Anthony Davis v Negri Plumbing
Release Date: Jan 14, 2020 (Accident Date Sept 1, 2010)
Venue: Howell County
Plot Summary: The Commission in a 2-1 decision reverses a denial of SIF benefits. Claimant alleges he was unable to return to work as a plumber after a knee injury. A majority of the commission finds claimant's brittle bone condition was a qualifying fund condition equivalent to 20% BAW.
https://labor.mo.gov/sites/labor/files/decisions_wc/DavisAnthony10-06980801-14-20.pdf
Cast:
Alberhasky
Elmer, ALJ
Swaim
Putnam -10% (report not in evidence)
Eldred - PTD
England - PPD
Comments:
The ALJ noted prior to the accident claimant's demonstrated a sustained capacity to perform heavy-duty work and failed to establish his brittle bone condition was an obstacle or hindrance, even though his osteogenesis imperfecta had caused 22 prior fractures.
What's it worth?
45% knee with open medical
Tuesday, January 28, 2020
Monday, January 27, 2020
Fund total denied based on lack of clear expert opinon
Sterling Bennett v Coatings Unlimited
Phoenix/Travelers Ins.
Date of Release: Jan 10, 2020 (Accident Date Aug 14, 2013)
Venue: Clay County
Plot Summary: Commission affirms a denial of benefits against the SIF for a claimant who fell backwards in a bucket lift and injured his knee. Claimant failed in his burden of proof to establish convincing Fund claim which alleged PTD benefits.
https://labor.mo.gov/sites/labor/files/decisions_wc/BennettSterling13-07793301-10-20.pdf
Memorable Quotes:
"She noted that he would not present well in a job interview because he appears drowsy and confused, had impaired attention and memory, had problems holding a pencil with his right hand and took his blood sugar twice during the interview."
Comments:
Berkin "includes boilerplate Second Injury Fund combination language that says, "I feel the combination of his disabilities is significantly greater than their simple sum, and a loading factor should be applied." At first glance, it is clear that this combination language Dr. Berkin provides in this report, includes the combination of the March 24, 2014 disabilities with everything else listed. I find nothing in the report, and no opinions from Dr. Berkin, that narrowly tailors the combination language to the combination of the August 14, 2013 injury and any pre-existing disabilities creating a synergistic effect and invoking Second Injury Fund liability for permanent partial disability."
"Dr. Berkin's failure to, specifically, opine the nature and extent of the permanent partial disabilities that may have pre-existed the August 14, 2013 injury, his failure to, specifically, opine that any disabilities were a hindrance or obstacle to employment or re-employment prior to August 14, 2013 (as opposed to March 24, 2014), and his failure to provide clear and persuasive opinions (along with explanations) for how the August 14, 2013 injury combined with any pre-existing disabilities to result in a greater overall amount of disability than the simple sum. This finding is also based on Claimant's failure to provide clear and convincing evidence on how these disabilities may have combined to make him worse on account of the combination."
What's it worth?
22.5% meniscectomy
Phoenix/Travelers Ins.
Date of Release: Jan 10, 2020 (Accident Date Aug 14, 2013)
Venue: Clay County
Plot Summary: Commission affirms a denial of benefits against the SIF for a claimant who fell backwards in a bucket lift and injured his knee. Claimant failed in his burden of proof to establish convincing Fund claim which alleged PTD benefits.
https://labor.mo.gov/sites/labor/files/decisions_wc/BennettSterling13-07793301-10-20.pdf
Cast
Ottenad, ALJ
Berkin
Gonzalez
Mass, atty
Sandberg
Memorable Quotes:
"She noted that he would not present well in a job interview because he appears drowsy and confused, had impaired attention and memory, had problems holding a pencil with his right hand and took his blood sugar twice during the interview."
