Total disablity for serial knee surgeries

Head v Curators of the University of MO
2016 MO WCLR Lexis 65, 66 (Oct 12, 2016)

 

ALJ  Dierkes  (Boone County)

 

Commission adopts PTD award against employer
open medical to include potential  home modifications 

 

 

Claimant injured her left knee leaving a hospital after a meeting and slipped and fell.  The accident is Feb. 2003.    The ALJ awarded permanent and total disability benefits with open medical.

 

The evidence in the case involved testimony from Dr. Volarich, Dr. Gross and Dr. Cantrell.

 

Claimant was 63-years old and had worked for the university for about 20 years reviewing and approving budgets for research projects.

 

The employer did not dispute either accident. 

 

In February 2003 claimant slipped on ice in the parking lot, fell, and began to experience left knee pain.  Claimant had an arthroscopy in 2003 and then proceeded with a total knee replacement in 2003.  In 2004 she underwent a revision of the knee replacement.  She underwent a third surgery to the same knee in 2005.  In 2007 there was concern whether the replacement was failing.

 

The ALJ found she developed altered gait and  underwent treatment for her back including use of a spinal stimulator.

 

In 2008 she fell again on some ice melter and landed on both knees.  She began treatment for pain management and depression.  She began to use a scooter and wheelchair more often at work.  She retired in 2010. 

 

In 2011 she had another revision to the same knee and developed DVT.

 

The ALJ found claimant's need for serial knee replacements flowed as a natural and probable consequence from her knee injury and initial total knee surgery, noting testimony from Dr. Gross:

 

"I think she had some further surgeries based on trying to improve her pain. She had a second surgery that Dr. Bal thought the components were slightly off or the tibial component was slightly off so he tried to modify that to make it more perfect. She had a surgery after that because there was some question of ligament laxity. She had another surgery after that which injured the arteries.

So I think that as she continued to have pain in her knee, physicians who treated her tried to find out what her pain was and tried to make it better by doing further surgical intervention."

 

 

The judge noted further:  "Popliteal vein and artery injuries and the left lower extremity deep vein thrombosis were directly caused by Dr. Aleto's May 10, 2011 left total knee revision surgery, which surgery was not authorized by Employer. I find that Employer is nonetheless responsible for additional disability caused by this surgery, as, once Employer provided the first knee replacement, Employer became responsible for that prosthesis, including any revisions thereof.)

 

The ALJ denied the SIF claim and noted she had potentially disabling conditions predating the accident, including surgery to both knees, but that she had no occupational impairment.  The ALJ found no new disability associated with the 2008 accident. 

 

Dr. Cantrell felt the need for total knee replacement flowed from her arthritis.

 

The Commission affirmed an award for open medical for the knee, for neuropathic back pain that required a spinal stimulator,  and for home modification in the future to make it handicap accessible if her capacity to ambulate changes. 

 

The case was decided under pre-reform standards of "substantial factor."

 

 

Note to Readers

I have removed many of the older posts to the blog. 

Some of the older posts will be updated and published in a book later this year. 

Court looks to vocational impairment evidence to find disabling date for fund liability

Wickam v. Treasurer of the State of MO, 499 S.W.3d 751 (Mo App. 2016) ( reverses an award of permanent partial against the Fund and remanded to find permanent total disability. The award was modified to PTD by the Commission.  2017 MOWCLR Lexis 8.

An issue in the case was when carpal tunnel became a disabling condition to benchmark what conditions "pre-existed" for purposes of assessing fund liability.  The fund argued an earlier date applied of  2000, when claimant began to experience symptoms of his hands instead of 2001 when there was a recommendation for surgery, as found by the Commission.  The claimant argue that the later date applied of 2003 when surgery was performed.

Claimant treated in 1999 for a shoulder injury and had a diagnosed of carpal tunnel based on EMG studies.  Claimant in 2000 retained an expert who concluded he had carpal tunnel as a result of a work-related exposure.  In 2003 he underwent surgery.  He later settled the case with the employer.
He also settled his work related shoulder injury. 

The Commission by using the earlier date for the onset of the carpal tunnel disability it precluded consideration of sleep apnea and knee impairment. A dissent argued that disability for fund purposes existed when claimant began to miss work or impact ability to work, and not merely when diagnosis or symptoms manifested. 

