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

Permanent Total Disability Depends On Whether The Worker Can Compete In the Open Labor Market

When is an injured Missouri worker Permanently Totally Disabled?  While not breaking new ground, the June 14, 2012, decision of the Southern District of the Missouri Court of Appeals in Larry Underwood v. High Road Industries, LLC (Opinion SD31731), illustrates Missouri law on the test used to determine if the worker is Totally or just Partially disabled.

The court of appeals stated the test as follows on page 12 of its decision, quoting the Western District’s words in an older case:

     “The test for permanent total disability is whether the worker is able to compete in the open labor market.  The critical question is whether, in the ordinary

     course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.”

What this means is that the injured worker need not be 100% disabled to be found Permanently Totally Disabled (PTD).  In this case, the worker (Underwood) was rated at 40% disabled by his independent exam doctor, while the treating doctor selected by the employer found only 13% disability.  Both ratings seem low in view of the chronic back and right side pain from a fall on concrete due to ladder failure while installing a radiator in a truck as part of his job as a diesel mechanic.  The fall left Underwood in severe and chronic pain to the point where the employer/insurer paid for surgery to implant a spinal cord stimulator.  Even though the stimulator relieved 40% of the pain, Underwood still suffered constant throbbing pain and some numbness, such that sleep was difficult and he could only stand or sit for 30 minutes at a time.  And, he could only drive 10 miles at a time.  Even this amount of driving contradicted the advice of the stimulator company that he should not drive when the stimulator was active because it could send false signals down his right leg.  But with the stimulator off, the pain was nearly unbearable.   With the pain, the hydrocodone and Tramadol pain medication every 4-6 hours, his 10th grade education and below-average intelligence scores, Underwood would be unable to retrain academically or otherwise. 

Even the employer/insurer’s treating doctor restricted Underwood to no more than 1 hour sitting or standing at a time.  The employee’s vocational expert testified that this restriction demoted Underwood into a category of “less than sedentary work capacity.”  The expert explained that “anybody that can’t do sedentary work is unemployable.”   The court of appeals agreed and affirmed the Labor and Industrial Relations Commision’s award in favor of Underwood finding him to be Permanently Totally Disabled.

What may lie behind the scenes in this case is the employee’s refusal to accept a lump-sum settlement offer from the employer/insurer.  Apparently, the employer/insurer declined to offer Underwood the amount of money he thought he should receive.  Without settlement, the case proceeded to trial.  Unfortunately, even though Underwood won at trial, all the judge can award him under Missouri law is that the employer/insurer pay a small weekly sum to him for life, and also pay his medical expenses related to the injury.  The employer/insurer may in the future refuse to pay some medical expenses sought by Underwood which will result in more litigation to force payment.  Too, the small weekly compensation amount tends not to be a great burden upon the employer/insurer.  So while Underwood won his case for PTD,  the result may end up a draw or even a victory for the employer/insurer due to small weekly amounts of money they  will have to pay to Underwood.

Kurt H. King

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

816.781.6000

Workers’ Compensation, Personal Injury, Medical Malpractice, Wrongful Death

Chapter 7 Bankruptcy for debtors

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

www.kurthking.com

June 14, 2012

No Work Comp for “Equally Exposed” Injury

Employee on the clock making coffee at the office kitchen.  Turns and twists her ankle, “causing her foot to fall off her shoe.”  The fall fractures her pelvis resulting in a trip to the Emergency Room and conservative treatment including physical therapy but no surgery.  Injury reported and Missouri Workers’ Compensation claim followed.  Claim denied at trial by ALJ, reversed and claim granted on appeal to the Labor and Industrial Relations Commission, and now the Supreme Court of Missouri reverses the Commission to again deny the claim.  These are the facts of the May 29, 2012, Opinion SC92113 by the Missouri Supreme Court in Johme v. St. John’s Mercy Healthcare.

