Ambiguous MSA clause may spike settlement by $148K
The parties agreed and had approved a comp settlement for "$400,000 in a lump sum plus payment of a Medicare set aside...." but disagreed whether the Medicare set aside was included or represented an additional payment. The Court indicated the parties could have avoided ambiguity created by conflicting clauses by not using "plus" and using the phrase "which includes payment", citing as authority Vladimir Nabokov. Paluch v United Parcel Service, 2014 Il App. (1st) 130621 April 30 2014).
The only issue is whether the award had been paid, and the circuit required an evidentiary hearing for that determination. The circuit court in Cook County originally found that it had been paid, and then after a motion to consider found that it had not been paid, and now the matter is returned for further determination. The court rejected the contention from UPS that the contract unambiguously includes the MSA. Petitioner contends that it is entitled to an additional $181,580.96 because of the word "plus" which was inconsistent with a list of specific items in the agreement which suggested the MSA was included. The court considered the language in the social security rider was not regarded as part of the contract approved by the IWCC but created further ambiguity regarding the intent since it did not segregate any MSA allocation.
The parties at the time of the settlement of the original agreement had submitted the MSA proposal which was waiting CMS approval.
Commission finds dismissal of case undermines medical opinion
The expert relied upon a case which was dismissed as a basis for total disability, providing a basis to deny PTD liability. Sutton v Doe Run Company, 2013 Mo WCLR Lexis 113 (July 3, 2013).
Commission allows stipulation to address Schoemehl contingency
Claimant alleged occupational asthma from mold while working as an assistant bakery manager and obtained an award for total benefits against the second injury fund. The stipulation provided : "In the event that Employee, Peggy Conley, remains eligible for permanent total disability benefits until Employee’s death, Employee’s husband, Michael Conley, would be entitled to receive Employee’s permanent total disability benefits in the event he remains married to Employee until Employee’s death and Employee predeceases him. Michael Conley’s entitlement to permanent total disability benefits shall cease upon his death or remarriage." Conley v Schnucks Markets, DOLIR 3-28-2013.
ALJ Lane
See also: Seymour v MLS Construction, DOLIR 3-28-13, Soens v Huddle House, 2014 MO WCLR Lexis 1 (both approving similar language).
Employment release requires hearing
A former employee signed a contract for a severance package which included various releases including any claims for discrimination. The employer then sought to enforce the release as an affirmative defense to a pending claim of racial discrimination and retaliation and both parties requested an evidentiary hearing. The employee asserted that she was misinformed regarding the scope of the release. The circuit court dismissed the discrimination lawsuit without an evidentiary hearing.
The court of appeals found reversible error on procedural grounds that the circuit court dismissed the claim without granting an evidentiary hearing requested by both parties or providing notice that it intended to rule on the merits. The court did not reach the merits whether or not the contract was enforceable but indicated it could invoke principles of mutual or unilateral mistake or fraudulent inducement of contract. The court found the lack of notice to the parties "particularly troubling." The court notes that the settlement did not mention specifically the pending lawsuit, contain consideration different than other parties involved in the general reduction in force, and that litigation counsel were not even aware of, and did not appreciate the potential significance of, the agreement for several months after it was executed. Plaintiff asserted that "her claim that a Wells Fargo representative affirmatively represented to her that the Agreement and Release of Claims applied only to claims arising from the termination of her employment in the 2011 reduction in force. Jones’ belief that the Agreement applied only to her layoff, and not to any claims arising during her employment that were the subject of the pending lawsuit."
The decision is important for work comp practitioners as it highlights the difficulty drafting and enforcing general employment releases. Jones v Wells Fargo Auto Finance, WD 74558 (Mo. App. 11-13-12).
See also: Patco Transport Inc. v Estupian, 917 So. 2d 922 (Fla 1st DCA 2005) (clear and unambiguous language in circuit court PI settlement discharged work comp claim that had not been filed, argument that dismissal had not been "approved" by comp was less of an issue because of attorney representation and lower statutory scrutiny).
Party bound by settlement despite death while waiting approval
The court of appeals found a ‘deal was a deal’ and the employer was stuck with a joint proposal to settle a case for $181,434 to close out 24 years of benefits, even though claimant died the day the motion for commutation was submitted for approval. Nance, dec. v Maxon Electric, 395 S.W.3d 527 (Mo. Ct. 2012); 2012 Mo App. Lexis 1401.
