on the courthouse steps. The new proposed rule allows various extensions including new enumerated reasons why Medicare should take longer just in case there is terrorism, riots or fire beyond the "ordinary" control of government. This avoids letters from angry citizens wondering why Big Gov is not doing its job when there are riots in the streets. An attorney disputing any claim for unrelated items can do it "once and only once." There is no administrative or judicial review of the claims dispute process.
Attorneys can get a pro rata reduction in accordance with 42 CFR 411.37 but indicates that new demand letters must obtained if the parties wait more than 30 days to report a settlement. CMS is still trying to figure out how parties can actually report it on line and are working on that too. Cases involving toxic exposure and joint replacement require additional reporting.
Parties who wish to comment are instructed how to do so electronically, by mail, by overnight mail, or by hand. Federal regulations prevent someone from delivering it by hand because access to the building is restricted. The irony of such a statement is probably lost to CMS.
The SMART Act provided a web portal to access conditional payment amounts asserted by Medicare. Finding out the amount of conditional payments and weeding unrelated medical claims has always been a wrench in the works of trying to efficiency resolve state comp claims. Now people can go on one line and see what is being claimed. That is, of course, unless the person is an attorney. Under current regulations, attorneys who represent workers or employers must pre-register but can't access parts of the information because it violates federal rules of privacy. (FISMA). CMS in the proposed rules plans to get on that and fix the problem once they "develop a solution" and is sure they'll have something rolled out in January 2016, 3 years after the SMART Act provided access to make the process internet friendly and easy for everyone. CMS proposes to "develop a solution" a new identify verification for attorneys because apparently attorneys need to be measured twice and cut once.
Medicare wants plenty of time to let everyone know what it claims as conditional payments and now recommends 6 months in advance notice for anyone planning to settle a case. Don't even think about settling it on the courthouse steps. The new proposed rule allows various extensions including new enumerated reasons why Medicare should take longer just in case there is terrorism, riots or fire beyond the "ordinary" control of government. This avoids letters from angry citizens wondering why Big Gov is not doing its job when there are riots in the streets. An attorney disputing any claim for unrelated items can do it "once and only once." There is no administrative or judicial review of the claims dispute process.
Attorneys can get a pro rata reduction in accordance with 42 CFR 411.37 but indicates that new demand letters must obtained if the parties wait more than 30 days to report a settlement. CMS is still trying to figure out how parties can actually report it on line and are working on that too. Cases involving toxic exposure and joint replacement require additional reporting.
Parties who wish to comment are instructed how to do so electronically, by mail, by overnight mail, or by hand. Federal regulations prevent someone from delivering it by hand because access to the building is restricted. The irony of such a statement is probably lost to CMS.
Wednesday, September 11, 2013
Young woman who won't quit smoking awarded permanent total
The injured worker hurt her back lifting some books, had back surgery and asserts she was unable to work due to nonunion and intractable back pain. The issue in the case was whether the employer owed for life-time benefits when her addiction to smoking prevented her from having another back surgery to improve her condition. Miller v Andersen Merchandisers, 2013 MO WCLR Lexis 163 (August 30, 2013).
An employer does not owe for compensation if it can prove the employee unreasonably refused treatment. Section 287.140.5 provides:
The ALJ further noted that the employer technically had not "offered" surgery, because the two surgeons declined to offer it in claimant's current state of nicotine addiction. The employer in the case stipulated claimant was permanently and totally disabled and stipulated to open medical. Both of claimant's medical experts concluded she was not at maximum medical improvement.
A dissent argued that claimant's smoking may have been a contributing factor to non-union in the first place and found claimant was not entitled to total disability because she would not quit smoking. The Commission affirmed the ALJ opinion without comment. The ALJ noted the statute essentially created bad public policy to reward someone for bad lifestyle choices but deferred to the legislature to address that issue.
The court of appeals has previously found that a claimant who failed to make lifestyle changes such as losing weight or quit smoking was an unreasonable refusal to deny benefits under 287.140. Sutton v Vee Jay Cement Contracting, 37 S.W.3d 803 (Mo. App. 2000), Kern v General Installation, 740 S.W.3d 691 (Mo. App. 1987). This was not an issue in Miller as the employer stipulated to open medical and claimant demonstrated both a need for surgical treatment and non-surgical pain management with narcotics.
The case is important in several respects.
The employer stipulated it owes for future medical but didn't owe for total disability because claimant did not succeed in smoke cessation programs. The Commission appears to construe 287.140.5 that if the worker makes a good faith effort (as in this case with use of hypnosis, nicotine patches, and participating in the smoke cessation program etc.) the refusal is not unreasonable. Claimant stated she wanted to have the surgery. Arguably, the result could have been the same even if claimant stated she didn't want the surgery and elected to treat conservatively based on testimony that nearly a third of re-do surgeries fail even in optimal circumstances of a non-smoking patient.
The only issue in Miller was whether the employer owed for total or for partial disability. The Second Injury Fund was not a party and typically has liability in cases in which a prior disability combines with a current injury to render a worker unemployable.
