The state of North Carolina sought part of a 2.8 million dollar medical malpractice recovery based on its own statute that allowed it to be reimbursed 1/3 of any settlement for Medicaid benefits. Wos v E.M.A., 568 U.S. ___ (2013) http://www.supremecourt.gov/opinions/12pdf/12-98_9ol1.pdf. In its March 20, 2013 decision, the U.S. Supreme Court found the state law unconstitutional and found the state could not assert a lien on $1.9 million in benefits it had paid when no portion of the settlement was allocated for medical expenses.
The U.S. Supreme Court addressed this issue previously and determined that the federal Medicaid anti-lien provision, 42 U.S.C. 1396p(a)(1), pre-empts a state's lien unless the settlement is designated as payment for medical care. Arkansas Dept. of Health and Human Services v Ahborn, 547 U.S. 268 (2006).
A similar challenge was asserted in Missouri in 2008 in Doran v Mo. Dept. of Social Services, 2008 WL 4151617 for placing a state lien on a worker's compensation settlement. District Judge Laphrey granted class status for "Missouri citizens who have received Medicaid and who had liens asserted and/or monies taken by the Defendants out of their third-party workers compensation settlements from August 15, 2001, where said settlements were unrelated to medical care and services, or where the liens asserted and or monies taken by the Defendants were in excess of the amount of said settlements related to medical care and services, in violation of 42 U.S.C. § 1396p(a)(1)."
The parties in E.M.A. settled due to policy limits despite evidence of future medical projected at 40 million dollars. The new case is important guidance for negotiating Medicaid liens, drafting settlements for cases that have a Medicaid lien and a warning of the potential medical costs in catastrophic cases.
Tuesday, March 26, 2013
Thursday, March 14, 2013
Editorial: Managing the Pregnant Claimant Case
Pregnancy changes everything. It’s one of those old chestnuts, and its truth resonates in worker’s compensation cases too.
It may seem odd that treatment with some work place injuries might begin with a pregnancy test. Women now represent a significant portion of the labor force, and many injuries in Missouri occur with women during typical child-bearing age.
Some workers may question why it even matters to obtain such a test, or why it is any of the employer’s business to know the results. Sometimes the worker may be surprised by unexpected news.
Similarly, some employers question why their worker’s compensation dollar should be testing for pregnancy which is unlikely pregnancy had anything to do with work injury or occupational trauma. In some cases, the question arises whether the employer should pay additional disability benefits when the worker became pregnant after a work injury before thinking about her employer first and whether she had already obtained MMI.
Medical Treatment
Pregnancy arguably may meet the statutory definition of accident as an 'unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.' In a recent case the Missouri concluded the consequences of a flu shot was an “accident” even though the shot was not. Doyle v Lakeland Regional, 2011 MO WCLR Lexis 243 (Dec. 8, 2011). This could certainly describe a number of pregnancies in Missouri that being expecting is a totally unexpected traumatic event.
A claimant’s rehabilitation may be prolonged due to pregnancy such as the decision not to pursue diagnostic testing or elective surgery because of concerns about tetragenic damage. See Nickels v Wireless Northwest, 2007 MO WCLR Lexis 109; Reid v Security Armored Care Services, 2005 MO WCLR Lexis 122. Delay in such diagnostic testing may delay treatment recommendations, determination of MMI, and appropriate work release decisions. A work place injury may also accelerate the need for bed rest or other restrictions because of concerns of instability or risk of fetal injury.
Pregnancy may divest the employer’s statutory control to designate medical providers in work place injuries and indirectly influence return to work decisions. An employer has no statutory authority to designate a provider for a non-occupational injury. It is often the OB-GYN who assesses capacity to work and the reasonableness of certain treatment. Cases in which there is treatment for both the work injury and for pregnancy complications further raises difficult issues segregating what treatment reasonably flows from a work injury.
In more difficult cases, the chronic pain patient may become pregnant which requires special considerations on appropriate treatment. See Bernardi, etal, Difficult issues in chronic pain patients arise when a candidate for spinal cord stimulator becomes pregnant, Neuromodulation. 2010 Oct;13(4):270-4.
Causation
Pregnancy may raise disputes whether the work injury itself was the prevailing factor in the medical condition.
For example, some falls may arise due to idiopathic conditions associated with pregnancy. Pregnancy changes to hormonal fluctuations, fluid shifts, and musculoskeletal changes may cause carpal tunnel syndrome more likely than some work place exposures. Bosch v Reuters America, 2010 Mo WCLR Lexis 8. Osterman, etal Carpal Tunnel Symptoms in Pregnancy, Orthop Clin. North Am. 2012 Oct;43(4):515-20. A claimant after childbirth may attempt to attribute residual back pain associated with the pregnancy and childbirth to a remote back injury early in the pregnancy. When the original accident had minimal medical attention such allegations are closely scrutinized. Post-partem depression can be an important factor to apportion mental conditions allegedly attributed to work. See Healy, C, etal; Arch Women’s Health. 2013 Mar 6. Self-harm in postpartum depression and referrals to a perinatal mental health team: an audit study.
TTD
One issue that arises is whether an employer has an obligation to continue to pay benefits when treatment or diagnostic testing is postponed due to an existing or subsequent ‘superseding’ pregnancy prior to MMI. The Commission in a pre-reform case recognized an obligation to continue to pay TTD benefits, citing Larson’s treatise concerning the treatment of pregnant claimants. Carter v Tri State Motor Transit, 2006 MO WCLR Lexis 116, however, did not involve a pregnant claimant. The answer is not always that clear and the issue requires close analysis whether the claimant could work as a result of the work restrictions on light duty but for the pregnancy. A similar problem exists for the employee who could have worked with pain medication but can no longer take pain medication because of a pregnancy.
Other issues
Pregnancy issues can arise in unusual situations, such a determining or tolling the date of disability, Wales v Govt Employees Hospital Assoc, 9 MO WCLR (LRP) 1006 or assessing the rights of a posthumous child. Hanneken, Dec. v Storage USA, 2007 Mo WCLR Lexis 141.
This issue raises a public policy concern whether pregnancy tests should be more routinely performed as a health screen prior to any imaging study or elective surgery or if the refusal to take a pregnancy test warrants a basis to suspend statutory comp benefits. The issues of privacy are further implicated by disseminating privileged health information about pregnancy not caused by the work injury but which may have an important outcome on case management decisions.
The issue of pregnancy is often neglected in the evaluation of worker’s compensation cases. Pregnancy, and the related issue regarding the use of prescribed fertility medications to become pregnant, warrants closer attention to assess appropriate treatment guidelines of the injured worker.
It may seem odd that treatment with some work place injuries might begin with a pregnancy test. Women now represent a significant portion of the labor force, and many injuries in Missouri occur with women during typical child-bearing age.
Some workers may question why it even matters to obtain such a test, or why it is any of the employer’s business to know the results. Sometimes the worker may be surprised by unexpected news.
Similarly, some employers question why their worker’s compensation dollar should be testing for pregnancy which is unlikely pregnancy had anything to do with work injury or occupational trauma. In some cases, the question arises whether the employer should pay additional disability benefits when the worker became pregnant after a work injury before thinking about her employer first and whether she had already obtained MMI.
Medical Treatment
Pregnancy arguably may meet the statutory definition of accident as an 'unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.' In a recent case the Missouri concluded the consequences of a flu shot was an “accident” even though the shot was not. Doyle v Lakeland Regional, 2011 MO WCLR Lexis 243 (Dec. 8, 2011). This could certainly describe a number of pregnancies in Missouri that being expecting is a totally unexpected traumatic event.
A claimant’s rehabilitation may be prolonged due to pregnancy such as the decision not to pursue diagnostic testing or elective surgery because of concerns about tetragenic damage. See Nickels v Wireless Northwest, 2007 MO WCLR Lexis 109; Reid v Security Armored Care Services, 2005 MO WCLR Lexis 122. Delay in such diagnostic testing may delay treatment recommendations, determination of MMI, and appropriate work release decisions. A work place injury may also accelerate the need for bed rest or other restrictions because of concerns of instability or risk of fetal injury.
