Monday, March 23, 2015

Commission enhances disability for eye injury

Claimant injured his left eye in 2011 when he used a nail gun and after two surgeries he had a 0% visual acuity.  The major issue in the case was whether he was entitled to an additional 14 week enhancement for a 100% loss of use.  Romero v Nelson Flooring, 2015 MO WCLR Lexis 20 (March 12, 2015). 

Section 287.190.2(29) provides a 10% enhancement of a disability award when there is a 100% loss of use of a scheduled injury.  The Commission indicated the medical evidence did not expressly establish a 100% loss of use.  The stipulated findings at hearing did not expressly address the 10% enhancement and the Commission found the stipulations somewhat ambiguous.  The only evidence was there was a 100% loss of visual acuity and the employer seemed to agree to a 100% loss at hearing, although neither party made a finding regarding entitlement to 110% of PPD.  The Commission ultimately found claimant entitled to 110% benefits and noted the employer attorney showed an "admirable show of candor" that he really meant a 100% loss at the time of the hearing, which appears to have been the case all along. 

In addition, the Commission awarded  future medical for doctor's office visits, replacement contact lenses, reimbursement for the cost of eye drops, and lens cleaner as needed in the future by Claimant; TTD based on 3 days of earnings (based on testimony that claimant worked 2-3 days), and awarded costs against the employer for the cost of a service of a subpoena when the company owner  based on  "his refusal to voluntarily and cooperatively attend" a deposition. 

 Parties who intend a 110% loss may want  to stipulate to that effect at hearing to avoid a need for appeal to clarify any ambiguity in the record. Similarly, the opinion suggests a contested issue for a statutory  10% enhancement may require express findings by an expert addressing "loss of use."

ALJ Landolt
Atty:  Ituarte, Paasch
Experts:  Pernoud