The Law Office of Kurt H King

April 20, 2020

Workers’ Compensation Cases from the Covid-19 Virus

Filed under: Kansas Personal Injury,Litigation,Missouri Personal Injury Law,Missouri Workers Compensation — kurthking @ 4:40 pm
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Some employers may be exposing their workers to the virus without proper protection.  As a result, a worker may be infected and become ill, perhaps very ill or even die, from such increased exposure.

In these situations, the worker may well have a workers’ compensation injury claim to cause the employer (its insurer usually) to provide–at its cost–medical care, weekly compensation while off work, plus an award of money to compensate the worker for his or her permanent disability.   The law also mandates the employer/insurer pay compensation to spouse and/or dependents in cases where the employee dies from the injury, or in this case, the virus.

I handle Missouri and Kansas workers’ compensation claims and would be glad to speak with you about whether you have a viable claim.   These claims are typically handled on a 25% contingency fee basis, so there is no fee unless you receive compensation on the claim.  However, clients are generally responsible for reimbursing the out-of-pocket expenses for the costs of obtaining medical records, examination and rating by a doctor if needed, and the like.

It is important to act promptly as there are time limits that will defeat your claim if you wait past the deadlines!

Please call if you think this situation may apply to you!  Thank you.

Kurt H. King 816.781.6000

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

Practice Areas–Workers’ Compensation, Personal Injury, Chapter 7 Bankruptcy, Estate Planning, Family Law, Landlord-Tenant, General Matters

September 5, 2018

Retaliation against Employee for Participation in Investigation or Other Proceeding

Filed under: Employment--Retaliation, Discrimination,Litigation,Missouri Workers Compensation,Uncategorized — kurthking @ 4:22 pm
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Are employees protected against retaliation for not supporting the employer’s agenda during an internal or governmental investigation or proceeding?  YES, good faith participation or opposition is protected.

The EEOC Enforcement Guidance on Retaliation and Related Issues states at part II.A.2.a:

“It is also opposition when an employee who did not initiate a complaint        answers an employer’s questions about potential discrimination,”

citing at footnote 37 the Supreme Court opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009).

And, according to the EEOC’s updated guidance of September 2016, a company’s own complaint process “constitutes ‘participation’ protected activity,” noting that in Crawford the Supreme Court did not limit participation to investigations by only governmental agencies.

Furthermore, footnote 35 to the EEOC Guidance cites Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3rd Cir. 1996), for the rule that:

“[Re]fusing to fulfill the employer’s request to gather derogatory information about those who complained [is] protected opposition.”

The law recognizes the need to protect employees so they may speak without retaliation.

Kurt H. King, Missouri attorney

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Retaliation and Employment Discrimination, Litigation, General Matters

 

October 26, 2017

ERISA LIENS, MEDICARE SET ASIDES, ETC.

Filed under: Kansas Personal Injury,Litigation,Missouri Personal Injury Law,Missouri Workers Compensation,Uncategorized — kurthking @ 7:49 pm
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Marci Gordon of Synergy Settlements out of Orlando, Florida, did fine job at recent Clay County, Missouri, CLE on the subject of ERISA liens and some reduction strategies.   Her business card also lists Medicare set aside trusts, lien resolution, pooled trust services, and complex settlement planning and consulting.

Synergy offices at 911 Outer Road, Orlando, Florida 32814, with a Toll Free line 877.242.0022, Direct line 407.279.4812, Cell 407.620.7471.

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

April 22, 2014

When Can You Sue Again?–Res Judicata & Collateral Estoppel

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation — kurthking @ 4:47 pm
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In its April 15, 2014, Xiaoyan Gu v. Da Hua Hu, Ace INA Insurance Company Canada opinion (ED100001), the Eastern District of the Missouri Court of Appeals reversed the trial judge’s summary judgment award in favor of defendant insurer.

Facts of the underlying cases:  Husband and wife  were passengers in a truck rented to haul grapes and carrots between California and Ontario.  Defendant Ace INA Insurance Company of Canada wrote the Garage Automobile Policy which insured the Volvo dealership which rented a tractor truck to the driver (who opted not to purchase insurance coverage on the rental).  However, the garage policy covered additional insureds if that person [the driver] operated any automobile in connection with the business of the dealership, and the court so found since the renting of the truck furthered the business of the dealership.

Note that this is the third trial thus far in this case: the first, a bench trial for personal injuries of the husband and for loss of consortium by his wife  against the trucking companies and the driver.  The court awarded husband nearly $14 million and  wife $1.5 million.