Pregnancy may divest the employer’s statutory control to designate medical providers in work place injuries and indirectly influence return to work decisions. An employer has no statutory authority to designate a provider for a non-occupational injury. It is often the OB-GYN who assesses capacity to work and the reasonableness of certain treatment. Cases in which there is treatment for both the work injury and for pregnancy complications further raises difficult issues segregating what treatment reasonably flows from a work injury.
In more difficult cases, the chronic pain patient may become pregnant which requires special considerations on appropriate treatment. See Bernardi, etal, Difficult issues in chronic pain patients arise when a candidate for spinal cord stimulator becomes pregnant, Neuromodulation. 2010 Oct;13(4):270-4.
Causation
Pregnancy may raise disputes whether the work injury itself was the prevailing factor in the medical condition.
For example, some falls may arise due to idiopathic conditions associated with pregnancy. Pregnancy changes to hormonal fluctuations, fluid shifts, and musculoskeletal changes may cause carpal tunnel syndrome more likely than some work place exposures. Bosch v Reuters America, 2010 Mo WCLR Lexis 8. Osterman, etal Carpal Tunnel Symptoms in Pregnancy, Orthop Clin. North Am. 2012 Oct;43(4):515-20. A claimant after childbirth may attempt to attribute residual back pain associated with the pregnancy and childbirth to a remote back injury early in the pregnancy. When the original accident had minimal medical attention such allegations are closely scrutinized. Post-partem depression can be an important factor to apportion mental conditions allegedly attributed to work. See Healy, C, etal; Arch Women’s Health. 2013 Mar 6. Self-harm in postpartum depression and referrals to a perinatal mental health team: an audit study.
TTD
One issue that arises is whether an employer has an obligation to continue to pay benefits when treatment or diagnostic testing is postponed due to an existing or subsequent ‘superseding’ pregnancy prior to MMI. The Commission in a pre-reform case recognized an obligation to continue to pay TTD benefits, citing Larson’s treatise concerning the treatment of pregnant claimants. Carter v Tri State Motor Transit, 2006 MO WCLR Lexis 116, however, did not involve a pregnant claimant. The answer is not always that clear and the issue requires close analysis whether the claimant could work as a result of the work restrictions on light duty but for the pregnancy. A similar problem exists for the employee who could have worked with pain medication but can no longer take pain medication because of a pregnancy.
Other issues
Pregnancy issues can arise in unusual situations, such a determining or tolling the date of disability, Wales v Govt Employees Hospital Assoc, 9 MO WCLR (LRP) 1006 or assessing the rights of a posthumous child. Hanneken, Dec. v Storage USA, 2007 Mo WCLR Lexis 141.
This issue raises a public policy concern whether pregnancy tests should be more routinely performed as a health screen prior to any imaging study or elective surgery or if the refusal to take a pregnancy test warrants a basis to suspend statutory comp benefits. The issues of privacy are further implicated by disseminating privileged health information about pregnancy not caused by the work injury but which may have an important outcome on case management decisions.
The issue of pregnancy is often neglected in the evaluation of worker’s compensation cases. Pregnancy, and the related issue regarding the use of prescribed fertility medications to become pregnant, warrants closer attention to assess appropriate treatment guidelines of the injured worker.
Monday, March 4, 2013
Deposing The Expert Medical Witness: 'show me your papers, please'
A number of years ago there was a well-known family physician and osteopath in St. Louis who testified frequently for injured workers. Whenever any young defense attorney asked to see his file, he would smile broadly, reach below his desk and pull out a metal file. It was always a funny gag, no matter how many hundreds of times he performed it.
This raises the issue whether there is a right to see the expert's file, and if the inability to inspect an expert's file allows a continuance or bars admission of the expert's testimony.
The exclusion of the testimony, rather than challenging the credibility of the expert, is a drastic remedy.
When an expert has limited qualifications, the testimony is usually admissible but provided less weight. Generally, the admission or exclusion of expert opinion testimony is a matter of trial court discretion. Wingate v. Lester E. Cox Medical Ctr., 853 S.W.2d 912, 918 (Mo. banc 1993).The Commission, as fact finder, has discretion to determine an expert's qualifications to testify on specific matters. Lane v. Schreiber Foods, 903 S.W.2d 616, 621 (Mo.Ct. App. 1995). There is no absolute right of a party to present expert testimony on any subject the party desires, and no absolute right to present testimony by any expert a party desires. Landers v Chrysler Corporation, 963 S.W.2d 275 (Mo. Ct. App. 1997) (allowing psychologist to testify regarding medical causation); Hudson v RHI America, 2007 Mo WCLR Lexis 31 (allowing audiologist to testify regarding causation). The Commission criticized but did not exclude a medical expert for providing vocational opinions beyond his area of expertise. Kiemel v American Airlines, 2009 MO WCLR Lexis 80.
So-called "venal" testimony is usually an issue of credibility and not admissibility. See State ex rel Lichtor, 845 S.W.2d 55 (Mo. App. 1992). A medical expert in Wieda v Stupp Bros., 52 S.W.3d 602 (Mo. Ct. App. 2001); 2002 Mo WCLR Lexis 221, was deemed“biased, uninformed and not credible” when the expert disputed causation on a prior diabetic condition which did not exist. Other cases have criticized experts when they acted as "advocates" and not as "independent" medical examiners as if they had somehow inadvertently became involved as expert witnesses. See Richardson v General Motors Corp., 2003 Mo WCLR Lexis 100; Andrews v City of Glendale, 2009 MO WCLR Lexis 88; Jezich v Lighthouse for the Blind, 2011 Mo WCLR Lexis 182; Sharmak v Allegiance Healthcare Corp., 2004 Mo WCLR Lexis 182; McKee v Anheuser Busch, 2002 MO WCLR Lexis 214.
Testimony from an expert can be barred if it is not the properly admissible. This rarely occurs in the context of worker's compensation. For example, criticisms within a medical recitation of medical credibility of other experts is improper. Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo. App. W.D. 1994). Under section 490.065, expert testimony is properly admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." An expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992). A medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion probative force to be substantial evidence." Silman v. Montgomery & Associates, 891 S.W.2d 173, 176 (Mo. App. 1995), The essential test of expert opinion evidence is whether it will be helpful to the fact finder. See, State ex rel. Lichtor v. Clark, 845 S.W.2d 55, 59 (Mo.App. 1992); Stucker v. Chitwood, 841 S.W.2d 816, 819 (Mo. App. 1992).
The failure of a testifying expert to disclose file materials pursuant to subpoena violates Rule 56.01(b)(4). Generally, the rules of evidence for civil cases in the state of Missouri shall apply. 8 CSR 50-2.010(14). Section 490.065. All material given to a testifying expert must, if requested, be disclosed. "This indeed is a “bright line” rule. It is appropriate, at deposition or trial, to cross-examine an expert witness as to information provided to the expert that may contradict or weaken the bases for his or her opinion regardless of whether the expert relied upon or considered the information.” State ex rel Dandurand, 30 S.W.3d 831 (Mo. banc 2000). Rule 56.01(b)(4).
Dandurand involved an expert who testified in response to a subpoena duces tecum and produced records that had previously been identified in a privilege log. The documents which included a letter written by a defense attorney and a letter to the claims manager which were allegedly inadvertently sent to the expert. A month earlier the attorney who wrote the letter refused the discuss the letters based on the claim of privilege.
The lesson in Dandurand is that a party must produce the papers of a retained and testifying expert in response to a subpoena duces tecum.
Section 287.210 sets up seemingly different rules for disclosures prior to hearing, prior to expert deposition, and prior to a motion to submit expert medical reports without deposition. The party seeking to produce expert opinion without deposition testimony must produce all records received by the physician. 287.210.7. The party seeking to produce expert opinion with deposition must produce the expert's report prior to deposition. Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions. This does not refer to the broader disclosure requirement of records required under a 60 day motion, but seems to include medical reports even of non-testifying experts prohibited by Rule 56. The party seeking a possible sanction under Dandurand may consider more formal discovery of subpoena duces tecum.