This case turns on Missouri statute 287.020.3(2)(b)  which, in the words of the Court, “instructs that Johme’s injury ‘shall be deemed to arise out of and in the course of [her] employment only if . . . it [did] not come from a hazard or risk unrelated to [her] employment to which [she] would have been equally exposed outside of and unrelated to [her] employment in [her] normal employment life.‘ ”   More simply put, no compensation for job injuries due to causes to which the employee is equally exposed off the job AND which are unrelated to her employment.

Prior to the 2005 amendment of section 287.020  to override previous case law, Missouri courts permitted just such claims as this by employee Johme.  Back then the injured employee was entitled to recover workers’ compensation even if  the act that caused the injury involved risks to which one would be equally exposed outside of work.  The rationale was that the act causing injury would not have occurred if the employee were not at work.  For example of law prior to the 2005 amendment, a worker succeeded on her workers’ compensation claim for injury that resulted as she  fell and injured her ankle while carrying her lunch in a break room at work while walking across a clear floor area, without apparent cause.  Drews v. TWA, 984 S.W.2d 512 (Mo. banc 1999).

This Supreme Court oponion in Johme v. St. John’s Mercy Healthcare illustrates a shift in law favoring the employer and workers’ compensation insurance companies. 

Kurt H. King

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

816.781.6000

www.kurthking.com

Workers’ Compensation, Personal Injury, Trial and Appellate Litigation

Chapter 7 Bankruptcy for Debtors, Family Law including Divorce, Modification, Paternity, Child Custody, Support, & Visitation

June 6, 2012

Wrongful Discharge of Organ Donor Employee

The recent Missouri appellate decision in Phyllis Delaney v. Signature Health Care Foundation, Opinion ED97419 filed May 22, 2012, handed down by Eastern District of Court of Appeals, sheds additional light on Missouri’s prohibition against firing employees contrary to public policy.  In this case, the employee asked for four weeks after surgery to donate a kidney to her brother.  The employer first gave the employee the green light, then said “no” three days before the surgery.  The employer refused to hold the employee’s position open and discharged the employee.

Ironically, the employer calls itself a health care foundation.  A foundation is often a body formed to serve charitable interests.  One would think a foundation of the health care variety would support its employee in being an organ donor, but apparently not so here.  Have to wonder!

The sole point on appeal is whether in donating a kidney the employee acted in a manner public policy would encourage.  The relatively obvious answer is “yes,” donating a kidney is something the public policy of the State of Missouri encourages.   The court of appeals therefore sent the case back down to the lower trial court so the employee may continue her case for wrongful discharge against the foundation that wrongfully discharged her from her job as a data entry clerk.

In its opinion, the court of appeals kindly listed these four categories of public policy exceptions to Missouri’s general rule that an employer may fire its at-will employees with or without cause: (1) refusing to perform an illegal act or an act contrary to strong public policy mandate; (2) reporting the employer or fellow employees to third parties for violations of law or public policy; (3) acting in a manner public policy would encourage; or, (4) filing a claim for workers’ compensation.  The third exception applied in this case and therefore the employer could not fire the employee for not being at work due to donating a kidney, an act encouraged by various Missouri laws discussed in the court’s opinion.

Kurt H. King

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

816.781.6000

www.kurthking.com

Litigation, Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy for Debtors, Family Law, General Matters

 

February 27, 2012

Employer Loses Motion for Change in Condition of Permanent Total Disabled Workers’ Compensation Claimant In Missouri

In 1996, a Smitty’s Supermarket employee fell off a pallet raised by a forklift and suffered head injuries which left him Permanently Totally Disabled (PTD), although his disability rating was 70% of the body as a whole.  However, at trial the Administrative Law Judge (ALJ) penalized the employer another 15% for failure to comply with the safety provisions of Missouri’s section 292.020.  In 2002, Missouri’s Labor and Industrial Relations Commission upped the award in favor of the employee from one of Permanent Partial Disability (PPD), determining instead that the employee was Permanently Totally Disabled (PTD). 

