Light up, claimants

The Show Me State is now trying to get into the medical marijuana show.  SB 951 makes it very clear that this is medical and this isn’t just going to go to anyone.  We aren’t a bunch of hippies from the Mile High City. 

This program is  for only “debilitating” medical conditions.    "Debilitating medical condition" means certain delineated diseases like cancer, glaucoma and AIDs. But wait, there’s more.   It also includes other conditions that produce one or more conditions like pain or spasm.  That’s about 99% of every comp claim, but it’s different with medical pot because the doctor has to say the symptoms are “severe.”   Not to leave anyone out  there’s a catchall:  it also includes “any other serious condition” approved by an attending physician. 

An attending physician with a bonafide relationship must make a statement that pot is the best treatment choice at least once a year. 

A patient gets  only an "adequate supply".  Leave it to the legislature to define that term:   4 ounces, 3 mature plants, and 4 immature plants.  This is just like the 3-1-1- rule at the airports.   There is no truth to the “420” rumor that the original proposal allowed 4 ounces, 2 brownies and 0 roach clips. 

 One can see an entire cottage industry making billions of posters. It's like when Jeff City said everyone could lock and load their guns and every business owner put up a sign that said “not here, please.”  Maybe this time the posters could use some black light.   The bill even contemplates that prisons, and schools and public parks could be open for the compassionate use of marijuana as long as it’s done “in designated areas.” Really?    After all, everyone knows that smokin’ ain’t allowed in school.

Missouri is late to the party.  Illinois has  already proposed to cut prices for the first medical marijuana card from $150 to $100, and they’re even giving 50%  discounts to veterans.    This campaign  must involve public service announcements   to aggressively market medical pot just like the floating casinos  did for the public schools.      Maybe Missouri could some drive through daiquiri standards to push the product.  It creates jobs.  It creates revenue.   After all, it’s for the children. 

 In other news a bill has been introduced that jumping jacks will now the official state exercise.    It’s a shame no one can do them anymore because everyone has a "serious" medical condition.   


New Mexico now requires reimbursement for "medical" marijuana.  Vialpando v Ben's Automotive Servs., 2014 N.M. App. Lexis 50, rejected the defense that  employer could not be ordered to violate the federal Controlled Substance Act, 21 U.S.C. 811 even though the state decriminalized use through the state's Compassionate Use Act.   

'Chipping' Employees

The Missouri legislature has once again made the national news.  SB 523 recently  passed 90-56 to bar the use of school districts requiring RFID tags on their students.   This privacy bill  keeps Big Brother outside the dorms.  Anyone who wants to know where students are will have to check Instagram instead.

RFID tags transmit a unique signal to magnetic readers.  They can be implanted as micromodules. There has been some talk that chips as the new dog tags or required biomarker for high security clearance jobs.  They have been used for years with livestock, laboratory animals, and endangered species.  Missouri has drawn its line in the sand:  No chipping freshmen.   

This raises a concern in the battle against fraud in worker's comp whether  employers can require chipping their employees just like some federal employers so everyone is watched.

Missouri has been all over this issue.  In 2008 it passed HB2041 to be right behind privacy fighters in Wisconsin and North Dakota to stop chips in the work place.   Don’t even start talking about chipping our M14 sniper rifles.

285.035. 1. No employer shall require an employee to have personal identification microchip technology implanted into an employee for any reason.

2. For purposes of this section, "personal identification microchip technology" means a subcutaneous or surgically implanted microchip technology device or product that contains or is designed to contain a unique identification number and personal information that can be noninvasively retrieved or transmitted with an external scanning device.

3. Any employer who violates this section is guilty of a class A misdemeanor.

What does this mean to worker’s comp?   The fight against fraud is not going to be fought with chips.  It will be fought with secret microphones and mood rings.   Claimants can be reassured they not have been secretly implanted with invisible chips by IME doctors or being followed by Carrie Masterson.  Just don’t bring up the subject about drones behind “The Cloud.”

Judicial notice and the 'known knowns.'

“A court may take judicial notice of facts generally known and accepted and have been duly authenticated in repositories of fact open to all, and especially so of facts of official, scientific or historical character as the same may be set down and recorded in encyclopedias, dictionaries, and the like to which the court may turn to verify its information or refresh its recollection”.   State of Mo ex rel Hostetter, etal, 104 S.W.2d 671 (Mo. 1937).

