Court declines to limit remarriage benefits

Missouri worker's compensation law allows a two-year lump-sum benefit to a surviving spouse who remarries.  The Missouri Court of Appeals addressed  whether a surviving spouse receives the full amount of the remarriage benefit  if the surviving spouse was not entitled to 100% of the death benefits. 

In Ash v Millennium Restoration and Construction, SD 32381 (Mo. Ct. App. August 27, 2013); 2013 Mo App. Lexis 1005,  the court construed 287.240(4) clause "the benefits due for a period of two years" to mean the full weekly compensation rate of $742.72 for remarriage benefits, and not the lower amount of $247.57 that had been allocated to the spouse as survivor benefits.

The statute addresses two separate benefits including periodic death benefits and a remarriage benefit.  The provision addressing death benefits contains a provision regarding allocation. The court declined to construe the same provision to remarriage benefits.

"Section 287.240 does not contain any language which expressly indicates that the remarriage benefit should be calculated based only on the amount of the weekly death benefits attributable to the remarrying spouse."  Applying strict construction, the court concludes the employer's argument would require the court to add a limitation not expressly indicated.   The surviving spouse received more than another $50,000 as a statutory  benefit lump-sum for remarrying. 

The  CDC reports more than half of surviving spouses will remarry within a ten year period, depending on age.    http://www.cdc.gov/nchs/data/ad/ad323.pdf.  

J. Burrell

Atty:  Platter ,Clinkenbeard

 

 

 
 

Doctor not paid, employer does not have to pay twice

Claimant had an accident in 2007 and his plastic surgeon was not paid for more than $23,000 in billed services.  The doctor was listed as a creditor which was discharged in claimant's bankruptcy in August 2008.  The case proceeded to hearing in 2010 when claimant was awarded benefits and received payment for about $40,000 representing the charges in dispute.  No money was every distributed the medical provider. In November 2012 the provider filed an application for direct benefit to be paid.

The carrier had no obligation to pay the provider twice the disputed charges.  Concannon had waited 22 months after the award, and nearly 5 years after the treatment to pursue payment without clear evidence was it was every authorized in the first place.   Schwab v Lamb Construction, 2013 Mo WCLR Lexis 136 (August 1, 2013). 

It does beg the question why the carrier did not dispute liability for medical bills in the hearing if the debt had already been discharged in the chapter 7 bankruptcy.

Atty:  Bridges, Thompson

Nurse awarded disability for helping difficult child birth

A nurse  held a patient's head for a long time during a difficult child birth and as a result she developed permanent disability in her back.  The Commission agreed, affirming an award of nearly $168,000.  Beatrice v Univ. of Mo., 2013 Mo WCLR Lexis 134 (Aug 2, 2013).

The employer disputed the need for surgery based on normal studies.  Claimant reported pain and underwent a two level anterior fusion although multiple  pre-operative studies showed no evidence of neural compression or disc pathology.  Claimant reported the surgery did little to improve her intractable back pain.   The ALJ noted that claimant reported  improved symptoms with incontinence even though the procedure had incomplete resolution of her back pain and she still required narcotics.

Dr. Highland concluded the claimant had  positive pre-operative discogram  and dismissed a prior "normal" discogram because the prior study did not use  contrast dye.   The employer raised concerns about psychiatric sources of claimant's pain but claimant refused to attend a psychiatric IME. any psychiatric conditions.

The  ALJ in a prior temporary award ordered the employer to provide a discogram to evaluate claimant's condition and treatment.  He  found the employer was not liable for fees because it had reasonable grounds to dispute its liability.  The level of PPD awarded was based on claimant's own expert.  

On appeal, the court of appeals affirmed the award.  Beatrice v Curators of the University of Missouri, 2014 MO App. Lexis 839 (Aug 5, 2014) and indicated  in a case of conflicting medical opinions the Commission was within its discretion to accept the opinion of a surgeon who performed a disputed two level anterior fusion compared to 5 other experts and disregard the employer's argument that the claimant  "was able to fake her bladder symptoms because of her knowledge as a nurse and her prior employment at a law firm and the Litigation Management firm."

ALJ Dierkes
Atty:  Rotts, Cline, Montgomery
Experts:  Highland, Coyle

No civil suit against contractor after comp settlement

Can a worker pursue a civil suit against a contractor when he has settled the comp case against the subcontractor involving the same accident because of statutory requirement of strict construction?  No, according to the court of appeals in Shaw v Mega Industries, No.  75501 (WD Mo. App. July 30, 2013).

Shaw is the sole owner of RLS.  He was hired as a subcontractor by Mega Industries.  In 2009 he settled a case between RLS and himself for injuries one of his employees dropped a phone booth on him.   Claimant/owner settled against his company's work comp carrier and then sued the company that hired his own company to perform the work.   Claimant appeals the summary judgment against him when he filed a civil claim against Mega after settling the comp case. 