The Court of appeals reversed the Commission, which had agreed with the employer that it had no authority under §287.390 or §287.530 to approve the proposed settlement to commute a PTD award.
Section 287.390 relates to compromise settlements. The Court found the statutory phrase “any dispute or claim” did not limit its applications to settlement of the original claim and that the terms for approval applied in this case. Section 287.390 was modified for 2005 amendments which limit the discretion of the Commission to reject settlements. The court found that amendment was procedural and applied retroactively, and the Commission had limited authority to reject a proposed settlement in this pre-reform case. “The Commission shall approve a settlement agreement as valid and enforceable as long as (1) the settlement is not the result of undue influence or fraud, (2) the employee fully understands his or her rights and benefits, and (3) the employee voluntarily agrees to accept the terms of the agreement.” The court finds “we interpret the post-2005 version of section 287.390 to mean that the Commission does not have discretion to reject the parties' settlement agreement if it meets the three above requirements, unless it finds that the agreement was the result of undue influence or fraud or that the employee did not understand his or her rights and benefits or did not voluntarily agree to accept the terms of the agreement." No such findings were made in this case.
Section 287.530 grants the authority of the Commission to commute future PTD payments into a lump sum, even if the application comes after the award is final. The employer argues §287.530 require the commission must consider the commutable value whether to approve or disapprove a settlement and the commutable value is zero after claimant’s death. The court found that 287.390 procedures governed approval in this case, and even §287.530 contemplated wide discretion to determine “value” and that a dependent's interests could be considered whether to proceed with commutation. The court suggests either party may have considered the "value" of any potential Schoemehl issues that could have been asserted by the spouse, although the issue was never raised.
The court found that §287.470 allowed authority to modify an award based on a change of condition but concluded claimant’s diagnosis of end-stage cancer did not trigger this application because the change did not flow from the accident. The award for PTD was based on scleroderma and Reynaud's arising from claimant's work as a grinder. The employer offered to settle the case in May 2011, and claimant was diagnosed with end-state cancer in June. The employer stipulated it was aware of the diagnosis before submitting the joint motion in August 2011 and resubmitting the motion in October 2011. The employer’s offer had actually exceeded the projected life expectancy even without consideration of the cancer diagnosis.
The employer had paid benefits for 18 years since the 1993 award and had tried unsuccessfully after the award to close the case as a commutable settlement. The original request in 1994 was not considered in the best interest of the parties. The request in August 2011 had been rejected procedurally for trying to modify the award rather than commute it.
Settlement shuts down second claim
Claimant cannot pursue a second claim alleging new injuries caused by physical therapy because the Division lacks jurisdiction after claimant settled the first accident which caused the need for treatment. Meinczinger v Harrah's Casino, 367 S.W.3d 666 (Mo. Ct. App. 2012).
Claimant in 2002 hurt her left knee and about 6 years later in October 2008 she settled the case for 50% of the knee. This appeal involves a fight over a second claim filed in July 2008, months before settling the case, alleging she sustained further injuries to the hip and opposite knee during physical therapy for the primary injury. The Division opened a second file which resulted in a hearing and appeals addressing the issue of jurisdiction. This case involved the narrow issue of new injuries sustained during authorized treatment. The court of appeals affirmed a decision of the commission that the Division lost jurisdiction by settlement in these circumstances when the injuries identified in the second claim were a natural and probable consequence of the first accident. The settlement documents indicated claimant was forever closing out the 2002 case but the contract did not expressly reference the second claim.
Judge Romines in a dissent argued that the majority misapplied the law because there was no clear statutory authority to support a lack of jurisdiction and noted that the employer was aware of the second pending case at the time it settled the first case.
Hon. Crane (Div. 2)
Atty: Leeds, Hecht
PPD Settlement did not "prove" prior disability
Claimant had a prior back surgery and settlement and a few years later sustained another work injury resulting in back injury and surgeries at L4-5 and L4-S1 and the issue was whether claimant was PTD as a result of the last accident alone or in combination with the pre-existing condition. The ALJ found Fund liability noting the prior settlement and expert opinons which supported Fund liability.
