The Commission affirms a total award for a shoulder injury but modified an award of TTD while claimant also collected unemployment benefits. Duarte v Butterball Inc., 2018 MO WCLR LEXIS (May 10, 2018).
Claimant alleged repetitive trauma while working for several months to remove meat from turkeys. Claimant immigrated to the United States when he was 63 years old and speaks limited English. Claimant denied prior symptoms. He treated primarily for a cuff tear.
The ALJ found causation and awarded PTD and more than a year in temporary disability benefits. Claimant's expert, Dr. Volarich, imposed permanent restrictions and rated 40% PPD. Dr. Parmet attributed claimant's condition to arthritis. Eldred felt claimant's physical restrictions prevented him from working and no one would hire him. Drieling felt he was unemployable but not due to the last accident alone. Claimant contends the employer would not rehire him.
The ALJ awarded future medical and noted "hardware" from the surgical procedure. The summary of the two surgeries does not mention hardware so it is unclear what hardware was involved in a cuff tear.
The ALJ awarded benefits of PTD after 2010 noting the last date of a exam by the treating doctor despite the absence of a finding of MMI.
The employer appealed and claimed the lack of evidence to support MMI.
The Commission relied up a 2013 IME report from Dr. Volarich as a basis to make a finding of MMI.
The Commission modified an award of nearly a year of TTD benefits and agreed claimant was not entitled to collect TTD when he also collected unemployment benefits for periods in 2010 and 2011 based on 287.170.3.
ALJ Wood
Atty Newman, Bullock, Pierce
https://labor.mo.gov/sites/labor/files/decisions_wc/DuarteManuel.pdf
Tuesday, May 15, 2018
Wednesday, May 2, 2018
Commission awards nearly $300,000 in benefits after treating doctor finds MMI
Elford Crafton v UPS Freight
2018 MO WCLR LEXIS ___
May 2, 2018
Claimant had a 2011 motor vehicle accident and he was released with a 3% rating. A surgeon concluded his condition was MMI. Claimant sought additional treatment on his own for a 2-level lumbar fusion and the Commission affirms an award of medical and PPD.
The Commission noted the employer tendered a second opinion of Dr. Coyle, who found that claimant was not a surgical candidate, the spinal condition was degenerative and was not related to the auto accident, and he needed to lose 75 pounds. The Commission noted there was no binding agreement that the parties would be bound by Dr. Coyle's conclusion as a tie-breaker, and the claimant could proceed on his own with treatment, resulting in an award of more than $240,000 in medical and 30% PPD. The Commission found insufficient evidence to award all the TTD claimed because the length of the employment was not firmly established and testimony of pain was too speculative to affirm the TTD award The commission noted the claimant had understated the amount of medical due by about $2,000 and awarded the higher amount.
The commission noted the attorney who tried the case asked the ALJ to award the fee to other plaintiff counsel.
ALJ: Carlisle
Atty: Walkenhorst, Morgan, Neumeyer,
Treater: Robson
Experts: Woiteshek, Chabot, Coyle
2018 MO WCLR LEXIS ___
May 2, 2018
Claimant had a 2011 motor vehicle accident and he was released with a 3% rating. A surgeon concluded his condition was MMI. Claimant sought additional treatment on his own for a 2-level lumbar fusion and the Commission affirms an award of medical and PPD.
The Commission noted the employer tendered a second opinion of Dr. Coyle, who found that claimant was not a surgical candidate, the spinal condition was degenerative and was not related to the auto accident, and he needed to lose 75 pounds. The Commission noted there was no binding agreement that the parties would be bound by Dr. Coyle's conclusion as a tie-breaker, and the claimant could proceed on his own with treatment, resulting in an award of more than $240,000 in medical and 30% PPD. The Commission found insufficient evidence to award all the TTD claimed because the length of the employment was not firmly established and testimony of pain was too speculative to affirm the TTD award The commission noted the claimant had understated the amount of medical due by about $2,000 and awarded the higher amount.
The commission noted the attorney who tried the case asked the ALJ to award the fee to other plaintiff counsel.
ALJ: Carlisle
Atty: Walkenhorst, Morgan, Neumeyer,
Treater: Robson
Experts: Woiteshek, Chabot, Coyle
Commission finds causation although expert "could have been more thorough"
Barnett v Harley Davidson
May 1, 2018
2018 MO WCLR LEXIS ___
The Commission affirms an award of 25% for disability benefits from repetitive overhead trauma and treatment related to a herniated cervical disc.