The claimant argued contrary to a Supreme Court decision from 1938 involving similar facts.  "A statutory employer was immune from common law actions even if the statutory employer faced no liability for workers' compensation benefits because the injured worker was insured by his immediate supervisor."  The exclusive provisions apply even when the Act did not require payment and that Mega was deemed an employer under the Act even though it pays no compensation. 

Commission reverses future medical award

The Commission reversed an award of open medical and concluded that any need for future medical treatment flowed from the worker's pre-existing COPD because her work-related pneumonia had resolved.   Claimant sprayed hog barns at Premium Stand Farms and states her job exposed her to water spray, manure, urine and afterbirth.  Navis v Premium Standard Farm, 2013 MO WCLR Lexis 128 (July 18, 2013), affirmed WD 76756 (May 20, 2014).

Premium Stand Farms processed 110,000 sows and 18 million pigs a year.  the ALJ found she developed legionella bacteria  which likely arose from her exposure at work, even though she had other risk of infection.  The ALJ found claimant 50% disabled from her work exposure and totally disabled against the Fund due to prior COPD.

Claimant denied prior symptoms. The ALJ noted:   "She wishes to have her total disability assessed against the employer alone. I do not know if the claimant is mistaken or if she is not being truthful and afraid she would not receive compensation due to the current financial condition of the Second Injury Fund."  The ALJ further rejected her allegations of new and old psychiatric injury.  "I also do not believe that she has any psychological problems that combined with her existing disabilities that caused an increase in her disability. All of the conditions causing the claimant to be unable to work are not involved with her psychological condition. I did not find Mr. Schmidt's testimony correct or relevant to this Award."

 The experts disagreed on the correct respiratory diagnosis or whether the employer's use of super-heated hoses essentially eliminated any  risk of exposure.  A dissenting commissioner felt claimant failed to prove work was a substantial factor in her medical condition. 

Carrier owes past benefits despite 3rd party settlement

In Demore v Demore Enterprises, 2013 Mo App. Lexis 834, remanded to Commission by Supreme Court for settlement, SC 93640. (June 2014), claimant received an award for about $91,000 in past medical benefits plus future medical.  The carrier contended that it could take a credit or offset against he award for past benefits because claimant had already received an $80,000 settlement.   The court of appeals affirmed the commission, denying such a credit. 

The Commission construed 287.150 to handle credits differently if the award is limited to past liquidated damages only  or includes past and future damages.  In the second case, a third party settlement applies only to future obligations and excuses an employer's obligation to provide treatment up to the extent of the credit.  At the time of the third party settlement the carrier/employer had not paid any benefits. "By statute and case law, this settlement money is treated as Insurer's "advance payment ... of any future installments of compensation ...."

The court further affirmed that the employer, and not the insurer, has the statutory authority to designate a medical provider.

Many comp cases often involve some degree of future medical exposure either by agreement or by the requirements of Medicare.  In such cases an agreement in the contracts  to "protect subrogation interests" may not reflect the true intent of the parties and best practices should designate how any subrogation applies regarding past obligations. 

No waiver of control of future medical care

Claimant was hurt while en route to investigate a vandalism of property owned by her family's business.  The court of appeals affirms an award of benefits to claimant and her parents.   Demore v Demore Enterprises, 2013 Mo App. Lexis 835 (SD July 15, 2013), appealed and argued before supreme court 4-23-2014 (SC 93640).

The primary fight in this case centers on whether the accident arose out of the employment and who makes the decisions regarding future medical treatment.

The Commission found the employer/insurer did not waive a right to control future medical, and the court of appeals deferred to that factual finding.  The court of appeals found the commission incorrectly found that the insurer committed no waiver, when the statutory right to designate a doctor flowed solely from the employer.  This was a point the insurer conceded.   The decision indirectly recognizes the  different role of an injured working while working for her own family business and asks whether the claimant really "seriously questions the medical care offered by her family-owned business."

The court of appeals affirms the Commission's denial of about $40,000 as sanctions for an unreasonable defense, reversing an award of fees by the ALJ.   The Commission noted the defense was not unreasonable because of the unsettled state of law about arising out of defenses produced by statutory reform and application of strict construction.  The court rejects arguments from the carrier and provides several instructions on more effective appellate practice. 

In the original case, 2012 MO WCLR Lexis 171  American First Ins. Co.  asserts that claimant, a bookkeeper,  was running a personal errand. ALJ Wilson sharply noted that the  denial for 2 1/2 years shifted more than $100,000 medical expenses to claimant (and Medicare).