ALJ Ruth
Atty: Moreland, Shelledy
Experts: Musich, Woiteshek, Polinsky, Weimholt
An employer does not owe for compensation if it can prove the employee unreasonably refused treatment. Section 287.140.5 provides:
No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued, or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division nor the commission, inconsiderable in view of the seriousness of the injury.The ALJ concluded the employer failed in its burden to show the claimant's inability to stop smoking was "unreasonable" based on testimony that she had smoked for over a decade and was unable to stop and had attempted nicotine patch, hypnosis and participated in a smoke cessation programs offered by the employer.
The ALJ further noted that the employer technically had not "offered" surgery, because the two surgeons declined to offer it in claimant's current state of nicotine addiction. The employer in the case stipulated claimant was permanently and totally disabled and stipulated to open medical. Both of claimant's medical experts concluded she was not at maximum medical improvement.
A dissent argued that claimant's smoking may have been a contributing factor to non-union in the first place and found claimant was not entitled to total disability because she would not quit smoking. The Commission affirmed the ALJ opinion without comment. The ALJ noted the statute essentially created bad public policy to reward someone for bad lifestyle choices but deferred to the legislature to address that issue.
The court of appeals has previously found that a claimant who failed to make lifestyle changes such as losing weight or quit smoking was an unreasonable refusal to deny benefits under 287.140. Sutton v Vee Jay Cement Contracting, 37 S.W.3d 803 (Mo. App. 2000), Kern v General Installation, 740 S.W.3d 691 (Mo. App. 1987). This was not an issue in Miller as the employer stipulated to open medical and claimant demonstrated both a need for surgical treatment and non-surgical pain management with narcotics.
The case is important in several respects.
The employer stipulated it owes for future medical but didn't owe for total disability because claimant did not succeed in smoke cessation programs. The Commission appears to construe 287.140.5 that if the worker makes a good faith effort (as in this case with use of hypnosis, nicotine patches, and participating in the smoke cessation program etc.) the refusal is not unreasonable. Claimant stated she wanted to have the surgery. Arguably, the result could have been the same even if claimant stated she didn't want the surgery and elected to treat conservatively based on testimony that nearly a third of re-do surgeries fail even in optimal circumstances of a non-smoking patient.
The only issue in Miller was whether the employer owed for total or for partial disability. The Second Injury Fund was not a party and typically has liability in cases in which a prior disability combines with a current injury to render a worker unemployable.
ALJ Ruth
Atty: Moreland, Shelledy
Experts: Musich, Woiteshek, Polinsky, Weimholt
Wednesday, September 4, 2013
When an employer is gone who directs medical?
Do insurers gain the right to select a medical provider when the employer is no longer in business? In Lyman v Missouri Employer's Mutual Insurance Company, 407 S.W.3d 130 (Mo. App. 2013) 2013 Mo App. Lexis 970 (August 23, 2013), the court of appeals reversed a summary judgment in favor of the employer which found the insurer had the right to direct care. Section 287.140 expressly grants that right to employers.
Claimant obtained a judgment for permanent and total disability with open medical flowing from a 2002 accident when he fell from a ladder. He claimed the carrier was responsible for unauthorized chiropractic treatment because the statute only provided the employer the right to direct care and the employer was no longer in business.
The issue was one of first impression. The court declined to decide it and found summary judgment was inappropriate because the issue was not ripe. The parties agreed that the employer was out of business,. The court noted that members of an LLC can still make some decisions even after dissolution, and summary judgment was inappropriate when there was an unresolved material fact if anyone with the employer was willing or able to make such a decision. The court noted the lack of evidence of articles of termination, even though termination was not a disputed issue.
Missouri is unique among many states as the employer has the right to direct medical care. This case demonstrates a fascinating problem who manages medical decisions when the employer is no longer around. Practitioners trying permanent total cases or drafting settlement contracts with open medical should carefully consider whether to reserve the employer's right to direct medical care, and contingency plans if the employer is no longer around.
J Burrell
Atty: Bowles, Platter
Claimant obtained a judgment for permanent and total disability with open medical flowing from a 2002 accident when he fell from a ladder. He claimed the carrier was responsible for unauthorized chiropractic treatment because the statute only provided the employer the right to direct care and the employer was no longer in business. The issue was one of first impression. The court declined to decide it and found summary judgment was inappropriate because the issue was not ripe. The parties agreed that the employer was out of business,. The court noted that members of an LLC can still make some decisions even after dissolution, and summary judgment was inappropriate when there was an unresolved material fact if anyone with the employer was willing or able to make such a decision. The court noted the lack of evidence of articles of termination, even though termination was not a disputed issue.
Missouri is unique among many states as the employer has the right to direct medical care. This case demonstrates a fascinating problem who manages medical decisions when the employer is no longer around. Practitioners trying permanent total cases or drafting settlement contracts with open medical should carefully consider whether to reserve the employer's right to direct medical care, and contingency plans if the employer is no longer around.