In 1937 an entry of encyclopedia made a difference whether or not a claimant could recover from a work injury when lightning struck a building because the court used judicial notice that barns are a “peculiar object of the destructive force of lightening.”    Hostetter, supra.

Any request for judicial notice must be preserved on a timely basis.  Shelton v City of Springfield, 2003 Mo WCLR Lexis 38 (rejecting admission of ordinances which were not newly discovered evidence).

Judicial notice has been used as a tool of statutory interpretation when the legislature fails to define its own terms.    Miller v Mo Highway Transportation Commission, 2008 MO WCLR Lexis 113 (event, traumatic, external, violence);  Peery v Mid Continental Industrial, 2008 MO WCLR Lexis 43 (medical abbreviations);  Rader v Werner Enterprises, 2010 Mo WCL Lexis 161 (own);  Ahern v P & H, 2007 MO WCLR Lexis 177 (idiopathic); Carter v Terminix, 2008 MO WCLR Lexis 146 (automobile), Hammonds v Columbia Mall Car Wash, 2009 Mo WCLR Lexis 168 (shift); Johnson v Town & Country, 2007 Mo WCLR Lexis 232 (hazard).

 The doctrine may arise regarding disputes concerning pleadings and mileage. Judicial notice allows a judge to take “notice” of its own file.  Judicial notice can also resolve mileage disputes.  The Commission has recognized the distance between cities as a matter of judicial notice.  Woods  Brauer Supply, 2004 Mo WCLR Lexis 30.  In Illinois, the Commission found Mapquest sufficiently reliable to invoke judicial notice.   The court noted it calculated its own search to verify mileage claimed and noted only a “negligible” difference in the calculation when the calculation was not part of the record itself.  Shaffer v Contech Construction, 2007 Ill. Wrk. Comp. Lexis 986.

The quest to find the “known knowns” can produce curious results.    Librarians apparently are known to  fall more than the average member of the public,  Keyster v Univ. School District, 2004 Mo WCLR Lexis 173. A claimant who did not have hemoglobin would be “deemed a vampire.”  Collier v A.G. Edwards and Sons, 2004 Mo WCLR Lexis 12.    Clearly, if Collier  had been written in 2014 some clerk at the Commission  would have probably cited Wikipedia.


**

The Commission disclaimed a finding by a judge that breast cancer caused or worsened a worker's depression because the conclusion was based on the judge's own "lay" opinion.  Smith v Dannie Gilder, 2014 MO WCLR Lexis 106 (Aug 26, 2014). 

Court rejects rehashed standing argument

An employer once again attempted to withdraw a settlement proposal for a lump sum of a permanent total award when a claimant with an unrelated  stage 4 cancer died while the contract was awaiting approval.  In its second visit to the court of appeals on this case, the employer once again failed to persuade the court that it could walk away from the deal.  Nance v Maxon Electric, WD 76587 (April 8, 2014), 2014 Mo App. Lexis 400. 

The employer argued the surviving spouse lacked standing to enforce the agreement because the commission had not formally ordered the widow to be substituted as a party after a motion had been filed to substitute parties.  The court noted the same argument was raised  for the first time in oral argument in the first appeal and had also been rejected in post-opinion motions in the first appeal.  The law of the case precluded re-examination of the issue.  The employer failed to preserve its belated argument that claimant was not a "party."  The employer failed to preserve any point to reject the proposed settlement based on the limited criteria of 287.390:   undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement.   The court rejected a request for sanctions against the employer. 

The not so unusual facts of Nance highlight the importance to reflect the intent of the parties how to handle contingencies in the event of unexpected death  when dealing with a party with  a known life-threatening illness.  This case has been in litigation on appeals since claimant died in October 2011 when the settlement for $181,434 was submitted by both parties.   The case flowed from a 1989 accident in which the employer had repeatedly sought approval to reduce to a lump sum.
Maxon I, WD 74942 (Nov. 6, 2012). 

Atty:  Murphy, Reynolds

Do "illegal" workers get Medicare Set Asides?

Let’s just assume for the sake of argument there are some people who work without proper immigration status.   Let’s assume some of those workers sustain injuries.  Can the employer in Missouri refuse to fund a Medicare Set Aside  based on an immigration defense?