The Commission reversed an award against the Fund and found no prior disability noting claimant had resumed heavy labor and testified to no ongoing symptoms until his 2000 accident which produced severe functional restrictions following a single level discectomy by Dr. Brophy and a subsequent 2-level fusion by Dr. Gornet. Claimant's expert testified that claimant's prior medical condition made a re-injury potentially more severe but the Comission noted to fully explain how the prior condition was "disabling". The employer's expert concluded claimant could perform light duty work but attributed 30% new disability and supported future medical to wean claimant from narcotics. Ward v Walmart, 2012 Mo WCLR Lexis 158.
ALJ Tilley
Atty Rau, Early
Experts: Gornet, Volarich, England, DeGrange
No collateral estoppel against Fund for settlement with employer
Claimant could not assert the second injury fund was bound by the terms of a settlement when it was not a party to the settlement. The fund was not required to introduce any medical evidence to challenge claimant's expert, and the Commission's rejection of the expert was founded in evidence when the expert was impeached regarding his understanding of the nature of claimant's job activities. Seifner v Treasurer of the State of Mo., 362 S.W.3d 69 (Mo. App. 2012)
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The Second District rejects summary judgment for the employer in a fight whether a 2002 comp settlement to keep medical open for 1 year to the back included $190,000 in subsequent medical bills for a staph infection at the heart. The case is Gassner v Raynor Manufacturing Co., 948 N.E. 315 (Ill. App. 2011), 2011 Ill. App. LEXIS 399.
The case has important lessons for anyone drafting settlement language addressing the scope of future medical care. The claimant treated for a back fusion and developed a staph infection and settled the primary case with the provision to keep medical open for 1 year "for treatment to the low back." The employer paid $24,000 in medical after the settlement, but disputed the provision required payment of an additional $190,000.
The court concluded summary judgment was improper under a four corners analysis because the phrase "to the low back" was ambiguous and required parol evidence for its interpretation. The release left disputed facts regarding the intent of the parties and if the staph infection for the heart after 2002 was the same infection related to the earlier back surgery. The court notes that the release did not indicate "treatment" for the back was limited to orthopedic care and "should have so stated" if the employer, who knew about a prior staph infection, wanted to exclude care for staph.
Claimant filed for petition to the trial court in 2008, about 6 years after the original settlement. The case lingered for about 4 years after it was originally appealed to the commission for review under 19(h), when the Commission concluded it lacked jurisdiction. The court concluded that the appeal was timely under a 10 year statute of limitations for contract cases.
In Shepard v Yellow Transportation, 2011 MoWCLR Lexis 31, the Commission reversed a SIF award for disability, noting the ALJ's finding of 14% disability for a prior concussion was not supported by the evidence, and modified the award of to 5% based on Dr. Volarich's rating, noting the absence of any records to support any diagnosis of concussion. The Commission decision contains a long discussion that a settlement amount is not controlling whether or not the claimant can pursue a second injury fund claim and the Commission is not bound by such stipulations. The Commission concluded that pre-reform cases required an administrative law judge to approve only cases "in accordance to the law" and allowed an inference that an administrative law judge reviewed the amount of the settlement, consistent with Conley. The commission found the post-reform changes to 287.390 no longer allowed this assumption because the standard for approving contracts changed.
ALJ Lane
Atty: Martin, Frazier
Experts: Volarich, England
The commission reversed a denial of benefits against the second injury fund, and found claimant to be permanently and totally disabled because he hurt himself again getting up from a couch from home after a back surgery. The case is Edwards v Honeywell, 2011 MoWCLR Lexis 16. The Commission rejected the Fund's defense that claimant had no pre-existing disability because he was performing extremely heavy work leading up to his primary accident when he hurt his back rolling paper. His expert had rated disability to the neck and elbow, including a childhood arm injury. The focus is how disability may combine in the future. The Commission disregards a settlement of 15-16% of the back on the primary case, and disregards comments in the settlement agreement apparently addressing causation of the second accident at home (the award is not published). The Commission finds claimant 40% disabled on the primary case and awards benefits from the Fund for permanent and total disability. Claimant's expert found claimant hurt himself again at home as a consequence of the original accident, and after the second accident he was told he might require more surgery. The administrative law judge agreed that claimant was totally disabled, but found the cause not compensable because claimant hurt himself at home ten months after claimant's back surgery getting up from a couch. In addition, the administrative law judge relied upon a comment in the original settlement agreement apparently addressing causation. The Commission found the couch accident flowed from the original accident, based on unrefuted testimony from claimant's expert. The Commission considered a 'stray' comment in a settlement document not as important as the opinion of claimant's expert (unrefuted as the fund offered no experts whatsoever).