The Commission relies upon an expert who it concludes "could have been more thorough" but found sufficient evidence to adduce prevailing factor even the absence of articulating that conclusion with the "magic" statutory words and relied upon treating records which did not clearly document a work onset. The court noted that proof of repetitive trauma required expert testimony, but there was enough expert opinion to reach a conclusion. The commission suggested Dr. Bailey, the defense expert, over-relied on a written job description. Claimant performed overhead work with his hands as an assembler and stated he had to keep his neck in an awkward position.
The Commission rejected the alleged error that the ALJ failed to credit an offset for PTO benefits when the issue was not preserved at hearing and the application for review raised the issue but failed to articulate the time period which was being asserted. The employer did not show specific payment figures and testimony that claimant received "around $300" was insufficient to show a credit or to show an exception to 287.270.
The Commission considered the merits of the brief but noted the application did not comply with state rules because it was argumentative and not a fair and concise statement of facts "without argument."
The award represented about $47,000.
ALJ Pottenger
Atty: Spooner, Billam
Experts: Bailey, Hopkins
May 1, 2018
2018 MO WCLR LEXIS ___
The Commission affirms an award of 25% for disability benefits from repetitive overhead trauma and treatment related to a herniated cervical disc.
The Commission relies upon an expert who it concludes "could have been more thorough" but found sufficient evidence to adduce prevailing factor even the absence of articulating that conclusion with the "magic" statutory words and relied upon treating records which did not clearly document a work onset. The court noted that proof of repetitive trauma required expert testimony, but there was enough expert opinion to reach a conclusion. The commission suggested Dr. Bailey, the defense expert, over-relied on a written job description. Claimant performed overhead work with his hands as an assembler and stated he had to keep his neck in an awkward position.
The Commission rejected the alleged error that the ALJ failed to credit an offset for PTO benefits when the issue was not preserved at hearing and the application for review raised the issue but failed to articulate the time period which was being asserted. The employer did not show specific payment figures and testimony that claimant received "around $300" was insufficient to show a credit or to show an exception to 287.270.
The Commission considered the merits of the brief but noted the application did not comply with state rules because it was argumentative and not a fair and concise statement of facts "without argument."
The award represented about $47,000.
ALJ Pottenger
Atty: Spooner, Billam
Experts: Bailey, Hopkins
Tuesday, May 1, 2018
No reversible error by failure to plead specific diagnosis
The commission affirms an award for a right wrist injury after a "pop" based on the rating for a wrist fracture of the claimant's expert and an offset to short term disability benefits paid by the employer. Thomas Penning v Harley Davidson, April 25, 2018 DOLIR 2018 MOWCLR LEXIS __
Claimant was doing assembly work in 2013 and was treated for carpal tunnel and scaphoid fracture and underwent a carpal tunnel release and fusion to the wrist. He was rated with a 35% disability by his own expert for the fusion.. Dr. Guinn testified the accident caused the fracture. The ALJ found Dr. Toby's opinions disputing causation about the fracture was based on an inaccurate history. The employer offered no evidence to dispute the disability opinions of Dr. Poppa who rated 35% for the fusion and 25% for the carpal tunnel. The ALJ awarded open medical for the fracture, noting a "prn" release, but did not award open medical for carpal tunnel based on the testimony that claimant may require further testing.
The Commission noted a sudden onset of symptoms was consistent to support a medical opinion that accident caused a fracture or destabilized a previously asymptomatic fracture and either scenario supported proof of a change in pathology which caused a need for treatment. The Commission notes a finding in a radiology report that a fracture was "healing" to infer an acute onset.
The Commission rejected the defense argument that claimant was procedurally barred from pursing benefits for carpal tunnel because he did not plead a carpal tunnel injury. The Commission further noted no basis in the regulations for the defense to object to the submission of a proposed award. There was no error alleged regarding the award of temporary total and future medical.
