Missouri Workers' Compensation Case Law Update April 2009-June Appellate Court Jurisdiction of Temporary or Partial Awards Under New Law

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1 Missouri Workers' Compensation Case Law Update April 2009-June 2009 Appellate Court Jurisdiction to Review Temporary or Partial Awards Retroactive Application of Statute Claimant=s Responsibility For Medical Costs Aggravation of Pre-Existing Condition Not Compensable Under New Law Sufficiency of Evidence in Occupational Disease Claim Under Old Law Idiopathic Condition Under New Law Commission Trends Appellate Court Jurisdiction of Temporary or Partial Awards Under New Law Brenda Bolen v. Orchard Farm R-V School District and Missouri United School Insurance Council, Case No. ED92007 (Mo. App. ED 2009). Thomas Smalley v. Landmark Erectors and American Family Mutual Insurance Co., Case No. ED91861 (Mo. App. ED 2009). FACTS: In both Bolen and Smalley, an ALJ issued a temporary award requiring the employer and insurer to provide benefits. In each case, the employer and insurer had denied all liability, and appealed the temporary award. HOLDING: Before the 2005 Amendments were enacted, an employer and insurer could appeal temporary or partial awards in certain circumstances. One of those circumstances, when the employer and insurer denied all liability, was derived from case law and was not a part of the statute. The 2005 Amendments now require that the Workers= Compensation statute be strictly construed. In light of this, employers and insurers no longer have the right to appeal a temporary or partial award, even when they deny all liability. Therefore, both of these appeals were dismissed due to lack of jurisdiction. Retroactive Application of Statute Tina Ball-Sawyers v. Blue Springs School District and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No WD69624 (Mo. App. W.D. 2009). FACTS: The claimant filed a workers= compensation claim in After a hardship hearing, the employer and insurer were ordered to pay back TTD in the amount of $35, and to pay future TTD and pay for medical treatment Aas necessary.@ At a final hearing, it was determined that the employer and insurer had failed to pay $176, in medical expenses incurred by the claimant since the temporary award. It was also noted that the employer and insurer did not begin paying TTD benefits for seven months following the temporary award. Citing RSMo section (2000), a 1

2 $236, penalty was applied for non-compliance with the temporary award. On appeal, the employer and insurer argued that RSMo section (2005), as amended, should apply. The amended statute only allows for unpaid portions of a temporary award to be doubled, not the entire temporary award. HOLDING: The Appellate Court opined that RSMo section (2005) applied retroactively because it only substituted a new remedy for the enforcement of an existing right. Therefore, only the unpaid portions of the temporary award could be doubled. The unpaid medical was doubled, while the back TTD amount was not. Claimant=s Responsibility For Medical Costs Holly Beard v. St. Francis Medical Center, Case No. SD29126 (Mo. App. S.D. 2009). FACTS: The claimant alleged a work related back injury, which was denied by the employer and insurer. The claimant sought treatment on her own, submitting her bills to her group health plan, knowing she would be billed for co-pays and the like. The claimant said she did this because she wanted treatment. The claimant then won a temporary award that required the employer and insurer to provide medical care. However, the claimant continued to submit her bills through her group health plan. The hospital attempted to collect the claimant=s co-payments on at least six occasions, and the claimant refused to pay them. The claimant cited RSMo section , which states that, unless a health care provider was chosen at the claimant=s expense, they cannot bill or attempt to collect any fee from the claimant if given statutory notice. Additionally, if the health care provider pursues any action to collect from a claimant after they have been given such notice, the health care provider can be sued for actual damages, statutory damages and attorney=s fees. HOLDING: The claimant sought treatment on her own with providers she chose. The claimant was obligated to pay, and proposed to do so through her group health plan. Because she continued doing so even after she won the temporary award, the Court of Appeals determined that she caused the hospital to treat and bill her as a group health plan patient. She could not complain when the hospital billed her in the manner she invited, nor could she invoke the statutory protections of RSMo section The claimant does have to pay the hospital bills. Aggravation of Pre-Existing Condition Not Compensable Under New Law Jack Johnson v. Indiana Western Express, Inc. and Treasurer of the State of Missouri, as Custodian of Second Injury Fund, Case No. SD29258 (Mo. App. S.D. 2009). 2