Clearly, the primary policy behind "show me your papers" is impeachment. The expert who loses a file at another office or who destroys documents without identifying which documents were ever reviewed, may undermine the credibility of his testimony. By identifying the "papers" used by the expert, the cross examiner may identify the expert may be uninformed, outside his league, or deliberating distorting the record in the role as a "venal" advocate. The public policy to allow such discovery to see "papers" within an expert's file is consistent with the Division's policies for parties to be commonly informed. The party tendering the expert may want to encourage production of the "papers" to bolster the expert's testimony as being impartial and informed.
The better practice is for the expert to identify which documents were reviewed and for the referring party to log which documents were provided. Experts can always disagree the meaning of records but should not deep six documents they reviewed. The capacity to "show me your papers" may be more challenging as more experts go "paperless" and an attorney's capacity to compare whether scanned documents are complete.
It is in both parties interest to disclose records prior to expert testimony to avoid a request to "show me your papers" as a discovery tool. The expert deposition sometimes becomes one of the first opportunities to review medical records when the parties fail to share records or when injured workers obfuscate a medical history. No one benefits by paying in expert to sit quietly while an attorney flips through papers to compare files, except the expert.
This raises the issue whether there is a right to see the expert's file, and if the inability to inspect an expert's file allows a continuance or bars admission of the expert's testimony.
The exclusion of the testimony, rather than challenging the credibility of the expert, is a drastic remedy.
When an expert has limited qualifications, the testimony is usually admissible but provided less weight. Generally, the admission or exclusion of expert opinion testimony is a matter of trial court discretion. Wingate v. Lester E. Cox Medical Ctr., 853 S.W.2d 912, 918 (Mo. banc 1993).The Commission, as fact finder, has discretion to determine an expert's qualifications to testify on specific matters. Lane v. Schreiber Foods, 903 S.W.2d 616, 621 (Mo.Ct. App. 1995). There is no absolute right of a party to present expert testimony on any subject the party desires, and no absolute right to present testimony by any expert a party desires. Landers v Chrysler Corporation, 963 S.W.2d 275 (Mo. Ct. App. 1997) (allowing psychologist to testify regarding medical causation); Hudson v RHI America, 2007 Mo WCLR Lexis 31 (allowing audiologist to testify regarding causation). The Commission criticized but did not exclude a medical expert for providing vocational opinions beyond his area of expertise. Kiemel v American Airlines, 2009 MO WCLR Lexis 80.
So-called "venal" testimony is usually an issue of credibility and not admissibility. See State ex rel Lichtor, 845 S.W.2d 55 (Mo. App. 1992). A medical expert in Wieda v Stupp Bros., 52 S.W.3d 602 (Mo. Ct. App. 2001); 2002 Mo WCLR Lexis 221, was deemed“biased, uninformed and not credible” when the expert disputed causation on a prior diabetic condition which did not exist. Other cases have criticized experts when they acted as "advocates" and not as "independent" medical examiners as if they had somehow inadvertently became involved as expert witnesses. See Richardson v General Motors Corp., 2003 Mo WCLR Lexis 100; Andrews v City of Glendale, 2009 MO WCLR Lexis 88; Jezich v Lighthouse for the Blind, 2011 Mo WCLR Lexis 182; Sharmak v Allegiance Healthcare Corp., 2004 Mo WCLR Lexis 182; McKee v Anheuser Busch, 2002 MO WCLR Lexis 214.
Testimony from an expert can be barred if it is not the properly admissible. This rarely occurs in the context of worker's compensation. For example, criticisms within a medical recitation of medical credibility of other experts is improper. Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo. App. W.D. 1994). Under section 490.065, expert testimony is properly admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." An expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992). A medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion probative force to be substantial evidence." Silman v. Montgomery & Associates, 891 S.W.2d 173, 176 (Mo. App. 1995), The essential test of expert opinion evidence is whether it will be helpful to the fact finder. See, State ex rel. Lichtor v. Clark, 845 S.W.2d 55, 59 (Mo.App. 1992); Stucker v. Chitwood, 841 S.W.2d 816, 819 (Mo. App. 1992).
The failure of a testifying expert to disclose file materials pursuant to subpoena violates Rule 56.01(b)(4). Generally, the rules of evidence for civil cases in the state of Missouri shall apply. 8 CSR 50-2.010(14). Section 490.065. All material given to a testifying expert must, if requested, be disclosed. "This indeed is a “bright line” rule. It is appropriate, at deposition or trial, to cross-examine an expert witness as to information provided to the expert that may contradict or weaken the bases for his or her opinion regardless of whether the expert relied upon or considered the information.” State ex rel Dandurand, 30 S.W.3d 831 (Mo. banc 2000). Rule 56.01(b)(4).
Dandurand involved an expert who testified in response to a subpoena duces tecum and produced records that had previously been identified in a privilege log. The documents which included a letter written by a defense attorney and a letter to the claims manager which were allegedly inadvertently sent to the expert. A month earlier the attorney who wrote the letter refused the discuss the letters based on the claim of privilege.
The lesson in Dandurand is that a party must produce the papers of a retained and testifying expert in response to a subpoena duces tecum.
Section 287.210 sets up seemingly different rules for disclosures prior to hearing, prior to expert deposition, and prior to a motion to submit expert medical reports without deposition. The party seeking to produce expert opinion without deposition testimony must produce all records received by the physician. 287.210.7. The party seeking to produce expert opinion with deposition must produce the expert's report prior to deposition. Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions. This does not refer to the broader disclosure requirement of records required under a 60 day motion, but seems to include medical reports even of non-testifying experts prohibited by Rule 56. The party seeking a possible sanction under Dandurand may consider more formal discovery of subpoena duces tecum.
Clearly, the primary policy behind "show me your papers" is impeachment. The expert who loses a file at another office or who destroys documents without identifying which documents were ever reviewed, may undermine the credibility of his testimony. By identifying the "papers" used by the expert, the cross examiner may identify the expert may be uninformed, outside his league, or deliberating distorting the record in the role as a "venal" advocate. The public policy to allow such discovery to see "papers" within an expert's file is consistent with the Division's policies for parties to be commonly informed. The party tendering the expert may want to encourage production of the "papers" to bolster the expert's testimony as being impartial and informed.
The better practice is for the expert to identify which documents were reviewed and for the referring party to log which documents were provided. Experts can always disagree the meaning of records but should not deep six documents they reviewed. The capacity to "show me your papers" may be more challenging as more experts go "paperless" and an attorney's capacity to compare whether scanned documents are complete.
It is in both parties interest to disclose records prior to expert testimony to avoid a request to "show me your papers" as a discovery tool. The expert deposition sometimes becomes one of the first opportunities to review medical records when the parties fail to share records or when injured workers obfuscate a medical history. No one benefits by paying in expert to sit quietly while an attorney flips through papers to compare files, except the expert.
Tuesday, February 26, 2013
Is disability 'forever'?
Is it more likely an injured worker will stay on comp disability in Missouri than it is that someone will stay on the job as a Pope or as a British monarch?
What is the right amount to settle or offer in cases of an alleged permanent total or a surviving spouse claim? This calculation involves consideration of standard life expectancy and whether to depart from those assumptions. Paying for 20 or 30 years of benefits on the assumption that a claimant cannot work is a really bad idea for the carrier if the claimant goes back to work 6 months after a settlement. A claimant who 'out-lives' the tables or dies the next day doesn't meet the standard projections. An injured worker’s medical conditions or co-morbidities may reduce life expectancy. Even a surviving spouse may one day walk down the aisle again.
A recent case demonstrated the risk of miscalculation by an agreement to pay a claimant a settlement based on the assumption he would live another 24 years when he died while the motion for settlement was pending. Nance, dec. v Maxon Electric, 2012 Mo App. Lexis 1401.
Standard life expectancy tables do not adjust for co-morbidities or “rated” ages.
Medical conditions sometimes change. Section 287.470 authorizes a reduction in awards due to change in circumstances despite a dearth of reported decisions affirming a termination of disability. In some cases of people on social security disability no longer receives benefits because they are no longer disabled. This applied in about 7% of terminations. It may not happen often. That doesn’t mean it never happens. http://www.ssa.gov/policy/docs/statcomps/ssi_asr/2011/sect11.html.
