Wednesday, August 22, 2018

Classmate of claimant awards total as matter of necessity.

The Commission in a 2-1 decision affirms a SIF award of total disability based on a combination of various orthopedic conditions.  Claimant's primary injury was a 2008 knee injury that resulted in a partial  meniscectomy.  Nivens v Interstate Brands, 2018 MO WCLR LEXIS  (08-102662)

Claimant, 69, failed to show his need for future treatment was reasonably probable due to the work injury.  He  was not awarded medical bills because he sought treatment on his own.  The ALJ found the orthopedists more credible that claimant's need for future medical did not arise from the accident compared to opinion of claimant's expert, Dr. Cohen.  Several experts indicated he was not an immediate candidate for a total knee replacement.

The dissent suggested claimant failed to prove he was unable to compete in the open labor market and his retirement was voluntary and that vocational opinion indicated that he was employable in the open labor market. 

Commissioner Chick  provided the "tie" splitting vote as a matter of necessity and disclosed that he was a classmate of the claimant.

In a companion case, Inj. No. 07-002739, a 2-0 decision found claimant failed to prove PTD against the fund and noted his prior conditions were not disabling to become an obstacle or  impediment to employment.  Claimant was awarded PPD for a wrist injury but not for a 2007 knee injury.  Commissioner Chick did not participate in that decision.


Experts Weimholt, Cohen, Hughes, Lux, Clymer
Treater :  Bal