Friday, December 13, 2013

Commission finds worker a total for back strain despite reading problems

A claimant with reading difficulties was awarded total disability for a back strain.  Barker v Laclede County, 2013 MO WCLR Lexis 219 (December 9, 2013). The ALJ concluded the incapacity to work flowed from the last accident alone even though learning difficulties further impaired the worker's capacity to work or obtain vocational retraining.

Claimant, 62,  described disabling back symptoms  following a 2010 accident for a back strain superimposed on degenerative changes.  An FCE indicated he was limited to handling 14 pounds.  An annular tear was suspected but never confirmed on MRI.   Claimant obtained a report from Dr. Volarich who felt he had permanent partial disability and imposed various  restrictions.  Claimant's vocational expert concluded claimant was unemployable.    The employer contends claimant was able to return to driving a truck, an expert found he could work without restrictions, and claimant on his own  had a 35-head cattle farm.

The Commission affirmed the decision, without a separate opinion.  The decision contained a detailed discussion of the employer defense that any inability to work was not  the last accident alone because claimant's reading difficulties combined with his primary injury to limit his ability to work.  

The ALJ noted the employer failed in its burden to show that claimant's inability to work flowed from a combination of prior medical conditions.   No one established an inability to read flowed from a medical condition.   The fact that claimant attended special education classes according to school transcripts did not support the inference that he had a learning disability.  A vocational expert declined testify as to the specific diagnosis.  The ALJ further accepted that claimant's illiteracy was not a prior vocational barrier, even though the voc experts indicate the same condition after the accident is toxic to his ability to work or  his ability to retrain..

The employer offered literacy classes for claimant to read which claimant refused to attend.  The ALJ dismissed the offer as it  "occurred in the context of litigation and the employer and insurer defending against a claim of permanent total disability." It is unclear from the opinion whether this offer was a  tender of vocational services under 287.149.   Claimant denies he was offered any classes and the ALJ found he lacked credibility on this issue but his pain complaints were considered credible.    The ALJ  noted that it was "reasonable" for claimant to not pursue  to classes as the employer was not offering to pay claimant TTD at the same time.  It is "understandable" that he "would not be eager or desirous to pursue such a program...." and any failure to refuse could not infer a desire not to work." 

The case visits a familiar theme that if an ALJ believes claimant is in too much pain to work and finds at least one expert to agree the employer buys the claim even though the diagnosis is not typical for total disability or the claimant has a "egg-shell" skin, a weak spine more prone to injury, or only a few arrows in his educational quiver.  The employer was able to obtain only some prior school records (the fact it obtained any at all is somewhat amazing given claimant's age) but hit a profound tactical problem of blaming the Fund when the Fund was not even in the court room and had not been named as  a party. 
ALJ  Wilson
Atty:  Murphy, Barnhart
Experts:  Volarich, Eldred, England