Sometimes people even remarry. Even Wallis Simpson was divorced once. CDC office reports remarriage is still more likely than not within 10 years (68-81% likelihood depending on age). The report doesn’t mention comp cases. http://www.cdc.gov/nchs/data/ad/ad323.pdf. Such things are possible.
Recent reported cases suggest an increased number of ‘totals’ in the past year. The Court identified over 200 unpaid awards of lifetime benefits against the second injury fund in the past 2 years. Skirvin v Treasurer of the State of Mo., 2013 Mo App. Lexis 84 (Jan 22, 2013). This creates the perception that the bar has been set lower to obtain lifetime benefits, and that many undeserving claimants are jumping on the dole.
There has been a lot of media attention to the cost of abuse, addiction and death from pain killers among workers over-treating for medical conditions in part because of over-zealous medical providers. Not much attention has been given to the broader cost on workers and their families when some people ‘play’ disabled, the family contagion of disability, or self-destruction from binging on high self-perceptions of disability. Despite the ‘cost’ of paying total awards for the decades, these secondary effects may ultimately have a larger societal impact.
Any party wanting to settle a case or seeking approval from the Commission must consider the circumstances of each case. Life expectancy tables are only the part of the calculus. Some people will never go back to work. Others not only could go back to work, but should go back to work for their own health. More attention needs to be made available by the Division and at bar CLEs not just promoting how to make a claim but the real costs both to the employer and employees of such claims. Until then, most workers will believe disability is a one-way road.
Just like diamonds, disability is forever.
Friday, January 11, 2013
Hearing loss and tinnitus cases
In Hall v Missouri State Treasurer, 500 S.W.3d 282 (Mo. App. 2016) the court affirmed an award of permanent and total disability against the second injury fund for combination with a primary settled claim of tinnitus.
The SIF argued that objective testing was to be given more weight than subjective symptoms, and claimant's expert lacked any education or experience to assess disability in a hearing loss case.
The ALJ found claimant to be a very credible witness. Claimant introduced medical evidence from Dr. Koprivica that she had high frequency hearing loss demonstrated on exams that objectively showed she had tinnitus. Claimant testified she had a continuous buzzing that made it difficult for her to understand speech. She offered expert opinion that she could not work in an environment that required accurate perception of speech.
Dr. Parmet indicated that claimant's case was not based on sound audiological testing. Dr. Parmet indicated that test results showed that claimant could distinguish the accuracy of spoken words at least half of the time.
The commission distinguished between the ability to hear words and ability to understand them and found a test that claimant could distinguish words at least half of the time did not address her ability to understand speech. As there was no testimony that the SRTT test evaluated an ability to understand speech it did not refute the claimant's medical expert. The SDT test, which could have addressed that issue, was not performed.
A concurring judge indicated that the fund mischaracterized its appeal as a question of law when it was a case of dueling experts and found the fund had lost most of any analytic value by not arguing the case using the four-step analysis encouraged by the court.
Claimant worked most of her life for a company in Greene County hat made paper products until the business shut down. The business closed in March 2011. She filed a claim that in December 2010 she developed an occupational disease of losing hearing because of exposure to loud noise. Hall v Solo Cup, 2015 MO WCLR Lexis 84. She was awarded PTD benefits against the second injury fund in a divided opinion whether tinnitus with normal speech discrimination testing represented a disability.
She worked in a print shop and used hearing protection. In 2008 she stated she began to hear ringing in her ears and she had difficulty understanding sound on her television. Her studies reflected only high frequency hearing loss which is not compensable in Missouri. Her expert concluded that her hearing loss was traumatic and that produced tinnitus and that claimant could not work in jobs that required "normal" speech. The Second Injury Fund relied upon expert testimony that her primary condition was not occupational and better explained by age or use of several medications for numerous chronic cardiac and orthopedic conditions. Her vocational expert felt she had problems communicating.
The ALJ found her expert more persuasive that claimant' tinnitus was occupational and awarded total disability benefits against the Fund based on testimony that prior conditions limited her to sedentary work and difficulties to communicate combined to produce additional limitations.
One commissioner indicated claimant failed to prove she had a disability from tinnitus and was not entitle to Fund benefits based on 287.220.1. The statute indicates that objective findings prevail over subjective findings. The commissioner noted expert opinion that an objective speech reception test which was normal objectively negated that any "ringing" in the ears caused an impairment in an ability to communicate. The award contains conflicting expert opinion whether she had normal speech recognition or not.
++
Jimmie Holifield v Mississippi Lime Company
2018 MO WCLR LEXIS (Jan. 18, 2018)
ALJ Strange
Atty Meyers, Micherman
Experts: Mason, Mikulec
Claimant alleges tinnitus for occupational exposure since the 1980s.
The ALJ notes that proof of tinnitus does not have to be established by a medical doctor instead of an audiologist.
The ALJ rejected a notice and statute of limitations defense and the condition was not reasonably discoverable until 2015 when Dr. Mason diagnosed the condition as an occupational disease.
The ALJ awarded 5% BAW for tinnitus.
The Commission affirmed without a separate opinion.
-----
Claimant failed to prove tinnitus but established hearing loss from industrial noise exposure from long-term retired employee with irregular use of hearing protection. The ALJ allowed audiologist to testify regarding causation. Abt v Mississippi Lime Co., 2017 MO WCLR Lexis 28 (April 6, 2017).
ALJ Kasten:
Atty: Meyers, Mockerhman
Experts: Masons, Mikulec
Claimant failed to prove hearing loss or tinnitus from industrial noise exposure. Claimant had military compensation for hearing loss and a family history of hearing loss. The ALJ found testimony from claimant's audiologist unpersuasive that it was "obvious" that it flowed from work.
Welty v Mississippi Lime Co., 2014 MO WCLR Lexis 113.
ALJ: Strange
Atty: Meyers, Mocherman
Experts: Mason, Mikulec
Claimant failed to prove hearing loss within a compensable range but established prolonged noise exposure more likely than not caused his tinnitus. Lawson v Mississippi Lime Company, 2014 Mo WCLR Lexis 46 The commission found that 287.190.6(2) did not require any lower weight to claimant's subjective complaints of tinnitus because the Commission concluded that tinnitus cannot be objectively assessed. The commission further noted that a non-medical doctor's credentials were sufficient to address causation.
ALJ Kasten
Atty: Meyers, Mocherman
Experts: Mason, Mikulec
Claimant failed in his burden to proof that hearing loss and tinnitus flowed from an acoustic trauma while working as a mechanic on an alternator. Kersey v Autry Morlan, 2013 Mo Lexis 133.
Claimant alleged that he lost part of his hearing and his ears started to ring after an accident in 2007. Regarding the tinnitus, his expert provided a PPD opinion but did not provide a causation opinion. As no other opinions found the tinnitus to be a prevailing factor, claimant failed to establish his tinnitus flowed from the accident. An opinion from the employer's expert indicating there "may" be a causal relationship did not satisfy his burden of proof.
Claimant had to prove that his hearing loss met minimum statutory threshold standards even in the case of an acoustic trauma. His expert performed none of the required tests for hearing loss to make that determination and the employer's expert who performed the required tests found no measurable loss based on the regulations. The commission found her less credible, affirming a denial of benefits from the ALJ. The rules require adjustment for age when a claimant is greater than 40 years old (which applied to claimant) and measured responses at 500 100 and 2000 Hertz. Averaging the lowest responses to pure tone air conduction frequencies at 500, 1000, and 2000 Hertz.
Commissioner Chick in his dissent at the Commission felt it was illogical for ALJ Tilley not to award disability because claimant denied prior tinnitus and felt that prevailing factor could be inferred and was not required to be stated directly. 2012 MO WCLR Lexis 14.
Experts: Mikulec, Guidos
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The Court of Appeals affirmed an award of SIF benefits for pre-existing hearing loss. Treasurer v State of MO v Horton , 497 S.W.3d 812 (Mo. App. 2016). transfer denied 2016 MO App. Lexis 300.
