Friday, March 27, 2009

Pre-employment Drug Test Outside Mo Derails Mo PTD Claim

The Commission lacked jurisdiction based on 287.110 to determine a claim of permanent and total disability involving a back surgery with affective disorder, when the last act necessary to complete the contract of employment occurred when claimant obtained a pre-employment drug test outside the state of Missouri. The case is Roberts v Leggett & Platt, DOLIR 3-25-09.1

The case involved two accidents that occurred in April 2002 jumping down about 4 feet and in June 2002 from playing golf with a supervisor. Claimant underwent surgery in 2003 at L4-L5, and had injections at L5-S1. Claimant states his previous depression and bipolar disorder were controlled by medication did not affect his sales position, but now he needs prescription medication again. He had a prior L5-S1 disc surgery resulting in an earlier worker's compensation settlement, but he made a full recovery and bragged about his ability to work 80 hour weeks and obtain good golf score. Claimant reports he still depended on over the counter medication, that he has gained 80 pounds, that he had to take regular naps, and looked too tired and sad that any employer would be reluctant to hire him. Dr. Berkin and Tim Lalk testified for the employee. Dr. Lennard, for the employer, testified claimant had permanent 25 pound lifting restrictions and attributed 10% disability to the accident as a result of the surgery.

Claimant lived in Arkansas and interviewed in Poplar Bluff, and was paid for two weeks of training in Carthage, Mo. Claimant accepted a job offer on the phone while at his home in Arkansas. The employer stipulated that the accident and employment occurred in Missouri, even though claimant testified his principle place of employment involved selling and repairing parts in New England, and that he was injured in Massachusetts, not Missouri. The case demonstrates that the Commission may independently examine jurisdiction, and that jurisdiction cannot be waived. Judge Wilson noted that jurisdiction was never asserted by U.S. Fidelity as a defense in either the employer’s answer nor as a contested issue in the hearing itself.