ALJ Heffner, Billam
Atty: Perkins
Experts: Poppa, Guin
Treater Bagby
Friday, April 27, 2018
Court denies reduction for alleged safety violation in a catastrophic truck injury
Amie Elsworth v Wayne County Mo (Mo Association of Counties)
No. SD 34919 2018 MO APP LEXIS 421 (April 24, 2018)
The employer appeals an award of PTD and alleges the commission erred when it failed to allow a reduction in benefits due to an alleged safety penalty for speeding and failure to wear a seat belt. The Court affirms. The employer sought a reduction of benefits for an 18-year old involved in a catastrophic truck accident that put him in a permanent vegetative state.
The employer asserted it warned claimant to obey traffic laws and wear a seat belt. The employer argues that claimant did not follow the rules because he was speeding and did not wear a seat belt. The Commission affirmed the award of ALJ Robbins which denied the safety penalty. The employer asserted various negligent acts.
The court noted the employee received on the job training without evidence of the specificity as to what training was provided or received. The commission in the past had considered the efforts of employers to distribute written safety materials, schedule and present training seminars, warning employees with disciplinary actions, testing to be sure that employees understand the rules and if previous violations have gone unpunished. The section does not require a safety rule to be written. The Commission was free to disbelieve the employer concerning the scope of its safety rules and enforcement.
An accident reconstruction expert testified that the employer failed to adequately train the driver. He had obtained a commercial driver's instruction permit only two weeks before his first day n the job.
The case involves a 2007 accident. At the time of the original hearing, the employer had paid more than 2.5 million in past medical benefits.
https://labor.mo.gov/sites/labor/files/decisions_wc/ElsworthDustin.pdf
No. SD 34919 2018 MO APP LEXIS 421 (April 24, 2018)
The employer appeals an award of PTD and alleges the commission erred when it failed to allow a reduction in benefits due to an alleged safety penalty for speeding and failure to wear a seat belt. The Court affirms. The employer sought a reduction of benefits for an 18-year old involved in a catastrophic truck accident that put him in a permanent vegetative state.
The employer asserted it warned claimant to obey traffic laws and wear a seat belt. The employer argues that claimant did not follow the rules because he was speeding and did not wear a seat belt. The Commission affirmed the award of ALJ Robbins which denied the safety penalty. The employer asserted various negligent acts.
The court noted the employee received on the job training without evidence of the specificity as to what training was provided or received. The commission in the past had considered the efforts of employers to distribute written safety materials, schedule and present training seminars, warning employees with disciplinary actions, testing to be sure that employees understand the rules and if previous violations have gone unpunished. The section does not require a safety rule to be written. The Commission was free to disbelieve the employer concerning the scope of its safety rules and enforcement.
An accident reconstruction expert testified that the employer failed to adequately train the driver. He had obtained a commercial driver's instruction permit only two weeks before his first day n the job.
The case involves a 2007 accident. At the time of the original hearing, the employer had paid more than 2.5 million in past medical benefits.
https://labor.mo.gov/sites/labor/files/decisions_wc/ElsworthDustin.pdf
Wednesday, April 25, 2018
Court drops employer summary judgment on the disputed meaning of "regular"
The court of appeals reversed a summary judgment on behalf of a defendant who tried to argue that claimant was a statutory employee and exclusive remedy was within workers compensation. Barger v. Kansas City Power and Light Company, WD 80778 (April 24, 2018). 2018 MO APP LEXIS 422
GPES/KCP&L contracted with Projectile Tube Cleaning to clean tubes. The work was performed a few times a year as needed. Projectile agreed to provide comp coverage and further agreed its workers were not employees of KCP&L.
Claimant fell, injured his wrist, and pursued comp benefits against Projectile. About two years later the worker sued KCP&L in civil court under a res ipsa theory. The circuit court granted summary judgment and found no material factual issues in dispute. The court of appeals reversed the summary judgment.
The court noted that summary judgment is allowed only if there is no material fact in dispute and the burden is on the party seeking the motion. The court further noted that since McCracken v Wal-mart, 298 S.W.3d 473 (Mo 2009) that the party seeking a summary judgment has the burden as an affirmative defense and that strict construction applied to determine that issue under 287.800. The court notes that cases cited by the parties prior to McCracken now had more limited precedential value.
The court noted disputes of material fact in supporting affidavits based on the assertion that work done periodically "as needed" was not "regular" work to trigger the statutory employment defense. It was disputed if KCP&L had its own tools to perform the services.
The court noted that the agreement that the work was performed under and required by contact did not preclude the need for additional evidentiary hearing.
