Friday, January 20, 2017

Pain complaints to dominant arm rendered claimant unemployable

 Nichols,  v.  Belleview R-III School District
2017 MO WCLR Lexis 5   (Kasten)
Jan 12, 2017

The Commission affirmed an award of total benefits to a 59 year old  teacher's aide who fell down 3 to 4 wet steps in 2009 and alleged injuries to the spine, left leg, and left arm.

The employer disputed injuries to the neck and back. 

She treated with therapy and injection and reported no significant improvement from an ulnar nerve surgery for severe neuropathy.  She underwent a rotator cuff repair and asserted that exercises aggravated a tremor condition.  She had COPD.  The defense expert was the primarily problem associated with her impaired ability to walk.  Her expert felt she was unemployable and disabled because of her difficulty lifting and moving.

The employer relied upon expert opinion that claimant was employable and impeachment of prior records showing significant prior symptoms which suggested she relied more heavily on oxygen than suggested by her testimony.

Claimant asserts she was unemployable because of impairment in her dominant hand, limited physical endurance and a need to lie down.  The ALJ felt the defense expert had not reviewed all of the medical records.  The ALJ noted claimant appeared highly credible that she was in a lot of pain and noted: " She moved around in her chair several times in an effort to get comfortable. She appeared to be in a lot of pain. The employee requested permission to stand and stood during her testimony. She requested to take a break during  the hearing. The testimony and observed behavior of the employee was important on the issue of permanent total disability.