New 2012 Trends for Missouri Worker's Comp

New 2012 Trends for Missouri Worker's Comp

The Missouri worker’s compensation system faced many challenges in 2012 operating with a glut of litigated second injury fund cases, a legislature not inclined to provide a “fix”, and a short-staffed commission which has had an absent chair for nearly 6 months.

Reported cases represent a tiny fraction of the more than 100,000 injuries reported by employers in 2012. The reported cases include important lessons for both workers and employers.

An increased focus on job risk

At the end of the day, it is ultimately the worker’s burden to prove any claim even with a ‘no-fault’ comp system. A hospital nurse fell backwards for no apparent reason after making some coffee at work but failed to persuade the Missouri Supreme Court why she should receive benefits for her broken hip in Johme v St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). The Missouri Supreme Court stepped away from a former way of looking at cases (the “Pile” two-step) and indicated an employee must show the risk source of the injury and not merely whether the activity being performed was incidental to the employment.

Employers who felt Johme represented a giant leap from positional risk were disappointed with subsequent loose applications of this rule comparing occupational and non-occupational risk. A worker wearing boots recovered benefits for walking down a few steps at work while carrying a motorcycle helmet. Even though the worker wore boots and carried his helmet away from the job the court found no evidence that he had a similar risk carrying a helmet at the same time away from the job. Pope v Gateway to the West Harley Davidson, 2012 Mo. App. Lexis 1335 (Oct. 23, 2012). The case is even more puzzling as Pope stated the boots had nothing to do with him falling.

Drugs, narcotics, and safety violations

The use of narcotics before an accident or abuse of narcotics after an accident represents an important issue. Several recent cases have narrowed the scope of future medical awards concerning the indefinite use of narcotics. Many permanent total cases rely upon the side-effects of prescribed medications to support claims regarding an inability to maintain gainful employment.

In one case, the employer proved that many of claimant's ongoing medications had nothing to do with his accident but the court of appeals still remanded the case to consider sanctions against the employer. The employer did not establish that all of the ongoing medications did not flow from the accident. Noel v ABB Combustion Engineering, 2012 Mo App. Lexis 1433 (Nov. 13, 2012). The employee protested that any change threatened his health. The ALJ suggested that a carrier who changed narcotics to save money acted with an improper motive.

In another case, the worker sought to recover SIF benefits for a pre-existing disability because she smoked marijuana daily for about 20 years. Mandina v Glass Group, 2012 Mo WCLR Lexis 196 (Nov. 21, 2012). The Commission reversed a denial of benefits against the Fund in that case.

The employer who operates without a drug-free work place policy may have broader liability issues. A plaintiff’s survivors were allowed to proceed with a wrongful death case alleging that the employer allowed the deceased worker to operate a company vehicle while intoxicated. Hays v Francis Royer et al, 2012 Mo App Lexis 1163 (Sept. 18, 2012).

Violations of drug free work place rules can result in reduction in benefits, but the Supreme Court declined to address how that reduction was calculated and if it included an offset of previously paid medical bills against future disability benefits. This offset has been supported by lower courts. Hornbeck v Spectra Painting Inc., 370 S.W.3d 624 (Mo. 2012). The court of appeals waffled on applying a safety penalty in Carver v Delta Innovative Services, 379 S.W.3d 865 (Mo. Ct. App. 2012) and remanded a case because it felt it lacked sufficient facts although the evidence indicated a safety rule violation occurred when the accident happened.

Future medical care

Missouri, unlike many states, allows employers to pick the treating doctor which is a right that is often challenged based on the employer’s conduct. An employer rarely loses its statutory right to pick a treating doctor for future treatment. Demore v Demore Enterprises, 2012 Mo WCLR Lexis 170 (Sept. 27, 2012); Joplin v Gates Rubber Co., 2012 Mo WCLR Lexis 33 (March 8, 2012), Deane v Elder Custom Homes, 2012 Mo WCLR Lexis 20 (Feb. 16, 2012).

Limited co-employee liability

The legislature and the court of appeals limited liability of co-workers and supervisors. Hansen v Ritter, etal, 375 S.W.3d 201 (Mo. Ct. App. 2012); H.B. 1540, 96th Gen. Assem., 2d Reg. Sess. (Mo. 2012).

Court dilutes reform

Many statutory reforms in 2005 designed to make Missouri more attractive to employers have been diluted such as the importance of objective evidence, the need to certify findings by doctors, or the duty of an employee to provide notice.