The second trial, judge-tried also, was by husband  only for equitable garnishment on the garage policy issued to  the dealer by defendant Ace INA.  On the first day of trial, the defense moved to amend its pleadings to assert the exclusion in the policy that applied when the ” automobile is being used . . . for the carrying of goods or materials for compensation.”  The court ultimately ruled that such late assertion of the defense was unfair, and denied the motion for leave to add that defense.  Judgment resulted in favor of husband against Ace INA Insurance Company on his garnishment action.

This brings us to the third case which is the subject of this appeal–another equitable garnishment case against Ace INA to obtain payment of the personal injury judgment but this time brought by the wife.  This time around, the defense timely raised the carriage-of-goods exclusion, and the trial judge upheld that defense in granting summary judgment in favor of insurer Ace INA.

On appeal, wife argued that collateral estoppel and/or res judicata barred the insurer from raising the carriage-of-goods exclusion.  The court of appeals rejected the collateral estoppel agrument because that exclusion/defense was not “fully and fairly litigated” in the first garnishment case by husband.

Next, the Eastern District focused on res judicata.  For that doctrine to apply, these four “identities” must co-exist: 1) of the thing sued for; 2) of the cause of action; 3) of the persons/parties; 4) of the quality of the person for or against whom the claim is made.  The fourth identity was undisputed, so the the court analyzed the first three.

The Thing Sued For:  In the court’s eyes, both garnishment cases–that of husband and wife–sought the same thing–“[g]arnishment of insurance proceeds to satisfy a judgment that stems from damages caused by the same motor vehicle accident.  No problem finding this element.

The Cause of Action:   This element is defined as “the underlying facts combined with the law, giving a party a right to a remedy of one form or another based thereon.”   Again, a finding that this element existed since “no different or new facts were required” for [wife] to establish her garnishment case.

The Parties:  This element requires that the parties be the same or in privity.   For privity to exist, the interests of a party and non-party in privity must have been so “closely intertwined that the non-party can fairly be considered to have had his or her day in court.”  Here, this element existed due to Missouri law holding that a judgment creditor “stands in the shoes’ of the judgment debtor, and thus wife has the same rights as the driver under the garage insurance policy from Ace INA.

Since all four identities coexisted, the trial judge erred in allowing insurer Ace INA to raise this defense.  The court of appeals therefore reversed and remanded for entry of judgment in favor of wife.

(Side note:  Res judicata  applies to claims or defenses that could have been raised previously, as well as those which were.)

 

Kurt H. King

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

816.781.6000

http://www.kurthking.com

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy

Family Law

General Matters

 

 

 

 

November 18, 2013

Error to Order Plaintiff to Authorize Ex Parte Communications with Treating Physician

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation — kurthking @ 5:43 pm
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Missouri courts clearly hold that it is error for a trial court to order the plaintiff to sign an authorization consenting to ex parte communications with his treating physician.

See Judge Van Amburg’s opinion in State of Missouri ex rel. John Joseph Camillo and Mignon Chismarich v. Honorable James Beck, Slip Opinion ED100427 (October 15, 2013).

Of note:  “An authorization compelled in the course of litigation must be narrowly tailored to protect against ‘the potential risks to the physician-patient relationship’ inherent in the disclosure of confidential medical information.  [Citation omitted.]  Vague, broad, or open-ended authorizations simply will not do.”

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, Family Law

Worker’s Dependents Entitled to His Workers’ Compensation for Their Lifetimes

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation,Uncategorized — kurthking @ 5:31 pm
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This post dovetails prior posts regarding Missouri Workers’ Compensation law involving death by other causes of a Permanently Totally Disabled (PTD) worker and the “Schoemehl window.”

The Southern District of the Missouri Court of Appeals recently addressed an appeal by the Second Injury Fund in a case where the PTD employee with a claim within the Schoemehl window died from causes not related to the injury.   The case is Spradling v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Slip Opinion SD31907 (November 5, 2013), and holds specifically for cases within these parameters that the dependents of the deceased PTD worker whose claim was pending and not finally determined as of June 26, 2008 are entitled to the PTD compensation payments FOR THE LIFETIME OF THE DEPENDENT(S).

Note that the employee died from causes unrelated to his injury in November 2005 after having been injured in 1998 and having filed his claim in 1998.  On the date of injury, he was the non-custodial father of two young children who were “conclusively presumed” under 287.240(4) to be his dependents.

Note too that this case falls within the “Schoemehl Window” opened by the Missouri Supreme Court in Schoemehl on January 9, 2007, and continuing until June 26, 2008, when Missouri lawmakers closed the window by revising Missouri workers’ compensation law so that PTD in such a case terminates upon the death of the injured employee.

