Climbing steps a lot supports knee disability claim

Claimant, 64,  is a former career-employee with bad knees that required bilateral knee replacements.  The Commission affirmed an award of benefits because he used steps a lot at work.  Tarpeo v New World Pasta, 2015 MO WCLR Lexis 4 (Jan 15, 2015).

The parties agreed that claimant used steps daily to perform his job duties as a pasta pressman. The employer's expert, the only knee surgeon to testify in the case,  found the prevailing cause in claimant's condition was degenerative arthritis and weight.   The employer contends the employee over-estimated how many times he used steps and his knees were bad because he was old.

The claimant's father died 40 years earlier. Dr. Rende indicated claimant's father had arthritis.  Dr. Rende  stated his opinion that OA was age related did not change even absent that genetic history.  The ALJ  rejected the genetics defense because claimant denied his father had arthritis.  The ALJ also noted that the employer over-relied on an opinion in the treating records that the condition was not work related and faults the employer for not deposing the treating physician. The physician does not indicate the full basis for his conclusions, and the conclusion disputing causation according to the ALJ could have been "predicated on a desire to have his medical bills paid by Claimant's personal health insurance company, so he could provide the needed treatment to Claimant, since it was not being accepted by the Workers' Compensation insurer."  

Claimant testified he climbed steps several times an hour.  The ALJ found 2880 stairs per week  over 35 years was extensive.  The ALJ based his causation opinion on the conclusions of a non-treating hand surgeon and awarded more than $150,000 including temporary and permanent disability.  

The ALJ found claimant was PTD but not from the last accident alone, and that claimant failed to introduce sufficient medical evidence to show his English deficiency or other prior conditions flowed from permanent medical conditions. 

ALJ Ottenad
Atty:  Hoener, Hendershot, Frazier
Experts:  Schlafly, Rende

Commission affirms credit for missed appointment

The claimant alleges he knew nothing about 3 appointments he missed for  IMEs scheduled over a 5 month period.  The Commission affirmed an award with reductions for $300 in costs for the missed appointments.  The employer ultimately secured medical opinion from a different expert.  Moore v Delmar Gardens, 2014 MO WCLR Lexis 139 (December 9, 2014).

The Commission in a companion case more than doubled the award from the same judge for a claim involving the back injury from lifting a patient.   Claimant had undergone a two level fusion about 3 years after the accident but the employer disputed causation.  The ALJ had relied upon an opinion from a neurosurgeon that the accident had caused a lumbar strain.  The Commission noted claimant's reports of "significant" back pain after the accident.  A therapist appeared questioned the accuracy of the symptoms noting claimant had failed 21 validity indicators. 

ALJ:  Landolt
Atty:  Robbins, Temme
Experts:  Meyers, Kitchens
Treater:  Poulus

Hotel chain may be liable as joint employer when agency underpaid wages

The Supreme Court in a case involving Missouri’s minimum wage law dealt with the issue whether the plaintiff who cleaned hotel rooms worked as an employee for a staffing agency or for the hotel.  Tolentino v Starwood, No. SC 93379 (Aug 19, 2014), 2014 Mo Lexis 201.

Starwood paid Giant Labor Services, a staffing agency, $5.00 to clean each room.  The staffing agency paid its workers $3.50 a room.   Plaintiff cleaned 122 rooms over 2 weeks and received nothing.  The agency’s principals were convicted of labor racketeering when they deducted the balance of plaintiff's wages after paying taxes for an illegal  'visa' fee.    The worker then went after Starwood for his lost wages and restitution of $3150 and sued under the minimum wage law alleging the hotel was liable for basing rate on the volume of rooms cleaned and for illegal visa deductions. 

The hotel argued that the plaintiff was an employee only for the agency, the compensation scheme was reasonable, and the  were not responsible because the agency committed illegal deductions.   The circuit court agreed that the compensation was reasonable and the chain was not responsible for illegal deductions.   The Supreme Court reversed and found summary judgment improper because there remained material facts in dispute. 

The court noted that summary judgment on the factual issue of joint employment is improper and indicates the facts could support a finding that the hotel was a joint employer.  There were material issues in dispute to the extent the hotel controlled the plaintiff and that the hotel maintained control regarding the method of compensation by paying per room rather than hourly.  Plaintiff asserts that the hotel controlled his performance standards because it fired him within two weeks.

