Does Science Matter in Mo Comp?

Does Science Matter in Mo Comp?

Inaccurate histories and exaggerated symptoms did not stop a claimant from receiving permanent total benefits because his expert was “savvy enough” to sort things out, according to the Commission. Saric v Centaur Building Services, Inc., 2012 Mo WCLR Lexis 168 (Sept. 20, 2012).

Saric was a 61-year old immigrant who did not speak or write English and received an award for permanent and total disability benefits for a 4th claim of back injury, when the Commission reversed a denial of benefits by the administrative law judge who found the claimant untruthful and routinely exaggerated facts. The Commission noted: "employee's experts relied to some degree on employee's presentation and complaints, the administrative law judge discredited the testimony of each expert. We do not believe the testimony of employee's experts is felled by their reliance upon the history, presentation, or complaints of employee. By their curriculum vitae and testimony, the experts convince us they are experienced enough and savvy enough to adequately account for deficiencies in employee's ability to recall and properly recount his medical history. We are also convinced they have the skills to appropriately consider any self-limitation or exaggeration when forming their opinions."

The ultimate issue after Saric is whether science really matters.

SCIENTIFIC OPINION IS IRRELEVANT IN PRETRIAL PROCEEDINGS

When it comes to filing a claim the answer is clear: no. Unlike medical malpractice claims, there is no statutory requirement in order to pursue compensation under the Missouri Worker’s Compensation Act to produce any expert opinion to support a complaint. The Commission adopts a very liberal approach to accept any filing even when a claimant failed to include a date of accident, a correct address or an accurate social security number. Johnson v Kaiser Jewelry, 2009 Mo. WCLR Lexis 137. From a public policy standpoint this allows claimants at all levels of sophistication and legal experience to access the system. Even Splash Mountain has a height requirement to go forward. In comp, the door is always open (except after normal business hours and bank holidays). Mi reclamacion es su reclamacion.

When it comes to pretrial matters, whether it is a conference or pre-hearing, there is no requirement for medical evidence. There is no summary judgment motion in Missouri worker’s compensation to weed out the specious claim which has no support or never will have any support because the claim is medically preposterous. This is particularly noteworthy in many reported pro se cases which can never attract experienced plaintiff counsel. Some offices may impose scheduling orders on older cases or may suggest a medical report to schedule a mediation. Section 287.250 authorizes sanctions for “any proceedings have been brought, prosecuted or defended without reasonable ground” but the “reasonable ground” has always been loosely applied even in very tenuous cases. A claimant can go into any local Division office and file anything. Your boss is a Sith Lord and you choke up every day at work? Be sure to fill out all three copies.

SCIENTIFIC EVIDENCE IS NOT REQUIRED IN PROOF OF SOME DAMAGES

A claimant may still have his day in court without medical evidence. A claimant may not receive some types of compensation due to lack of such evidence. Glanz v City of St. Louis, 2012 MO WCLR Lexis 50; Burchfield v Renard Paper Co., 2012 MO WCLR Lexis 172.

A claimant bears the burden to prove all elements of the case. Some cases not the burden to prove a case. Requiring a claimant to produce expert testimony in all cases has been criticized as “burdensome.” Bock v City of Columbia, 2009 Mo WCLR Lexis 39.

A case may be of such a simple nature that medical causation opinions and forensic experts are not required. Wild E. Coyote holds a suspicious gift wrapped package on a day it is not his birthday and TNT explodes. What caused the burn injuries: The exploding TNT. There’s no need to retain Dr. Sheldon Cooper as a consulting expert.

Section 287.190 now requires disability “shall be demonstrated and certified by a physician.” There is no definition how the element is demonstrated. In Bock, a pre-reform case, the Commission affirmed an award of permanent disability when no expert provided an opinion regarding disability for an abrasion to the leg, with subsequent infections. Section 287.190 applies to permanent and not temporary disability. The Commission has reaffirmed the principle that testimony from a claimant that he was in "unbearable pain" satisfied his burden to establish entitlement to TTD benefits. Shupe v St. John's Mercy Health Systems, 2012 Mo WCLR Lexis 178 (Oct. 10, 2012).

Even claimant’s complaints of “pain” have been recognized by the Commission as basis to award permanent disability. Reichardt v Industrial Sheet Metal, 2012 Mo. App. Lexis 758. Claimant’s testimony regarding prior pain supported second injury fund benefits to establish that the prior condition was a hindrance or obstacle to employment. Gutting v Campbell, 2010 Mo WCLR Lexis 158.

DOES THE COMMISSION HATE SCIENCE?

The Commission has eschewed FCEs, AMA ratings, NIOSH standards, and over-reliance on scientific journals or research.