Comments:
Berkin "includes boilerplate Second Injury Fund combination language that says, "I feel the combination of his disabilities is significantly greater than their simple sum, and a loading factor should be applied." At first glance, it is clear that this combination language Dr. Berkin provides in this report, includes the combination of the March 24, 2014 disabilities with everything else listed. I find nothing in the report, and no opinions from Dr. Berkin, that narrowly tailors the combination language to the combination of the August 14, 2013 injury and any pre-existing disabilities creating a synergistic effect and invoking Second Injury Fund liability for permanent partial disability."
"Dr. Berkin's failure to, specifically, opine the nature and extent of the permanent partial disabilities that may have pre-existed the August 14, 2013 injury, his failure to, specifically, opine that any disabilities were a hindrance or obstacle to employment or re-employment prior to August 14, 2013 (as opposed to March 24, 2014), and his failure to provide clear and persuasive opinions (along with explanations) for how the August 14, 2013 injury combined with any pre-existing disabilities to result in a greater overall amount of disability than the simple sum. This finding is also based on Claimant's failure to provide clear and convincing evidence on how these disabilities may have combined to make him worse on account of the combination."
What's it worth?
22.5% meniscectomy
Friday, January 24, 2020
Benefits denied for fall involving arthritic shoulder
Valerie Williams v Senior Lutheran Services
Safety National Casualty
Release Date: Jan 10, 2020
Venue: St. Louis
Plot Summary: A 66 year old social worker fell on her employer's icy parking lot and landed on her arm. The Commission affirmed the denial of benefits that claimant failed to establish the fall was the prevailing factor in the cause of the medical condition.
https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsValerie18-00182601-10-20.pdf
Cast
Teer, ALJ
Peterson, atty
Reynolds, atty
Wright
Aleem
Young
Comments
The employer paid about $3700 in medical bills but disputed the relationship of ongoing care to the accident and that the employer owed for a total shoulder when claimant denied her pre-existing severe arthritis caused prior symptoms.
Dr. Young indicated the accident caused a "flare up" but no new evidence of internal derangement and the symptoms flow from her severe arthrosis. Claimant scheduled a total joint replacement. Two of claimant's orthopedic surgeons reached conflicting conclusions whether she had an unusual combination of severe arthritis and a full thickness tear. The ALJ indicated the evidence did not support a finding that claimant had a 'unspecified' shoulder strain. Claimant denied prior symptoms.
The ALJ found claimant established an accident, and that the accident was only a triggering condition and failed to meet the prevailing factor standard to show injury by accident. The ALJ indicate that "it is not sufficient that the event simply aggravates a preexisting condition. See Johnson v. Indiana Western Express, Inc., 281 S.W.3d 885 (Mo.App. 2009).
Safety National Casualty
Release Date: Jan 10, 2020
Venue: St. Louis
Plot Summary: A 66 year old social worker fell on her employer's icy parking lot and landed on her arm. The Commission affirmed the denial of benefits that claimant failed to establish the fall was the prevailing factor in the cause of the medical condition.
https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsValerie18-00182601-10-20.pdf
Cast
Teer, ALJ
Peterson, atty
Reynolds, atty
Wright
Aleem
Young
Comments
The employer paid about $3700 in medical bills but disputed the relationship of ongoing care to the accident and that the employer owed for a total shoulder when claimant denied her pre-existing severe arthritis caused prior symptoms.
Dr. Young indicated the accident caused a "flare up" but no new evidence of internal derangement and the symptoms flow from her severe arthrosis. Claimant scheduled a total joint replacement. Two of claimant's orthopedic surgeons reached conflicting conclusions whether she had an unusual combination of severe arthritis and a full thickness tear. The ALJ indicated the evidence did not support a finding that claimant had a 'unspecified' shoulder strain. Claimant denied prior symptoms.
The ALJ found claimant established an accident, and that the accident was only a triggering condition and failed to meet the prevailing factor standard to show injury by accident. The ALJ indicate that "it is not sufficient that the event simply aggravates a preexisting condition. See Johnson v. Indiana Western Express, Inc., 281 S.W.3d 885 (Mo.App. 2009).
