Tuesday, January 10, 2017

Commission affirms total disability for foot injury

Bernand v.  Paris Ready Mix and Precast

2017 MOWCLR Lexis 1 (Jan 4, 2017)  (Fischer)

The Commission affirmed an award of PTD for a right foot injury in 2009 resulting in multiple fractures and CRPS.
The accident occurred when claimant fell backwards while changing a tire.  He developed problems with his back and his right foot. 
A doctor testified he had noted swelling, tightness, the leg being hard as a rock, and color changes. Another expert testified he had to lie down during the day.. A vocational expert felt he was employable but for the need to lie down.
The ALJ found the last accident alone rendered claimant unemployable, despite expert opinion suggesting any total was a combination and liability for the second injury fund.
 He described a high level of function before his accident  despite periodic back symptoms and a prior PPD settlement.   She noted the employer-designed physician was the only one to conclude that she had no CRPS.  The same doctor  contended he was "clinically" at MMI despite fractures that had not fully healed on x-ray.
The ALJ noted claimant's social media postings were in "sharp contraction" to his testimony but she still found him unemployable. 
"Mr. Bernand testified that he is the administrator of a Facebook account devoted to his wife's swap shop. Mr. Bernand is also the administrator for a Facebook account called the Man Cave Trading Post. Mr. Bernand said that multiple entries on his Facebook pages relating to his woodworking activities are actually   references to items his brother has made or refinished and that although the entries reflect that Mr. Bernand made or refinished items such as birdhouses, sleds, and rockers, Mr. Bernand did not actually make or refinish them. Mr. Bernand's Facebook account also contains offers to remove snow, which Mr. Bernand said were actually offers for his brother's snow removal. Mr. Bernand's brother has his own Facebook account or page on which he is active. Mr. Bernand's brother testified that he is the one who does the making and refinishing of woodworking items and he is the person who does snow removal. Mr. Bernand's brother admitted that he has attributed work to Mr. Bernand on Facebook, citing the assembly of an antique glider and the conversion of a baby cradle for which he credited Mr. Bernand for his help in completing the projects."
Attorney Scott Wilson represented the claimant. 

In an earlier case, the Commission  found CRPS flowed from a foot injury that caused multiple fractures and hypersensitivity.  Turner v Turnpike Transit, 2013 MO WCLR Lexis 220 .