Court of Appeals affirms an award for spouse providing emotional support

Ronald Reynolds v Wilcox Truck Line, Inc.

Venue:  Western District

Release date:  Sept. 17, 2019

pages:  18

Plot Summary:  The Court of Appeals affirms a Commission award of permanent and  total disability benefits and affirms an award for nursing services provided by his wife which includes emotional support for the worker's PTSD.

Claimant's  truck overturned  in 2007 and he escaped the wreckage before it caught fire and burned.  He was diagnosed with PTSD and major depressive disorder. Claimant's wife quit her job to care for her husband and asserts she spends 20 hours a day "to keep him calm" when he had panic attacks among other activities.   The ALJ (Miner) denied nursing benefits but the commission found the services were compensable because they were 'nursing' care distinguishable from services of a spouse 

WD 81969    2019 MO APP. LEXIS 1459    https://www.courts.mo.gov/file.jsp?id=144334

Prequel:  

https://labor.mo.gov/sites/labor/files/decisions_wc/ReynoldsRonald07-065590070318.pdf

Cast:

Hardwick, Judge

Lanham, atty

Powell, atty

Steven Akeson

Dale Halfaker

Stanley Butts

Gary Weimholt  

Jennifer Lynch

Memorable Quotes:

"the legislature demonstrated that it is perfectly capable of abrogating previous opinions it finds objectionable"

Comments:

The crux of the employer's argument is the types of the services the spouse performed were not "real" nursing services and that the commission was writing checks for someone to perform "normal" activities to support a spouse emotionally  Claimant  quit her job, and argues the scope of duties were extensive (20 hours a day) and she was  involved in other medical management activities rather than just emotional assurance to make her injured spouse feel someone had his back. 

The court found persuasive the argument that the activities could be characterized as nursing duties that would be medically necessary if the spouse did not provide them rather than drawing the line in the sand of what an "ordinary" spouse might be expected to perform. To that extent, the court seemed to suggest the employer would be obligated to find d a nurse to perform similar tasks such as managing meds and could pay a nurse if it did not want to pay the spouse.  The findings are unclear if claimant simply could not perform the task (self medical management, for example) or if the spouse simply assumed the duties and role to perform the activity and wants to be paid as an after-thought.   The Commission reduced the amount of compensation the spouse had sought for her services from essentially round the clock to 3 days a week.  
  
The court also dismissed the employer's argument that its defense was compromised by claimant's refusal to appear for a psychiatric exam.   The court criticized the employer's argument as "thinly disguised invitation" to re-visit the issue of credibility and failed to show why the ALJ was wrong to deny further psychiatric evaluation based on opinion evidence that more exams would "endanger" him. 

Claimant's return to work for a trial period did not defeat a claim of total disability and claimant's activity on a cattle farm which he claims he needed constant supervision did not establish he was capable of working in the open labor market.  Similarly, post-accident conduct to not seek employment did not negate a finding that he was unemployable when that conclusion was supported by expert opinion.

The court noted that pre-reform allowed compensation to allow an award of nursing services for a spouse.  The court found section 287.800.1 and its mandate for strict construction did not require reversal of these cases.  The court relied upon a dictionary definition to allow nursing that included duties of a person skilled in caring for and waiting on the infirm, the injured, or the sick, which could include one especially trained to carry out such duties under the supervision of a physician.  The court found no legislative purpose to abrogate the earlier cases or a more restrictive scope of services.  

What's it worth?

PTD for PTSD/Depression with open medical.

Appeal fails in allergy case when worker does not identify a specific error in her application for review

Ali Crawford v Ronald McDonald House Charities

Release Date:  Sept. 26, 2019  (2012 Accident Date)

Venue:  Southern District 

Plot Summary:  Court of Appeals affirms a dismissal of claimant's appeal, and finds  that the Commission did not act without or in excess of its powers when it dismissed an appeal because of a failure to comply with 8 CSR 20-3.030(3)(A) which requires the applicant to state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported.  In the case the ALJ found the employer's expert more credible and denied benefits.  

https://www.courts.mo.gov/file.jsp?id=144693

No. SD 36028   Mo App. Lexis 1534

Cast

Sheffield, J.

Newman, atty

Hecht, atty

Comments:  Claimant alleged a severe allergic reaction while at work because of an exposure to latex and presented records and an expert opinion to support his claim.  The ALJ found the employer's expert more credible and denied the claim (The underlying decision is not published).  Claimant appealed and alleged:

1.  The judge erred in finding that the Employer/Insurer was not liable for Claimant's injuries and for Claimant's permanent partial disability, as the only credible evidence was that the employee was injured at work on December 11, 2012, in that she was removed from her place  of employment at the time of the exposure and taken to the emergency room by medial personnel suffering from an allergic reaction and as a result of the exposure, Claimant has sustained permanent partial disability.

