The Law Office of Kurt H King

September 20, 2012

Seven Woes In Settling Permanent Total Work Comp Cases in Missouri

Recent thoughts and experiences from the injured employee’s side of Permanent Total Disability claim settlement:

1.  The big stick in the hands of the defense is that the employer/insurer does NOT have to pay a lump sum to settle PTD cases.  A key option the employer/insurer has is to simply pay the weekly amount until the employee dies (with very limited exceptions).  Along with the weekly compensation check, the defense also has to pay future medical along the way.  However, the injured employee can expect the defense to drag their feet and balk before continuing to pay future medical bills.   To resolve disputes over non-payment of future medicals, the employee racks up more attorney fees to hire counsel to sue in a circuit court (not the Division of Workers’ Compensation), and waits months for a hearing/trial date.  Not many PTD employees have any money for court costs and attorneys fees as they are living from week to week on the meager weekly compensation checks running about 2/3 of their former weekly wage.  The defense knows the last thing the employee wants is to never have any money again and to have to fight forever to get their medicals paid.  This puts the employee in such a bind that is is difficult to put real pressure on the defense over the total compensation the employer/insurer face paying over the life expectancy of the employee.  The end result is that the employee is under serious pressure to get as much of a lump sum settlement as the defense will offer and get the hell out of Dodge.  The danger of taking the money and running is that is may well not be enough to pay the future medical expense, especially after the employee catches up the bills and tries to have a life again.  At the other end of the gauntlet sits Medicaid which has the right to refuse to pay for medical expense of a employee who received a work comp settlement that included money for future medical expenses.  After all, why should taxpayers pay medical bills that the injured employee was given settlement money to pay?

2.  While word on the street is that Medicaid lacks the time and staff to check  on smaller lump sum settlements (below $250k, we hear), that is uncertain and the risk remains that Medicaid may refuse to pay for future medical care, forcing the PTD employee to use his/her settlement money (if any remains) to pay health care providers.  And who knows how long the economy will support even present levels of Medicaid.  At some point in the future, Medicaid may not be around, at least not as we now know it.

3.  Medicaid Set-Aside Trusts–To buy out of the obligation to provide the PTD employee with future medical care at its expense, the defense sometimes looks into paying a chunk of money into a Medicaid Set-Aside Trust by which Medicaid agrees to pay the future medical care of the employee.  If Medicaid wants a relatively large funding from the defense, then this option may be rejected.  But sometimes the employer/insurer uses this tool and funds a Trust, leaving Medicaid to pay the future medicals.   Some concerns for the PTD employee from the Trust route are: 1) he/she gets no money for future medical treatment, reducing his settlement; 2) Medicaid may not last or continue to pay for the lifetime of the employee; 3) some doctors do not accept Medicaid, particularly some of the top-notch pain management physicians; 4) the employee’s attorney who fought for the defense to pay future medicals now has to fight again to receive  a contingency fee percentage that the attorney would have received had the future medical compensation been paid in settlement to the employee (example: if future medicals are $100,000 of the settlement, the attorney’s typical work comp 25% fee amounts to $25,000).

4.  If the PTD employee decides not to take a lump sum settlement, the alternative is weekly compensation checks for life.  BUT if the employee’s disability improves and he/she can reenter the labor force in a meaningful way, the defense can simply move for orders converting the case to one of Partial Disability, thus ending its legal obligation to pay weekly compensation as long as the injured employee lives.  Put another way, a PTD case stays open for reassessment of the employee’s ability to work a job.

5.  Reaching a lump-sum settlement puts the injured employee in some control of his destiny.  He or she can now pick his doctors and course of treatment although at his/her expense (unless it can be panned off on Medicaid which runs off taxpayer money).  Conversely, NOT accepting a lump sum settlement leaves the employee at the mercy of the defense who picks the doctors it wants to get what may be a less expensive or beneficial treatment plan than what the injured employee wants.  And, if the employee refuses to follow the treatment plan of the defense doctors, then the defense cuts the employee loose to pay for his/her own treatment (the ideal outcome for the defense so beware).

