synergy

Failure to prove synergy - multiple prior back surgeries

The Commission reversed an award of PTD against the SIF on the basis of prior back impairment combined with a knee contusion.  Claimant's vocational expert changed his opinion and indicated the claimant was totally disabled from pre-existing conditions when provided more complete pre-accident records. 

"Where a medical expert relies upon a demonstrably incomplete and/or incorrect history of an employee's medical treatment in connection with preexisting conditions of ill-being --especially where that treatment involves multiple lumbar spine surgeries and a lengthy period of short-term disability --we simply cannot credit their ultimate opinions with regard to the nature and extent or combination of any disability referable to a claimed work injury versus such preexisting conditions. For this reason, we must find that Dr. Zimmerman's analysis and opinions lack any persuasive value in this case."

Glasco v Citicorp  2016 MO WCLR Lexis 63.
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Failure to use term of art "synergy"


The Commission affirmed a SIF based a "close" case whether or not claimant established proof of synergy when claimant's expert did not use the word synergy.  Pentridge v Gayman Construction, 2016 MO WCLR Lexis 22.

The Commission inferred evidence of synergy by claimant's report of prior medical impairment impeding with his recovery from the primary injury, loss of income, and expert opinion that claimant's overall disability was higher. 

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The Commission affirms an award of 10% synergy.  Hazelrigg v Gary Gribble's Running Sports, 2016 MO WCLR Lexis 62.

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The court of appeals affirmed a denial of PTD fund benefits on a finding that claimant's expert failed to show synergy, rejected the argument that the Commission must accept the medical conclusion when the Fund offered no contrary opinion.  Rasa  v Treasurer of the State of MO,  474 S.W..3D 572 WD 78562  Claimant's own opinion on the issue was regarded as less credible without medical support. 

Claimant failed to establish synergy by lack of expert testimony on the issue of disability on the date of accident.  Claimant's expert provided a disability opinion 4 years after the accident. The ALJ found no explanation of how conditions combined synergistically.  Spratt v US Airways, 2016 MO WCLR Lexis 27.
ALJ Carlisle
Experts:  Musich


"....Stuckmeyer did not explain how the chronic pre-existing conditions were rated or responsible for the overall disability, nor how they combined with the primary injury to create current work restrictions.  .... Stuckmeyer merely offered a conclusory opinion ...."

Atty:  Neuner, Conrad

The court of appeals affirmed a denial of fund benefits based on lack of synergy. Winingear v Treasurer of the State of Mo., 474 S.W.3d 203 (Mo. 2015)

Claimant was choked while working security at Fulton State Hospital and settled the claim against the employer for a neck injury paying new disability on top of a prior settlement for the neck.  Claimant then used the 2 neck cases and prior injuries to pursue SIF benefits.  The commission found Dr. Cohen's conclusions that synergy existed to support Fund liability was not persuasive without any explanation.  The court affirmed the denial and deferred to the commission to assess credibility, even though the commission may have articulated the wrong legal standard in its opinion of clear and convincing evidence.  It does not appear the Fund offered an expert testimony to contest the claim.  The case was decided before reform in 2013 limited such partial claims for Fund benefits.


The commission affirmed a denial of SIF benefits based on lack of synergy.  Reynolds v. Fulton State Hospital, 2015 Mo WCLR Lexis 76.

Claimant settled a case against the employer for 3% and sought SIF benefits for prior medical conditions involving a right knee, a groin injury when the claimant was "grabbed" by a patient and a significant prior 38%t to the same ankle from a ligament reconstruction surgery as a result of a work injury while playing basketball with patients.   The commission found no  basis to award SIF benefits when the record contained no lay or expert opinion about the enhanced disability.  It noted a worker was generally competent to testify about enhanced disability when injuries were bilateral but "here the employee has failed to produce any evidence" except how each prior condition caused separate disability.

ALJ Ruth
Atty:  Keifer,
Experts:  Volarich
Treater: Krause

Court directs parties to commission to resolve when "open"medical means

State ex rel  ISP Minerals v the Labor and Indus. Relations Commission, No. SC 94478 (Mo. 2015).

                This is a case primarily about two things.  What did the parties mean when they settled a case and agreed to leave medical open and who should interpret the meaning of what is owed  if there is a dispute?  It is in some respects primarily a “contract” case about intent but is important for the procedural warning that employers may be pulled back into the comp system if the contract language is unclear or if the parties dispute what it includes.