The bottom line is that in Schoemehl window cases the employer has to pay PTD so long as a dependent lives, but if the claim falls after that window closed the employer only has to pay only so long as the employee lives.

Kurt H. King

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

816.781.6000

Workers’ Compensation, Personal Injury

Chapter 7 Bankruptcy for Debtors, General Matters

Family Law–Dissolution of Marriage, Modification, Paternity, Child Custody, Support, & Visitation

January 31, 2013

The “State” of the Insolvent Second Injury Fund in Missouri–Skirvin v. Treasurer of the State of Missouri

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 9:33 pm
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Missouri’s Second Injury Fund pays part of the disability of injured workers who suffer re-injury.  The theory being that otherwise employers would be far less likely to hire workers that have already been hurt.  Since employers presumably pay less on work comp claims than they would if injured workers could sue for their injuries in circuit courts with jury trials, punitive damages and the whole nine yards, lawmakers have saddled employers with the cost of funding the Fund so it can pay the “load factor” part of permanent partial work comp awards, as well as on permanent total disability awards.

A few years ago, in an effort to reduce the costs of work comp insurance for Missouri businesses, lawmakers capped the “surcharge” at 3%–thus the most a business would have to pay into the State for the Fund each year would be no more than 3% of the total amount of its net work comp insurance premiums.  This effort to appease business backfired as that amount of surcharge falls far short of an adequate supply of money to the Fund for payment of the continuous flow of work comp awards against the Fund.

By and large, due to lack of funding, the Fund has not paid any Permanent Total Disability awards dated after March 6, 2011.  There are said to be at least sixty cases on file in courts throughout Missouri seeking orders that the Fund pay the injured worker the amount awarded that worker by the Division of Workers Compensation.  One of those cases recently reached the Western District of the Missouri Court Appeals, where it was decided by Judges Ahuja, Howard, and Martin.  The case is Skirvin v. Treasurer of the State of Missouri, WD75541 (opinion filed 01.22.2013).  At the trial which led to this appeal, Skirvin won an order (on a writ of mandamus) that the Fund pay the money awarded by the Division of Workers Compensation on his permanent total disability claim where the “last” part of the disability combined with  disability from previous injuries to cause the employee to be totally disabled.  The last employer picks up the tab for the “last” disability but the Fund is charged with payment for the remainder of the workers’ disability.

Having lost  at trial, the Fund appealed to the Western District.  In doing so, the Fund admitted that it is insolvent–bankrupt–and so it stopped paying permanent total injury awards as of March 6, 2011.  Evidence at trial showed that the Fund then owed $21 million but had only $6.5 million with which to pay.   Thus, the Fund was upside down $15 million.   The Fund also testified to annual income of $43 million, of which $40 million was paid out within six months, leaving only $3 million for the remaining six months.  This has been going on for nearly two years now and the hole yawns blacker and deeper.

No way the Fund can pay the past due awards pro rata as there are significant differences in how the claims affect employee Social Security, the number and amount of claims constantly fluctuates, and it simply would not be fair.  The alternate, to pay on a “first come, first serve” basis, would quickly break the bank.  Missouri’s lawmakers should have raised the legal limit on the surcharge or provided additional funding but they have not.  The economic times of late have not led to surpluses, and who wants to vote for representatives who pass laws which increase your work comp costs and cut your thin profits?

What the court of appeals decided in the main opinion by Judge Martin is that the trial court erred in ordering the Fund to pay Skirvin as the Fund lacks the money to pay him and the other claims like his.  Skirvin did not request a pro rata payment of his and similar claims and that would be nearly impossible to accomplish.  But while the court of appeals could not help Skirvin, they could send his case to the Missouri Supreme Court and so they ordered it transferred.  If that high court hears this case, it may do so expeditiously.  Meanwhile, Missouri lawmakers may realize that they must act now or the supreme court may fix things in a way that they do not like.

Judge Ahuja agreed with the transfer to the supreme court, although he would simply have reversed the trial court for the reasons that, (1) the Fund is insolvent and cannot pay all the judgments outstanding against it, and (2) Skirvin did not request  a pro rata payment.  [Maybe a request to put the Fund into receivorship is another option.]

Finally, Judge Howard in his dissent makes several good points, including that the Fund is just an account of the State of Missouri, and the State has the money or can raise it to pay the outstanding claims against the Fund.  The State also has full power to increase the surcharge or otherwise fund the Fund so that it has sufficient money to pay its debts.  So, affirm the trial court and uphold Skirvin’s order that the Fund/State of Missouri pay him what it owes him by law.