Let’s call them the "Undocumented Working Person" (UWP).  The Associated Press last year decreed it is not apropos to use the phrase “illegal immigrants” because people are not illegal and only acts are illegal.   This is not surprising in a world of political correctness.  People who file claims can no longer be called claimants but "injured workers" if they are injured or not.  "Claimant" is too pejorative like someone is  "claiming" something. Don’t even  ask about old legal classifications of “idiots, imbeciles and morons.” 

Let’s take another wild assumption.  Our UWP is already collecting government benefits.  Somehow he is on social security and has a Medicare card because he used a false identity.   “This could never happen!” you object.  Just play along. 

There are 7.3 million American workers whose earnings were reported and did not match their claimed social security numbers.  There is apparently a term of art called an “earnings suspense file.”  Despite policies not to pay benefits to UWPs,   Medicare reports it has paid 29 million from 2009 to 2011 to more than 4000 UWPs who were able to make 279,056 drug claims.    Estimates are Medicare could save $67 million in over five years if the agency properly enforced the 1996 law to deny benefits for those UWP unlawfully present in the United States. 

Missouri provides access to worker’s compensation statutory benefits to employees regardless of immigration status.

Missouri, in fact, no longer requires an injured worker to disclose a  complete social security numbers.   It’s only half the fraud when using four fake numbers than nine, right?

In Missouri the legal issue is whether the “injured worker” is an employee and not a “legal” undocumented working person.   The Missouri Commission addressed this issue and stated the claimant must only show proof of employment under 287.020 and there was no need to prove “legal” employment.  Vega-Rivera v Hyatt Corporation, 2011 Mo WCLR Lexis 149. In the case claimant did not admit she was an “illegal alien” but admitted she crossed the border illegally and was "sorting out"  her status. 

Chapter 287 requires an employer to provide medical care, including future medical in some cases, to people injured at work.  The word “illegal” is not used in the section, so under strict construction the legislature clearly intended to extend benefits to everyone.   This is Missouri, after all, where the state makes it unequivocal that English is the official language and the House makes it clear that no law, even comp law, is going to be governed by Sharia.   If the House intended to put their finger on the dike in comp they certainly know what finger to use.

The answer to MSA obligations is no where in Chapter 287.  The chapter doesn't even define MMI and isn't about to touch MSA.

Medicare’s interests must be considered and the likelihood that some injured workers will be on the Medicare boat if they are not already.   Immigration enforcement is for people at much higher pay grades, like the ones in D.C.  writing checks to dead people.  The employer may not think that is fair, but the word fair is not in chapter 287 either.  One cannot assume a fair result under strict construction when the word fair is not used in the statute. 

The Missouri employer can always leave medical open and designate providers.  As a practical matter if the UWP has the minimalist of contacts in Missouri he may disappear again and it may be an award which is never enforced.   While some employee may disappear, Medicare is the gorilla in the room like an unemployed houseguest that isn’t going anywhere.   

Several risks need to be considered:

Risk #1:  The parties did not consider Medicare’s interests to fund claims of UWPs who may not be entitled to receive benefits under federal law. 

Risk #2:  Medicare in its infinite wisdom will continue to pay people who are not entitled to benefits.

Risk #3:  Medicare will seek reimbursement for conditional payments it should never pay in the first place.

Funding a Medicare Set Aside is one mechanism to shut down future medical.  This is an attractive solution to the open-ended medical award or lump sum settlement for Missouri employers even if the employer is asking Medicare with a wink and a nod to approve a deal with a UWP who may not be entitled to benefits in the first place to close down its statutory liability for future medical.   

Careful drafting might suspend  future obligations if the injured worker becomes disqualified from Medicare benefits, incarcerated, deported, or drag races while intoxicated in Miami while singing "Baby." A settlement agreement to advance future Medicare obligations may also become a classic buyer’s regret for the employer if the UWP is thrown off the Medicare rolls the moment it is approved.    There is no immigration discount to calculate the MSA, such as using a coded age like someone with some horrible terminal illness.   An entitlement to MSA is an entitlement for life.   There is no assumption that after 5 years or 10 years someone at INS, DHS, CMS, or NSA might take someone off the rolls which doesn’t belong.  The employer’s obligations to pay UWP is based on life expectancy, because there is the presumption the government will remain inefficient to enforce its immigration laws and tighten eligibility for government benefits for the reasonable life expectancy of any claimant.   The immigration issue is not a defense in medical liability in Missouri comp.  That, in the classic government excuse, is someone else’s job.

