Friday, July 12, 2013

Trip and Fall is "last straw" for lab tech

A broken hip rendered claimant totally disabled  after he tripped  while using crutches at work  for a pre-existing condition.  Short v Mo Baptist Medical Center, 2013 Mo WCLR Lexis 103 (June 28, 2013),  (2-1 decision.)

Claimant indicated after a Feb. 2004 accident he could no longer perform his essential job functions as  a lab tech.  When he previously used crutches, he now relied upon a wheelchair and the employer had to hire additional staff to perform the duties.  Claimant remained employed about another 2 years after his accident but asserts it was only because the employer substantially accommodated him. The ALJ reported claimant "lost the position due to an error in a report that went out with the claimant's initials" and he elected to pursue social security disability rather than pursue other positions.   Claimant used  vicodin, had  disturbed sleep and states he lays down an hour a day.  His expert  defined toxic work restrictions which were unavailable in the job market.
 Claimant states he was also depressed after the accident.   The ALJ noted the employer offered no other medical opinions to contest causation or the diagnosis  even though "a different evaluation would have been welcome."  A dissenting commissioner indicated that the diagnosis of a work related depression was "belied by other evidence in the record" and claimant was diagnosed only after his employment ended. 

Missouri law requires an initial  determination whether the last accident alone renders claimant unemployable before examining  any  pre-existing conditions.  This case is unique as the treating surgeon identifies primary impairment of limited mobility caused by current and pre-existing medical conditions of bilateral polyneuropathy.    The cases demonstrates how little a Missouri  employer can rely upon the Second Injury Fund when a claimant with substantial pre-existing disabilities sustains a new injury at work.  The claimant's own  expert conceded that  claimant had 50% BAW disability due to the pre-existing condition of polyneuropathy , and all of his various pre-existing conditions cumulatively were more than 100% BAW disability.

The 2 member commission was presumably "tied" until the appointment of a third commissioner in June 2013.  The case had been originally decided by the ALJ in Feb. 2012, nearly  1 1/2 years ago. 

ALJ  Kohner
Atty:  Edelman
Experts:  Poetz, Weimholt
Treater:  Johnston