WORKERS COMPENSATION CASE LAW UPDATE October 2010-December 2010 MISSOURI

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1 WORKERS COMPENSATION CASE LAW UPDATE October 2010-December 2010 MISSOURI Nature and Extent of Benefits Taylor Poole v. City of St. Louis and Treasurer of the State of Missouri, as Custodian of Second Injury Fund, Case No. ED94052 (Mo. App. E.D. 2010). FACTS: In this old law case, the Commission awarded the claimant PPD for his left wrist, bilateral ankles and neck for an injury that occurred when he tripped over a forklift. The Commission also awarded PPD for the low back as a result of an injury that was caused by lifting a 70 pound auger. Although evidence of disability in the right wrist was presented at the hearing, the Commission did not award any PPD for the right wrist because the claimant had not made that a part of his claim. The Commission did not award the claimant PTD because it felt the claimant s current back problems were the result of subsequent, non-work injuries and did not award past or future medical payments. Finally, the Commission did not award conditional survivor benefits to the claimant s wife, that would only be paid upon the claimant s passing, because there was no evidence that she was a dependant at the time of the injury. HOLDING: The Court of Appeals upheld the majority of the Commission s decision because it was supported by the evidence in the record. The Court of Appeals held that it was not error to deny compensation for the right wrist when it was not part of the claim. The Court of Appeals also held that the claimant was not entitled to past medical expenses because the claimant did not provide notice to the employer that treatment was necessary until after the treatment had already been concluded. Finally, the Court of Appeals noted that there was no evidence in the record that the claimant s wife was a dependant at the time of the work injury. It was noted that the couple was married in 2008, 5 years after the second work injury. Therefore, the claimant s wife was not entitled to conditional survivor benefits. The case was sent back to the Commission for a determination on future medical because the claimant s physician had connected the need for future medical to the June 2004 back injury. Medical Causation - Contradicting Testimony Angela Bond v. Site Line Surveying and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. WD72142 (Mo. App. W.D. 2010) 1

2 FACTS: The claimant (who was also the owner) alleged that she suffered injuries when she tripped over a phone cord in the office. Several witnesses who were related to or close to the claimant testified that she had tripped at work and had swelling and discoloration in her wrist on the day of the fall. However, the claimant had a history of experiencing seizures while sleeping, which had previously resulted in a fractured spine, broken toe, and fractured ribs. The claimant also admitted at the trial that she had fallen out of bed on the night of her alleged work accident. The claimant s former fiancé, who was living with the claimant, but sleeping in a separate bedroom at the time of the injury, testified that the claimant told him in the middle of the night that she had a seizure and fell out of bed injuring her wrist. This testimony was supported by the claimant s primary physician s records as well as the records of the Emergency Room where she treated the following morning. The Commission determined that the testimony of the claimant s former fiancé and the medical records, which noted a fall out of bed, were more credible than the testimony of the claimant and her witnesses. Therefore, the Commission determined that the injury occurred at home. HOLDING: The claimant appealed, but the Court of Appeals upheld the decision because it was supported by the evidence. Medical Causation - Uncontradicted Medical Evidence Charles Michael Angus v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. WD72141 (Mo. App. W.D. 2010) FACTS: In this old law case, the claimant s job duties required him to push loads between 500 and 1000 pounds, and also required bending, squatting, stooping and lifting up to 50 pounds. The claimant provided the medical report of Dr. Koprivica, who opined that the claimant had 50% disability from the rheumatoid arthritis and 25% disability from work related osteoarthritis. These combined to make the claimant permanently and totally disabled. The SIF did not enter any evidence contradicting Dr. Koprivica s report but argued that the claimant s condition was not work related. HOLDING: The Commission denied the claimant PTD benefits and concluded that Dr. Koprivica s opinion was not credible. It determined that the claimant was permanently and totally disabled as a result of the non-work related rheumatoid arthritis alone. The claimant appealed and the Court of Appeals reversed the Commission decision, holding that the Commission may not substitute an ALJ s personal opinion on medical causation for uncontradicted testimony of a qualified medical expert. The question of whether the claimant s condition was caused by rheumatoid or osteoarthritis was a complex medical issue which was outside the expertise of the ALJ. The case was sent back to the Commission for further findings. Exclusivity of Workers Compensation Division as an Affirmative Defense 2