ALJ Siedlik
Atty: Kenter
Experts Cordray, Stuckmeyer
Pending MSA issues render settlement incomplete
The Commission originally affirmed an award of permanent partial disability arising from a 2002 accident with the city of St. Louis, and when the case was remanded the Commission flip-flopped and found the city liable for total disability. The court of appeals rejected the city's argument that the Commission lacked authority to change its original findings on the same set of facts, but the court found the claimant properly preserved the issue of PTD in its appeal and the mandate reversed all of the original findings of permanent partial.
The case has an intriguing procedural history as the claimant originally appealed the case to set aside an ALJ finding of disability of about $56,000, in order to enforce an oral settlement prior to the award of $200,000. The employer successfully appealed the revised $200,000 award on the findings that the parties did not have a meeting of the minds regarding specific terms of the settlement (MSA issue remained pending), only to have the Commission then change the award again from $200,000 to perm total, with back weekly benefits of $566 since 2004, with likely exposure far in excess of $200,000. The case is Roberts v City of St. Louis, 292 S.W.3d 566 (Mo. App. 2009).
Pending social security provisions renders settlement unenforceable
Claimant, 63, accepted a $15,000 offer to settle a second injury fund claim alleging permanent and total disability, but the court refused to enforce the agreement, citing section 287.390.1. Claimant claimed various pre-existing injuries including Charcot's, which he states combined with with his primary injury to the back, that he settled with the employer for 15%.The court of appeals, affirming the Commission, found the agreement was not complete since it was still dependent on preparing social security offset language and the second injury fund failed to show that claimant fully understood his rights. Claimant was represented by counsel on the day of the settlement hearing but refused to sign the documents the next day. The court noted that claimant was never asked if he understood his rights and the consequences of entering into a settlement agreement; nor did Mr. Vincent proffer any statement or affirm he understood his rights and the consequences of entering into a settlement agreement. Similarly, Mr. Vincent did not acknowledge or affirm that he was entering into the settlement agreement without any undue influence. Claimant did not "fully understand his rights", even though claimant's counsel recites as part of the settlement hearing transcript that he spent an hour discussing settlement options before claimant accepted the $15,000. The record suggests claimant had been represented by at least 3 different attorneys following the 2000 accident and states he was told once the case was worth $240,000. The decision reaches an absurd result that a represented party apparently upset with his attorney's advice cannot be assumed to understand the language in the state prepared settlement form and now needs to have it read aloud in court as part of a settlement process.The case is Vincent v Missouri State Treasurer as Custodian of the Second Injury Fund, 287 S.W.3d 715 (Mo. App. 2009).
Intent not to pay certain medical bills must be expressed
In Hagene v Derek Polling Construction, No. 5-07-0225 (5th Dist. IL. App. 2-24-09). the petitioner through counsel accepted a settlement for permanent partial disability, agreed that disputes included past, future and hospital bills, and agreed that he submitted all bills prior to the approval of the settlement. The contract did not itemize any unpaid bills and omitted 3 unpaid charges to a doctor and surgery center representing nearly$20,000 in unpaid charges. The court concluded the employer could never have intended not to pay the bills.
The right to medical bills is the "very heart" of the worker's compensation act, and that because it is an important right at issue an explicit manifestation of intent is required before the right in question can be deemed waived. The employer stated the bills were in dispute but did not expressly state that the causal relationship of the bills were also in dispute. The employer argued the petitioner waived any claim of reimbursement by accepting the settlement. The employer conceded that the bills were reasonable and had represented on the contract it had paid all of the medical bills, even though payment was listed as a disputed item.
The case highlights the importance of careful drafting, which ultimately cost the employer another $20,000 four years after the employer likely thought the settlement was a done deal. Simply putting medical bills in "dispute" does not guarantee in Illinois a waiver of rights without an explicit waiver, and a court may reform a contract years later if there are arguably inconsistent representations. Missouri employers should pay close attention to the willingness of courts to reform contracts.
