2017 MOWCLR Lexis 21 (Mahon)
(Feb. 22, 2017)
The commission unanimously affirms a permanent total award against the employer as a result of "post-laminectomy syndrome" that produced a need to lie down regularly.
The 45 year old claimant performed work in a warehouse that involved heavy lifting. He underwent a back surgery that did not resolve back and leg pain. He testified to impaired sleep, inability to ride long distances, reduced concentration and a regular need to lie down.
His expert attributed his limited recovery to arachnoiditis and that his "frequent lifting" caused the herniation. Another expert felt his back condition combined with prior reflex sympathetic dystrophy in the right upper extremity, a myocardial infarction in 2009, obstructive sleep apnea, and degenerative joint disease of the right knee after arthroscopic meniscectomy to render him to be a fund "combo." Both vocational experts expert concluded he was unemployable due to the last accident alone because of a need to lie down.
"Employer/Insurer insists that the Second Injury Fund is liable for permanent total disability given Claimant's numerous injuries and medical conditions which were potentially disabling prior to May 2013. Having found that Claimant is unemployable as a consequence of the last injury, alone, there is no need to consider the effect of these preexisting conditions. ... Moreover, Claimant unequivocally testified, without impeachment, that none of his prior conditions caused him problems at work, nor would they have limited his ability to work at other jobs. Mr. Eldred opined from a vocational perspective, that none of the preexisting conditions constituted a hindrance or obstacle to employment or reemployment prior to May 2013.
A vocational expert noted that claimant had been accommodated in a prior job run by a family member and he left a job because of his heart condition.
Attorney Wise represented the employee.