3 Larry Treaster, et ux., v. Steve Betts, et al., Case No. WD71654 (Mo. App. W.D. 2010) FACTS: The claimant was injured at a job site while working for MoKan Transit Concrete in January He filed a civil lawsuit against his supervisor, Steve Betts, and others alleging that the Asomething more@ doctrine applied which would take the case out of the exclusive jurisdiction of the Division of Workers Compensation. The trial court dismissed the matter for lack of subject matter jurisdiction and the claimant appealed. HOLDING: The Court of Appeals reversed the dismissal and the case was sent back to the trial court. The Court cited McCracken v. Wal-Mart Stores, which had held that the exclusivity of the Division of Workers Compensation should be raised as an affirmative defense and not a matter of jurisdiction. The Court determined that more facts were needed before a determination could be made on whether the case should be dismissed under the higher standard of summary judgment, so the matter was sent back to the trial court on this issue. Appeal of Temporary Award Motor Control Specialities, Inc. and The Ohio Casualty Insurance Company v. Labor and Industrial Relations Commission of the State of Missouri and Stephen M. Petelik, Case No. WD71586 (Mo. App. W.D.) FACTS: The claimant received a temporary award from an ALJ. The employer filed an application for review with the Commission, but the matter was not heard, pursuant to the Commission s regulations, because the employer was not denying all liability. The employer filed a lawsuit in civil court alleging that the Commission s regulation was unconstitutional and contrary to the statute. The trial court ruled that the Commission s regulations that prevented the appeal of a temporary award when the employer did not deny all liability were constitutional and consistent with the statute. HOLDING: The Court of Appeals affirmed the trial courts decision and held that regulation 8 CSR was constitutional and consistent with the workers compensation statute. ALJ Authority to Amend Award Clarence Thomas v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. WD72432 (Mo. App. W.D.) FACTS: The claimant was injured while working for the Kansas City Police Department and had significant pre-existing disabilities. The claimant settled with the employer and obtained an award against the SIF at a hearing. In her original award, the ALJ awarded 35% PPD on one page and 23% PPD on another. The dollar 3

4 amount of the award was equivalent to 35% PPD. Within 20 days of the award, the ALJ issued an Amended Award, which corrected the award to 23% PPD with the correct dollar amount. The claimant then appealed to the Commission, which dismissed the Petition for Review of the Amended Award because it held that the ALJ did not have the authority to amend her award in the first place. HOLDING: The Court of Appeals reversed the Commission decision and sent the case back for the Petition for Review. The Court held that ALJ s have the authority to amend their awards for 20 days or until a Petition for Review has been filed, whichever occurs first, and in this Case the ALJ amended the award within 20 days. COMMISSION TRENDS OLD LAW (PRE AUGUST 28, 2005) Over the last three months, the Commission has ruled on 22 old law cases. They have reversed or modified four of those cases. Asbestos and COPD as an Occupational Disease In Paul Bennett v. Kansas City Power & Light, Injury No , the Commission determined that the claimant did have occupational exposure to asbestos while working for the employer. They also determined that he did develop COPD both as a result of the asbestos exposure, and his tobacco use. The Commission agreed with Dr. Beller, the claimant s expert, that he had 40% disability of the body as a whole, with half of that disability due to cigarette smoking and the other half due to the asbestos exposure. Therefore, they assessed 20% PPD of the body as a whole. The Commission also awarded future medical care and determined that the Second Injury Fund is liable for permanent and total disability. The Effect of a Prior Third Party Recovery on Workers Compensation Award In Albert Giese v. TWA, Injury No , the Commission agreed with the ALJ regarding the fact that the claimant s third party recovery should be credited, dollar for dollar, against the employer s obligation for workers compensation benefits, as that third party recovery was obtained prior to the finalizing of the workers compensation claim. The Commission also agreed with the ALJ that the claimant suffered 10% PPD of the body as a whole referable to the cervical spine as a result of the claimant s March 1, 1995 work accident. However, they did not agree with the calculations performed by the ALJ. The ALJ had determined that the claimant was not entitled to any additional recovery. The Commission determined that the claimant was actually entitled to an additional $ in permanent partial disability benefits, as the amount of the third party benefits. This is the result of subtracting the amount of PPD from the net third party recovery. Future Medical May be Awarded Even When the Claimant Declines Medical Care In Katherine Hunt v. Chrysler LLC, Injury No , the Commission determined that the Administrative Law Judge erred in not awarding future medical care. The Administrative Law Judge did not award that future medical care because the claimant had thus far declined medical care that 4