                The problem in the first instance arose when the parties settled a case for disability but claimant had ongoing medical issues related to a pulmonary condition and apparently was at risk for silicosis.  To address these concerns, the employer agreed to leave medial “open.”  The employer apparently did not want to pay for inhalers and basically argued that the medical was left only partially open to include monitoring such as scans but not include other things.  It was the employer’s position that when the case was settled that the employee’s only recourse was to sue them in circuit court for specific performance or breach of contact if they didn’t like what was being paid or what was being denied.

                The Supreme Court in oral arguments questioned the narrow interpretation by the employer when it promised to “leave future related medical care open” that it meant to only include monitoring and not a broader array of treatment such as inhalers.  In the case claimant had sought to obtain inhalers, but the employer denied benefits based on a second opinion contrary to the recommendations of the physician they designated in the settlement contracts to provide treatment. 

                The court resolved the dispute based on its statutory interpretation.  Section  287.390.1 did not include language which divested the Division of jurisdiction in these circumstances.  Section 287.801 vested authority to “review” claims of future medical benefits with the commission and appellate courts and not the circuit court. The Division has long established authority to sort out the employer’s obligations for treatment for industrial injuries.  The court noted the issue here was one of interpretation, caused by the contract language itself, and not a matter of enforcement.   If the issue was simply enforcement (an unpaid award, for example), then 287.500 provided a procedural remedy to register and enforce the judgment through circuit court.

                  There may be a drafting lesson here to avoid this type of “buyer’s regret"  by the employer  designating a specific specialist on the contract.  What if the specialist dies or retires and there are no contingencies?  What if the specialist does something unexpected?  Perhaps the drafting lesson is to retain the right to select a physician rather than naming one person without other contingencies for medical management of a claim.  Parties can certainly use additional pages to sort out contingencies rather than the “short hand” method used here.  Defense counsel in oral arguments spent a lot of time describing the word "open" as a term of art in comp.   Parties are free to structure what they will pay for and not pay for, which is becoming necessary in more cases generally because of Medicare involvement in many comp settlements.  The Medicare problem becomes a bigger problem to if  parties in cases agree to leave medical open, acknowledge they are settling in consideration of Medicare's interests, and then refuse to pay for treatment.  The issue of enforcement is often understated in contracts.  Perhaps even if the Division technically retains jurisdiction the parties could designate by contract other means to resolve disputes more quickly when the costs are limited such as various ADR methods.

Atty:  Lindsay, Mogab

Employer owes TKR for arthritic knee

A claimant cannot 'waive' her right for the employer to pay medical services for a work related condition until she knows the condition is work related.  Dierks v Kraft Foods, WD 77893 (Mo App. 2015) (July 14, 2015).

The case involves a  common scenario. Claimant is 68-years old. She has bilateral knee arthritis and asserts the left knee became symptomatic after the work injury.  An expert indicated her meniscus tear arose from arthritis and not from trauma. The Commission rejected the defense.  It found claimant had a new condition based on the opinion of her surgeon and her own testimony. 
As a result, the Commission awarded the medical benefits, future medical for a TKR, and disability benefits.

"When Dierks sought to get her knee surgically repaired by Dr. Buchert, she had no reason to believe that employer should be responsible for providing that medical treatment. It was only while performing the surgery that Dr. Buchert saw evidence of an acute injury to the knee and was able to determine that the meniscus tear had been caused by her work injury. "

The court rejects the employer's appeal noting "well-settled principle" that it defers  to the Commission to make determinations regarding credibility.  It  notes the employer "expresses a belief" that this deference  does not apply in cases in which testimony is submitted by deposition.  It relied upon Dr. Koprivica's opinion that the accident accelerated the arthritis and need for surgery and escalated the condition to the point of a disability. The Commission could reasonably rely upon expert testimony that osteoarthritis had progressed even in the absence of current x-rays to verify any progression.  

The Commission affirmed an award of PTD against the Second Injury Fund in part due to a prior right knee condition which had severe arthritis and required repair of a torn meniscus with no history of trauma.  The SIF disputed liability and asserted claimant was able to work 12 hour shifts and had no disabling symptoms.   The court noted that the SIF may have over-relied on statements from the claimant that her right knee was asymptomatic  before the new left knee injury and construed the statement to only mean the time period "right before the accident."