6.  FYI–a typical present value rate in work comp is 4% compounded annually.

7.   The weekly workers compensation checks run about 2/3 of regular pay (up to caps set by law), which leaves many employees so destitute that they jump for any semi-reasonable lump sum settlement–letting the defense off the hook, so to speak.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Litigation, Personal Injury, Workers’ Compensation, Other Matters

http://www.kurthking.com

September 19, 2012

Mileage Reimbursement Under Missouri Workers’ Compensation Law

The question arises frequently as to whether and how much the employer owes the injured employee for mileage to and from doctors and other health care providers.

The answer lies in subsection 1 of Missouri statute 287.140.  That  law provides that IF the medical exam or treatment is “at a place OUTSIDE the local or metropolitan area from the employee’s principal place of employment,” the employer shall advance or reimburse the employee for all necessary and reasonable  expenses–BUT no transportation costs over 250 miles each way from the place of treatment.  (Query: do transportation costs include hotel/lodging costs at the Mayo Clinic, for example?)

As a general rule, what this means is that where the treatment or exam is INSIDE that local or metropolitan area of the employee’s principal place of employment, then the employee is NOT entitled to mileage or transportation expense reimbursement for travel to receive medical treatment for his/her injury or to undergo a medical exam requested by the employer/insurer.

But as a practical matter, the employer/insurer does pay for such mileage/transportation expense where the injury prevents the employee from being able to drive or otherwise reach the place of treatment or exam.  For example, the injury may have caused the employee to be physically unable to lawfully operate a vehicle to reach to the place of treatment.  Or, the prescribed pain medication may be so strong that to drive would constitute operating a vehicle under Under The Influence and thus be subject to a DUI charge.

So, there are exceptional cases but the injured employee most often bears the cost of going for medical treatment or exams in the local or metropolitan area of his principal place of employment.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty,  Clay County, Missouri 64068; 816.781.6000

Litigation, Personal Injury, Workers’ Compensation, Other Matters

How Serious Does the Previous Disability Have to Be to Hold the Second Injury Fund Liable In Missouri Workers’ Compensation Cases

On September 11, 2012, the Eastern District of the Missouri Court of Appeals handed down its decision in Salviccio v. Treasurer of the State of Missouri, As Custodian of the Second Injury Fund  (Slip Opinion ED97862), which holds that the injured employee may not stack/combine previous disabilities in order to reach the threshold which triggers possible Second Injury Fund (“SIF”) liability–except in limited situations.    The court of appeals then transferred this case to the Missouri Supreme Court due to the “general interest and importance of the issues.”  We will have to wait to see what happens at the Supreme Court, but here is a bit on where we are now on the question of whether an injured employee’s current or previous disabilities are serious enough to win against the Fund.

The Missouri statute on liability of the SIF is section 287.220.1, which sets minimum limits an employee must meet.  Boiling down considerable verbage, those limits are that each current and previous disability  must separately amount to 50 weeks or more if a Body As A Whole disability, or 15% permanent partial disability if a major extremity only.

The employee in Salviccio injured his left knee and settled the claim for 20% Permanent Partial Disability (“PPD”) at that level.  He later took his accompanying claim against the Fund to trial and won 12.3 more weeks of compensation to be paid by the Fund on the theory that the combination of all the employee’s injuries was 12.3 weeks more than the simple total of the present knee injury added to the disability from his previous disabilities.   The previous disabilities here were a 50% disability (11 weeks) at the proximal joint/22 week level for a left little finger injury, two hernias of 16 and 14 weeks respectively, and 50 weeks for his diabetes with some symptoms of paresthesia.

The employee wanted to combine all these previous disabilities for to get the maximum possible from the Fund–and the Labor and Industrial Labor Relations Commission obliged.   However, the court of appeals sided with the Fund, measuring each disability separately, and concluded that only the diabetes disability met the 50 week requirement.  Consequently, the court reduced the award against the Fund to 8.2 weeks of compensation.

Of particular interest is the little finger injury because it was rated at 50%, which exceeds the 15% required of a major threshold injury to trigger Fund liability.  However, the court of appeals found that an 11 week injury to the proximal joint on the little finger of the non-dominant left hand is simply not a “major” extremity injury.