The Supreme Court indicated that the minimum wage law imposed an independent duty to pay minimum wage and they were not absolved by paying minimum wage to an agency if the agency failed to pay the wages.  The risk of non-payment falls on the business and not on the worker, according to Justice Tietelman.  Although the hotel was not 'responsible' for illegal deductions if they were a joint employer they were responsible that plaintiff received at least was a minimum wage which in the end produced the same result.

Several issues are important.

The hotel now has potential liability if it is found to be a joint employer for the company it keeps if its staffing agency underpays workers.  This case is not just a contract claim about 2 weeks of wages but a class action.     The only deep pocket left is the hotel itself. The claim involves practices from 8 years ago.  Like many class actions, this fight may be  more about attorney's fees than anything else.

The minimum wage law requires workers to earn at least minimum wage and that any entity that controls employment activity could not delegate that responsibility.

There may be more to this story.   Starwood  in January 2008 began cooperating with federal officials in an investigation of the agency for human trafficking and continued to work with the federal agency for another two years.  The plaintiff worked at the hotel in April 2008 for only two weeks.  The hotel knew it was dealing with an agency under investigation  before plaintiff ever cleaned a room at their facility.    Starwood has an astute control of its national brand image.  It is not clear why Starwood did not  abandon its relationship with the agency in January 2008 once it became aware of the investigation for practices if proven true would damage their image or why it was still working with the agency in April 2008 when the plaintiff first reported to clean rooms.  This case could the product of paying the price of staying with a questionable vendor.   There is another possibility too.   Maybe the feds encouraged Starwood  to continue the relationship while the feds sorted things out. 
 

Court ditches "actual and measurable" defense for Fund PTD

The second injury fund appealed a finding of permanent and total disability and asserted that claimant failed to establish an actual and measurable pre-existing disability at the time of the primary injury because the prior conditions were still receiving treatment and had not reached any maximum medical improvement.  The court of appeals affirmed the award.  Lewis v Treasurer of the State of Mo, 2014 Mo App. Lexis 730 (June 30, 2014).

Any award of second injury fund liability requires different proof for permanent partial and permanent total according to the Court.   In the context of a permanent total award, the court concluded claimant must only show that there is a prior condition that is an obstacle or hindrance to employment.  There is no requirement that it reaches a statutory threshold or is measurable. Section 287.220.1 provides: "If all of Claimant's disability is from the work injury, then there is no Fund liability. However, if there is any percentage of Claimant's disability that is not attributable to the work injury, then the Fund becomes liable for the difference."  The requirement to show actual and measurable disability enunciated in Messex v Sachs Electric Co., 989 S.W.2d 206 (Mo. App. 1999)  applies only in the context of permanent partial awards.  The claimant does not require proof a specific percentage of disability, but in this case such ratings supported the finding of a measurable disability.  Claimant testified  that the employer downgraded his position after 31 years demonstrated his ability to maintain the same production requirements.   Claimant testified that he was unable to meet the job requirements or find alternate work. 

The court describes several decisions which appear to support the Fund's defense but are distinguished as judicial "oversights" which do not appreciate a distinction between calculation of PPD and PTD. 

The employer at the time of the hearing settled the primary case which involved an alleged ganglion cyst.  The ALJ found the primary injury in the case resulted in 15% disability to the thumb.  The treating physician gave him a full duty release. 


Experts:  Berkin, Poetz, Volarich, England
Panel:  Sullivan, Mooney, Dowd

Fallen tree branch costs city 1/4 million in comp benefits

The commission affirmed an award of disability for orthopedic and psychiatric injuries from lifting a tree branch in 2011 and rejects the defense based on expert diagnosis of a back strain on a degenerative 64-year old spine. 

The ALJ award close to 1/4 million dollars in disability and disputed medical expenses related to a fusion surgery.  The claimant was picking up storm debris when he fell down.  He was treated by a neurosurgeon and released with a finding a strain and disc protrusion.  He sought treatment on his own and obtained a fusion for disputed instability.  He saw two psychiatrists:  one concluded he had disability from an unrelated major depressive disorder, another concluded he had new post-accident pain and mood disorders. 

The employer disputed TTD on appeal.  The  Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum  at the beginning of the hearing.  The Commission further found the disputed bills to be reasonable, like the ALJ, but found the   ALJ based his opinion in part on a medical report that was not part of the evidence.  Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)

ALJ  Denigan
Atty:  Sievers
Experts:  Volarich, Stillings, Jarvis
Treaters:  Kitchen, Robson

Driver "totalled" by falling objects in a parked truck

Several unsecured totes inside a parked  truck on private property fell from a trailer and struck claimant in the head, resulting in permanent total disability when surgery for a neck injury did not cure her.  Cummins v Penske Logistics, 2014 MO WCLR Lexis 79 (June 13, 2014).