ALJ awards carpal tunnel treatment and finds claimant's testimony more reliable than ergonomic study
Genise Richards v Becton-Dickinson
Ace American Ins.
Release Date: Jan 15, 2020
Venue: St. Louis County
Plot Summary: Commission affirms in 2-1 decision award of temporary benefits for carpal tunnel syndrome based on testimony that claimant's job as inventory administrator involved repeated grasping, pinching and keyboard work.
https://labor.mo.gov/sites/labor/files/decisions_wc/RichardsGenise15-05419501-15-20.pdf
Cast:
Denigan, ALJ
Gault, atty
Schlafly
Rotman
Comments:
Employer expert appeared to relate claimant's condition to her work and then reviewed a job description and concluded her weight, age, and gender were more likely the cause. ALJ Denigan notes: "Dr. Rotman, for reasons that are not clear in the record, elaborates on the likelihood of Claimant's job tasks causing work related carpal tunnel syndrome (CTS) and suggests he would gladly review any additional information on the job exposure." Claimant testified the job involving gripping or pinching, contrary to information provided by the employer.
A dissent argued claimant's expert relied on factually incorrect information about the frequency or intensity of claimant's activities and notes conflicting testimony: "Jeanette Tucker, employee's direct supervisor at the time of her alleged injury, testified that employer received about forty tubes per week, not 700 per day" and that claimant had identifiable risk factors of " female gender, post-menopausal age, and obesity."
Ace American Ins.
Release Date: Jan 15, 2020
Venue: St. Louis County
Plot Summary: Commission affirms in 2-1 decision award of temporary benefits for carpal tunnel syndrome based on testimony that claimant's job as inventory administrator involved repeated grasping, pinching and keyboard work.
https://labor.mo.gov/sites/labor/files/decisions_wc/RichardsGenise15-05419501-15-20.pdf
Cast:
Denigan, ALJ
Gault, atty
Schlafly
Rotman
Comments:
Employer expert appeared to relate claimant's condition to her work and then reviewed a job description and concluded her weight, age, and gender were more likely the cause. ALJ Denigan notes: "Dr. Rotman, for reasons that are not clear in the record, elaborates on the likelihood of Claimant's job tasks causing work related carpal tunnel syndrome (CTS) and suggests he would gladly review any additional information on the job exposure." Claimant testified the job involving gripping or pinching, contrary to information provided by the employer.
A dissent argued claimant's expert relied on factually incorrect information about the frequency or intensity of claimant's activities and notes conflicting testimony: "Jeanette Tucker, employee's direct supervisor at the time of her alleged injury, testified that employer received about forty tubes per week, not 700 per day" and that claimant had identifiable risk factors of " female gender, post-menopausal age, and obesity."
Commission reverses perm total when prior conditions do not each satisfy fund criteria
Christopher Klecka v Johnny Jones Inc.
Accident Fund
Release Date: Jan 14, 2020 (Accident date April 18, 2014)
Venue: St. Louis
Plot Summary: The ALJ awards PTD benefits based on evidence "Claimant and his medical experts credibly testified his compensable and noncompensable pre-existing injuries significantly aggravated or accelerated his primary injury."
The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge misapplied§ 287.220.3 RSMo by including conditions within her analysis that do not satisfy the criteria for permanent total disability claims against the Second Injury Fund.
"Dr. Volarich made clear, however, that his opinion that employee is permanently and totally disabled includes consideration of the effects of the 1981 head injury, 2005 thumb injury, and 2006 hernia, as well as the effects of the 2007 right shoulder injury."
The commission notes a failure to proof to meet the criteria of 287.220.3 that each of the enumerated prior conditions either established PPD or met the 50 week threshold and further noted that evidence from Dr. Volarich that there was a synergistic effect was not "persuasive" to establish the element of 27.220.3 to establish causation.