3 FACTS: In August 2004, when the claimant was not working for Indiana Western Express, he sustained a low back injury. In 2004, the claimant underwent epidural steroid injections, and eventually had surgery, consisting of a transcutaneous disc resection at L4-5 and L5-S1 in April In June 2005 it was noted that the pain and tightness in his back continued and his doctor at that time noted it was still quite debilitating. At another follow up visit, additional surgery, in the form of a discectomy and fusion, was discussed. The claimant did not follow up after that visit. In November 2005 the claimant began working at Indiana Western Express. The claimant alleged he sustained an injury to his back on February 9, 2006 as a result of a specific accident. However, Dr. MacMillan opined that the claimant sustained no new injury. He stated that the claimant had two MRI=s Abracketing@ the injuries and there was no significant change between the studies, thus there was no objective evidence that something happened or had changed. He opined that the claimant=s pain was caused by the two degenerative discs that were present before the alleged 2006 injury. Holding: Under the new law, the event that arises out of and in the course of employment must be the prevailing factor in causing the claimant=s condition in order for that condition to be compensable. It is not sufficient that the event simply aggravated a pre-existing condition. Therefore, this matter was denied. Sufficiency of Evidence in Occupational Disease Claim Under Old Law Tina Ball-Sawyers v. Blue Springs School District and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No WD69624 (Mo. App. W.D. 2009). FACTS: The claimant began working as a school bus driver in In late 1997, she began to treat with her personal physician for back pain. In early 1998, her personal physician recommended a more sedentary job. In 2000, she began treating with a chiropractor. After an MRI in 2001, she sought the opinion of an orthopedic surgeon. She was diagnosed with a herniated disk and degenerative disk disease. The surgeon opined that her complaints were work related and advised not to return to work. At that point, the claimant filed a workers= compensation claim. At a final hearing, the claimant was awarded permanent and total disability benefits from the employer. The employer and insurer appealed, arguing that the claimant did not have a compensable injury. HOLDING: The Court of Appeals specifically noted that the claimant was not diagnosed with a degenerative disk until six years after she began her job as a bus driver. Additionally, three different physicians testified that the bouncing and jarring the claimant experienced as a bus driver was the substantial factor in the cause or aggravation of her degenerative disk problems. The opinion of the employer and insurer=s IME physician was discounted because that physician acknowledged that he failed to ask the claimant a single question about her job duties, as he felt they were irrelevant to his opinion that she suffered from degenerative disk disease. Therefore, the finding of permanent and 3