The court found the controlling standard:

"An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." Garrone v Treasurer of the State of MO  , 157 S.W.3d 237 (Mo App. 2004).  There was no evidence in the Wickam from either party how claimant's carpal tunnel condition affected his ability to work prior to the surgery. The court found the Commission had insufficient evidence to make its finding when disability occurred based alone on a recommendation for surgery.  The court noted that liability attaches when vocational impairment attaches without or without surgery and the employer should not rely upon Wickam for the proposition that it did not owe anything until there was a recommendation for surgery. 

The uncontested evidence was that claimant was permanently and totally disabled as the fund apparently offered no contrary medical or vocational opinions.

It should not go unnoticed that this is pre-reform, claimant has already obtained two settlements from the employer and this SIF-only appeal involves a dispute more than a decade ago.

Risk managers: time to add that no butt slapping rule

What happens when an employee does something wrong, gets fired for misconduct, and then turns around and tries to collect unemployment benefits?

This is a common thorn in the side of many employers why misconduct might be good enough to fire someone but not misconduct-y enough to keep them from getting unemployment.

Take for example, the  story of  Stahl, a woman who worked at Hank's Cheesecake.  A co-worker comes along, makes a vulgar comment to another employee.  Stahl, not finding any of it funny, turns around and backhands the co-worker in the buttocks.  There is some dispute whether this was done with the back of a pan or the back of a hand.  It is uncontroverted that it was not a love tap.

Stahl is then fired the next day.

Stahl files for unemployment benefits.

Unemployment benefits are granted. Hank's appeals to the Labor Commission.  Hank's loses the appeal.  Hank's tries again this time with the court of appeals, and loses again.

Hank's states there was sufficient evidence to show that Stahl engaged in misconduct in a fit of anger when she hit another employee.   It is the burden of the employer to show misconduct to disqualify an applicant from benefits. 

In its examination of the totality of the circumstances, the court noted that Hank's did not have rule against physical conduct so Hank's could not point to a "rule" that the employee broke.  Hank's argued that the action clearly violated the company standards which reflected a zero tolerance for unwanted contact between co-employees  The court deferred to the finding of the labor commission that the employer failed to show intentional violation of the rule because claimant's action  occurred without intent in the heat of the moment.   In short, what the court is saying is that an employer cannot expect its employees not to hit each other as long as their rage is 'blind.'   There is no clear intent to violate a policy of work place violence unless it rises to the level of intensity or roughness to reasonable expect that it would violate the employer's policy.  After all, the applicant didn't even use a fist. 

The case is very similar to the rationale by the commission to allow comp benefits from a first offender without a "intent" to cause serious harm.   Reis v Shade Tree Service, 2013 MO WCLR Lexis 187.

The dissent asserts there is conduct that is universally expected even if they are not written down, and intentionally slapping a co-worker on the buttocks crosses the line.  The employer does not have to prove wanton and willful acts to establish disqualification of benefits.  Judge Page suggested a double standard was applied.

Stahl v Hank's Cheesecake, 489 S.W.3d 338 (Mo. App. 2016) 

Practice pointer:  Employers should clearly delineate when butt slapping is inappropriate. Green Eggs and Ham is a good template:  'Job applicant agrees butt slapping violates company policy and core values and  heretofore there shall be no butt slapping: not in a train, not in a tree, not in box, not with a fox, not in a house and a mouse, nor here, or there or anywhere.' 

Commission finds "new" disablity for worker told before accident she was unable to work

The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to  her back and had 6 previous spinal surgeries in a recent period.  Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).

The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in  September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was  placed on restrictions and told she could no longer work.  Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market. 

The ALJ found   "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "

The Commission reversed and found  that claimant had sustained new disability from a lumbar strain.  The Commission found claimant's expert unrebutted that claimant  sustained a new medical "condition" even if her "overall" condition flowed from prior conditions.  "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."

The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation.  The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy. 

ALJ:  Boresi
Atty:  Griffiths

Court remands case when Commission violates due process

Anhalt v Penmac Personnel Services
No. SD 34420
December 19, 2016

The court of appeals found the Commission committed error by not allowing a remand requested by the employer when the Commission on its own raised  a new theory on appeal to impose liability based on joint control by a staffing agency.   The claimant had never asserted the theory of liability based on joint control or joint benefit by the staffing agency for an injury that did not occur on its property.

