Thursday, January 30, 2014

Award supported by "subjective" symptoms

Missouri courts once again wrangle in  the old grudge match between the evidentiary weight given to subjective and objective symptoms.  Reformers thought they had put an end to those types of fights by indicating that "where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings."  287.190.6. 

In Ballard v Woods Supermarkets, 2014 Mo App. Lexis 93 (January 29, 2014) the Southern District was asked to reverse a finding of permanent and total disability to a 58 worker who had a two-level back surgery because her "subjective" symptoms such as a need to lie down precluded gainful employment and her surgeon found no "objective" neurological deficits to explain her symptoms.  The court affirmed benefits and found the employer's argument without any merit.  

The court of appeals indicates the commission properly applied  287.190.6 as the finding was based on objective findings of a failed laminectomy surgery with scarring.  Both medical experts agreed that her post-surgical condition could be a source of pain.  Both vocational experts regarded any need to lie down was toxic and she was unemployable in the open labor market. Pain is a logically related to the diagnosis.  The court didn't want to deal with deciding how much someone hurts and deferred the finding as a matter of credibility to be determined by the Commission.

A similar issue previously surfaced in the Eastern District in which the employer also lost an argument that an objective finding from an FCE regarding a capacity to work had greater evidentiary weight than claimant's subjective limitations due to pain.  In Reichardt claimant was awarded total disability benefits based on pain complaints after a back surgery and a reported need to lie down.  Both vocational experts in Reichardt, as in Ballard, concluded claimant could not work if he needed to lie down.  The Commission found that the FCE did not assess pain so there was no conflict.    Reichardt v Industrial Sheet Metal Workers,  2011 MO WCLR Lexis 226, 367 S.W.3d 650 (Mo. App. 2012), affirmed without an opinion. 

Both the court in Ballard and the commission in Reichardt assume that pain cannot be measured without any expert ever addressing that issue directly.   Subjective and objective findings both warrant some evidentiary weight to assess disability.  The difference between subjective and objective is not always clear. 

 Ballard  reaches a predictable conclusion that 287.190.6 does not preclude an award of total disability  based on subjective reports of pain.    Section 287.190.6 appears to still require a worker to  show that pain logically flows from an objective condition, but the claimant does not have to objectively prove the degree of pain or explain why a degree of pain may be higher than expected. In the civil context, this is an issue about  damages and not the issue of liability.  The suggestion that pain cannot be measured or quantified is over-simplistic.  Therapists quantify pain every day.   Pick a number between 1 and 10. How much do you hurt now?  How about now when you bend this far?  The real issue is that the degree of pain is sometimes psychosocial and may not have a good medical explanation. To demand a medical explanation would make comp unavailable to a population of workers with the highest level of pain complaints that are difficult to treat.


Commission discounts FCE findings and modifies SIF award from PPD to PTD based on subjective complaints and conflicting expert opinion. The Commission "impliedly" finds the pain complaints credible despite an expert opinion of a normal exam and solicits admissions from employer's counsel in argument that the claimant was "credible" during the hearing.     Ponticello v D&D Distributors, 2015 MO WCLR Lexis ---- (9/4/2015)
ALJ  Landolt
Atty:  Haupt, Banahan, Daugherty
Experts:  Volarich, Burke, England