4 total disability against the employer was affirmed. Barbara Vickers v. Missouri Department of Public Safety, Case No. WD69233 (Mo. App. W.D. 2009). FACTS: The claimant worked as a laundry aid at the Missouri Veteran=s Home. She collected all of the resident=s laundry, including linens, bed pads, sheets, blankets and personal clothing. She transported the items to the laundry in the basement where she washed and dried the items. The claimant would often handle items soiled with human feces in this process. During the claimant=s period of employment, the Home treated four to six patients who had clostridium difficile (C diff), a contagious bacteria. In late August 2004, the claimant became ill with what she thought was a sinus infection and sought treatment with her personal physician. Within days she was extremely ill and admitted to the emergency room where it was found she had contracted C diff. Surgeons immediately removed all but six to eight inches of the claimant=s colon. The surgery required an ileostomy, which is the attachment of an external pouch to the claimant=s abdomen to collect intestinal waste. It also caused numerous other physical and psychological complications. The claimant did not return to work. Two nurses testified that they had between two and five patients with C diff while the claimant was working at the Home. A medical experts testified on the claimant=s behalf, stating that the claimant=s duties as laundry aid, which required her to handle laundry contaminated with fecal matter, made it more likely than not that the claimant contracted C diff at the Home. At trial, it was determined that the claimant failed to establish, based upon a reasonable probability, that she was exposed to and contracted C diff at the Home. HOLDING: The claimant=s medical expert established a probability that she contracted C diff at the Home and that her work conditions caused her injury. According to RSMo section , a communicable disease is compensable if the claimant puts forth evidence that she was exposed to and contracted the disease arising out of and in the course of her employment. The claimant put forth such evidence, therefore, this claim was compensable. The case was remanded to the Commission to determined the amount of temporary and permanent benefits, as well as the extent of medical payments, due the claimant. Idiopathic Condition Under New Law Vanessa Crumpler v. Wal-Mart Associates, Inc. and American Home Assurance, Case No. SD29489 (Mo. App. S.D. 2009). FACTS: The claimant, an insulin dependent diabetic, was at work and asked to take her lunch break. Because they were shorthanded, her supervisor asked her to wait for another worker to return in fifteen minutes before doing so. Soon after, the claimant passed out due to low blood sugar. She 4

5 was transported to the hospital over her husband=s objections and released the same day. She returned to work five days later. The claimant filed a workers= compensation claim. At a hearing, she only sought payment of the ambulance and hospital bill and offered no medical evidence. An ALJ found the claimant=s condition to be idiopathic and thus not compensable. The claimant argued that the reason she passed out was Adirectly caused@ by Wal-Mart=s failure to promptly grant her a lunch break. HOLDING: The Appellate Court noted that the work-relatedness of this particular episode would have to have been proven by medical testimony, and without that a finding for the claimant would be based upon conjecture. Therefore, the claimant=s case was denied. Commission Trends Over the last three months, the Commission has ruled on 43 cases and reversed or modified only 6 of those cases. Of those, only 3 were changed regarding liability against the employer and the insurer. In Nancy Brunner v. Columbia Public School District, Treasurer of Missouri as Custodian of Second Injury Fund, Injury No , the Commission held that the ALJ computed the claimant=s average weekly wage incorrectly, when he divided the claimant=s 187 days of work over a period of 12 months to determine the amount. It was the Commission=s opinion that to fairly and justly determine the employee=s average weekly wage, the most reasonable calculation would be to divide the claimant=s average salary by 187 days, which was the amount of days actually worked. Thus, the claimant=s average weekly wage was modified from $ to $1, In Jeffrey McBride, Deceased, Christa McBride-Brown, Widow; Kolter Austin McBride and Gryffin William McBride, Dependent Sons, Missouri Department of Transportation, Injury No , the Commission held that the Administrative Law Judge erred on his calculation of the claimant=s remarriage benefit. The ALJ found that the employee=s death benefits were $ per week, to be distributed equally among the claimant, and the two dependent children, for a total of $ apiece. After the remarriage, the Administrative Law Judge ordered the employer to pay a remarriage lump sum payment to Christa equal to 104 times the weekly death benefit of $ The Commission found that the proper payment should have been at 104 times the $ amount. In Kathy Sandlin v. Daimler-Chrysler and Treasurer of Missouri, as Custodian of the Second Injury Fund, Injury No , the Commission held that the Administrative Law Judge erred in finding the employee did not prove that she sustained an accident arising out of and in the course of her employment. The Commission found that the ALJ erroneously concluded that the employee was not credible. The Commission disagreed with the ALJ, and found that there was no evidence to contradict the employee=s assertion that the accident and injury was sustained on May 28, In fact, the Commission noted that there was evidence to support the claimant=s assertion that she sustained an injury, and her plant medical records indicated that she did report to the plant medical unit on the date of the injury, providing consistent testimony. In light of the consistent records and testimony from 5

6 various witnesses, the Commission determined that the ALJ=s decision was against the credible weight of the evidence. 6