One trend in recent cases has been a greater role for testimony about subjective symptoms, Reichardt v Industrial Sheet Metal, 2012 Mo App. Lexis 758 (June 5, 2012)(diminishing the importance of an FCE); and to loosely enforce the ALJ’s role as an evidentiary gatekeeper. In one case the commission declined to question the methodology of an expert, Wright v Palmentere Bros. Cartage Services, 2012 Mo. WCLR Lexis 192 (Nov. 9, 2012) ("the ALJ is in no position to criticize the methods [the expert] utilized in arriving at their expert opinions") or reliance by an expert on questionable medical histories, Saric v Centaur Building Services, Inc., 2012 Mo WCLR Lexis 168 (Sept. 20, 2012) (the experts are 'savvy' enough to figure it out).

A settlement with another party did not preclude a wrongful death suit against the employer. Lewis, et al, v. Gilmore, etal, 366 S.W.3d 522 (Mo. 2012). An employee was allowed to “pierce the corporate veil” in another action. Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012).

Employers must comply with procedural requirements. In a recent case, the court awarded the maximum statutory rate for compensation because of an untimely answer even though there was nothing in the record to suggest earnings supported such a rate. Sonic Drive In of High Ridge, 2012 Mo App. Lexis 1585 (Dec. 18, 2012)(the court of appeals increased the Commission's award about $60,000 due to the different rate).

The Supreme Court expanded benefits to survivors in Gervich v Condaire, 370 S.W.3d 617 (Mo. 2012).

Finality of settlements

An employer was not allowed to crawfish out of a deal when a worker died while a settlement approval was pending. Nance, dec. v Maxon Electric, 2012 Mo App. Lexis 1401(Nov. 6, 2012). On the other hand, the worker was not allowed to pursue a companion case after a settlement. Meinczinger v Harrah's Casino, 367 S.W.3d 666 (Mo. Ct. App. 2012). The commission has strictly enforced stipulations. Gilbert v Brundage Bone Concrete, 2012 Mo WCLR Lexis 163 (August 29, 2012)(wage rate).

Second Injury fund malaise

The second injury fund “problem” remains unresolved by the Missouri legislature. As a result more SIF cases were tried and appealed. Many reported cases continue to demonstrate a lack of any meaningful defenses. The Commission expanded fund liability in an unusual interpretation regarding threshold requirements for pre-existing conditions. Treasurer v State of Mo. v Witte, 2012 Mo App. Lexis 1093. The court also recognized a right to recover “interest” in a pre-reform claim for unpaid medical bills. Eason v Treasurer of Mo., 371 S.W.3d 886 (Mo. Ct. App. 2012).

The need to play nice

The Commission has chastised parties for unprofessional and impolite behavior. Bolerjack v County Mart, 2012 Mo WCLR Lexis 202 (Nov. 26, 2012) (appellate practice); Pearson v Henry Wrecker Service, 2012 Mo WCLR Lexis 208 (December 10, 2012) (an expert alleging symptoms were “bogus”) and O'Connor v Construction Material Trucking, 2012 Mo WCLR Lexis 135 (July 3, 2012) (conduct in a deposition). The Commission assumes a role not only to enforce procedural rules but rules of etiquette.

Several reported cases document highly contentious relationships between workers and employers and show how this issue impacts credibility and medical causation. A contentious relationship with a supervisor was one factor considered by the court in a fatal cardiac event. Riley v City of Liberty, 2012 Mo WCLR Lexis 194 (Nov. 14, 2012). Hoerschgen v Von Hoffman Corp., 2012 Mo. WCLR Lexis 119 (June 20, 2012) involved a stress claim working under a vulgar supervisor. In Templemire v W&W Welding Inc., 2012 Mo App. Lexis 1639 (December 26, 2012) the court hesitantly declined to adopt a lower standard of proof in wrongful termination for exercising rights under the Missouri Worker's Compensation Act. The case involved a dispute over a worker who wanted to take a break and elevate his foot instead of performing an urgent job assignment. The supervisor suggested such an action was inappropriate.

The importance of reducing conflict is particularly important in managing catastrophic cases. Deane v Elder Custom Homes, 2012 Mo WCLR Lexis 20 (Feb. 16, 2012) is an important opinion involving difficult medical management issues when a patient engages in "unacceptable" behavior.

“The lack of services recommended by treating physicians has been far more egregious than the selection of physicians by the employer/insurer. Secondly, Mr. Deane has alienated some of the very physicians whom he accepted as appropriate through his own unacceptable behavior. There is absolutely an equally difficult track record on the part of the employer/insurer and Mr. Deane with regard to unacceptable behavior when it comes to physician selection or relationship, respectively. Finally, the relationship between Mr. Deane and the employer/insurer will continue to be a lifelong relationship, since regardless of the physician treating Mr. Deane, the payment will be at the hands of the employer/insurer. Therefore it is my hope that both parties can work together to establish appropriate physician care for Mr. Deane with physicians in whom Mr. Deane has confidence.”

The Deane case is basically a plea for people who are stuck together to try to get along. That message is an important lesson for everyone.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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