2.  The only credible evidence is that Claimant was injured while at work and (the ALJ) ignored that evidence in reaching his decision that Claimant's injuries and subsequent disability were not work related.

The Commission notes the claimant failed to state why her evidence was the only credible evidence or failed to identify what specific evidence the ALJ allegedly ignored.  The application did not state specifically why the ALJ 's decision is not properly supported. It was not enough for the applicant to  state that the she felt her evidence was more credible.  The general assertion that the decision was not supported by competent and sufficient evidence was "patently insufficient" to comply with the rule.

Judge Scott in a concurring opinion felt the lack of specificity was not prejudicial when the parties intended to brief any alleged errors.  The judge notes the irony that the Commission requests more specificity but in a new September 2, 2019 rule now advises parties to keep the application short (five pages or less).  Judge Scott noted the rule to require specificity flowed from a "presumed" legislative intent  to deter frivolous appeals by employers.  

Court finds claimant identified a work hazard from a slippery surface and reverses a denial based on lack of credibility

 
Credibility findings are never disturbed by the court of appeals.  Right?

The case involves a highly educated 55-year old teacher from Turkmenistan who never goes back to work after she falls coming into work from the parking lot.  MARAL ANNAYESA V SAB OF THE TSD OF THE CITY OF ST. LOUIS AND TREASURER OF MISSOURI  ED 107558 (July 30, 2019)(Chief Judge Dolan)

In the rare case, the Court finds the Commission's decision not to believe the claimant was arbitrary
 just because she couldn't initially identify why she fell, or that she didn't initially  tell her doctors why she fell, or she was a little late getting to the point in her testimony.

She testified  eventually that she fell because the entrance had no rugs and had water or dirt or something.  Her medical records mentioned it  within a few weeks.  The claimant has the burden to only identify a risk, and she has no duty to ever mention at  a risk if it  can be established by reasonable inference.  There were no rugs, remember? 

The Commission can disbelieve the witness and it's normally game over unless there are some legal error.    But here's the rub.  The basis for the disbelief cannot be arbitrary.   The Court suggests the commission made the finding of credibility to be questionable because the discussion of hazard did not occur as a "focus" of the testimony until it was elicited by the attorney.  The court appears to conclude the lack of credibility was rooted in how the questions were asked and not the answers that were elicited and the Commission never came out in big letters and said it did not believe her.

The Court notes there was no evidence which further  supports the Commission's finding that there was no hazard.  Just because there was no defect in the floor did not mean there wasn't a hazard on its surface. 

The employer relies on a defense of failure of proof that the claimant would not be found credible on the issue of injury by accident by omissions of a specific identifiable hazard in her initial medical history or initial report.  The defense relies upon the evidentiary nutshell  that a story first in time is more credible than a second, more detailed, story, that makes a better case.

The defense failed to convince the court in two respects.  First,  the court found inconsistent statements as to cause or omissions in medical history not material because there was no reason for any doctor to 'get into that.'  This misses an important and fundamental  point about emergency medicine.   Getting into causes why someone falls is pivotal to medical history because when people just fall for no reason it has medical consequence and directly impacts decisions about care.  To suggest there is no reason to 'get into that'  because it is not important is a strange conclusion. that it would irrelevant to a plan of care or diagnosis.  Additional testimony on the issue may have established a foundation for a different inference.   Nor is it clear the defense offered any evidence of an idiopathic cause to explain why she would spontaneously fall. 
  

A good risk management practice in an age of cell phones is to always take pictures of an accident scene because it might be important one day what was there or not there, regardless of what a claimant has to say.   This type of pro-active position not only helps defenses in these types of cases but promotes safety if a hazard actually exists.  By inference the employer  was faulted because it did  not investigate a hazard when claimant never said there was a hazard and did not produce evidence or testimony that it was fine.   This is the conundrum of failing to prove a negative. 

 
The case is remanded to address causation. 

The Commission did not address the issue of credibility of the medical experts in its initial award and limited its finding on a failure to prove injury by accident by the lack of an identifiable work risk. 

The ALJ noted the lack of objective findings impacted his credibility findings. The dissenting commissioner felt was perfectly consistent with her alleged somatic disorder and there was no reason someone could not be disabled based without any objective findings. 

ALJ Teer noted found opinions of claimant’s medical experts were specious. 