J Burrell
Atty: Bowles, Platter
Employer owes total for failed knee surgery
A claimant who had unresolved knee pain and became depressed recovered permanent total benefits against the employer, according to the court of appeals in Palmentere Bros. Cartage Service, 2013 Mo. App. Lexis 1021 (September 3, 2013).
In this case a 42-year old woman had multiple physical injuries when a tractor trailer went off the road in Kansas. She spent the next 4 years undergoing 3 different knee surgeries, including a partial knee replacement. She states she was unable to tolerate prolonged standing, operate a clutch, and had constant pain. She treated with a psychiatrist and was hospitalized due to severe depression and anxiety disorder. She returned to work for about another 3 years but reached a point where a doctor concluded she was unemployable because of her emotional state.
The Commission affirmed an award against the employer for permanent and total disability benefits because of the combined orthopedic injuries to the neck, back and left leg and her psychiatric condition as she "presents for employment utilizing a cane for ambulation and has a depressed emotional state."
Dr. Jones examined claimant as court-ordered exam pursuant to her companion case for benefits in Kansas. He felt she could work sedentary positions and didn't need any more treatment for the knee.
The Commission found the overwhelming evidence supported the last accident alone caused claimant's total disability, and found less credible evidence from a doctor and a vocational expert that any disability flowed from a combination and not the last accident alone. Interestingly, the Commission felt the ALJ was unduly harsh for criticizing the methodology when the experts "failed" to perform certain testing, lacked corroborating records, and did not even meet with the claimant. This case demonstrates an interesting tension between the court of appeals deferring to findings of credibility and the commission feeling restrained to question or document how experts reached their opinions even when methodology impaired their credibility.
The employer argued that the court had to follow uncontroverted vocational opinion even though this position was contrary to Carkeek v Treasurer of the State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo. App. 2011). The Angus v Second Injury Fund, 393 S.W.3d 294 (Mo. App. 2004) did not eliminate the Commission's discretion to evaluate the extent of disability from the last accident alone.
The court noted the experts who supported liability for the Second Injury Fund were found by the Commission not to be credible, their opinions were not based on any records of a prior condition causing any obstacle or hindrance to employment, and claimant's own testimony denied any significant prior symptoms and described substantial post accident treatment including multiple surgeries and hospitalization for suicide ideation.
J: Hardwick
Atty: Greenwalk, Landham, Lowe, Taylor
Experts: Keenan, Jones, Drieling
Treaters: Robichaux, Arretteig
Commission case
http://www.labor.mo.gov/LIRC/Forms/DownLoadManager.asp?file=X12/WrightWanda.pdf
In this case a 42-year old woman had multiple physical injuries when a tractor trailer went off the road in Kansas. She spent the next 4 years undergoing 3 different knee surgeries, including a partial knee replacement. She states she was unable to tolerate prolonged standing, operate a clutch, and had constant pain. She treated with a psychiatrist and was hospitalized due to severe depression and anxiety disorder. She returned to work for about another 3 years but reached a point where a doctor concluded she was unemployable because of her emotional state.
The Commission affirmed an award against the employer for permanent and total disability benefits because of the combined orthopedic injuries to the neck, back and left leg and her psychiatric condition as she "presents for employment utilizing a cane for ambulation and has a depressed emotional state."
Dr. Jones examined claimant as court-ordered exam pursuant to her companion case for benefits in Kansas. He felt she could work sedentary positions and didn't need any more treatment for the knee.
The Commission found the overwhelming evidence supported the last accident alone caused claimant's total disability, and found less credible evidence from a doctor and a vocational expert that any disability flowed from a combination and not the last accident alone. Interestingly, the Commission felt the ALJ was unduly harsh for criticizing the methodology when the experts "failed" to perform certain testing, lacked corroborating records, and did not even meet with the claimant. This case demonstrates an interesting tension between the court of appeals deferring to findings of credibility and the commission feeling restrained to question or document how experts reached their opinions even when methodology impaired their credibility.
The employer argued that the court had to follow uncontroverted vocational opinion even though this position was contrary to Carkeek v Treasurer of the State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo. App. 2011). The Angus v Second Injury Fund, 393 S.W.3d 294 (Mo. App. 2004) did not eliminate the Commission's discretion to evaluate the extent of disability from the last accident alone.
The court noted the experts who supported liability for the Second Injury Fund were found by the Commission not to be credible, their opinions were not based on any records of a prior condition causing any obstacle or hindrance to employment, and claimant's own testimony denied any significant prior symptoms and described substantial post accident treatment including multiple surgeries and hospitalization for suicide ideation.
J: Hardwick
Atty: Greenwalk, Landham, Lowe, Taylor
Experts: Keenan, Jones, Drieling
Treaters: Robichaux, Arretteig
Commission case
http://www.labor.mo.gov/LIRC/Forms/DownLoadManager.asp?file=X12/WrightWanda.pdf
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