Later, after extensive medical treatment and rehab, the employee put his life together enough to marry, have a child, and work a string of jobs.  As a result, the employer filed in 2010 its second motion for an order of the Commission downgrading the employee’s injury from total to partial disability.  The Commission sent the motion to an ALJ for hearing.  Both sides hired doctors as experts but the employer’s doctor observed the employee only ” a single day” and failed to interview his wife, family, and others with details on how the injury continued to seriously affect the employee.

Ultimately, the Commission dismissed the employer’s motion because “although Employer had presented evidence that Claimant [Employee] had undergone numerous life changes since the original award in 2002, it ‘did not present any new MRI scans of [Claimant’s] brain or any other concrete evidence showing an actual physical change in condition of [Claimant’s] brain.’ ”   The Southern District of the Missouri Court of Appeals affirmed in Pavia v. Smitty’s Supermarket, Slip Opinion SD31275 filed  02-17-2012.

The moral of the story seems to be that an employer must bring in sufficient proof of change in the physical condition of the injured parts of the employee’s body in order to prove that that the employee is not longer Permanently Totally Disabled.  

And while this case involved an injury prior to the 2005 amendments to Missouri Workers’ Compensation laws, there seems to have been no change made to the applicable statute–287.470.  See Sachs Electric Co. v. Mapes, 254 S.W.3d 900, 902-03 (Mo. Ct. App. W.D. 2008), where the court continued to require proof of a change of physical condition even after the 2005 statutory amendments.

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

Chapter 7 Bankruptcy for debtors

Child Custody, Support, & Visitation; Divorce & Modification; Paternity

December 28, 2011

Missouri Workers’ Compensation Law on Claims by Health Care Providers

Under Missouri Workers’ Compensation law the employer or its work comp insurer are supposed to pay for medical treatment necessary to care for the employee’s injury.  However, when the employee’s work comp claim settles for a final lump sum, part of the settlement paid to the employee may include an amount for any unpaid medical expenses owed to health care providers who have not yet been paid.  Then the burden shifts to the employee to pay any outstanding medical bills.  The question is how much does the employee have to pay the health care provider–the full amount of the bill or the much smaller percentage (often 20% or less) that an insurance company like Blue Cross Blue Shield would have to pay.

A few years ago, Missouri law changed section 287.140 of the Revised Missouri Statutes to clearly state in subsection 3 that no health care provider may charge the employee more than the amount that would have been due from a health insurance company or if the patient was a private pay.  Thus, the employee in these situations need pay no more than the percentage that the insurance carrier would have paid, saving perhaps 80% or more off the full amount that a health care provider may bill without knowing of the law or in hopes of obtaining full payment. 

Kurt H. King

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

816.781.6000

www.kurthking.com

Missouri Workers’ Compensation Law, Personal Injury, Lender Liability Litigation, Divorce & Modification, Child Custody & Support, Family Law, Bankruptcy

Late Payment of Compensation Checks–Missouri Workers’ Compensation Claims

In some cases, a work comp insurance company drags its feet or refuses to pay the injured employee the “weekly” compensation checks for Temporay Disability due the employee while recovering from or receiving medical treatment for the injury.   This is extremely frustrating for the injured employee now trying to make ends meet on work comp which pays no more than 2/3 of the worker’s wages and even that amount is capped so that employees making good money do not receive the full 2/3 amount.

Missouri work comp law is not a big help.  Section 287.160 merely provides in subsection 3 that the payments are to be made as frequently as the employee was paid at the time of injury, but at least bi-weekly.   Unfortunately, the penalty for late payment is only 10% simple annual interest AFTER THE PAYMENT IS MORE THAN 30 DAYS LATE.

Too, in rare cases an unreasonable refusal to pay the compensation due results in an award of attorneys fees/costs to the employee.  Don’t hold your breath expecting one of these attorney fees awards.

Kurt H. King

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

816.781.6000

www.kurthking.com

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

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

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