The SIF argued that 287.220.1 limited SIF recovery for body as a whole injury and major extremity injuries and that hearing loss did not fall within either category because it was a scheduled loss. The ALJ had awarded disability for hearing loss as BAW.
The court noted that "body as a whole" was not defined but captured everything that was not a major extremity injury. A similar argument, involving loss of vision, had been rejected by the Supreme Court in Pierson v Treasurer of State, 126 S.W.3d 386 (Mo banc 2004). The court found the SIF's argument would produce an absurd result under either strict or liberal construction.
In the case the ALJ had awarded hearing loss based on BAW.
The commission described the fund's argument as "patently illogical."
Claimant failed to prove an injury to his head at work caused a permanent loss of hearing without expert testimony or other admissible records. Claimant asserted the accident totally changed everything in his life and pursued a claim of PTD benefits. Burchfield v Renard Paper Co., 2012 Mo WCLR Lexis 172.
ALJ Landolt
Atty: Frayne
The SIF argued that objective testing was to be given more weight than subjective symptoms, and claimant's expert lacked any education or experience to assess disability in a hearing loss case.
The ALJ found claimant to be a very credible witness. Claimant introduced medical evidence from Dr. Koprivica that she had high frequency hearing loss demonstrated on exams that objectively showed she had tinnitus. Claimant testified she had a continuous buzzing that made it difficult for her to understand speech. She offered expert opinion that she could not work in an environment that required accurate perception of speech.
Dr. Parmet indicated that claimant's case was not based on sound audiological testing. Dr. Parmet indicated that test results showed that claimant could distinguish the accuracy of spoken words at least half of the time.
The commission distinguished between the ability to hear words and ability to understand them and found a test that claimant could distinguish words at least half of the time did not address her ability to understand speech. As there was no testimony that the SRTT test evaluated an ability to understand speech it did not refute the claimant's medical expert. The SDT test, which could have addressed that issue, was not performed.
A concurring judge indicated that the fund mischaracterized its appeal as a question of law when it was a case of dueling experts and found the fund had lost most of any analytic value by not arguing the case using the four-step analysis encouraged by the court.
Claimant worked most of her life for a company in Greene County hat made paper products until the business shut down. The business closed in March 2011. She filed a claim that in December 2010 she developed an occupational disease of losing hearing because of exposure to loud noise. Hall v Solo Cup, 2015 MO WCLR Lexis 84. She was awarded PTD benefits against the second injury fund in a divided opinion whether tinnitus with normal speech discrimination testing represented a disability.
She worked in a print shop and used hearing protection. In 2008 she stated she began to hear ringing in her ears and she had difficulty understanding sound on her television. Her studies reflected only high frequency hearing loss which is not compensable in Missouri. Her expert concluded that her hearing loss was traumatic and that produced tinnitus and that claimant could not work in jobs that required "normal" speech. The Second Injury Fund relied upon expert testimony that her primary condition was not occupational and better explained by age or use of several medications for numerous chronic cardiac and orthopedic conditions. Her vocational expert felt she had problems communicating.
The ALJ found her expert more persuasive that claimant' tinnitus was occupational and awarded total disability benefits against the Fund based on testimony that prior conditions limited her to sedentary work and difficulties to communicate combined to produce additional limitations.
One commissioner indicated claimant failed to prove she had a disability from tinnitus and was not entitle to Fund benefits based on 287.220.1. The statute indicates that objective findings prevail over subjective findings. The commissioner noted expert opinion that an objective speech reception test which was normal objectively negated that any "ringing" in the ears caused an impairment in an ability to communicate. The award contains conflicting expert opinion whether she had normal speech recognition or not.
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Jimmie Holifield v Mississippi Lime Company
2018 MO WCLR LEXIS (Jan. 18, 2018)
ALJ Strange
Atty Meyers, Micherman
Experts: Mason, Mikulec
Claimant alleges tinnitus for occupational exposure since the 1980s.
The ALJ notes that proof of tinnitus does not have to be established by a medical doctor instead of an audiologist.
The ALJ rejected a notice and statute of limitations defense and the condition was not reasonably discoverable until 2015 when Dr. Mason diagnosed the condition as an occupational disease.
The ALJ awarded 5% BAW for tinnitus.
The Commission affirmed without a separate opinion.
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Claimant failed to prove tinnitus but established hearing loss from industrial noise exposure from long-term retired employee with irregular use of hearing protection. The ALJ allowed audiologist to testify regarding causation. Abt v Mississippi Lime Co., 2017 MO WCLR Lexis 28 (April 6, 2017).
ALJ Kasten:
Atty: Meyers, Mockerhman
Experts: Masons, Mikulec
Claimant failed to prove hearing loss or tinnitus from industrial noise exposure. Claimant had military compensation for hearing loss and a family history of hearing loss. The ALJ found testimony from claimant's audiologist unpersuasive that it was "obvious" that it flowed from work.
Welty v Mississippi Lime Co., 2014 MO WCLR Lexis 113.
ALJ: Strange
Atty: Meyers, Mocherman
Experts: Mason, Mikulec
Claimant failed to prove hearing loss within a compensable range but established prolonged noise exposure more likely than not caused his tinnitus. Lawson v Mississippi Lime Company, 2014 Mo WCLR Lexis 46 The commission found that 287.190.6(2) did not require any lower weight to claimant's subjective complaints of tinnitus because the Commission concluded that tinnitus cannot be objectively assessed. The commission further noted that a non-medical doctor's credentials were sufficient to address causation.
ALJ Kasten
Atty: Meyers, Mocherman
Experts: Mason, Mikulec
Claimant failed in his burden to proof that hearing loss and tinnitus flowed from an acoustic trauma while working as a mechanic on an alternator. Kersey v Autry Morlan, 2013 Mo Lexis 133.
Claimant alleged that he lost part of his hearing and his ears started to ring after an accident in 2007. Regarding the tinnitus, his expert provided a PPD opinion but did not provide a causation opinion. As no other opinions found the tinnitus to be a prevailing factor, claimant failed to establish his tinnitus flowed from the accident. An opinion from the employer's expert indicating there "may" be a causal relationship did not satisfy his burden of proof.
Claimant had to prove that his hearing loss met minimum statutory threshold standards even in the case of an acoustic trauma. His expert performed none of the required tests for hearing loss to make that determination and the employer's expert who performed the required tests found no measurable loss based on the regulations. The commission found her less credible, affirming a denial of benefits from the ALJ. The rules require adjustment for age when a claimant is greater than 40 years old (which applied to claimant) and measured responses at 500 100 and 2000 Hertz. Averaging the lowest responses to pure tone air conduction frequencies at 500, 1000, and 2000 Hertz.
Commissioner Chick in his dissent at the Commission felt it was illogical for ALJ Tilley not to award disability because claimant denied prior tinnitus and felt that prevailing factor could be inferred and was not required to be stated directly. 2012 MO WCLR Lexis 14.
Experts: Mikulec, Guidos
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The Court of Appeals affirmed an award of SIF benefits for pre-existing hearing loss. Treasurer v State of MO v Horton , 497 S.W.3d 812 (Mo. App. 2016). transfer denied 2016 MO App. Lexis 300.
The SIF argued that 287.220.1 limited SIF recovery for body as a whole injury and major extremity injuries and that hearing loss did not fall within either category because it was a scheduled loss. The ALJ had awarded disability for hearing loss as BAW.
The court noted that "body as a whole" was not defined but captured everything that was not a major extremity injury. A similar argument, involving loss of vision, had been rejected by the Supreme Court in Pierson v Treasurer of State, 126 S.W.3d 386 (Mo banc 2004). The court found the SIF's argument would produce an absurd result under either strict or liberal construction.
In the case the ALJ had awarded hearing loss based on BAW.
The commission described the fund's argument as "patently illogical."
Claimant failed to prove an injury to his head at work caused a permanent loss of hearing without expert testimony or other admissible records. Claimant asserted the accident totally changed everything in his life and pursued a claim of PTD benefits. Burchfield v Renard Paper Co., 2012 Mo WCLR Lexis 172.