The employer who has lax policies hiring undocumented workers may have a very high price to pay at the end because someone in the government benefits department has been lax about doing their job too.   

 

Sources for statistical information

Dinan, Medicare paid millions to dead patients, illegal immigrants, probe finds, Washington Times  (Oct. 31, 2013).

Harper, Associated Press Bans the phrase ‘illegal immigrant, Washington Times (April 2, 2013)

Pear, Crackdown Proposed to Prevent Illegal Immigrants from Obtaining Medicare, New York Times (March 3 2014)

Solane, Illegal Immigrants Give Billions to Medicare, Social Security with no hope of benefit, Medicare News Group (Jan 7, 2013).

corporate designee depositions

The Commission in a recent case indirectly addressed the issues whether the employer had to disclose witnesses and produce a corporate designee.    Lawrence v New Bloomfield R-3 School District, 2014 Mo WCLR Lexis 22 (Feb. 20, 2014); affirmed without opinion, 2015 MO App. Lexis 25. 

In the case claimant deposed 7 employees who provided unfavorable testimony.  The claimant sought to depose a corporate designee.  The ALJ twice quashed claimant's request for a corporate designee deposition and over-ruled claimant's objection when the employer produced an "undisclosed" witness who further impeached claimant regarding the extent of pre-existing symptoms

 The Commission concludes any error regarding both issues was not prejudicial and ultimately affirmed the holding.  The Commission indicated the ALJ has discretion regarding the scope of discovery, but it did not make unequivocal findings whether it considered there was an abuse of discretion that after 7 depositions enough was enough.  In the case the Commission expresses "concern" about not allowing more discovery and that claimant could have been "potentially" prejudiced because "at minimum, employee should have been given an opportunity prior to hearing to discover employer's  intended witnesses, verify the general nature of their anticipated testimony, and/or obtain copies of recorded statements."  The Commission does not discuss why the goals could not have been achieved in 7 prior depositions and only through a corporate designee deposition under 57.03(b)(4).

Rule 57.03(b)(4) provides "A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

Claimant arguably sought information regarding anyone with knowledge about the claim.   The need for such inquiries under Rule 57.03(b)(4) are probably unnecessary if the Commission allowed discovery  through Rule 57(a) interrogatories.   The ruling from the ALJ potentially could have been more favorable  for the employee if that had been the 1st deposition rather than the 8th.   The simple takeaway of the opinion  is there was no abuse of discretion and the rulings were proper.  The dicta is more ominous that  employers better get ready to be sworn in and get their witness lists prepared sooner than later. 


ALJ Ruth

Appeals court reverses denial of SIF PTD on post-accident worsening defense

A claimant in a 2001 accident established he was totally disabled after a second round with the court of appeals in Abt v Mississippi Lime Co., ED 99779 (Mo. App. 2-18-2014);

The injured worker sustained multiple injuries from a collision between a locomotive and a truck, but  returned to work for about 4 years after his accident until he states worsening symptoms prevented him from gainful employment.  The ALJ found claimant unemployable due to post-accident worsening but awarded partial benefits against the employer and the SIF, and did not adopt the finding's of claimant's expert that claimant was a SIF total due to a combination. 

The court concluded that no party disputed whether claimant was PTD but only the cause of the condition as post-accident worsening or from a SIF combination.   In the original appeal the court remanded the case and found the Commission erred by disregarding Dr. Poetz' opinion that claimant was totally disabled due to a combination and misread the record that Dr. Poetz' opinion was based on an incomplete medical history.   The determination that claimant's disability flowed from post-accident worsening was not supported by substantial evidence because none of the medical experts supported that conclusion.

The opinion distinguishes between the amount of disability and the cause of disability.  Both parties conceded that claimant was totally disabled but the SIF disputed the cause.  The defense of post-accident worsening in this type of case required expert testimony and the Fund failed to introduce such evidence to support its defense in the primary case or on remand.  As no party disputed that claimant was unemployable, the only issue was the cause the disability. 

The Commission later affirmed a finding of PTD, 2014 MO WCLR Lexis 63 (May 7, 2014).