Compare, however, the decision in Palazzolo v. Joe’s Delivery Service, 98 S.W.3d 645, 648 (Mo. Ct. App. E.D. 2003), which upheld an award against the Fund on a 15% disability at the 110 week level of the foot (the distal third).  In that case, the Fund apparently admitted that the foot may be a major extremity.  By analogy, a hand at the 175 week level would also seem to be a major extremity for these purposes.

(One wonders what the court would do with a case where the previous disability was an operation on the left wrist which left the 4th finger non-responsive due to tendon damage.   The scar and surgery occurs at the 175 week hand/wrist level but the disability lies with use of the 4th finger.)

Finally, we read in Salviccio that there is a limited scenario in which separate disabilities to the same major extremity may be stacked to meet the 15% major extremity only threshold for Fund liability.  The court notes its 2003 decision in Shipp v. Treasurer of State of Missouri, 99 S.W.3d 44, 53 (Mo. Ct. App. E.D. 2003), finding it acceptable to combine previous disability to the right wrist and right shoulder which added up to 15% disability of the right arm in the Commission’s mind, thus meeting the threshold limit triggering Fund liability.

In sum, while it seems acceptable to combine disabilities at various levels of one major extremity to implicate the Fund, it is not permissible to combine separate Body as a Whole disabilities or to merge extremity only disability with Body as a Whole disability.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Litigation, Personal Injury, Workers’ Compensation

June 26, 2012

Forty-five Percent Possibility of Future Surgery Is Submitted To Jury

In trial of a motor vehicle personal injury case, an orthopedic doctor testified that there was a 45% possibility that the injured plaintiff would have neck surgery in the future due to the injury.  The defense claimed on appeal that the doctor’s testimony amounted to only speculation and the trial court erred in letting the jury hear and consider that evidence.  However, the Western District of the Court of Appeals, in Westerman v. Shogren, Slip Opinion WD74066 (filed June 19, 2012), disagreed with the defense and held that the trial court properly admitted the doctor’s testimony of a 45% possibility of future neck surgery.

The court of appeals noted that Missouri law clearly permits a jury to consider evidence that future surgery might be needed.  All that is necessary under Missouri Approved Jury Instruction 4.01 is that the evidence support the proposition that the injured plaintiff is reasonably certain to sustain the future medical treatment.

Perhaps the importance of this case is that it indicates that a 45% possibility is enough to be reasonably certain.

But one wonders where a court would draw a line?  What if the possibility of surgery was only 10%–20%–30%, and so on?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

Personal Injury, Workers’ Compensation, General Litigation

Chapter 7 for debtors

Family Law–Divorce, Modification, Paternity, Child Custody, Support & Visitation

www.kurthking.com

June 5, 2012

Suing the City & Sovereign Immunity

Tragically, a ten year old boy died on a rainy day in 2007 while walking along NE 52nd Street to Maplewood Elementary School in Clay County, Missouri.  Only a sharply sloping ditch separated the street from his school’s field; there was no sidewalk or curb.  The boy slipped into the ditch flooded with rainwater flowing towards a storm sewer drain where he was sucked to the single bar across the opening of the drain and drowned despite the efforts of volunteers and emergency responders.

The boy’s family sued the North Kansas City School District and the City of Kansas City, Missouri.  The school district settled.  The City prevailed on a motion to dismiss the case against it on the basis of sovereign immunity.  Family then appealed to the Court of Appeals for the Western District of Missouri, which reversed in favor of the family, holding that the Clay County trial judge erred in granting the City’s motion to dismiss.  The case is styled Angela Phelps, et. al., v. City of Kansas City, Missouri, Opinion WD74287 filed May 29, 2012.

A major issue in the case dealt with the fact that the school district owned the land on which the City’s storm sewer was built.  The City contended that it did not own the land and therefore could not be held liable for the boy’s death on school property.  Citing previous cases, the court rejected this argument by the City, finding that the City need only have possession or control over the premises to be held liable.  Here the City possessed rights to construct and maintain the storm sewer system and therefore had sufficient possession or control over the premises involved in the boy’s death.  The City also sufficiently controlled and possessed the adjoining street which lacked sidewalk or curb to provide a safe path to school for walking students.