 "The fact that a person has managed to perform various work duties does not preclude the fact that they have a permanent partial disability. Frequently, restrictions placed upon workers by doctors are not measures of what an individual has the physical ability to do but are, rather, directions designed to keep the worker from engaging in behavior likely to worsen their condition, cause pain, or lead to future injury."  
J. Ellis
Experts:  Koprivica, Cohen, Main
Treater: Buchert

Medical fee dispute not subject to 60 day service

A doctor selected by the comp carrier disputed partial payment of a medical bill, resulting in an award of the entire bill when the employer offered no evidence disputing the reasonableness of the charges.  Phillips v Allied Systems, 2015 Mo WCLR Lexis 72 (June 25, 2015).

AIG re-priced the bill and reduced the charges by $1,090.  The ALJ found no factual or legal basis to dispute the charges.   The Commission affirmed the award.  The employer objected to the admission of the affidavit by the ALJ pursuant to 287.210 when it was served less than 60 days before the hearing.   The Commission  made a distinction between a doctor-written report that was an expert medical opinion subject to the 60 day rule  and an expert "professional" opinion addressing the narrower issue whether the doctor regarded his own fees were reasonable.  It concluded the admission of fee-dispute reports were governed by 287.140 and not 287.210.7. The only objection was whether the report violated the "rules of evidence in civil proceedings."


ALJ Rebman
Atty Schroer, Moen

Commission puts employers on notice

A new Commission case affirmed an award of benefits, but what make the case important are dicta on how the new Commission now views denials based on lack of written notice. Brown v Nestle Purina Petcare, 2015 MO WCLR Lexis 33 (April 16, 2015).

Some background is important.  Missouri’s notice statute, 287.420, required injured workers to provide written notice of a work place injury (with several exceptions).  The exceptions often swallowed up the defense and in 2005 the legislature amended the statute.  Among other things, it threw out the "good cause" defense for late notice and triggered an obligation to provide notice after diagnosis.   This lead to a number of cases indicating that there was no duty to provide notice on diagnosis alone  until an expert told a worker the condition was work related.  It was unreasonable to assume, to paraphrase Kenny Rogers, for a worker to know what condition his condition was in. 

Jennifer Brown is an obese  lady in her late 40s who developed asthma as an adult.    Asthma runs in the family.  She developed breathing symptoms after working several years working in a plant making kitty litter in southeastern Missouri.  She had a variety of duties operating machines which incude what she describes as a regular “smell” test.  Sometimes she used masks; sometimes she did not. An expert attributed the likely cause of her asthma to exposure to perfumes, heptane and/or bentonite.  Another expert felt it was adult-onset asthma.  The employer hired both experts. 

 The ALJ essentially found it didn’t really matter whether the worker  provided notice because she showed the employer was never prejudiced by lack of notice.  The purpose of notice is to tender care and investigate claims.  Here, the employer never tendered care.  There was no evidence that its investigation was hampered.  In fact, the employer exercised its right frequently for medical exams, and when an expert found the condition was work related, it would send her somewhere else.  The case ultimately was decided on a battle of the experts (all hired by the employee). Not surprisingly, the ALJ found the case compensable based on an expert from the employer who made causation.

The Commission’s statutory interpretation about notice is what makes the case, well, worth the notice.  § 287.420 specifically requires employee to provide notice to the employer of the "nature of the injury." It creates a duty to provide notice “no later than thirty days after the diagnosis of the condition.”

What is meant by “condition”? A condition is not just the body part or symptoms flowing from a specific body part.  A condition according to the Commission appears to mean the exact diagnosis the Division ultimately finds to be work related.  If there is no parity in diagnosis, there is no duty to report, and if there is no duty there is no notice defense.  The clock does not begin until a doctor tells the claimant there is a condition which is the same conditions the judge finds to be the work-related diagnosis.  Here, the commission found the 30 day notice clock did not begin to run until someone told her she had obstructive air way disease, even though she was told earlier her symptoms to the same part of the body were better explained by reactive airway disease. 

 “Her diagnosis of restrictive lung disease runs contrary to the diagnoses rendered by the testifying pulmonary specialists. Specifically, Drs. Hyers and Tepper agree that employee suffers from asthma, while Dr. Tuteur provided the more specific diagnosis of irritant induced bronchial reactivity disease.” It notes  "Especially where § 287.420 specifically requires employee to provide notice to the employer of the "nature of the injury," we are not persuaded that Dr. McCants's incorrect diagnosis triggered the 30-day notice period."

