Committed to Our Clients: A 6-Year Fight for Workers’ Comp Rights

In 2006, my client was working for his employer, building a highway bridge in Missouri, when a stack of lumber being lifted in the air by a crane came loose and fell on him. My client was 55 years of age and had earned a GED while in military service, but had no college education. He had spent almost his entire career in heavy construction labor, despite prior low back and hernia injuries. My client was transported by helicopter to the closest hospital, where he was diagnosed with an unstable fracture of his back, and was taken immediately to surgery for a spinal fusion. X-rays also revealed broken ribs and a broken ankle. Despite prescription medication and physical therapy, my client’s pain did not improve so further testing was ordered. Tests revealed not only more back and ankle injuries, but also a repetitive motion injury known as carpal tunnel syndrome (or “CTS”) in both of his hands and wrists. At this point, my client made a smart decision for somebody in his situation: he hired a team of lawyers. His first attorney investigated who was at fault for the accident, and asked me to help my client with his workers’ compensation claim against not only his employer, but also the Missouri second injury fund (“the Fund” or “the SIF”), a government program set up to help injured workers who have multiple disabilities. I filed claims for my client not only for his back and ankle injuries, but also for his CTS, since the tests confirmed that the many years of operating jack hammers on the job had finally taken their toll on my client’s hands and wrists. Even after my client reported that he had become depressed by his injuries and their aftermath, the company’s handpicked doctor released him in early 2008 for his back and ankle injuries, even though the doctor assigned permanent restrictions and disabilities. Another company-approved doctor performed surgeries on my client’s CTS but also eventually released him from care in early 2009, with more restrictions and more disabilities. Throughout this time, my client and I had been in frequent contact as I monitored his doctors’ visits, obtained all of his medical records, sent him to medical and vocational experts, and managed his court settings while he recovered. Although my client was injured near Joplin, I got his workers’ comp case transferred to Rolla, the closest workers’ compensation office to my client’s home. My client never returned to work after his work comp injury, and went on Social Security disability. Prior to his work comp accident, my client was very physically active—hunting, fishing, target shooting, hiking, boating, diving, water skiing, exercising, running, bowling and playing softball on a local city team. Today, he is unable to participate in any of those activities, and suffers from depression and flashbacks of that day on the bridge. He is in constant pain in his back and ankle, and he walks with a cane. His sleep is limited. He takes narcotic medicine every day. He uses a special toilet stool. He spends his time watching TV, going to church, reading the Bible, and visiting his father in a nursing home. Although the independent medical and vocational experts I found both agreed that my client was a permanent total disability (or “PTD”) for MO workers’ comp purposes, the employer’s insurer was not interested in settling my client’s claims, even after I enlisted the help of an administrative law judge (or “ALJ”) to help persuade the insurance company at a mediation. My client’s claims finally went to trial in late 2011, after I obtained testimony from the independent experts, the company’s vocational expert, the CTS surgeon, the company doctor who treated my client’s back and ankle injuries, and my client’s family doctor, who was a real champion for my client, despite fierce cross-examination by the company’s attorney. My own cross-examinations of the work comp insurer’s hired experts revealed that they agreed with my client, and with the independent experts in many ways. My client was the only witness at the trial; nobody testified at the trial for the company. Nevertheless, the workers’ comp insurer would not relent and argued, first, that my client could work, and, second, that if he could not, it was the fault of the Fund, and not that load of lumber that his employer had dropped on him. After the trial, I prepared and filed a legal brief with the ALJ, discussing all the evidence, reviewing Missouri work comp law, and arguing in my client’s favor. In early 2012, The ALJ agreed with me, not only that my client was PTD, but also that the workers’ compensation insurance company was responsible for paying my client. However, the ALJ denied my claim against the Fund on a technicality. Despite the workers’ compensation ALJ’s award, the insurance company continued to deny or at least delay paying my client, and appealed the work comp ALJ’s award to the Missouri labor commission (“the LIRC”). Since the insurer was appealing, I appealed the ALJ’s denial of benefits to my client from the Fund. More briefs were required, followed by oral arguments to the commission. Finally, in October 2012, the commission agreed with my client, the independent experts, and me and ordered the work comp insurance company to pay my client for his permanent total disability. As a bonus, the LIRC reversed the ALJ, and agreed with me that the Second Injury Fund also owed compensation to my client. Neither the comp carrier nor the SIF appealed the LIRC’s decision. Six years after the lumber was dropped on him and changed his life forever, I had finally succeeded in getting my client the workers’ compensation benefits he deserved. Not every case is like this client’s: few take this long, or involve a trial, much less an appeal. Too many cases do involve delays while companies do everything they can to delay or deny payments to injured workers, and drag the legal proceedings out. My client would have never gotten what he deserved without the help of an expert workers’ comp attorney, and I am proud to have helped him get all the workers’ compensation benefits he could. – Attorney Mike Korte