It’s springtime in Missouri, and to some hardened observers that not only means the blooming of the Show-Me State’s beloved red bud trees, but also another round of anti-worker legislation winding its way through the third floor of the historic Capitol building sitting alongside the Missouri River in Jefferson City, where the state’s legislature continues its decades-long War on Workers.
For once, an election year is no exception to this familiar trend, as industry groups and trade associations try to ram HB1676 and SB591 down the throats of injury victims and workers alike. The ostensible purpose of these bills reflects an ongoing nationwide strategy to impose the so-called Daubert Rule, now in force in federal courts, on states’ judges and juries regarding the qualifications of expert witnesses.
In Missouri, trade associations have again adopted a familiar, well-worn strategy by waving a court case as they run around the halls of the Capitol like their hair is on fire. This year, that case is Greer v. Sysco Food Services. Unlike prior efforts, however, they can’t make the shoe fit – Greer just isn’t what they are claiming it is. (Not that that usually matters.)
In Greer, a workers’ compensation claimant was declared by his company’s designated doctor to be at “maximum medical improvement,” or “MMI”, and released to return to work, cutting off his weekly temporary total disability (“TTD”) checks.
Greer, however, refused to accept the company doctor’s verdict, and continued to try to seek a cure for his work-related injury. Eventually, doctors at the prestigious Washington University School of Medicine performed surgery to attempt to cure his injured foot, and took him back off of work. Greer’s request to reinstate his weekly TTD benefits while he recovered from the surgery, however, was denied by the company.
After years of refusing to give up, Greer was vindicated last December, when the Missouri Supreme Court finally affirmed the rulings of lower courts and found in his favor, including his claim for TTD benefits.
The Court pointed out (as I have been doing for years) that the term “maximum medical improvement” cannot be found in The Workers’ Compensation Law. If it wouldn’t look silly, I’d say that again in ALLCAPS underlined boldface, and add some exclamation points.
MMI is a term that has crept (or snuck) into Missouri’s workers’ compensation parlance over the last twenty years or so, leaking over from other jurisdictions, including the federal workers’ compensation system, and some states that (unlike Missouri) rely on the American Medical Association’s Guides to Impairment to determine the value of work comp claims.
Missouri courts have also used the terms “maximum medical progress” and “maximum treatment potential” to describe the state of a patient’s recovery where further medical progress is not expected. Courts have also ruled that an injured worker may nevertheless be entitled to further medical care even after reaching MMI, in order to relieve the symptoms of a work-related injury.
The argument of the employer and The Missouri Chamber of Commerce and Industry, which filed an amicus curiae brief, asserted that the company doctor has the final say as to when a worker gets TTD, and that once the company doctor declares a worker to be at MMI, no further TTD can be paid. Since (unlike some states) Missouri employers designate, pay, and thus control which doctors treat injured workers, this would amount to a(nother) huge advantage for employers in Missouri WC claims.
The Supreme Court made quick work of the argument, turning it around on the company and its supporters. Although part of the argument was based on the assertion the strict construction of The Workers’ Compensation Law that was enacted by the legislature in the last battle in the War on Workers in 2005 mandated that MMI be determined by the company doctor, the Court pointed out that the plain language – the touchstone of strict construction – of RSMo §287.149.1 requires that TTD “. . . benefits shall be paid throughout the rehabilitative process.” By simply reading the dictionary, the Court determined that“rehabilitative process” includes attempts to restore the injured worker to a condition of health or normal activity.
The Court ruled that strictly construing The Law requires reliance on this language (even though it was enacted as part of the legislature’s allowance of voluntary – not mandatory – vocational rehabilitation by employers in 1990, at the dawn of the War on Workers), rather than on MMI.
The reaction of trade associations has been curious, if ultimately predictable. As they geared up for the push on the Daubert legislation, they latched onto Greer as evidence of expert witnesses run wild.
This had worked well for them in the 2005 War on Workers, when they trumpeted the so-called “Dale Earnhardt” case, Smith v. District II A And B, where an employee driving drunk was awarded benefits even after comparing himself to the famous NASCAR driver to his arresting officer. They had repeated their success by clamoring against Schoemehl v. Treasurer of State to close a loophole unearthed by the Supreme Court in regard to workers’ compensation death benefits, in yet another battle of the War.
But Greer is not about experts and their qualifications. None of the qualifications of the experts was ever mentioned by the parties in Greer – perhaps because it was clear that the Washington University doctors were able to fix Mr. Greer long after the company doctors had kicked him out the door.
As with Schoemehl, and many other non-controversial cases before it, Greer is simply about reading the plain language of The Law, and applying that language to a case. Nowhere in Missouri’s work comp statute does it say that the decision of the company’s doctor is final. The language that the very legislature that is now engaged in its highly orchestrated outrage passed into law is what the highest court in the state used to decide the Greer case.
The industry lobbyists flouting the Greer opinion may succeed. Here’s hoping that common sense prevails, and doctors are allowed to practice medicine, judges are allowed to judge, and injured workers are rewarded, and not penalized, for not giving up on themselves, and continuing to look for a cure.