Turning to the immunity of the sovereign body–the City–the court repeated the ages old rule that sovereign immunity protects such public entities from being sued unless there is some express waiver by state lawmakers.  Basically, citizens can’t sue the government as a general rule.  A concept that dates back to Henry the VIII or so.

But you can sue a city for negligence and such under these four areas of exception carved out over time by courts and by Missouri statute 537.600: (1) for a public employee’s negligent operation of motor vehicle; (2) dangerous condition of city property; (3) the city is performing a proprietary function (one that generates revenue for the city)  as opposed to a governmental function for the public benefit; or, (4) the city has liability insurance which actually covers the acts involved as this constitutes a waiver of its sovereign immunity by the city.

In this case, two exceptions applied to enable the family to continue its case against the City.  First, the City charged residents and the school district a fee for storm sewer services and Missouri law already holds that so providing storm sewers is a proprietary function.   Second, the storm sewer in which this young boy drowned was in dangerous condition according to the allegations by the family in their amended petition against the City.  Note here the court’s determination that the City need not own full title to the land in order to be liable for dangerous conditions on the premises.  Control and possession of the property for purposes of constructing and maintaining the storm sewer suffices.

Since the above exceptions are sufficiently stated in the family’s petition, the court of appeals reversed the trial judge’s dismissal of the case due to incorrect application of the doctrine of sovereign immunity.  This case, now 5 years after the death of the young student, may again proceed.  Of course, if this case against only the City now does not settle but rather proceeds to trial, the family must present proof of all the necessary elements of these exceptions in order to win.  I would think, though, that the proof is there and a jury would award a substantial amount to the family.

Admire the tenacity of the family in taking this case up on appeal (twice now) to reverse the trial judge’s decisions.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Personal Injury, Workers’ Compensation, General Litigation

Chaper 7 Bankruptcy for debtors, Family Law, General Practice Matters

December 22, 2011

Spinal Cement Surgery in Missouri Personal Injury and Workers’ Compensation Cases

Received a call last week from a guy with a Missouri Workers’ Compensation claim who went under the knife to have a vertebroplasty where cement is injected into a fracture to hold it together until the bone rebuilds.   The work comp insurance carrier already offered this person a settlement and the call was to find out if the offer was in the ball park, which it was not.  This person decided to try to renegotiate a higher settlement on his own after talking to me about number in hopes of having a decent net settlement without having to pay the 25% contingency fee to me and at least a $1,000 for another doctor to examine him and give the higher rating the injury deserved.  I don’t yet know how he fared on his negotiations.

After this phone call, I looked on-line at spinal surgery using cement and found that there are significant risks associated with this cement and allegations of improper and unapproved testing which may have resulted in patient deaths.  One risk is said to be that if the cement gets into the blood stream and reaches the heart, large drops in blood pressure occur.  Another concern is reported as that using cement to strengthen one fractured vertebrae could cause more fractures in weaker bones.  Maybe most strikingly, reports state that this cement surgery is no better than not having the surgery at all. 

All this raised the concern about what happens to the cement over time.  Is it absorbed into the body and how does that happen without it mixing with spinal fluid or the bloodstream which will eventually pass it though the heart?  And what damage results to the heart and its delicate valves due to the passage of rough foreign matter like cement?  Did the surgeon fully discuss all these risks and dangers with the patient as well as let the patient know of the studies that are said to indicate that the cement surgery may be no better than no surgery at all?   If not, the doctor may not have obtained the patient’s informed consent as required by law.