Embarrassing for a STATE to say to an injured employee, in effect–

“Hey, here is your work comp judgment and by the way the Fund is not going to pay you.  Sorry you may starve.  Hope you find a good homeless shelter or maybe your spouse can float all the bills by herself.”  Does the state let tax debt ride indefinitely when a taxpayer says, “Can’t pay you, I’m almost clear broke?”

Perhaps the Missouri Supreme Court will decide this case and turn up  the heat on our lawmakers who knew, or should have known, they were drowning the Fund and injured employees when they capped the surcharge at 3%.

Kurt H. King

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

816.781.6000

Workers’ Compensation, Personal Injury, Bankruptcy, General Litigation and other matters

http://www.kurthking.com

January 24, 2013

Attorney’s Lien Trumps Medicaid Reimbursement Lien Under Missouri Workers’ Compensation Law

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 11:05 pm
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In Lake v. Ronald Levy, Director of Missouri Department of Social Services, WD74306 (filed 01.15.2013), the Western District held the Medicaid reimbursement lien asserted by the Department of Social Services inferior to the attorney’s lien of counsel who brought the workers’ compensation claim.  The court of appeals finds this to be fair since only by the efforts of the injured employee’s attorney did it come to pass that there was any money to reimburse the state.  To have held the Medicaid lien superior would (at least in this case where the medical expenses part of the settlement monies paid by the employer/insurer was no more than the money for the employee’s medical expenses) leave counsel with little or no incentive to recover such medical expenses merely to benefit the state with reimbursement for Medicaid medical payments for treatment of the injured employee.  From counsel’s perspective, if you aren’t going to get paid, why do the work?

Here the employee’s counsel settled the work comp claim and then filed suit in Missouri circuit court seeking in equity to enforce his attorney’s lien against the disputed medical expense portion of the workers’ compensation settlement.  Ultimately, the trial judge ruled in favor of Social Services on motions for judgment on the pleadings (the question before the court being strictly one of law), giving the medicaid reimbursement lien priority over the attorney’s lien provided for in Missouri statute 484.130.  This ruling denied the attorney’s claim in equity for a 25% fee of the $45,001 medical expense portion of the work comp settlement.  Being so denied fees of $11,250, the lawyer for the injured employee did what lawyers do and appealed to the court of appeals.

On appeal to the Western District of that court, the parties both focused on subsection 7 of section 287.266 of Missouri Workers’ Compensation Law.  That subsection reads:

“This debt due the state shall be subordinate only to the fee rights of the injured employee’s attorney pursuant to this chapter, and the state shall not be required to pay any portion of the fees or costs incurred by the employee or the employer.”

The attorney argued that the first portion of subsection 7 clearly gives his attorney’s lien  priority over the state’s medicaid reimbursement lien.  In straight-forward fashion, the court of appeals agreed, noting that without priority the attorney would have no reason to recover medical expenses in cases such as this one where no money would be left for the attorney as the medical reimbursement lien met or exceeded the amount of the medical expense portion of the work comp settlement.  The state, however, argued  that giving the attorney’s lien priority constitutes a payment of fees or costs in violation of the last part of subsection 7.  Nevertheless, the court of appeals ruled for in favor of the attorney as the money due the attorney on the lien for his fee is his money and not the state’s money.  Therefore, the state is not “paying” the attorney’s fees. Victory for the attorney!

This case puzzles in that the undersigned’s experiences with Medicaid in personal injury cases is that its third-party subrogation office will consider and agree to a pro-rata reduction of the amount of its lien and will reduce its share a further percentage to factor in the attorney’s efforts in pressing forward the claim or lawsuit that resulted in recovery of funds from which Medicaid is reimbursed.   Perhaps a harder stance was taken by the state in this case in hopes that the above language of subsection 7 would afford the state more leverage and reason not to reduce medicaid reimbursement liens by an amount for the claimant’s  attorney–at least in workers’ compensation cases.

Kurt H. King

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

816.781.6000

Missouri Workers’ Compensation Claims, Personal Injury, General Litigation

http://www.kurthking.com

November 12, 2012

A Signed Missouri Workers’ Compensation Settlement But The PTD Client Dies Before Settlement Approved

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 5:23 pm
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A new and rare appellate court decision has been handed down on Missouri Workers’ Compensation law involving a Permanent Total Disabled worker who signed off on a settlement to take a lump sum instead of continuing weekly payments for life, AND THEN DIED BEFORE THE COMMISSION APPROVED THE SETTLEMENT.  The case is out of the Western District of the Missouri Court of Appeals, Nance v. Maxon Electric, WD74942, filed November 6, 2012, written by Judge Gary D. Witt (formerly a judge of Platte County, Missouri).