Wednesday, May 4, 2011
Friday, April 15, 2011
Commission lowers award to rating from claimant's expert
Claimant went back to work without restrictions after surgery removed some metal from a sledge hammer lodged in the back of his leg. Claimant reported he still had some soreness and numbness in his leg, and also developed back complaints. The administrative law judge disregarded the disability ratings, and awarded 30%. The Commission, however, modified the award to the 20% rating furnished by claimant's expert. Wood v Doe Run, DOLIR 4-12-11. ALJ Strange Atty: Seufert, Lory Experts: Volarich, Krause
Thursday, March 17, 2011
Seizures
Claimant failed to prove striking her head when she fell produced disabling seizures three years later that rendered her "unable to do anything." The claimant treated with anti-convulsives and MRI findings confirmed a brain contusion, but EEG studies were unable to objectively document seizure activity. Claimant introduced testimony of family members. The ALJ noted claimant's sharp memory capacity to recall specific medical bills. One expert felt the symptoms might be explained as panic attacks. The ALJ awarded PPD for other conditions. Payne v Colonial Baking, 2011 MOWCLR 219 (Nov. 11, 2011)
ALJ Mahon
Atty: Cummings, Platter, Colburn
Medical: Slater, Mauldin, Hackett, Bennoch
A former deputy sheriff who was struck in the head with a golf ball could not recover benefits, when the accident occurred during a charity event on a day off work when his employer did not control or schedule the event. Claimant alleged since the accident he sustained multiple disablements including dizziness, personality change, loss to vision and hearing, seizures and depression. The Commission affirmed 2-1, finding the accident arose from a recreational event and that the fund raising event itself was not a mutual benefit. The ALJ found claimant had equal exposure to being struck by a stray golf ball compared to the general population. The claimant established some of the proceeds funded a Shop-with-a-Deputy program to benefit the community. Beine v County of St. Charles, DOLIR 3-17-11, affirmed ED 96581 (Mo. App. 12-6-2011).
ALJ Ottenad
Atty: Weigley, Temple
Experts: Musich, Novak (criminologist)
ALJ Mahon
Atty: Cummings, Platter, Colburn
Medical: Slater, Mauldin, Hackett, Bennoch
A former deputy sheriff who was struck in the head with a golf ball could not recover benefits, when the accident occurred during a charity event on a day off work when his employer did not control or schedule the event. Claimant alleged since the accident he sustained multiple disablements including dizziness, personality change, loss to vision and hearing, seizures and depression. The Commission affirmed 2-1, finding the accident arose from a recreational event and that the fund raising event itself was not a mutual benefit. The ALJ found claimant had equal exposure to being struck by a stray golf ball compared to the general population. The claimant established some of the proceeds funded a Shop-with-a-Deputy program to benefit the community. Beine v County of St. Charles, DOLIR 3-17-11, affirmed ED 96581 (Mo. App. 12-6-2011).
ALJ Ottenad
Atty: Weigley, Temple
Experts: Musich, Novak (criminologist)
Tuesday, February 22, 2011
Substantial factor: aggravating prior condition
The Commission affirmed an award of 30% PPD for a lumbar fusion, without a separate opinion. The employer lost a hardship hearing demanding medical care, and offered new testimony from Dr. Cantrell after a L5-s1 fusion disputing whether claimant's accident was a substantial factor in his condition. The original hardship found the employer liable in the 2002 accident for aggravating a previous asymptomatic degenerative condition. In the final hearing, a different ALJ found the employer had the burden to show "additional significant evidence" to disturb the earlier findings on causation, and the new opinon disputed substantial factor but providing a rating. Kinnikin v Triad Development, DOLIR 2-4-11.
ALJ Gorman
Atty: Bollwert, Hendershot, Waganer
Experts: Cantrell, Volarich, Coyle, Cantrell, England
Treater: Kennedy
ALJ Gorman
Atty: Bollwert, Hendershot, Waganer
Experts: Cantrell, Volarich, Coyle, Cantrell, England
Treater: Kennedy
Personal Comfort doctrine survives "reform"
The Commission recently reversed a denial of benefits, and found a billing clerk who twisted her ankle while making coffee at work can recover compensation benefits under the personal comfort doctrine. The case is Sandy Johme v St. John's Mercy Medical Center, decided on 2-22-11. The Commission found making coffee was an activity incidental to her employment. She twisted her ankle, fell off her shoe, fell backwards, and broke her pelvis.