 

“Initially, the Court finds, as to Claimant's credibility, she has failed to provide credible

testimony to this Court. It is clear Claimant's description of her injuries and their subsequent

effects verge on the point of malingering. As all, if not most, of Claimant's medical expert

testimony relies is substantial part on her own subjective description of her maladies, this Court

finds the conclusions subsequently provided are equally specious. There is little or no objective

medical finding to support any of Claimant's anomalies. Claimant has not met her burden of

showing the incident of January 8, 2013 was the prevailing factor causing the physiological

and/or psychological complaints. This Court, therefore shall deny this claim on the basis of lack

of medical causation.”

The court  finds the Commission erroneous in its conclusion that showing up at work and falling at the entrance was not in the course of employment even without 'clocking in.'  That finding is not unexpected. 

ED 107558  $ https://www.courts.mo.gov/file.jsp?id=142855

Prequel 

https://labor.mo.gov/sites/labor/files/decisions_wc/AnnayevaMaral13-0009091-17-19.pdf  

 

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Missouri Workers' Compensation Alerts is a new ebook available  on Amazon in April 2019 which explores  more than 100 of  the latest Missouri cases from January 2018 to April 2019 in an easy topical and "movie-review" format.  Find out  judges, experts, and award values!  It is a great reference for anyone interested in comp.
 

Future medical affirmed for aggravation of prior depression

Cynthia Null v Albany Medical Center dba Northwest Medical Center Association
2018 MO WCLR LEXIS ----
Inj.  12-100528  12/20/2018
https://labor.mo.gov/sites/labor/files/decisions_wc/NullCynthia12-10052812-20-18.pdf


The Commission affirms an award of past and future medical related to a slip and fall in a parking lot that produced knee and ankle injuries and aggravated prior psychiatric conditions and found future treatment was reasonably likely.

The future medical award included treatment for chronic pain management, treatment related to a spinal cord stimulator, psychological counseling and medication for depression and psychological injury.

The past medical in dispute represented about $41,000.

The only issue in dispute was past and future medical. 

The parties prior to hearing stipulated to disputed disability of $120,000 related to injuries to the ankle, foot and knee that required ORIF to the ankle and arthroscopy to the knee.  The employer had paid more than $281,000 in medical benefits including treatment for pain management and psychiatric care. The fund had stipulated to $60,000 for a disputed PTD. The pro rata rate was substantially below the comp rate.

The Commission found  the need for future medical treatment from an admitted accident was established with reasonable probability and  as a matter of law rejected the employer's argument that claimant must show the accident was a prevailing factor in the need for medical treatment related to disputed psychiatric care.  The Commission found the award of past medical care of about $41,000 was based on credible evidence even though the medical opinion was based in part on claimant's incomplete medical history. 

Dr. Schmidt testified claimant's accident aggravated a prior major depressive disorder and caused a new pain disorder.  He notes claimant has "unusual physical reactions" and acted "bizarrely." He rated her with a 15% new impairment and attributed an additional  10% to pre-existing.  the employer's original expert felt claimant had post traumatic stress disorder among other conditions.  The ALJ rejected the expert opinion that claimant had a permanent pain disorder or required medication indefinitely. 

The ALJ detailed findings that claimant's prior medical history was 'less than entirely consistent'.  The Commission found no lack of intent to deceive but concluded inconsistencies likely flowed from a confused mental state and impact of medication prescribed for her work injury.  Claimant describes multiple 'black out' spells attributed to medication from multiple sources.  Claimant was regarded as credible about her impairment following the accident.

 A concurring opinion felt the alleged error argued by the employer was weakened because the employer had provided care for psychiatric treatment.

The parties reached an agreement prior to hearing that employer  agreed to pay $10,000 toward the disputed medical bills irrespective to any decision by the judge and the payment would be credited toward any award above that amount (the total medical in dispute was about $41,000).  The ALJ found the employer failed to prove claimant's personal liability had been extinguished and ordered the entire amount.

The 69-page opinion describes prior issues with chronic pain and somatic disorder.  She describes post-accident "black-out" spells (related in medication) and "unusual" presentation of pain. The diagnosis included major depressive disorder with pain syndrome with elements of complex regional pain disorder. 

Atty:    Dickson, Doyle, Shine
Expert:  Schmidt , Koprivica, Drieling, Rosenthal, Cordray
Treater:  Pronko, Hu, Jura

Court finds no contempt remedy for unpaid interest

Smith v Capital Region Medical Center
2018 MO App LEXIS ____
December 18, 2018
WD 81273

https://www.courts.mo.gov/file.jsp?id=134428

The court of appeals affirms a dismissal of a petition to hold the employer in contempt for not paying interest accrued on appeal of a worker's compensation award . 