In Reichardt v Industrial Sheet Metal Erectors, 2011 MOWCLR 226, the commission criticized an FCE as not a valid assessment of claimant’s capacity because the commission concluded it did not measure ‘pain.’ This conclusion asserted that the statutory reform to consider objective testimony over conflicting subjective testimony did not apply because the FCE did not measure pain.

In King v Dierbergs Markets, 2010 Mo WCLR Lexis 65, the Commission affirmed without comment an opinion rejecting a causation opinion based on NIOSH ergonomic studies and finds arguments correlating minimum keyboard exposure as a cause of carpal tunnel syndrome as “junk science.” Similarly, in Scott v MidAmerica Hotels Corp , 2010 Mo WCLR Lexis 45, evidence of ergonomic risk factors was not considered relevant to a dispute regarding causation of carpal tunnel. In Talbert v Lab Corp., 2009 Mo WCLR Lexis 112, doctors who relied upon an ergonomic study for their opinions were found to lack credibility.

In Beckton v AT&T, 2011 MO WCLR Lexis 2011 the ALJ discussed several scientific articles about carpal tunnel. The ALJ criticized the employer’s expert: he “relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. [He]did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture.” In Mace v Cedar Hills Pavilion, 2003 Mo WCLR Lexis 45, this same hand surgeon was the only expert to rely upon outside scientific journals but was deemed less credible because the Commission deemed the expert not credible in previous decisions.

This disregard is particularly evident regarding criticism of uniform standards to evaluate impairment. Missouri is not an AMA state. AMA impairment ratings have been criticized as inconsistent with assessing disability. “The AMA guidelines look at impairment, rather than disability, and are generally not favored in the setting of Missouri Workers' Compensation Law.” Brennell v Patient’s First, 2009 Mo WCLR Lexis 126; and criticized an expert who “relied on AMA guidelines to impairment, and did not assess disability” Whitt v Warren County Concrete, 2005 Mo WCLR Lexis 157.

IS BAD SCIENCE BAD EVIDENCE?

Science matters related both to the admissibility of evidence and the weight of the evidence.

There are few cases which address the admission of expert opinion based on the issue of scientific reliability. One rare case that addresses this issues is Moreland v Eagle Picher Technologies, 2011 Mo WCLR Lexis 210, which allowed admission of expert opinion regarding the effects of benzene exposure. The ALJ found the expert qualified based on his reliance on studies and articles. Admissibility of evidence is based on section 490.065, not Frye, according to the Moreland, citing McGuire v Seltsam, 138 S.W.3d 718 (Mo. App. 2004). Section 490.065 requires expert opinion based on facts "may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable."

If an expert applies unreliable methodology, the opinion may discounted or the exhibit may be excluded. Schaffer v Litton Interconnct Technology, 274 S.W.3d 597 (Mo. App. 2009) (excluded a survey created by a vocational expert). Reliance on non-authoritative sources, such as internet chat rooms, also supports discounting evidence. “We find it difficult to accept information obtained through a chat room is recognized as authoritative in the medical field or that simply because a textbook is found in the library at the St. Louis University School of Medicine, it is authoritative. Crowell v Sigma Chemical Co., 2002 Mo WCLR Lexis 108.

The weight given to an expert, and whether the opinion is more credible, depends on the source of information relied upon by the expert and whether it is accurate or complete. This is often referred to as a lack of foundation, although the issue being addressed is primarily one of credibility and weight of the evidence and not the foundation for its admissibility. Goldman v PCI, 2011 Mo WCLR Lexis 110, Brown v Conveo Color Art, 2011 MO WCLR Lexis 67, Hampton v Champion Precert, 2012 Mo WCLR Lexis 30 (work environment).

There is no requirement that a claimant must absolutely prove a scientific theory of causation when the burden is more likely than not. When an expert relies upon inaccurate or incomplete information it undermines the statutory directive that such facts must be reasonable reliable even under the "non-technical" comp rules of 287.550.

Few cases ever address whether expert opinion based on flawed information is inadmissible. Many have found such flawed foundations makes the opinions untrustworthy. Saric does not address the issue whether the entire expert opinion should have been excluded but evaluates the weight of the testimony. It creates an odd distinction between experienced experts who are ‘savvy’ and those who are not rather than more closely applying traditional doctrines regarding admissibility or credibility. The Saric opinion indicates that not only is the door open, but the screen door is wide open too.

The goal to compensate parties with real injuries moves quicker when the system can weed out specious allegations. A judge's willingness to address the admissibility and weight of evidence based on science may disturb traditional notions about what is compensable or not. The relaxed evidentiary standard to let everything come into evidence without a reasonable foundation confuses the judge's role between a gate keeper and a garbage collector.

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

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