Tuesday, September 21, 2010

25% BAW awarded to painter with 20/20 vision

Claimant asserts he could not return to his life-long profession as a painter, after dripping paint caused abrasions to his corneas when he was painting a ceiling and caused ongoing symptoms of severe dry eye required medication and disturbed his sleep. The Commission modified an award to 25% BAW, based on a rating from claimant's expert, Dr. Musich, and disregarded a 0% rating from Dr. Pernoud, who concluded claimant had unimpaired vision with glasses at 20/20 but continued to require drops. Claimant was 48 years old.

The Commission found that the administrative law judge erred in his findings that claimant had symblepharon, when the diagnosis was not identified in the medical records. The Commission
assessed disability at the 400 week level (287.190) instead of using the medical tables in the regulations for vision loss at the 140/260 levels, noting application of the tables at a lower compensation formula did not apply because claimant's dry eye was not a specifically enumerated condition.

David Hicks v St. John Development, DOLIR 9-21-10
ALJ: Denigan
Experts: Pernoud, Musich

Wednesday, September 1, 2010

Court rejects lower comp rate for atypical duties

The employer paid claimant benefits based on her salary as a teacher, but then claimed a statutory minimum rate applied under "strict construction" because at the time of the accident claimant worked atypical duties at a ticket gate for a school-sponsored football game. The Commission unanimously affirmed the decision rejecting the defense, finding it had "no merit" and there was no authority whatsoever asserted for the proposition to apply different rates based on segregated job duties.

The employer had stipulated the employee was covered, but later apparently questioned in a brief if claimant was excluded as a contest worker under 287.090.1(5). The administrative law judge found no basis to argue exemption as claimant was otherwise employed by the sponsoring school

The administrative law judge further found the employer had underpaid wages by calculating the rate over 52 weeks, instead of using a 9-month employment calendar. The 62-year claimant received an award of 17 1/2% disability for a fracture of the right humerus. The statute allowed discretionary award of disfigurement for a scar of the "arm" but not the "armpit." Lunn v Montgomery County R-2 School District, DOLIR 9-1-10.

ALJ Dierkes
Atty: Edelman
Experts: Poetz, Oliver