" Our courts have long held that Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money....This case offers no reason to depart from that settled principle. "

The employer had paid after an award of more than $300,000 in benefits but did not pay accrued interest while the employer appealed the award.

The award was for interest "as required by law."  Interest is determined by 287.160.3.  The court found the award supported an obligation to award interest.

The employer argued the award was indeterminate and only the Commission had jurisdiction to determine the liablity.  The court rejected the arguments.

This was not an "open" claim that compelled exclusive jurisdiction of the Commission and the trial court had the inherent  authority to make the calculation of the exact amount due  because it is not an outstanding factual issue, even though the amount and interest was not expressly indicated in the award

"Section 287.160.3 is not recited here, but its terms plainly describe the amount of interest that will accrue on weekly benefit payments, and the date or event after which interest will accrue."
 

 The court found contempt was not available as a remedy to enforce a money judgment.
"Claimant's argument to use civil contempt to support a money judgment is not supported by well-settle law."

 The court notes exceptions such as child support cases were distinguishable.  The contempt remedy could apply when a party fails to perform other obligations beyond the payment of money such as not providing medical treatment ordered by the commission.

The court notes the employer did not raise the issue in its motion to dismiss that claimant had never reduced the award to a judgment pursuant to 287.500 so there was no judgment for the trial court to consider. The defendant in its motion failed to identify controlling case law to support its argument and improperly cited a per curium decision  (footnote 9). 

Court suggests different standard of review for denied comp cases

Farmer v Treasurer of the State of MO
2018  Mo App. Lexis ___
SD 35637
December 17, 2018

The Court of Appeals affirms a denial of second injury fund benefits in which the ALJ found claimant lacked credibility and his testimony was not trustworthy of belief.

The court raises on its own  an issue whether to apply the same criteria to evaluate workers' compensation cases in which the Commission award benefits and decisions which deny benefits and concludes the terms to evaluate awards (v non-awards) may warrant consideration of different standards.

"Perhaps because the word "award" appears so prominently (but not exclusively) in section 287.495 as describing final commission decisions, the division and commission typically title their ultimate decision an "award" whether benefits are granted or denied. This ubiquity is unfortunate because it heightens certain logical difficulties ....

In reviewing final decisions adverse to the claimant – the party with the burden of persuasion – the standard of review set forth in Hampton seems, frankly, nonsensical, and we believe it should be reconsidered for the reasons contained in our high court’s more recent decision in White v. Director of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (stating, "When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party" (internal citation omitted)). However, both the majority and dissenting opinions in Malam v. State, Dep’t of Corr., 492 S.W.3d 926, 928, 930 (Mo. banc 2016), purported to apply the Hampton standard in their differing analyses of the Commission’s affirmance of a decision denying compensation, so we will attempt to apply it here to the best of our ability. "


Claimant appealed and argued substantial evidence of medical expert opinion supported the award absent what he felt was improper admission of evidence of prior convictions for social security fraud.  The Court found no reversible error as the exhibits were cumulative as claimant had already admitted to the fraud convictions in his testimony.

"Claimant’s argument fails to appreciate that his credibility was crucial in resolving his claim. It is within the sole province of the Commission "to make such [credibility] findings[,] and we defer to such credibility determinations"

Claimant was a 58 year former chief of police for Hayti Heights who alleged  two claims against his employer for a neck injury from breaking up a fight and a stress claim for working long hours.   The opinion describes claimant's multiple claims in the past.  He pled guilty to making a false statement to obtain social security benefits, and concealing earned wages above the income threshold for disability.

Claimant's own expert, Dr. Driver,  reported it was difficult to obtain a consistent story but diagnosed him with a personality disorder. He found the MMPI profile was invalid. 

Claimant objected at trial to the admission of certified records from the federal and state courts concerning the prior convictions.  The ALJ found the admission of prior conviction was equivocal to support the admission of the documents. Claimant contends the admission of the additional records were irrelevant because he freely admitted the convictions.

The ALJ found claimant failed to prove accident of either a neck injury or psychological condition due to lack of credibility based on inconsistent history.

The erroneous admission of incompetent evidence did not warrant setting aside the award if it was otherwise supported.  The court noted the outcome was based on the finding that claimant was not trustworthy and not disregarding objective evidence which would have supported an award.

The employer had paid partial disability settlements in the two claims for neck injury and stress to settle the litigation. 
Experts:  Volarich, Driver, Shea