Monday, December 2, 2013

Commission modifies award to allow total disability

The Commission modified an award of 50% BAW to Permanent Total Disability to a state employee of a prison who hurt her neck when she backed into a dock and found the employer's vocational testimony that jobs were available just wasn't enough that jobs were available for her.  Ketchum v Mo Dept. of Corrections, 2013 Mo. WCLR Lexis 215 (Nov. 22, 2013).

The case involved a 58-year old employee who was diagnosed with multi-level arthritis and a lateralized disc.  The employer's treating physician, Dr. Coyle, went ahead with a three-level fusion and released claimant 6 months after her surgery.  She returned to work for a month and then went on long-term disability.  She told her expert after the surgery she still felt horrible.   ALJ Strange awarded her 50% disability, and rejected opinions from claimant's vocational expert that she was unemployable.  Claimant's expert asserted that she had no prior disability and her neck before the accident was totally asymptomatic.

The Commission, however, modified the award to total disability.  The commission concluded that it was the employer's burden to rebut  a PTD case to show that claimant could work, that positions exist in significant numbers in the open labor market and the claimant could reasonably compete for positions.  The employer's vocational expert indicated claimant was capable of performing jobs such as a cashier, a home health care worker, and security work.  The Commission concluded it could not assume such factors without testimony apparently calling for too much of a leap of faith that Missouri has a lot of cashiers and home health care workers or to make an inference that a claimant can work certain jobs means a claimant can work certain jobs.  The case is a clear warning to prove every statutory defense explicitly instead of relying upon reasonable inference. 

ALJ  Strange
Atty:  Van Camp
Treaters:  Coyle, Guarino
Experts:  Eldred, England