GPES/KCP&L contracted with Projectile Tube Cleaning to clean tubes. The work was performed a few times a year as needed. Projectile agreed to provide comp coverage and further agreed its workers were not employees of KCP&L.
Claimant fell, injured his wrist, and pursued comp benefits against Projectile. About two years later the worker sued KCP&L in civil court under a res ipsa theory. The circuit court granted summary judgment and found no material factual issues in dispute. The court of appeals reversed the summary judgment.
The court noted that summary judgment is allowed only if there is no material fact in dispute and the burden is on the party seeking the motion. The court further noted that since McCracken v Wal-mart, 298 S.W.3d 473 (Mo 2009) that the party seeking a summary judgment has the burden as an affirmative defense and that strict construction applied to determine that issue under 287.800. The court notes that cases cited by the parties prior to McCracken now had more limited precedential value.
The court noted disputes of material fact in supporting affidavits based on the assertion that work done periodically "as needed" was not "regular" work to trigger the statutory employment defense. It was disputed if KCP&L had its own tools to perform the services.
The court noted that the agreement that the work was performed under and required by contact did not preclude the need for additional evidentiary hearing.
Tuesday, April 24, 2018
Commission cuts 35% PPD award for low back strain
Claimant alleges in 2012 she injured her back and shoulder stacking tool boxes. The expert do not dispute that the accident injured claimant's back but reach different conclusions about the degree of disability.
The ALJ awarded 35% of the back and an additional amount of disability for the shoulder in 2012.
Claimant treated conservatively for her back and states she still experiences 10/10 pain levels which she treats with over the counter mediation. She describes difficulty walking. She has subsequently undergone a total hip replacement for avascular necrosis. The ALJ awarded the 35% claimant's expert, Dr. Zimmerman, rated to the back but did not award additional rated disability at the hip. The ALJ noted claimant's medical expert reached conclusions that were at odds with other medical records and reports.
The employer relies upon the opinion of Dr. Koprivica who assigned 5% disability for a low back strain for axial pain.
The ALJ awarded approximately $57,000 in PPD for the shoulder and back to about $27,000. The Commission affirmed the award denying future medical which was mostly self-help.
The Commission modified the award from 35% of the back to 15% of the back for a strain. It noted claimant's brain treatment may have impacted her ability to remember events.
Claimant was 53-years old and had worked for the employer in Sedalia for 13 years. Claimant qualified for social security disability in 2014 following surgery for sarcoidosis. She believes her brain condition was also work related, a position not supported by any expert.
The Commission noted the parties did not make TTD an issue, and declined to address findings by the ALJ that claimant was not entitled to TTD.
Mary Claxon v Waterloo Industries, 2018 MO WCLR LEXIS __ (4/18/2018)
ALJ Anderson
Atty: Smith, Gary
Experts: Zimmerman, Koprivica
The ALJ awarded 35% of the back and an additional amount of disability for the shoulder in 2012.
Claimant treated conservatively for her back and states she still experiences 10/10 pain levels which she treats with over the counter mediation. She describes difficulty walking. She has subsequently undergone a total hip replacement for avascular necrosis. The ALJ awarded the 35% claimant's expert, Dr. Zimmerman, rated to the back but did not award additional rated disability at the hip. The ALJ noted claimant's medical expert reached conclusions that were at odds with other medical records and reports.
The employer relies upon the opinion of Dr. Koprivica who assigned 5% disability for a low back strain for axial pain.
The ALJ awarded approximately $57,000 in PPD for the shoulder and back to about $27,000. The Commission affirmed the award denying future medical which was mostly self-help.
The Commission modified the award from 35% of the back to 15% of the back for a strain. It noted claimant's brain treatment may have impacted her ability to remember events.
Claimant was 53-years old and had worked for the employer in Sedalia for 13 years. Claimant qualified for social security disability in 2014 following surgery for sarcoidosis. She believes her brain condition was also work related, a position not supported by any expert.
The Commission noted the parties did not make TTD an issue, and declined to address findings by the ALJ that claimant was not entitled to TTD.
Mary Claxon v Waterloo Industries, 2018 MO WCLR LEXIS __ (4/18/2018)
ALJ Anderson
Atty: Smith, Gary
Experts: Zimmerman, Koprivica
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