The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.
The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.
Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.
http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf
The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.
The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.
Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.
http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf
Wednesday, February 16, 2011
PTD Cases (denied)
No Disability from fall from bus seat
Claimant failed to prove a new permanent injury when he fell out of a bus seat of a bus driven by a coworker. He treated for a back injury with therapy and injections and asserted that he had significant disability to his back. His expert provided a nominal rating of 5% disability but felt the condition combined to render him totally disabled. The ALJ denied any benefits. Taylor v Penmac Personnel, 5-16-2013.
Claimant was 66 years old and had recently re-entered the labor market as a part-time employee after collecting social security disability for several years. He had several previous settlements, including a prior SIF settlement of $30,000 based on allegations of total disability. He had sought treatment for an epidural steroid injection shortly before his primary injury. The ALJ noted a strong similarity of symptoms reported after the primary accident compared to treatment shortly before the accident.
The ALJ that no doctor attributed any new psychiatric disability, although claimant had a prior psychiatric condition which affected his "perception" of disability.
ALJ Wilson
Atty: Alberhasty, Hosmer, Bullock, Burks
Experts: Koprivica, Halfaker, Pak, England
No PTD for bump in hall
A 66-year old registered nurse claims she could never work again because a doctor bumped into her with his shoulder in the hallway. She worked another 7 years after the August 2000 accident.
The Commission concluded claimant failed to prove causation to support an award of medical bills and disability to many of her allegations which included TMJ, depression and laryngeal hematoma. The claimant reported chronic myofascial pain that affected her sleep, required injections, and regular use of a cervical collar. ALJ Allen awarded 30% BAW and TTD on the basis of her cervical symptoms. Burke v Heartland Health Systems, 2012 Mo WCLR Lexis 201 (Nov. 26, 2012).
ALJ Allen
Experts: Koprivica, Thompson, Blatt, Zarr
Competing experts
The claimant failed to persuade the ALJ based on competing vocational testimony that he was unemployable in the open labor market. Age was not a hindrance for someone pursuing a "second" career. The evidence was indecipherable to define the extent of pre-existing hearing loss based on the required statutory formula. Bay v Bays Window and Siding, 2012 MOWCLR 60 (3-21-12) (no published ALJ opinion)
ALJ Boresi
Experts: Lalk, Poetz, Chabot
"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.
ALJ Siedlik.
Experts: Koprivica, Drieling
Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.
ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling
Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.
ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez
Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.
ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea
Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11
ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz
Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.
ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek
Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)
Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch
Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11
ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens
Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totaling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. Benoist v Anheuser Busch Co., DOLIR 12-2-10.
ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin
Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.
The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.
Claimant failed to prove a new permanent injury when he fell out of a bus seat of a bus driven by a coworker. He treated for a back injury with therapy and injections and asserted that he had significant disability to his back. His expert provided a nominal rating of 5% disability but felt the condition combined to render him totally disabled. The ALJ denied any benefits. Taylor v Penmac Personnel, 5-16-2013.
Claimant was 66 years old and had recently re-entered the labor market as a part-time employee after collecting social security disability for several years. He had several previous settlements, including a prior SIF settlement of $30,000 based on allegations of total disability. He had sought treatment for an epidural steroid injection shortly before his primary injury. The ALJ noted a strong similarity of symptoms reported after the primary accident compared to treatment shortly before the accident.
The ALJ that no doctor attributed any new psychiatric disability, although claimant had a prior psychiatric condition which affected his "perception" of disability.
ALJ Wilson
Atty: Alberhasty, Hosmer, Bullock, Burks
Experts: Koprivica, Halfaker, Pak, England
No PTD for bump in hall
A 66-year old registered nurse claims she could never work again because a doctor bumped into her with his shoulder in the hallway. She worked another 7 years after the August 2000 accident.
The Commission concluded claimant failed to prove causation to support an award of medical bills and disability to many of her allegations which included TMJ, depression and laryngeal hematoma. The claimant reported chronic myofascial pain that affected her sleep, required injections, and regular use of a cervical collar. ALJ Allen awarded 30% BAW and TTD on the basis of her cervical symptoms. Burke v Heartland Health Systems, 2012 Mo WCLR Lexis 201 (Nov. 26, 2012).
