Thursday, March 12, 2009

No Rating Required for Disability Award in Leg Contusion

Two lower leg contusions with complications of cellulitis were causation issues within lay understanding and did not require any medical expert opinion to assess disability or apportion disability between the two events. In the case of Bock v City of Columbia,1 the Commission affirms the ALJ award of 7 1/2% disability on a recent remand from the western district,2 reversing its earlier denial of benefits.

The 2005 case involved a maintenance mechanic who struck his right shin with a pipe, tore some skin, and later developed some cellulitis. About two months later while still recovering, he bumped the leg again while getting out of a shower. He reported continuing symptoms that his muscle ached and he was sore when the weather changed. Judge Dierkes awarded benefits, and the Commission reversed the award.

More complex cases outside lay understanding require assessment and allocation by an expert.3 It is important to appreciate that Bock arose on July 28, 2005, about one month before statutory reform. One of the reform changes added 289.190.6(2) 4 which mandated "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician," raising an issue under new strict construction to what extent the new requirement of "demonstrated" undermines much of the precedent relied upon in Bock that lay testimony alone in some cases can support an award of disability. The argument could be made that a claimant now always fails to make a prima facie case without disability evidence "demonstrated" by a rating disability or when findings are adduced as "impairment" and not of "disability."

In a post-2005 amendment case, the Commission affirmed a 15% award to a claimant for complaints of fatigue and lack of stamina, following a traumatic brain injury caused by a fall from a roof. For reasons never explained, attorney Goodnight never offered a disability rating report against the uninsured construction company, even though specials exceeded $250,000 for hospitalization related to a prolonged coma. The SIF is liable for medical benefits but not for PPD. The admissibility was apparently never challenged by the employer at trial or on appeal, who failed to appear at the hearing. The case was Michael Skinner v Donnie Morgan, DOLIR 7-2-1-09.

In a related note, the Commission affirmed a denial of benefits against the second injury fund by ALJ Vacca based on lack of medical evidence of threshold disability or synergy, citing a pre-05 decision that synergy could be judicially found without medical evidence in "rather obvious" cases. The decision is Andrew Krausz v Krausz Corporation, DOLIR 7-24-09, involving a claimant with a catastrophic crush injury to the foot pursuing benefits against the second injury fund for prior asthma condition that was periodically symptomatic.

In Bisby v Labor Ready Central, DOLIR 7-8-11, the Commission affirmed a denial of benefits to a pro se claimant who offered no medical evidence to establish a relationship between an admitted accident in which claimant treated once at an emergency room  for a leg abrasion to subsequent symptoms regarding impaired capacity to walk and loss of grip.  affirmed without opinion ED 97108 (Mo. App. 2012) 2012 Mo App. Lexis 280 (3-6-12).

1. Roger Bock v City of Columbia, DOLIR 3-11-09

2. WD 69674 (Mo. App. WD 12-30-08)

3 Wyatt v Blair Packaging, DOLIR 3-12-09 (failure to allocate between two surgeries),
Pursifull v Braun Plaster, DOLIR 1-3-08. (two accidents),%20Michael.htm

4. 287.190.6