5 had been offered to her. However, the claimant did show, by a reasonable probability, that she would need future medical care related to her work injury. Therefore, the Commission ordered the employer to provide the claimant with future medical care, as may reasonably be required, to cure and relieve the effects of her work injury. Claimant Did Not Meet Burden on Causation In Robert Taylor v. Quik Trip, Injury Nos and , the Commission determined that the claimant did not meet his burden on causation. The claimant worked as an extra relief person in different stores. He initially indicated that he was injured on September 30, 2002, at the store located at North East Woods Chapel Road. However, three days before the date of the hearing in this case, the claimant amended his claim to change the location where the alleged incident occurred, to a store on Wornall Road in Kansas City, Missouri. The Commission determined that the claimant s testimony was not credible, and found the testimony of Kevin Bergman, a manager who was present on September 30, 2002, to be more credible. The Commission also noted that the claimant had had 23 separate examinations by Dr. Rizzi, along with multiple surgeries to the right ankle, and Dr. Rizzi never recorded any history of a trip, fall, twisted ankle, or any other history of a work-related injury in September The claimant testified that he believed he told Dr. Rizzi about the alleged fall, and they found that testimony to be lacking in credibility. They found that Dr. Rizzi provided ongoing treatment for approximately a year and a half and performed multiple surgeries on the claimant s right ankle, and found it unlikely that any doctor would provide such extensive treatment in connection with a right ankle condition but would overlook or ignore the alleged fall in September 2002 if the claimant reported it. They did note that the claimant had a previous injury to the right ankle that involved an extensive surgery following a motor vehicle accident in 1990, and determined that was the more likely reason the claimant required all of his treatment. The Commission denied all benefits. NEW LAW The Commission heard appeals on 24 new law cases in the last three months. Of those cases, the Commission modified, reversed or supplemented opinions in eight cases. Sanctions Not Assessed In Helena Deschenes v. Caseys General Store and EMCACSO Insurance Company, Injury No , the Commission affirmed the Administrative Law Judge s Award. However, we believe this case is significant for a specific reason. The ALJ determined that the employer/insurer were still required to provide a prosthesis for the end of the finger, despite the fact that that prosthesis is not specifically mentioned in the Statute. The important point is that the claimant s attorney had requested that the ALJ sanction the employer/insurer for unreasonably defending the case. However, the ALJ found that the issue of strict construction regarding Section (dealing with the employer s duty to provide medical care) was a reasonable defense to raise at that time, as there was, to date, no applicable Appellate law on that particular issue. 5

6 Appeal of Temporary or Partial Award In Harry Horton v. Veolia Environmental Services, New Hampshire Insurance Company and The Treasurer of Missouri, as Custodian of the Second Injury Fund, Injury No , the Commission heard an Appeal with respect to a Temporary Award. In this matter, the employer/insurer had not paid any benefits, so they were able to appeal the Temporary Award to the Commission. The Administrative Law Judge had found that the claimant met his burden regarding causation, but the Commission determined that the claimant did not meet his burden. The Commission found that the claimant was not credible and gave no weight to his testimony. Because all of the evidence fo the alleged work incident originated with the claimant, the Commission determined the claimant did not make out causation and was not entitled to any workers compensation benefits. In Tyler Moore v. Rock Busters, Inc., Grinnell Mutual Reinsurance Company and the Treasurer of Missouri, as Custodian of the Second Injury Fund, Injury No.: , the Commission modified the Temporary or Partial Award. The ALJ found that the claimant suffered a work-related injury to his knee on September 21, 2005, that necessitated an ACL reconstructive surgery. The ALJ found that the claimant s complete tear of the ACL occurred when the claimant fell on ice at his home in January 2007, which was a subsequent intervening event, and not part of a continuous chain of causation flowing from the original compensable accident, and therefore the employer/insurer was not responsible for the ACL reconstructive surgery completed on March 5, 2007, and any medical care from January 2007 forward. However, the Commission determined that when the claimant fell on ice at his home in January 2007, he fell on the ice because he was using crutches, which were required by the authorized treating physician following his first surgery. They also determined that that the claimant went out on the ice while he was on crutches in order to check the fence that contained his horses, because he feared the storm had knocked trees down along his fence line. The claimant testified that such an occurrence would have left his horses open for escape, and the Commission determined that was a reasonable fear and something that needed to be addressed in a timely manner. For those reasons, the Commission determined that the January 2007 injury was a direct and natural consequence of the September 21, 2005 injury, and therefore the second ACL treatment and all treatment after January 2007, was related to the claimant s work-related injury. Household Servants Excluded from Workers Compensation Coverage In Noneeka Massey v. Marsha and Frank Spasser, Injury No , which was previously discussed in our July September 2010 Quarterly, the Commission noted that the Court of Appeals had ordered that they issue an Award consistent with the Court s opinion in this matter. Therefore, the Commission issued an Award that Noneeka Massey was a domestic servant, and therefore exempt from Workers Compensation coverage, so no benefits should be awarded. Effects of Third Party Recovery on Claimant s Workers Compensation Benefits In Frederick Monteil v. Arctic Slope Regional Corporation a.k.a. ASRC Management Services, the insurance company of the State of Pennsylvania, and the Treasurer of Missouri, as Custodian of Second Injury Fund, Injury No , the Commission noted that they were asked by the 6