ALJ Allen
Experts: Koprivica, Thompson, Blatt, Zarr
Competing experts
The claimant failed to persuade the ALJ based on competing vocational testimony that he was unemployable in the open labor market. Age was not a hindrance for someone pursuing a "second" career. The evidence was indecipherable to define the extent of pre-existing hearing loss based on the required statutory formula. Bay v Bays Window and Siding, 2012 MOWCLR 60 (3-21-12) (no published ALJ opinion)
ALJ Boresi
Experts: Lalk, Poetz, Chabot
"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.
ALJ Siedlik.
Experts: Koprivica, Drieling
Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.
ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling
Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.
ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez
Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.
ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea
Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11
ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz
Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.
ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek
Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)
Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch
Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11
ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens
Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totaling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. Benoist v Anheuser Busch Co., DOLIR 12-2-10.
ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin
Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.
The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.
Wednesday, December 15, 2010
287.420 notice
Notice of tinnitus in claim satisfies notice requirement
Claimant alleged he developed hearing loss and ringing in his ears from is career as an airline mechanic. He did not establish a compensable hearing loss but ringing in his ears was sufficient to establish a second injury fund claim and support an award of total disability combined with his prior COPD. The Commission noted claimant had no duty to provide notice until he became aware the condition was work related. Sparks v American Airlines, 2014 Mo WCLR Lexis 109 (Sept. 16, 2014).
ALJ Nelson
Atty: Baker
Experts: Koprivica, Titterington
Knowledge of treatment of medical condition does not constitute notice
Claimant's claim for compensation was the first written notice of an accident and she failed to establish a lack of prejudice to the employer's ability to investigate or direct timely treatment. Claimant describes worsening orthopedic and mental conditions after a confrontation with a combative patient. The employer may have had knowledge that she was treating for her back but not that it flowed from the work injury.
The ALJ found the claimant did not prove accident or notice and was not credible based on inconsistent medical history, court room demeanor, disproportionate subjective symptoms and inaccurate statements on an employment application. The court suggests claimant's worsening mental symptoms were in conjunction with drug use and did flow from the work injury. Gibbons v St. Louis Univ., 2013 Mo WCLR Lexis 5.
Atty: Gregory, O'Sullivan, Cunningham
ALJ: Ottenad
Experts: Volarich, Stillings, England, Smith Wayne
Stipulated PPD diminishes notice defense
The injured worker hurt his knee when he fell on black ice, he treated on his own, and waited nearly two months beyond the statutory 30 day deadline to provide notice to his employer but the Commission reversed a denial of benefits based on an absence of prejudice.
Statutory reform requires written notice in 30 days and removed the "good cause" excuse for late notice and timely written notice can now only be excused if that failure did not prejudice employer. "Claimant admittedly did not provide notice to Employer at that point out of fear that she would get in trouble for not following Employer's policy that all injuries must be immediately reported."
The case proceeded on the sole disputed issue of notice and the employer stipulated to all other facts including an agreed amount for disability. The ALJ concluded prejudice existed because the employer did not have the opportunity to investigate the accident or minimize the disability. The employer asserts investigation could have determined whether claimant violated any safety policies regarding non-slip footwear.
The commission noted the employer's stipulation to disability undermined its argument that more timely notice would have reduced disability. Similarly, the commission found no prejudice regarding the inability of the employer to manage medical expenses by directing care because claimant did not submit the medical bills. The commission did not find persuasive that the employer had potential prejudice from a possible safety penalty when there was no evidence of actual prejudice and the employer had not asserted a safety penalty as an affirmative defense. Faulker v Aramark Educational Services, 2012 Mo WCLR Lexis 202 (Dec. 6, 2012) ; 2013 MO WCLR Lexis 204 (Oct. 30, 2013)(reversing prior decision granting compensation after mandate establishing no evidence on lack of prejudice).
ALJ: Ottenad Atty: Eveland, Amsler
The claimant did not have an obligation to provide notice of an occupational disease until a doctor made causation, which did not occur until after claimant completed treatment and saw her own expert witness. The Commission modified an award of 25% PPD of the shoulder to PTD against the employer when it concluded that lack of notice did not preclude awarding additional disability for both arms and a psychiatric claim. The Commission criticized the exhibits regarding medical bills and stated it would not serve as an advocate but noted it went through "considerable difficulty" to find more than 23,000 in bills compensable.