To make a long story short, this appeal is an effort by the employer, Maxon Electric, to get out of a bad deal.  The company ultimately offered to pay the injured worker just over $180.000 to save having to pay him a weekly payment and medicals for the rest of his lifetime.   Maxon Electric made the deal, drafted and signed the settlement, had the worker sign it also, and sent it to the Labor and Industrial Relations Commission for approval only for employee to die the very day the settlement was received by the Commission and filed–but not yet approved as required by law in order to go into effect.

Had there been no settlement, the worker’s right to weekly workers’ compensation benefits and future medical at the employer’s expense would have ended at the death of the employee.  To try to save the $180,000 they had agreed to pay, Maxon Electric persuaded the Commission that it did not have the legal authority to approve the settlement since no compensation was now due the deceased PTD worker.  This appeal by the worker’s surviving spouse followed to cause the Commission to approve the settlement, forcing Maxon Electric to honor its settlement agreement.

In deciding the case, the Court of Appeals rejected the argument by Maxon Electric that the Commission could not approve the settlement because in it the company agreed to pay considerably more than required by law even if the worker had not died–not to mention that no compensation was due after the death of the worker.   The court’s rationale is that those approval requirements in section 287.530 for contested claims before the Commission asking it to commute  future workers’ compensation benefits into a lump-sum payment do not control when the claim is non-contested as here where the parties have settled by signed agreement.  Rather, in a uncontested claim where the parties have agreed to lump-sum settlement, the court finds per section 287.390.1 that the Commission “shall” approve the settlement if: 1) there is no undue influence or fraud, 2) the terms are understood by the employee/worker, and 3) the employee voluntarily agrees to accept the terms of the agreement.  All three of these elements existed in sufficient quantities here so the Commission was obligated by law to approve the settlement.

Maxon Electric also argued, with no legal authority in support noted, that the Commission could not approve the settlement after the death of the worker.   The court read the plain language of section 287.530.1 which speaks of approval of motions for a lump-sum payment when for the best interests of “the employee or the dependents of the deceased employee.”   The court held that the quoted language empowers the Commission to proceed to approve the lump-sum settlement after the death of the employee, contrary to Mason Electric’s position.

The court ended by ordering the Commission to approve the claim, thus requiring Maxon Electric to pay out the $180,000 to the surviving spouse.  A Proverb advises us to honor our agreements even when it hurts.  Had Mason Electric done so it would have saved what must have been a good-sized attorney fee bill.

Kurt H. King

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

Workers’ Compensation, Personal Injury, General Litigation

Chapter 7 Bankruptcy for Debtors, Family Law

http://www.kurthking.com

October 18, 2012

Thoughts On The Social Security Offset Against Missouri Workers’ Compensation

Filed under: Missouri Workers Compensation — kurthking @ 4:38 pm
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Take for example, a Permanent Partial Disability workers’  compensation settlement in a case where the injured worker will need to file for Social Security Disability benefits due to inability to engage in substantially gainful employment.  Not only do we have to worry about Medicaid taking the position that some of the settlement money was for future medical expenses and therefore Medicaid will not pay for them, but we also have to be concerned about Social Security offsetting/reducing its payments to the injured worker to the extent that the work comp and Social Security exceed 80% of the worker’s Average Current Earnings (ACE).

An attorney needs to run the numbers (particularly the workers’ ACE) on this offset for the injured worker, and structure the work comp settlement agreement/stipulation–including these two areas:

1) First allocate and subtract out that part of the award that goes for attorneys fees, litigation expenses, and medical expenses–these should be  “excluded”  which reduces the amount of work comp that Social Security factors in to determine if the Social Security plus work comp exceed 80% of the worker’s ACE.

2)  Find the worker’s life expectancy and divide the remaining work comp settlement by the total number of months of that life expectancy to arrive at what one would hope is a low amount of work comp per month so that when added to monthly Social Security the two do not exceed 80% of the worker’s ACE.

IMO, these are the two “biggies.”

 

Kurt H. King

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

http://www.kurthking.com

Workers’ Compensation, Personal Injury, Litigation

Chapter 7 Bankruptcy for debtors

Family Law–Dissolution of Marriage, Modifications, Child Custody, Child Support, Paternity

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