Wednesday, September 4, 2013

Employer owes total for failed knee surgery

A claimant who had unresolved knee pain and became depressed recovered permanent total benefits against the employer, according to the court of appeals in Palmentere Bros. Cartage Service, 2013 Mo. App. Lexis 1021 (September 3, 2013).

In this case a 42-year old woman had multiple physical injuries when a tractor trailer went off the road in Kansas.  She spent the next 4 years undergoing 3 different knee surgeries, including a partial knee replacement.  She states she was unable to tolerate prolonged standing, operate a clutch, and had constant pain.  She treated with a psychiatrist and was hospitalized due to severe depression and anxiety disorder.  She returned to work for about another 3 years but reached a point where a doctor concluded she was unemployable because of her emotional state.

The Commission affirmed an award against the employer for permanent and total disability benefits because of the combined orthopedic injuries to the neck, back and left leg and her psychiatric condition as she "presents  for employment utilizing a cane for ambulation and has a depressed emotional state." 

Dr. Jones examined claimant as court-ordered exam pursuant to her companion case for benefits in Kansas. He felt she could work sedentary positions and didn't need any more treatment for the knee.

The Commission found the overwhelming evidence supported the last accident alone caused claimant's total disability, and found less credible evidence from a doctor and a vocational expert that any disability flowed from a combination and not the last accident alone. Interestingly, the Commission felt the ALJ was unduly harsh for criticizing the methodology when the experts "failed" to perform certain testing, lacked corroborating records, and did not even meet with the claimant.  This case  demonstrates an interesting tension between the court of appeals deferring to findings of credibility and the commission feeling restrained to question or document how experts reached their opinions even when methodology impaired their credibility. 

The employer argued that the court  had to follow uncontroverted vocational opinion even though this position was contrary to  Carkeek v Treasurer of the State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo. App. 2011).  The Angus v Second Injury Fund, 393 S.W.3d 294 (Mo. App. 2004) did not eliminate the Commission's discretion to evaluate the extent of disability from the last accident alone.

The court noted the experts who supported liability for the Second Injury Fund were found by the Commission not to be credible, their opinions were not based on any records of a prior condition causing any obstacle or hindrance to employment, and claimant's own testimony denied any significant prior symptoms and described substantial post accident treatment including multiple surgeries and hospitalization for suicide ideation.

J:  Hardwick
Atty:  Greenwalk, Landham, Lowe, Taylor
Experts:  Keenan, Jones, Drieling
Treaters:  Robichaux, Arretteig

Commission case