Berend v Fasco Industries, 2012 Mo WCLR Lexis 189 (Nov. 8, 2012).
ALJ: Fischer
Atty: Allen
Experts: Volarich, England
The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, 2010 Mo WCLR Lexis 197. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.
ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England
Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.
The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.
The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, 2011 Mo WCLR Lexis 114.
ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall
Claimant alleged he developed hearing loss and ringing in his ears from is career as an airline mechanic. He did not establish a compensable hearing loss but ringing in his ears was sufficient to establish a second injury fund claim and support an award of total disability combined with his prior COPD. The Commission noted claimant had no duty to provide notice until he became aware the condition was work related. Sparks v American Airlines, 2014 Mo WCLR Lexis 109 (Sept. 16, 2014).
ALJ Nelson
Atty: Baker
Experts: Koprivica, Titterington
Knowledge of treatment of medical condition does not constitute notice
Claimant's claim for compensation was the first written notice of an accident and she failed to establish a lack of prejudice to the employer's ability to investigate or direct timely treatment. Claimant describes worsening orthopedic and mental conditions after a confrontation with a combative patient. The employer may have had knowledge that she was treating for her back but not that it flowed from the work injury.
The ALJ found the claimant did not prove accident or notice and was not credible based on inconsistent medical history, court room demeanor, disproportionate subjective symptoms and inaccurate statements on an employment application. The court suggests claimant's worsening mental symptoms were in conjunction with drug use and did flow from the work injury. Gibbons v St. Louis Univ., 2013 Mo WCLR Lexis 5.
Atty: Gregory, O'Sullivan, Cunningham
ALJ: Ottenad
Experts: Volarich, Stillings, England, Smith Wayne
Stipulated PPD diminishes notice defense
The injured worker hurt his knee when he fell on black ice, he treated on his own, and waited nearly two months beyond the statutory 30 day deadline to provide notice to his employer but the Commission reversed a denial of benefits based on an absence of prejudice.
Statutory reform requires written notice in 30 days and removed the "good cause" excuse for late notice and timely written notice can now only be excused if that failure did not prejudice employer. "Claimant admittedly did not provide notice to Employer at that point out of fear that she would get in trouble for not following Employer's policy that all injuries must be immediately reported."
The case proceeded on the sole disputed issue of notice and the employer stipulated to all other facts including an agreed amount for disability. The ALJ concluded prejudice existed because the employer did not have the opportunity to investigate the accident or minimize the disability. The employer asserts investigation could have determined whether claimant violated any safety policies regarding non-slip footwear.
The commission noted the employer's stipulation to disability undermined its argument that more timely notice would have reduced disability. Similarly, the commission found no prejudice regarding the inability of the employer to manage medical expenses by directing care because claimant did not submit the medical bills. The commission did not find persuasive that the employer had potential prejudice from a possible safety penalty when there was no evidence of actual prejudice and the employer had not asserted a safety penalty as an affirmative defense. Faulker v Aramark Educational Services, 2012 Mo WCLR Lexis 202 (Dec. 6, 2012) ; 2013 MO WCLR Lexis 204 (Oct. 30, 2013)(reversing prior decision granting compensation after mandate establishing no evidence on lack of prejudice).
ALJ: Ottenad Atty: Eveland, Amsler
The claimant did not have an obligation to provide notice of an occupational disease until a doctor made causation, which did not occur until after claimant completed treatment and saw her own expert witness. The Commission modified an award of 25% PPD of the shoulder to PTD against the employer when it concluded that lack of notice did not preclude awarding additional disability for both arms and a psychiatric claim. The Commission criticized the exhibits regarding medical bills and stated it would not serve as an advocate but noted it went through "considerable difficulty" to find more than 23,000 in bills compensable.
Berend v Fasco Industries, 2012 Mo WCLR Lexis 189 (Nov. 8, 2012).
ALJ: Fischer
Atty: Allen
Experts: Volarich, England
The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, 2010 Mo WCLR Lexis 197. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.
ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England
Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.
The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.
The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, 2011 Mo WCLR Lexis 114.
ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall
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