 The diagnosis of worker’s conditions frequently changes in the course of a case.  Diagnosis is a work in progress.  While the diagnosis may match in simple cases (a fracture, for example) the diagnosis is probably rarely the same in more complex issues involving the heart or lungs.  The diagnosis in forensic exams used as a basis to award disability often varies widely from diagnosis on treating records.  The expectation of diagnostic parity is not realistic in most cases.

The problem is this strict interpretation produces an absurd result. Section 287.420 can be over-used defensively (to deny benefits).  The interpretation in this case to negate the defense almost seems to practically bring back the "good excuse" argument the legislature eliminated because the worker has good excuse for not knowing the exact diagnosis a judge might find was the cause many years later in a hearing.  There is no indication why the legislature may have intended the result in this case.

 Section 287.420 has another purpose too.  It invokes the duty to provide care based on general information about the nature of the injury  Similarly, since the duty to provide care is not invoked by specific diagnosis the duty to provide notice should follow the same standard. 

ALJ:  Robbins
Atty: Moreland, Day
Experts:  Teuter, Hyers

Res judicata bars second OD claim after denial of accident

Claimant tried a case for a shoulder injury, he was denied benefits, and then filed on a second case involving the same shoulder.   The court of appeals found the Commission exceeded its powers by allowing the worker to re-litigate the claim in a second hearing based on an alternate theory of occupational disease.  Johnson Controls v David Trimmer, WD 77948 (Mo. App. 2015) (April 21, 2015). 

Claimant was a career employee who  tore his shoulder tendon.  His medical histories initially deny any accident and later document a fall.  The case was tried and the ALJ found claimant failed to prove accident.  Claimant appealed and lost.  He then filed a second claim alleging occupational disease.   The ALJ then ordered treatment in a temporary award.  The employer appealed and was ordered by the Commission to provide treatment and paid about $66,000 in benefits.   The claim proceeded to a final hearing which the employer lost both at hearing which was affirmed 2-1, resulting in a further award of partial disability.

The dispute arose whether claimant was precluded from litigating the issue of occupational disease in the second hearing based on the doctrine of res judicata.  The court ultimately found that occupational disease was previously litigated or should have been raised.   The stipulated issue in the first hearing was: "whether or not the claimant sustained an accident or occupational disease" and the denial
implicitly found  that claimant failed to prove occupational disease.  The problem arose because the judge only expressly found that he failed to prove that he "sustained an accidental injury" and made additional comments that he suspected claimant's shoulder condition should have been compensable as an occupational disease.  The attorney took the hint and then filed the second claim.

The court finds that even if the issue of occupational disease was not fully resolved in the first case it should have been brought and was barred by res judicata because the same operative facts give rise to both claims including the same medical and testimonial evidence.   The fact that causes of action arise from two separate statutory provisions did not matter.  It found there was not reason to reach the issue if claimant ever sustained an occupational disease.

Two separate ALJs had found the two cases were separate and distinct causes of action based on two separate provisions.  Trimmer v Johnson Controls, 2001 MO WCLR Lexis 101.  ALJ Allen noted in the original award:  "This is a troublesome case because I suspect that the claimant's injury to his left shoulder was the result of   30 years of hard physical labor performed for the employer. This should have been compensable. However, the claimant has pled an alleged injury from a fall." 2006 MO WCLR Lexis 118. ALJ Miner wrote the final award.   The dissent at the Commission  the proper remedy was to appeal the decision to the court of appeals rather than re-litigating the case in a separate proceeding. 
 

Employer did not lose its right to direct medical

Claimant Pace sustained permanent and total disability as a result of work injuries in 2002 while employed for the City of Joseph.   In 2011 the Commission issued a final award for past medical bills and an order for the employer to direct and authorize and furnish medical care in accordance with section 287.140.Pace v  City of St. Joseph, WD 77976 (April 21, 2015).  Claimant Pace asserts that he has the right to pick his own medical doctors and require the employer to pay for it. 

Pace registered the judgment and both parties sought declaratory judgments whether the employer had the right to direct medical providers.  This prior award included a finding that the city had previously waived its right to direct its worker to medical doctors as provided in 287.140. The trial court granted the City's motion for summary judgment and Pace appealed. 

The court affirmed the summary judgment that the award allowed the employer the right to select the provider as provided in 287.140 because the award itself was "in accordance" with the statute.  The court found that claimant did not timely preserve the issue because he did not appeal it to the commission regarding the ALJ and Commission's power to restore the City's right to select a provider and could not challenge the issue in a collateral attack.  The court distinguished between findings of waiver for past medical care and cases in which the Commission had specifically ordered future medical services from a claimant's spouse.