2017 MO WCLR LEXIS
Inj. No. 12-0909608
Oct 11, 2017
The Commission modifies an award of permanent partial to permanent total and finds claimant was more credible how his "sleep issues" impacted his ability to work.
The Commission noted that it "ordinarily" deferred to a finding of credibility but in this case provided its own determination of credibility based on expert opinion
The Commission notes that Dr. Volarich's opinion is undisputed that claimant has sleep problems related to the accident and both vocational experts agreed that claimant could not work in the open labor market because employers would not accommodate a worker who needed to nap. Claimant asserts he was just too tired during the day and needed to rest because his shoulders hurt and disturbed continuous sleep.
Claimant reported his right arm continues to feel stiff even after right shoulder surgery and his left hand is stiff and painful. He treats his condition with ibuprofen.
The ALJ summarized the vocational opinion:
"Mr. England testified Claimant will never be able to compete in the open labor market. Although Claimant has sleep disturbance, he takes no medication to help him sleep. He opined if Claimant were able to get a full night sleep, he could be a candidate for some jobs that do not involve much use of his arms."
.....
"Ms. Abrams testified Claimant made a good first impression. She identified a number of jobs he could perform. These jobs will require him to learn new things, but he can be proficient in a few months. She opined napping three or four times a day could preclude his ability to get a job. She noted Claimant was not taking any over the counter or prescription pain medications."
The ALJ rejected the PTD claim:
"Claimant testified to sleep difficulties, but made no demonstrable attempt to alleviate his sleep disturbance. Sleep issues are not substantiated in the treatment records and are only found in the expert reports. Claimant’s expert opinions rely on Claimant’s assertion of a sleep deficit. The vocational experts opined Claimant has good WRAT scores, is articulate, has transferable skills, has no memory problems, and is able to learn new skills; yet, he has made no effort to seek employment other than one job through a family member."
The ALJ noted claimant did not have typical PTD presentations:
"ambulation deficits, narcotic pain regimens, inability to perform self-care, or marked sleep deficits. Claimant’s medical evidence contains none of these characteristics."
The Commission awarded the 59-year old open medical and noted he had qualified for social security. A doctor suggested he may ultimately need a joint replacement for arthritis.
ALJ Hart
Atty Niesen
Expert, Volarich, England
