Medical Evaluations, Definitions, and Legislative Changes - A Brief Summary to Missouri's Workers' Compensation Law

Medical Evaluations, Definitions, and Legislative Changes - A Brief Summary to Missouri's Workers' Compensation Law

By Mark A. Cantor

The Missouri Legislature and Governor Blunt revised the Worker's Compensation Law. These changes take effect August 28, 2005.

Revised Definitions:

Injury: Under the current law, to be compensable the employment must be "a substantial factor in causing the injury." After August 28, 2005, to be compensable, the accident must be "the prevailing factor in causing the injury."

Prevailing Factor: the "primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

Accident: "An unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

Occupational diseases and injuries due to repetitive motion "are compensable only if the occupational exposure was the prevailing factor" in developing the disease.

Permanent Partial Disability: Permanent Partial Disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainity. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures;

Any award of compensation shall be reduced by an amount proportional to the permanent partial disability determined to be a preexisting disease or condition or attributed to the natural process of aging sufficient to cause or prolong the disability or need of treatment.

Heart Attacks: "A cardiovascular, pulmonary, respiratory or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition." Repetitive Motion: An injury due to repetitive motion is recognized as an occupational disease, but is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. Gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activites of day-to-day living shall not be compensable.

Last Exposure: Under the former law, the employer who last exposed the employee to the hazard prior to the claim being filed was liable. Now, the employer who exposed the employee to the hazard prior to evidence of disability, is liable.

Objective symptoms: Black's law dictionary defines as "Those which a surgeon or physician discovers from an examination of his patient; "Subjective symptoms" being those which he learns from what his patient tells him.

Ideal Medical Opinion Language from Claimant's Perspective

Within a resonable degree of medical certainty and based primarily on objective findings of [state objective finding] the prevailing factor of claimant's injuries and resulting disability are [an injury caused by an unexpected and single traumatic event on date] or [an occupational disease caused by__]. Also within a reasonable degree of medical certainty, based on my examination, objective findings, a review of the medical records, and my training and practice in the field of medicine, Claimant is now at maximum medical improvement from his work injury and has permanent partial disability at the level of the (state body part) in the amount of percent. (Claimant will require future medical care, including prescriptions for his entire life- always a nice touch.)

I believe the changes in Missouri law, signed and promoted by our new Governor, are wrong and will be found unconstitutional by Missouri's Supreme Court. In the meantime, please call me if you have any questions about any of these changes.

SETTLEMENT VALUES - Mark Cantor's Opinions Generally

Below is a generalized summary of the settlement value of cases at the division, based solely on my experience. Obviously, the disparity between ratings is huge in order to achieve these settlements. For instance, a back strain may be rated at 0% PPD by an employer's doctor and 17.5% by a Claimant's, in order to settle at 7.5%. The Claimant's doctor is at a disadvantage, having seen the Claimant only one time and for the purposes of an Independent Medical Exam.

Operated Carpal Tunnel Cases, roughly 17.5 of each wrist, 10 % load and one to two weeks disfigurement if endoscopic. Open surgery is 3-5 disfigurement, 20 to 22.5 percent. The dominant hand is worth slighty more. Defense will rate at one to three percent, no disfigurement, Claimant at 27.5 to 35 % and define the scar.

Dequarveines 15%.

Finger injuries, even if fractured but with a good recovery, may not need a rating and you can save your client a few hundred dollars. Most are worth in the 20 to 30% range, depending on range of motion, sensation, disfigurement. (Fingers are cheap so always negotiate at the next higher level.) If you think the injury is solely to the finger, and if you have all the medical records, try to get the case settled at prehearing by bringing your client. If the injury is severe or involves multiple fingers and you want to resolve the case at the 175 week level, a rating will be required.

As a general rule, I analyze settlement of simple fractures of long bones without complication or surgery at 20% and move up or down depending on severity.

Similarly, with surgeries I generally begin at 25% and move up or down depending on severity. Carefully read all surgical reports. For instance, an endoscopic debridment of a knee will generally settle at 17.5 % to 20%, a partial medial mesectomy at 20 % to 25%, large medial mesectomy 25% to 30%, loss of patella 35 to 50%, etc...

Surgically repaired rotator cuffs require a careful reading of the operative report. Was it a full thickness tear, partial, bone involvement etc... Generally I start my analysis at 30 percent of 232 and generally move up depending on the severity, range of motion.

Spine injuries offer a wide range of settlement values. Surgically repaired discs begin at 25% of the body as a whole (100 weeks) and only move up depending on the result. Add at least 15% ppd for each additional level of operated disc. Spinal injuries and fusions are worth more. Thoracic discs are dangerous and difficult to repair and even without surgery a Claimant can be permanently and totally disabled. Any spine surgery should also have a disability rating from the pain management doctor. I have found these doctors to be excellent for the Claimant and obvious liars for the defense. Combined with pain complaints, a ppd rating of 20% from the surgeon can easily become a permanent total disability claim when combined with good testimony from the pain management doctor and a vocational rehabilitation expert.

Compression fractures vary and are worth approximately 22.5% for a moderate compression to 30% for severe compression.

Abdominal and inguinal hernias with mesh routinely settle at 5% of the body.

The defense likes to label small injuries as "soft tissue" injuries. I like to point out that their brain is "soft tissue" as is their heart and lungs. Concussions are worth 15 to 20% at the 400 week level, depending on residual complaints such as headaches, tinnitus, etc...

All cardiovascular cases require a causation evaluation and report.

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