ALJ Landolt
Atty: Frayne
Wednesday, November 21, 2012
Second Injury Fund Benefits and Common Defenses
Second Injury Fund Benefits
Missouri's second injury fund provides benefits for permanent partial and total disability. In addition, the Fund provides second job wage loss, medical bills for uninsured employers, and rehabilitation benefits.
As of January 1, 2012, there were 28,866 open Missouri SIF claims pending before the Division. In 2011, $29,908,031.01 in permanent total (PTD) benefits (lifetime benefits) was paid to 1,076 recipients. In 2011, the new recipients added were closer to the 2002 to the 2009 average of 70 new injured employees receiving benefits annually. In 2011, 775 injured workers received permanent partial disability (PPD) benefits from the SIF. This is more than twice the number of recipients paid in 2010. The total amount of PPD benefits paid in 2011 was $6.4 million at an average of $8,311 per recipient. The SIF paid approximately $42,000 to injured employees for rehabilitation benefits in 2011. This amount covered weekly benefits for 103 injured workers. Seventeen injured employees received second job wage loss benefits from the SIF in 2011 for second job wage loss. The amount paid in 2011, $88,199.48, more than double what was paid in 2010. The average lump sum payment in 2011 was $4,376.92. The average lump sum medical benefit in 2011 was also about 40 percent less than the average payment in 2010 at $24,310.06.
Fund liability may also include interest on unpaid medicals for uninsured employers. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (applying pre-reform liberal construction), 2012 MO WCLR Lexis 188 (awarding $26,384.01 in interest).
Common Second Injury Fund Defenses
Several recent cases address common and unusual arguments asserted by the Fund.
The injured worker has the burden or proof. The claimant does not automatically win because the Fund fails to prepare a defense. "The Fund need not establish by medical evidence or otherwise that the injury was caused by something other than the employee's job; rather, the employee has the burden to prove a direct causal link between his injury and his employment. Therefore, the Fund was not required to introduce any medical evidence." Seifner v Treasurer of Mo., 362 S.W.3d 59 (Mo. App 2012)
The claimant failed to prove a primary compensable injury. The Second Injury Fund can assert defenses available to the employer that claimant failed to prove a compensable primary injury.
Same or similar body parts? One issue is whether subsequent injuries to the same part of the body are to be regarded as separate “accidents” for fund purposes are part of the same injury. Pace v City of St. Joseph, 2012 Mo. App. Lexis 716; Webb v UPS, 2010 MO WCLR Lexis 3. A related issue is determining what is the medical condition and if a subsequent injury is the same diagnosis or condition to show whether a synergistic effect exists. In Heston v Rock Hill Mechanical, 2009 MO WCLR 113, for example, claimant had a prior settlement for a spinal injury but reports his new injury caused an "increased herniation" and a small annular tear.
Is the accident idiopathic? Claimant rose from a squatted position and fell backwards. Woodruff v Health Mgmt. Assoc., 2012 Mo WCLR Lexis 191 (Nov. 9)(awarding benefits and noting the Fund offered no evidence on the defense.)
When did the disability occur? Fund liability may include conditions which become disabling after the date of a pled accident. Cohu v Earth Grain Breads Co., 2011 Mo WCLR Lexis 202 (the Commission considered the date of a subsequent bilateral knee replacement as the date of disability for purposes of 287.220). This conclusion is similar to Garrone v The Treasurer of the State of Mo., 157 S.W.3d 237 (Mo. App. 2004).
Does Fund liability apply to repetitive trauma? The Fund has liability even though a primary injury may arise from a repetitive trauma or occupational disease because it is a subsequent compensable injury. Peters v Treasurer of Mo, 2012 MO App. Lexis 1394, ED 98300 (Nov. 6, 2012); Magouirk v American Family Ins. Co., 2012 Mo WCLR Lexis 180 (Oct 10, 2012), Treasurer of the State of Mo v Stiers, 2012 MO App Lexis 1273 (Mo App WD Oct 9, 2012), Cassell v Dierbergs, 6-27-2013; Allen v Chrysler, 2-4-13, Clifton v Kupferer, (2-1-13) (hearing loss); Mills v MEMC, 2013 MO WCLR Lexis 16 (Jan 29, 2013) (affirming PTD award against the Fund), Burke v City of St. Louis, 2013 MO. WCLR Lexis 2 (Jan 10, 2013)(affirming award of $25,488.00 against Fund for 20% load); Coleman v Jarrell Contracting, 2013 Mo WCLR Lexis 7; Morris v Air Hydraulics, 2013 Mo WCLR Lexis 3 (Jan. 10, 2013); Harris v Hutkin Development Co., 2012 Mo WCLR Lexis 193 (Nov. 9, 2012); compare Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012); Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6-2012); Fanny v Ameren, 2012 Mo WCLR Lexis 84 (April 12-2012); Anderson v Anderson, 2012 Mo WCLR Lexis 46 (March 15, 2012), Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012); Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).
Disfigurement from injury. The claimant is not entitled to a double recovery for disfigurement from the employer and the second injury fund. Woods v Village Green Management, 2012 Mo WCLR Lexis 214 (December 19, 2012) (Modifying award).
Claimant has no compensable claim for SIF benefits when the last accident alone renders claimant unemployable. The Commission has suggested further inquiry about pre-existing conditions after this determination is inappropriate. Wright v Palmentere Bros Cartage Service, 2012 Mo WCLR Lexis 192 (Nov. 9, 2012). In these circumstances, there is no proof of a synergistic effect required for Fund liability.
This finding may exist in several circumstances: onerous restrictions from the first injury, Smyth v Oscar Wilson Engine and Parts, 2011 MO WCLR Lexis 56, high levels of disability from the first injury, Hill v The Boeing Company, 2010 MO WCLR Lexis 169 (MS). Evidence regarding prior restrictions does not shift liability to the Fund depending on the disabling nature of the primary injury. Carpenter v Trio Masonry, 2009 MO WCLR Lexis 54, affirmed 304 S.W.3d 803 (Mo. App. 2010) (prior career changes and long work medical absences).
The Commission continues to reject the defense that second injury fund liability does not attach unless there is direct evidence of previous disability.
In a case involving a claim for pre-existing obesity the commission noted: "We are convinced a cautious employer could reasonably perceive employee's obesity as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition. Accordingly, we conclude employee's obesity was serious enough to constitute a hindrance or obstacle to employment." The commission notes the proper focus is: "not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition." Gillham v Clarendon National Ins. Co., 2012 Mo. WCLR Lexis 139. Similarly, the Commission has rejected the argument that no SIF liability attaches because claimant worked full duty at the time of the accident. Reed v Government Employees Hospital Association, 2010 Mo WCLR Lexis 122 (noting previous FMLA leave and accommodations or bathroom breaks).
The Commission rejected an argument that because claimant had not missed time “recently” he did not have a prior disability, even though he had been off work several years and previously on social security due to permanent restrictions Fielder v NBA, 2010 MO WCLR Lexis 199.
The Commission rejected an argument that claimant’s prior heart condition was “asymptomatic”, despite a history of multiple prior heart surgeries. Lichtinger v Swiss Meats, 2011 Mo WCLR Lexis 127.
Is the disabling condition "measurable"? Complaints of shortness of breath did not create evidence of a "measurable" disability, even though claimant was subsequently diagnosed after the accident with cardiomyopathy. Tombaugh v Chux Trux, 2011 Mo WCLR Lexis 252. Similarly, The Commission denied benefits noting that the alleged prior disabilities of AVN and COPD were “undetectable” by multiple doctors. Peck-Miller v UPS, 2010 MO WCLR Lexis 121.
Does claimant have self-imposed hour restrictions? The part-time or semi-retired worker raises issues whether or not claimant’s self-imposed work restrictions flow from medical conditions or other reasons. In Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117, a claimant was denied total benefits who did not consider all "gainful" employment but only jobs that paid an "appropriate" salary. This may produce a different result when a claimant is on social security at the time of the accident but limits employment to preserve eligibility for benefits and not for medical reasons. O’Conner v Ozark R-4 School District, 2009 Mo. WCLR Lexis 105; Johnson v Walmart, 2009 Mo WCLR Lexis 46.