7 parties in this case to review Stipulations regarding the jury verdict in a third party settlement that was entered into by the claimant after he received an Award in his workers compensation case, in order to determine what amount the employer/insurer are entitled to based upon their subrogation interests. The Commission noted that the proceeds of the third party recovery were distributed pursuant to the Ruediger formula, which resulted in the employer/insurer recovering the complete amount they had paid in this matter. The claimant wanted the Commission to change the way subrogation interests were calculated, and the Commission declined to do so, noting that, when the claimant received compensation in the third party case, the amount paid by the employer/insurer was treated as an advanced payment on account of any future installments of compensation and operated as a credit on behalf of the employer/insurer until the amount by the claimant was exhausted. Therefore, the employer/insurer were entitled to recover the total amount they paid out in workers compensation benefits. Credibility of Claimant Testimony and Medical Causation In Dwayne Moore v. ICR Construction Services, LLC, Abstinence Fund Insurance Company of America, Buchheit Concrete, Amerishore Insurance Company, and the Treasurer of Missouri, as Custodian of Second Injury Fund, Injury No.: , the Commission reversed the Administrative Law Judge s credibility determination with respect to the claimant s testimony. The Administrative Law Judge found the claimant not credible regarding the date of accident. However, the Commission noted that other witnesses confirmed that the claimant s accident occurred at a particular work site, and the claimant only worked at that particular work site for a very short period of time. Therefore, they were able to determine what date the claimant worked there. The Commission found the claimant s testimony credible, and that he did meet his burden with respect to causation. Therefore, the Commission issued a Temporary Award ordering the employer/insurer to provide medical care. Arising out of and in the Course of Employment In Denise Pile v. Lake Regional Health System and Missouri Employers Mutual Insurance, Injury No.: , the Commission noted that the Court of Appeals had reversed their previous Award, and that they had been ordered to issue an Award that would conform with the Court of Appeals Decision. The Court of Appeals case was discussed in the July September 2010 Quarterly. In light of the Court of Appeals Decision, the Commission concluded that the claimant did sustain a compensable injury that arose out of and in the course of her employment. They did Award medical treatment as well as past medical expenses. The Commission did note that the employer/insurer argued that not all of the past medical expenses should be awarded in total amounts, as some of the bills noted that they were paid at reduced rates. With respect to some of the bills, the Commission found no evidence that some of the charges were billed to the claimant, and therefore, they did not order the employer/insurer to pay for those charges. They also disallowed one charge that was for a routine screening. However, they noted that the employer/insurer did not specifically contest the reasonableness of other expenses, and did not produce documentation detailing whether or not past medical expenses had already been paid directly to the healthcare providers or by the claimant s health care insurer, and were not able to 7

8 show that the claimant s liability for the disputed amounts were extinguished. Therefore, they did Award the other disputed amounts to the claimant. This case shows that it is very important to obtain as much information as possible about billing records when past medical bills are in dispute. It would be important to show that the claimant liability for payment of certain charges had been extinguished, and therefore, that claimant was not entitled to a windfall and should not be awarded those particular amounts. Idiopathic Cough In David Taylor v. Contract Freighters, Inc., Con-Way Truck Load, Inc. and the Treasurer of Missouri, as Custodian of Second Injury Fund, Injury No.: , the Commission noted that the Court of Appeals has demanded that they issue an Award in accordance with their opinion. Please note that this matter was discussed in our April June 2010 Quarterly. The Commission, in accordance with the Court of Appeals Decision, stated that the cough, that caused the claimant to veer off the road, was not an idiopathic condition, and therefore, the claimant s injury did arise out of and in the course of employment and was compensable. The Commission awarded the claimant back Temporary Total Disability benefits, as well as medical treatment. 8