Workers' Compensation

MO: Does a Claimant Who Refuses To Attend Appointments, As a Matter Of Law, Reach Maximum Medical Improvement To Allow an Award of Permanent Partial Disability?

The recent Missouri Commission case of Baxter v General Motors Corp., DOLIR 6-24-11, affirmed an award of benefits for disability when both experts concluded claimant did not reach maximum medical improvement.

The claimant's surgeon examined claimant after carpal tunnel releases and concluded she was not at MMI when she reported continued symptoms.  He recommended a brace and possibly further studies.  He issued a supplemental report with a PPD rating months later, without re-examining her, and assumed that she was fine when she did not return. Claimant's expert did not find claimant at MMI, but he provided PPD opinions.

The administrative law judge awarded 30% disability of each wrist, a decision affirmed unanimously by the Commission without a separate opinion. The administrative law judge noted the claimant's expert based his opinion on a more informed evaluation rather than assumptions about claimant's condition.

It is well-recognized that an award of permanent disability requires a finding of maximum medical improvement.  Cardwell v Treasurer of State of Mo., 249 S.W.3d 902 (Mo. App. 2008).

"One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment."  Cardwell, 249 S.W.3d at 910. Cardwell rejected the argument that MMI is not required, even though MMI does not appear in the statute.

A claimant cannot collect PPD without reaching MMI because a permanent condition has not accrued.   Cantrell v Baldwin Transp., 296 S.W.3d 17 (Mo. App. 2009) denied benefits when a claimant needed a rotator cuff surgery but delayed surgery for chemotherapy and died from cancer.  The court found benefits had not "accrued" at the time of death under § 287.230.2 (a statute dealing solely with death benefits) and claimant could not recover.  The court rejected claimant was at MMI when his work-related treatment was put "on hold" and he could no longer improve because he could not improve any more after he died.  Cantrell may be distinguished as a matter of statutory interpretation in death cases.

A claimant cannot collect PPD without exhausting reasonable treatment. Section 287.180.5 precludes recovery if a claimant contributes or aggravates to any disability by unreasonable refusal to participate in medical treatment or surgery.  This provision requires claimant to exhaust any reasonable efforts to treat, by implication, to mitigate damages.   Hayes v Compton Ridge Campground, Inc., 135 S.W.3d 465 (Mo. App. 2004), noted that § 287.140.5 was an affirmative defense and the employer did not introduce sufficient evidence to show "unreasonable refusal" that claimant refused treatment, despite evidence that claimant was "drinking heavily" and left for a vacation to Hawaii for two weeks after an alleged work injury.  The parties in Baxter sought an award for permanent partial disability and did not address this issue. The Baxter decision may be an anomaly because the defense was never before the administrative law judge.

The Commission in Baxter was erroneous to award PPD without a finding of MMI.  If the Commission implied quasi-MMI as a matter of law contrary to the medical experts it was a complex finding that exceeded the Commission's authority.

The case suggests a claimant can recover PPD and not follow treatment recommendations that might place the claimant at MMI or potentially lower disability.  This decision is bad public policy. A claimant must exhaust reasonable treatment before claimant reaches a point of maximum medical improvement.  Claimant did not keep appointments nor express any desire for further surgery.  Her surgeon was left to guess about her condition, rather than afforded an opportunity to re-evaluate her.  Any opinion about permanent partial disability from either expert in these circumstances is speculative.  A claimant who fails to attend appointments imperils any right to benefits under § 287.140.5.  The fact in Baxter that claimant simply didn't return to her hand surgeon without further explanation raises serious questions whether anyone could find MMI exists.

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

For more information about LexisNexis products and solutions connect with us through our corporate site.