Cast:
Hart, ALJ
Sievers, atty
Enzmann
Volarich
Sky
England
Gonzalez
Memorable quotes
"The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and preexisting disability that satisfies the enumerated criteria under§ 287.220.3(a)a, but rather from the combination of his primary injury and a// of his claimed preexisting disabling conditions, including those conditions that do not satisfy§ 287.220.3(a)"
Comments:
Claimant settled the primary injury to his shoulder that was "yanked" and involved multiple surgical repairs and became depressed.
The dissent argues once some pre-existing conditions qualify under the fund test, then others can be considered without each meeting the qualification standards as there was no clear legislative intent for the employer to assume liability for the impact on non-qualifying prior conditions.
"This result is so antithetical to the well-established purposes underlying the Second Injury Fund, and constitutes such a drastic departure from the state of the law at the time the legislature enacted the 2013 amendments, that I will not presume the legislature intended such a result absent express language so declaring. (For example, if such a result were intended, one would expect our legislature to simultaneously and expressly abrogate the long line of Missouri cases declaring the purpose of the Second Injury Fund.)"
Accident Fund
Release Date: Jan 14, 2020 (Accident date April 18, 2014)
Venue: St. Louis
Plot Summary: The ALJ awards PTD benefits based on evidence "Claimant and his medical experts credibly testified his compensable and noncompensable pre-existing injuries significantly aggravated or accelerated his primary injury."
The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge misapplied§ 287.220.3 RSMo by including conditions within her analysis that do not satisfy the criteria for permanent total disability claims against the Second Injury Fund.
"Dr. Volarich made clear, however, that his opinion that employee is permanently and totally disabled includes consideration of the effects of the 1981 head injury, 2005 thumb injury, and 2006 hernia, as well as the effects of the 2007 right shoulder injury."
The commission notes a failure to proof to meet the criteria of 287.220.3 that each of the enumerated prior conditions either established PPD or met the 50 week threshold and further noted that evidence from Dr. Volarich that there was a synergistic effect was not "persuasive" to establish the element of 27.220.3 to establish causation.
Cast:
Hart, ALJ
Sievers, atty
Enzmann
Volarich
Sky
England
Gonzalez
Memorable quotes
"The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and preexisting disability that satisfies the enumerated criteria under§ 287.220.3(a)a, but rather from the combination of his primary injury and a// of his claimed preexisting disabling conditions, including those conditions that do not satisfy§ 287.220.3(a)"
Comments:
Claimant settled the primary injury to his shoulder that was "yanked" and involved multiple surgical repairs and became depressed.
The dissent argues once some pre-existing conditions qualify under the fund test, then others can be considered without each meeting the qualification standards as there was no clear legislative intent for the employer to assume liability for the impact on non-qualifying prior conditions.
"This result is so antithetical to the well-established purposes underlying the Second Injury Fund, and constitutes such a drastic departure from the state of the law at the time the legislature enacted the 2013 amendments, that I will not presume the legislature intended such a result absent express language so declaring. (For example, if such a result were intended, one would expect our legislature to simultaneously and expressly abrogate the long line of Missouri cases declaring the purpose of the Second Injury Fund.)"
Commission guts PTD award for worker with credibility issues
Justin Kent v NHC Healthcare
Premier Group Ins. Co.
Release date: Jan. 10, 2020 (Accident date Jan 4, 2008)
Venue: St. Louis
Length: 22 pages
Plot Summary: Commission reverses a PTD award for back injury of a 33-year old producing "post-traumatic spondylosis" with radicular symptoms. the Commission notes "credibility" is "suspect" and "diminished , doubts whether the expert had knowledge of multiple other accidents, and the "largely subjective" symptoms. There was no evidence the employer was aware of the need for further care directly or constructively from court settings. The claimant failed in a burden of proof to show the nature of the communication that the employee claims should have put the employer on notice.
Cast:
Boresi, ALJ
Fagan
Leahy
Kitchens
Chen
Musich
England (report not admitted)
Randolph
Comments: The ALJ found injuries sustained in the last accident alone to be "catastrophic" impacting pain, sleep and the ability to work and self-medication by drinking after his accident and concludes claimant was in "perfect" health previously.