She asserted as a result of the accident she developed constant neck pain, post-concussive syndrome  and PTSD,  and required daily rest breaks.  Dr. Park had performed a multi-level cervical procedure. 

Dr. Koprivica was regarded as credible. Dr. Jackson indicated claimant could not return to driving a truck but was employable in the open labor market.  The vocational expert indicated at 61-years old claimant was unemployable, that her prior extensive medical experience in nursing was not a transferrable skill, and no one would hire her if she needed to lie down.

ALJ Cain
Experts:  Koprivica, Jackson; Drieling, Sprecke
Treater:  Dr. Park

It's a bird, it's a plane, it's superbill

There are, as they say, few certainties in life.  One that can be added to the list may be that any  claim that begins with a helicopter ride is not a good day for the injured worker or the risk manager.

Section 287.140 provides a transportation benefit and  requires employers to provide medical services including “ambulance” that “reasonably [may] be required after an injury or disability.”  Missouri employers may also face significant costs for ground or air ambulances for initially responding to an accident or as part of the ongoing cure or medical relief of injuries. 

Medicare regulations provide some interpretative guidance as to what might be reasonably related.  

 “After an injury or disability”

The employer does not owe a transportation benefit unless it responds to an “injury or disability”.  The court of appeals found an uninsured worker fainted at work, the ambulance was called over the objection of the worker’s spouse, and the court found the employer did not owe the ambulance bill  because the worker failed to prove her fall and any need for an ambulance flowed from a work injury.  Crumpler v Walmart, 286 S.W.3d 270 (Mo. App. 2009). 

 “Reasonably required”

 Medicare prohibits transportation benefits unless the need for transportation  relates to Medicare-covered services.  It’s one thing to have an air ambulance take a worker to a trauma one center.  It is quite another thing to ask a helicopter to drop a worker off at his house.  There is an actual federal regulation on this point.     Ground transportation may be a reasonable alternative if the distance to the appropriate medical facility is close.

 Medicare prohibits transportation benefits beyond the nearest “appropriate” facility. This is clearly defined in Chapter 10.3 of the Medicare Benefit Policy Manual that  “transport is covered to the nearest appropriate facility to obtain necessary diagnostic  and or therapeutic services.” Transportation to a more remote facility does not flow from medical necessity. 

Natural and probable consequence

 

Transportation in an ambulances and fixed or rotary wing aircraft represent unique risks.  From 2003 to 2008 a total of 125 people died in air ambulances.  The FAA Modernization and Reform Act of 2012 describes many risks different from the ordinary public such as flying into tall objects.   It requires pilots to figure out what tall objects might be in their flight path to avoid this type of thing from happening.  This is really a federal regulation. 

MSA my helicopter ride

 

An often-neglected aspect of the work comp MSA is for Medicare-covered  expenses for future transportation costs.  Missouri providers alone charged 19.9 million in transportation costs.  There are 6.5 million in helicopter rides for Missouri alone according to a Pro Publica report.  There may be an additional  future aspect for transportation costs which are not Medicare-covered as Medicare pays only 80% of its fee schedule. 

 Can fee resolution resolve a $30,000 helicopter bill?

Disputes for bills about air ambulances are likely pre-empted by  49 USC 41713.

 

The use of air ambulances provides unique capabilities of first responders to address life-threatening situations when an injured person is  far from an appropriate medical facility.  National fee schedules provide some basis to challenge skyhigh bills in the absence of a state fee schedule.  The reasonableness of calling ambulance services is often a matter of timing whether there is a bona-fide emergency or not. 

 

Additional Sources:

 http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AmbulanceFeeSchedule/

Section 4531 (b) (2) of the Balanced Budget Act (BBA) of 1997 added a new section 1834 (l) to the Social Security Act which mandated the implementation of a national fee schedule for ambulance services.

 

http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/AmbulanceFeeSched_508.pdf

Fee schedule under Medicare for fixed and rotary wing ambulance

 

One air ambulance provider in St. Louis submitted to Medicare charges to transported nearly 1300 patients, about half the number of the leading provider in Kansas city, according to Pro Publica.  http://projects.propublica.org/treatment/uniqservices/A0436/states/MO