The Supreme Court is to address if prior disabilities have to be 12 1/2% BAW or 15% of an extremity but multiple prior conditions or be stacked to reach the threshold even if they do not separately reach statutory thresholds. Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093, Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098; Dyson v Treasurer of the State of Mo., 2012 MO App Lexis 1205, ED 97865 (Mo. App. 2012) Buhlinger v Treasurer of the State of Mo., 2012 Mo. App. Lexis 1212.
Oral arguments were held before the Mo. Supreme Court on December 11,2012 in Witte (SC92834), Salviccio (SC 92842) and Dyson (SC 92850).
In Manning v Hussmann Corp., 4-11-2013, 2013 MO WCLR Lexis 70; the Commission found that a prior settlement below the 15% threshold did not preclude claimant from pursuing second injury fund benefits when he produced new medical evidence from Dr. Volarich that his condition had worsened between the time of the settlement and the new injury. The Commission modified the finding that prior disability represented in the 12 1/2% settlement was now really 17 1/2% resulting in about another $2300 in the award. The SIF offered no medical evidence to contest the findings.
In Dixon v Jefferson Asphalt, 2013 Mo WCLR Lexis 17 (Jan 29, 2013) the Commission distinguished Witte and found that a prior cardiac condition and a prior heart condition combined together as both BAW conditions to reach 20% prior disability to combine with a forearm injury. ALJ Fischer awarded a de minimus load of 2.75%.
In Allen v Chrysler (Feb. 4, 2013) the Commission affirmed an award that declined to stack a pre-existing 10% settlement below-threshold to a primary injury involving the same body part.
Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits. Rowe v Barnes Jewish Hospital, 2012 Mo WCLR Lexis 66.
Claimant's need to lie down was a factor in finding him a PTD against the second injury fund, according to the Commission. Hilgart v Kabul Nursing Home, 2012 Mo WCLR Lexis 146 (July 25, 2012). The ALJ found claimant's need to lie down flowed from a post-accident fibromyalgia and had awarded only PPD benefits against the Fund.
The SIF has argued that the employer would not regard claimant as disabled if the claimant concealed any prior disabilities when he was hired.
The Fund offered expert testimony that claimant would not be vocationally impaired if she did not fully disclose her condition regarding her need to sleep due to back pain while applying for a job. Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012)
The Commission found that claimant was not capable of competing for employment in the open labor market because of his lack of candor, when he did not disclose debilitating back pain for 7 years before he was hired, his previous qualification for social security disability, and his own admission that he knew he would not be hired if he admitted his back pain and daily narcotic use and being “boogered up.” Cook v Buckley Powder Co., 2011 MO WCLR Lexis 52.
Claimant is unjustly enriched by an award of medical bills. The Fund argued paying claimant about ¼ million in medical bills might be a windfall if claimant didn’t pay the bills back to the medical providers. Skinner v. Donna Morgan, 306 S.W.3d 146 (Mo. App. 2010) finding strict construction and prior case law of Wilmeth v TMI Inc., 26 S.W.3d 476 (Mo.App. 2000), reject such a defense as unfounded and "conjuring a speculative scenario."
Claimant waived any Fund claims by settlement. The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, 298 S.W.3d 907 (Mo. App. 2009).
Section 287.220 describes the Fund's liability.
287.220. 1. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.
2. In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim. The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal. For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.
3. If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.
4. If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.
5. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.
Missouri's second injury fund provides benefits for permanent partial and total disability. In addition, the Fund provides second job wage loss, medical bills for uninsured employers, and rehabilitation benefits.
As of January 1, 2012, there were 28,866 open Missouri SIF claims pending before the Division. In 2011, $29,908,031.01 in permanent total (PTD) benefits (lifetime benefits) was paid to 1,076 recipients. In 2011, the new recipients added were closer to the 2002 to the 2009 average of 70 new injured employees receiving benefits annually. In 2011, 775 injured workers received permanent partial disability (PPD) benefits from the SIF. This is more than twice the number of recipients paid in 2010. The total amount of PPD benefits paid in 2011 was $6.4 million at an average of $8,311 per recipient. The SIF paid approximately $42,000 to injured employees for rehabilitation benefits in 2011. This amount covered weekly benefits for 103 injured workers. Seventeen injured employees received second job wage loss benefits from the SIF in 2011 for second job wage loss. The amount paid in 2011, $88,199.48, more than double what was paid in 2010. The average lump sum payment in 2011 was $4,376.92. The average lump sum medical benefit in 2011 was also about 40 percent less than the average payment in 2010 at $24,310.06.
Fund liability may also include interest on unpaid medicals for uninsured employers. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (applying pre-reform liberal construction), 2012 MO WCLR Lexis 188 (awarding $26,384.01 in interest).
Common Second Injury Fund Defenses
Several recent cases address common and unusual arguments asserted by the Fund.
The injured worker has the burden or proof. The claimant does not automatically win because the Fund fails to prepare a defense. "The Fund need not establish by medical evidence or otherwise that the injury was caused by something other than the employee's job; rather, the employee has the burden to prove a direct causal link between his injury and his employment. Therefore, the Fund was not required to introduce any medical evidence." Seifner v Treasurer of Mo., 362 S.W.3d 59 (Mo. App 2012)
Is the "injury" compensable?
The claimant failed to prove a primary compensable injury. The Second Injury Fund can assert defenses available to the employer that claimant failed to prove a compensable primary injury.
Same or similar body parts? One issue is whether subsequent injuries to the same part of the body are to be regarded as separate “accidents” for fund purposes are part of the same injury. Pace v City of St. Joseph, 2012 Mo. App. Lexis 716; Webb v UPS, 2010 MO WCLR Lexis 3. A related issue is determining what is the medical condition and if a subsequent injury is the same diagnosis or condition to show whether a synergistic effect exists. In Heston v Rock Hill Mechanical, 2009 MO WCLR 113, for example, claimant had a prior settlement for a spinal injury but reports his new injury caused an "increased herniation" and a small annular tear.
Is the accident idiopathic? Claimant rose from a squatted position and fell backwards. Woodruff v Health Mgmt. Assoc., 2012 Mo WCLR Lexis 191 (Nov. 9)(awarding benefits and noting the Fund offered no evidence on the defense.)
When did the disability occur? Fund liability may include conditions which become disabling after the date of a pled accident. Cohu v Earth Grain Breads Co., 2011 Mo WCLR Lexis 202 (the Commission considered the date of a subsequent bilateral knee replacement as the date of disability for purposes of 287.220). This conclusion is similar to Garrone v The Treasurer of the State of Mo., 157 S.W.3d 237 (Mo. App. 2004).
Does Fund liability apply to repetitive trauma? The Fund has liability even though a primary injury may arise from a repetitive trauma or occupational disease because it is a subsequent compensable injury. Peters v Treasurer of Mo, 2012 MO App. Lexis 1394, ED 98300 (Nov. 6, 2012); Magouirk v American Family Ins. Co., 2012 Mo WCLR Lexis 180 (Oct 10, 2012), Treasurer of the State of Mo v Stiers, 2012 MO App Lexis 1273 (Mo App WD Oct 9, 2012), Cassell v Dierbergs, 6-27-2013; Allen v Chrysler, 2-4-13, Clifton v Kupferer, (2-1-13) (hearing loss); Mills v MEMC, 2013 MO WCLR Lexis 16 (Jan 29, 2013) (affirming PTD award against the Fund), Burke v City of St. Louis, 2013 MO. WCLR Lexis 2 (Jan 10, 2013)(affirming award of $25,488.00 against Fund for 20% load); Coleman v Jarrell Contracting, 2013 Mo WCLR Lexis 7; Morris v Air Hydraulics, 2013 Mo WCLR Lexis 3 (Jan. 10, 2013); Harris v Hutkin Development Co., 2012 Mo WCLR Lexis 193 (Nov. 9, 2012); compare Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012); Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6-2012); Fanny v Ameren, 2012 Mo WCLR Lexis 84 (April 12-2012); Anderson v Anderson, 2012 Mo WCLR Lexis 46 (March 15, 2012), Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012); Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).
Disfigurement from injury. The claimant is not entitled to a double recovery for disfigurement from the employer and the second injury fund. Woods v Village Green Management, 2012 Mo WCLR Lexis 214 (December 19, 2012) (Modifying award).