Memorable Quotes:
"Although Employer can argue with the benefit of hindsight that not every treatment decision was sound, that does not relieve Employer for assuming responsibility for the treatment…."
"It is implausible for an employer to assert it did not have notice of the need for treatment after over 20 court settings dealing with a claimant's injury."
The ALJ barred a custodian records deposition due to irregularities that involved two staff members and the doctor himself.
Claimant reported temporary relief from a L4-5 discectomy (Kitchens) followed by a fusion (Dr. Chen) and subsequent diagnosis of non-union (Crane). The ALJ had awarded more than $200,000 in TTD and unpaid medical expenses. The Commission decision was for $44,123.80 in PPD.
What's it worth?
35% PPD (L4-5 microdiscectomy)
Premier Group Ins. Co.
Release date: Jan. 10, 2020 (Accident date Jan 4, 2008)
Venue: St. Louis
Length: 22 pages
Plot Summary: Commission reverses a PTD award for back injury of a 33-year old producing "post-traumatic spondylosis" with radicular symptoms. the Commission notes "credibility" is "suspect" and "diminished , doubts whether the expert had knowledge of multiple other accidents, and the "largely subjective" symptoms. There was no evidence the employer was aware of the need for further care directly or constructively from court settings. The claimant failed in a burden of proof to show the nature of the communication that the employee claims should have put the employer on notice.
Cast:
Boresi, ALJ
Fagan
Leahy
Kitchens
Chen
Musich
England (report not admitted)
Randolph
Comments: The ALJ found injuries sustained in the last accident alone to be "catastrophic" impacting pain, sleep and the ability to work and self-medication by drinking after his accident and concludes claimant was in "perfect" health previously.
Memorable Quotes:
"Although Employer can argue with the benefit of hindsight that not every treatment decision was sound, that does not relieve Employer for assuming responsibility for the treatment…."
"It is implausible for an employer to assert it did not have notice of the need for treatment after over 20 court settings dealing with a claimant's injury."
The ALJ barred a custodian records deposition due to irregularities that involved two staff members and the doctor himself.
Claimant reported temporary relief from a L4-5 discectomy (Kitchens) followed by a fusion (Dr. Chen) and subsequent diagnosis of non-union (Crane). The ALJ had awarded more than $200,000 in TTD and unpaid medical expenses. The Commission decision was for $44,123.80 in PPD.
What's it worth?
35% PPD (L4-5 microdiscectomy)
Commission affirms award to treat arthritic knee after meniscectomies
Jackie Hooper v Mo Dept. of Corrections
self-insured
Release Date: 1/14/2020 (Accident date 1/27/2015)
Venue: Pike County
Plot Summary: Commission 2-1 affirms a temporary award for future medical, including total knee replacement following an accident while moving a ventilation unit. Claimant reports an earlier injury to the knee when he "pivots" on a stairwell to talk to a supervisor.
Cast
Kohner, ALJ
Wood, atty
Thomas
Volarich
King
Comments:
The ALJ found the need for future medical flowed from a accident, despite an assertion by Dr. King that accident to medical compartment would not case arthritis and there were no characteristics of an acute tear. A dissent felt the duty to provide care ended after claimant was placed at MMI following surgeries to repair meniscus tears.
self-insured
Release Date: 1/14/2020 (Accident date 1/27/2015)
Venue: Pike County
Plot Summary: Commission 2-1 affirms a temporary award for future medical, including total knee replacement following an accident while moving a ventilation unit. Claimant reports an earlier injury to the knee when he "pivots" on a stairwell to talk to a supervisor.
Cast
Kohner, ALJ
Wood, atty
Thomas
Volarich
King
Comments:
The ALJ found the need for future medical flowed from a accident, despite an assertion by Dr. King that accident to medical compartment would not case arthritis and there were no characteristics of an acute tear. A dissent felt the duty to provide care ended after claimant was placed at MMI following surgeries to repair meniscus tears.
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