Wednesday, June 6, 2012

Lay testimony supports benefits

TTD Award

A claimant who testified he was in "unbearable pain" satisfied his burden to establish entitlement to TTD benefits and was not required to introduce expert testimony on the issue.  Shupe v St. John's Mercy Health Systems, 2012 Mo WCLR Lexis 178 (Oct. 10, 2012). 

A claimant who testified he hurts too much to work can collect PTD benefits, because the testimony is not inconsistent with FCE findings which according to the Commission do not assess subjective pain.  Reichardt v Industrial Sheet Metal, 2012 Mo. App. Lexis 758 (June 5, 2012).  Section 287.190.6(2)  requires "objective medical findings shall prevail over subjective medical findings" in cases in which there is inconsistent or conflicting medical opinions. The  Commission considered whether this section prevented an award of PTD benefits based on pain complaints when an FCE found claimant could work based on its "objective findings".   The Commission awarded PTD benefits, noting that the statute did not apply because the FCE  was not an objective finding of pain.  "The results of an FCE or the imposition of more liberal restrictions do not amount to objective medical findings as to pain. Rather, they simply demonstrate what a particular practitioner believes is an appropriate level of work activity for the employee. In fact, a review of the record in this matter reveals no objective medical findings whatsoever as to the extent and severity of employee's pain."

Claimant, 60,  had chronic back pain and a 1999 fusion prior to his 2008 work related back injury. He  testified he had to recline 2-3 hours a day to relieve his back pain.  The Commission in its award does not quote any expert opinion for its conclusion that an FCE does not measure pain or that any expert really discussed the FCE at all or its role to define vocational limits within a claimant's pain tolerance.   There is no  evidence identified in the opinion that any objective medical test exists to measure pain.  The case undermines statutory reform to provide greater evidentiary weight to objective evidence and resumes pre-reform status when a claimant's testimony about pain may trump any other evidence such as an FCE.

 The Court of Appeals  found a separate published opinion had no precedential value.

FCE under-reported claimant's disability
In Underwood v High Road Industries, 369 S.W.3d 59 (Mo. App. 2012)  claimant established he was permanently and totally disabled as a result of a failed back syndrome following a 2005  L5-S1 disc surgery and subsequent implantation of a spinal cord stimulator. Claimant identified substantial limitations on his ability to sit and stand and asserted that medications and pain affected his mental clarity and capacity to drive. The court found claimant's impairment was "more severe" than identified on the FCE and the employer's vocational expert had not fully considered all of the limitations.

Atty:  Ebbert, Wise
Experts:  Cordray, Eldred
Treater:  Olive