Is Claimant PTD from the last accident alone?
Claimant has no compensable claim for SIF benefits when the last accident alone renders claimant unemployable. The Commission has suggested further inquiry about pre-existing conditions after this determination is inappropriate. Wright v Palmentere Bros Cartage Service, 2012 Mo WCLR Lexis 192 (Nov. 9, 2012). In these circumstances, there is no proof of a synergistic effect required for Fund liability.
This finding may exist in several circumstances: onerous restrictions from the first injury, Smyth v Oscar Wilson Engine and Parts, 2011 MO WCLR Lexis 56, high levels of disability from the first injury, Hill v The Boeing Company, 2010 MO WCLR Lexis 169 (MS). Evidence regarding prior restrictions does not shift liability to the Fund depending on the disabling nature of the primary injury. Carpenter v Trio Masonry, 2009 MO WCLR Lexis 54, affirmed 304 S.W.3d 803 (Mo. App. 2010) (prior career changes and long work medical absences).
Claimant’s prior condition was not “disabling” with or without restrictions
The Commission continues to reject the defense that second injury fund liability does not attach unless there is direct evidence of previous disability.
In a case involving a claim for pre-existing obesity the commission noted: "We are convinced a cautious employer could reasonably perceive employee's obesity as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition. Accordingly, we conclude employee's obesity was serious enough to constitute a hindrance or obstacle to employment." The commission notes the proper focus is: "not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition." Gillham v Clarendon National Ins. Co., 2012 Mo. WCLR Lexis 139. Similarly, the Commission has rejected the argument that no SIF liability attaches because claimant worked full duty at the time of the accident. Reed v Government Employees Hospital Association, 2010 Mo WCLR Lexis 122 (noting previous FMLA leave and accommodations or bathroom breaks).
The Commission rejected an argument that because claimant had not missed time “recently” he did not have a prior disability, even though he had been off work several years and previously on social security due to permanent restrictions Fielder v NBA, 2010 MO WCLR Lexis 199.
The Commission rejected an argument that claimant’s prior heart condition was “asymptomatic”, despite a history of multiple prior heart surgeries. Lichtinger v Swiss Meats, 2011 Mo WCLR Lexis 127.
Is the disabling condition "measurable"? Complaints of shortness of breath did not create evidence of a "measurable" disability, even though claimant was subsequently diagnosed after the accident with cardiomyopathy. Tombaugh v Chux Trux, 2011 Mo WCLR Lexis 252. Similarly, The Commission denied benefits noting that the alleged prior disabilities of AVN and COPD were “undetectable” by multiple doctors. Peck-Miller v UPS, 2010 MO WCLR Lexis 121.
Does claimant have self-imposed hour restrictions? The part-time or semi-retired worker raises issues whether or not claimant’s self-imposed work restrictions flow from medical conditions or other reasons. In Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117, a claimant was denied total benefits who did not consider all "gainful" employment but only jobs that paid an "appropriate" salary. This may produce a different result when a claimant is on social security at the time of the accident but limits employment to preserve eligibility for benefits and not for medical reasons. O’Conner v Ozark R-4 School District, 2009 Mo. WCLR Lexis 105; Johnson v Walmart, 2009 Mo WCLR Lexis 46.
Claimant fails to establish a prior disability at certain threshold levels.
The Supreme Court is to address if prior disabilities have to be 12 1/2% BAW or 15% of an extremity but multiple prior conditions or be stacked to reach the threshold even if they do not separately reach statutory thresholds. Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093, Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098; Dyson v Treasurer of the State of Mo., 2012 MO App Lexis 1205, ED 97865 (Mo. App. 2012) Buhlinger v Treasurer of the State of Mo., 2012 Mo. App. Lexis 1212.
Oral arguments were held before the Mo. Supreme Court on December 11,2012 in Witte (SC92834), Salviccio (SC 92842) and Dyson (SC 92850).
In Manning v Hussmann Corp., 4-11-2013, 2013 MO WCLR Lexis 70; the Commission found that a prior settlement below the 15% threshold did not preclude claimant from pursuing second injury fund benefits when he produced new medical evidence from Dr. Volarich that his condition had worsened between the time of the settlement and the new injury. The Commission modified the finding that prior disability represented in the 12 1/2% settlement was now really 17 1/2% resulting in about another $2300 in the award. The SIF offered no medical evidence to contest the findings.
In Dixon v Jefferson Asphalt, 2013 Mo WCLR Lexis 17 (Jan 29, 2013) the Commission distinguished Witte and found that a prior cardiac condition and a prior heart condition combined together as both BAW conditions to reach 20% prior disability to combine with a forearm injury. ALJ Fischer awarded a de minimus load of 2.75%.
In Allen v Chrysler (Feb. 4, 2013) the Commission affirmed an award that declined to stack a pre-existing 10% settlement below-threshold to a primary injury involving the same body part.
Post-Accident Worsening and causation disputes
Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits. Rowe v Barnes Jewish Hospital, 2012 Mo WCLR Lexis 66.
Claimant's need to lie down was a factor in finding him a PTD against the second injury fund, according to the Commission. Hilgart v Kabul Nursing Home, 2012 Mo WCLR Lexis 146 (July 25, 2012). The ALJ found claimant's need to lie down flowed from a post-accident fibromyalgia and had awarded only PPD benefits against the Fund.
“Don’t ask, don’t tell”
The SIF has argued that the employer would not regard claimant as disabled if the claimant concealed any prior disabilities when he was hired.
The Fund offered expert testimony that claimant would not be vocationally impaired if she did not fully disclose her condition regarding her need to sleep due to back pain while applying for a job. Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012)
The Commission found that claimant was not capable of competing for employment in the open labor market because of his lack of candor, when he did not disclose debilitating back pain for 7 years before he was hired, his previous qualification for social security disability, and his own admission that he knew he would not be hired if he admitted his back pain and daily narcotic use and being “boogered up.” Cook v Buckley Powder Co., 2011 MO WCLR Lexis 52.
Unjust Enrichment
Claimant is unjustly enriched by an award of medical bills. The Fund argued paying claimant about ¼ million in medical bills might be a windfall if claimant didn’t pay the bills back to the medical providers. Skinner v. Donna Morgan, 306 S.W.3d 146 (Mo. App. 2010) finding strict construction and prior case law of Wilmeth v TMI Inc., 26 S.W.3d 476 (Mo.App. 2000), reject such a defense as unfounded and "conjuring a speculative scenario."
Estoppel
Claimant waived any Fund claims by settlement. The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, 298 S.W.3d 907 (Mo. App. 2009).
Section 287.220 describes the Fund's liability.
287.220. 1. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.
2. In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim. The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal. For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.
3. If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.
4. If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.
5. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.
Wednesday, October 31, 2012
Market tightens for mo worker's comp
The number of reported injuries and claims filed in Missouri continued to dwindle in 2011. There was only 13,577 new filed claims in Missouri.
The industry sector with the highest concentration of claims remains health care, manufacturing and retail. Arm/shoulder injuries remains a source of many claims. The highest percentage of claims originate from St. Louis, Jackson County, and St. Louis City.
Only about 1 in 8 injured workers pursues a claim for compensation from a reported job injury. It is not clear which direction this is trending. People who want their day in court usually do not get it. There is a backlog of about 26,000 outstanding cases against employers. About 96% of claims are resolved without a hearing. Among resolved claims last year, about 18% of claims against employers and about 80% of claims against the second injury fund were dismissed. One explanation for the high percentage of dismissed Fund claims may be the Fund’s fiscal uncertainty despite its annual revenue of nearly $41,000,000.
Last year the Division issued 587 awards, on about 20% of the 3125 cases which were set for hearing. The second injury fund had nearly twice as many hearings to resolve cases as it did the previous year. The Fund was found liable in 2011 for about 70 new claims of PTD.
The highest concentration of reported injuries originated from men ages 40-49 and women ages 50-59. There may be some correlation between age and the high concentration of carpal tunnel claims among occupational diseases.
http://labor.mo.gov/DWC/Forms/DWC2011AnnualReport.pdf
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