 The commission never directly addressed the issue of the claimant's appeal of the ALJ's denial of liability based on a theory of statutory employment.

 The Commission violated due process under 287.470 by injecting a new issue without an opportunity for the parties to be heard on the issue.  The court declined to reach the broader issue whether the Commission had the power to inject its own theories of liability when the specific claim had never been asserted by an party.

**


An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO  in 2009.  The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).

Claimant worked for Penmac.  Penmac sent her to work at a food plant at Reckitt-Benekiser.  Reckitt controlled her activities on the job.  Benekiser paid Penmac  and Penmac paid her salary.  She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.

The ALJ found that while Reckitt may arguably be an statutory employer but  Penmac was the only liable employer under the subrogation statute as it was an insured entity.  The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmarc.  Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case. 

The Commission reversed and found claimant provided joint services for both Penmac and Reckitt and as joint employers Penmac was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided.  As claimant established one employer (Reckitt) owned and controlled the lot, then Penmac became liable too because claimant only had to show liability of one employer to attach liability to joint employers. 

The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine.   The commission notes that the 'on premises' statutory requirement  was removed after reform and that post-reform cases have awarded compensation for  parking lot injuries  when the employer owns or controls the property.

The Commission awarded about $40,000 in benefits.

The employer offered no medical expert as a defense.  Claimant relied upon opinions of Dr. Paul to establish disability.  The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved.  The Commission limited its award of disability to the wrist based on its finding that claimant "downplayed' her  condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist. 

The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots. 

A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.

ALJ Mahon

Flying gator presents risk management problem

A 24-year old driver at 1:30 a.m. pulls up to a Wendy's drive-thru in Jupiter, FL , orders a drink, and then reaches into his vehicle when the attendant is not looking and tosses an alligator through the window.

The guy's Mom later notes that her son  really likes Steve Irwin, and that he enjoys pranks, and he "does stuff like this."  He acquired  the gator from the side of the road before pitching it through the drive-through as a prank on someone he knew inside the restaurant. 

A police officer responded to the scene and released the 3 1/2 foot gator to a nearby canal. The story notes  that the gator was not fully grown.    A judge ordered him to stay away from Wendy's and play with his mom's dog instead and maybe see a mental health doctor.

He was charged with a variety of offenses including unlawful transporting or possession of an alligator and assault with a "deadly" weapon, among others.  The story goes on to report that he was wearing his hat backwards.

This example, of course,  shows why Florida  fully embraces Dave Barry's  phrase "and-I'm-not-making-this-up"    A few years ago a reptile store owner in Broward County made national headlines for swinging a bearded dragon lizard and hit his employees with it. One can't forget that old Florida tradition of  letting young boys and girls swim with captive alligators.  What could go wrong?

This  prank  presents an interesting problem in the world of risk management that employees bring with them all of their "associational" risks of spouses, boyfriends, and whatever. 
 Is the problem of gators flying through the drive-through window a risk that has been property addressed in the employee safety manual?   "We have a gator here.  What page is that on, again?"
Considering the number of gators present in southern Florida this clearly demonstrates the need for a "no gators inside' rule just like TSA warns people not to bring their explosives and excessive amounts of maple syrup onto planes.  This rule needs to keep in mind any ADA obligations about registered reptiles as service and emotional support animals. 

 In most states, this event would cause an uproar that everyone inside the restaurant would file PTSD comp claims but Florida has taken care of this in its comp code, 440.093,  to bar recovery   for "mental" only claims. If someone, however,  broke a toe nail running away that might be an entirely different comp story because that is a physical injury that might produce obvious emotional scars, especially if one is fond of flip flops. 

The comp exclusion does not say anything, however, to stop the right of the gator itself from suing.  If Naruto  the Macaque can tie up federal courts whether he has intellectual property rights for his own selfie, it seems  the gator expressing its own right of personhood  should have a remedy for such a wrong.   PETA should be all over this --  maybe a class action on behalf of all other gators cruelly exploited in pranks as examples that while gators play in all kinds of weather and stick together they just can't fly.

Jupiter is a north Miami suburb. 


https://www.washingtonpost.com/news/post-nation/wp/2016/02/09/assault-with-a-deadly-weapon-florida-man-charged-with-throwing-live-alligator-into-wendys/