All in all, there seems to be considerable food for thought for anyone looking at cement surgery or such health problems afterwards.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Personal Inury, Missouri Workers’ Compensation, Family Law, Child Custody & Support, Divorce & Modification, Bankruptcy

January 5, 2011

Costs–Hip Replacement

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 8:19 pm
Tags: , ,

Here are hospital and surgeon costs for hip replacement after injury in motor vehicle accident in this Kansas City, Missouri area:

1. hospital $60,124
2. surgeon $4,532 (plus $2000 if use assistant)

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

Slip & Fall case out of Clay County, Missouri

Here in Clay County, Missouri, a tenant slip and fall case against the landlord went up to the appeals court which outlined Missouri law on point. The appellate opinion is at 935 S.W.2d 649 out of the Western District of the Missouri Court of Appeals, and titled Uptergrove v. Housing Authority of the City of Lawson, Mo.

This case makes a good statement of Missouri law existing on this area of personal injury law. The general rule in Missouri is that the landlord has no duty to tenant to remove snow and ice from the common areas of the apartment complex, unless he takes on that duty: (1) by agreement with the tenant, or (2) assumed the duty by making it a practice to remove the snow and ice.

Some tenants who are injured by slip and fall on a common walkway or parking lot look to their lease (usually provided by the landlord for the landlord’s benefit) and see that it puts no duty to remove on the landlord, or states that the tenant waives/releases his/her claims against the landlord for non-removal of snow and ice. Don’t make the mistake of thinking that is the end of your claim. There is more to it than that and the tenant may still have a case to recover for personal injury, loss of wages, property damage, etc. Have it checked out.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

Waivers/releases of liability in Missouri

Are waivers/releases of liability in leases, gym contracts, etc., binding under Missouri law? Answer: sometimes not.

These provisions are everywhere now days as landlords, gym owners, and many others want the other party to sign standard contracts with provisions that the “little guy” releases or waives all claims he/she may have against the landlord (for example), even if the negligence or fault of the “big” party to the contract is the cause of injury or damage to the “little” party. For example, these provisions are used to bar claims by gym users who are injured by faulty gym equipment, tenants who slip and fall on ice and snow which the landlord failed to remove despite a duty to do so, and on and on.

In the case of Alack v. Vic Tanny International of Missouri, 923 S.W.2d 330 (1996), the Missouri Supreme Court set some limits on these waivers/releases and they should NOT be valid/binding on the injured party unless the written language satisfies these rules.

One requirement is that the waiver/release language must be clear and conspicuous–meaning it should be in bold/large/standout type, preferably referred to in the title, and noted by a subheading or title that stands out and makes it known that the provision deals with waiver/release of liablility. This is particularly true of residential or consumer contracts where the party that is waiving claims of liability of the other party is not as sophiscated or experienced as a commercial business would be. A good idea is to have the waiver/release in a separate document, so titled, and executed by the parties to the agreement

Another requirement is that the waiver/release language be clear, unambiguous, and free of duplicity. For example, take a lease contained 2 separate and different provisions calling for the tenant to waive and relase the landlord from any liability for not timely removing/treating snow and ice at the apartment complex. And, one of the provisions called for the the landlord not to be liable to the tenant for such under any circumstances, while the other provision called for the landlord not to be liable unless it was grossly negligent or intentionally injured the tenant. These provisions obviously differ and are unclear to lawyers–and surely the tenant is confused. Such ambiguous, unclear, and conflicting provisions could and should be struck down by a Missouri court so that the tenant or other “little guy” is free to sue the “big” party for the wrongdoing of the “big” guy.

The Alack court decision above, also states point blank, that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” More reasons why a waiver/release may be void.

Bottomline: Just because the contract says so, does not mean the waiver/release will hold up in court. Have it checked out by your lawyer to be sure.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

May 21, 2010

No Trespassing Warning in Missoouri

Was driving down a back road and saw this sign on a pole along the ditch–

This property protected by Biting Dogs and Automatic Shotguns.

The “property”  looks to be a declining large older home on acreage with a non-gated driveway.

If the sign is real and not just a bluff, then it asks for trouble, particularly if a person pulled up the driveway to ask directions or for some other legitimate reason.  Such  an uninvited person–i.e., a trespasser–who is no threat to the property or anyone who lives on the property should not risk attack by dog or gun.  The property owner who actually protects his property in this way should beware of being sued by an unsuspecting harmless trespasser in many situations.

 

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

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