Larry Obermann v BRM
Release date: Sept. 13, 2022
Venue: Cape Girardeau
Summary: The Commission in a 2-1 vote reverses an award of second injury benefits for PTD in which experts included nonqualifying pre-existing medical disablity to assess fund liability. The Commission found the ALJ exceeded her authority to exclude consideration of nonqualifying medical conditions based on claimant's testimony rather than expert opinon.
Klecka v Treasurer of Mo as Custodian of Second Injury Fund, 644 S.W.3d 562 (Mo banc 2022) interpreted 287.220.3(a) concluded the statute only allowed recovery against the second injury fund when permanent total disability resulted a combination of disablity attributable to the employee's primary injury and one or more pre-existing disabilities that qualify under enumerated criteria in 287.220.3(a) which requires, among other things, prior disability that equates to 50 weeks or more.
In this case claimant introduced evidnece of pre-existing disablity of multiple prior conditions which total 56% BAW which was not contested. Part of the total disablity included a prior left knee injury that represented by itself 17 weeks which failed to satisfy the 50 week threshold.
The experts never addressed that the conclusions that claimant was unemployable, even without
consideration of the knee. The ALJ found the knee (<50 weeks) and anxiety did not impact functional capacity and did not bar a finding of PTD. She stated further that the knee and ankle could also be 'stacked' to meet threshold although it was neesary to each that decision.
I find the credible evidence supports the conclusion that Employee's 1995 left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such I find that excluding Employee's 1995 non-qualifying left knee injury from the analysis does not impact the ultimate conclusions regarding his employability. To conclude otherwise would lead to a nonsensical result in light of Employee's qualifying preexisting disabilities of 50% of the right ankle, 40% of the left ankle, 32.5% of the right knee and 22.5% of the right shouldWithout expert opinion, the ALJ could not reach that decision that the knee was cumulative to the conclusion cliamant was unemployable.
The dissent argued since cliamant denied symtoms to the knee, the ALJ properly concluded the knee was not a factor to her determination of PTD. The dissent would have allowed a take-back rule so claimant could take the case back for another try to offer additional expert opinon to track Klecka because it was unfair to deny PTD benefits, a position being asserted at the Supreme Court in multiple current appeals to be argued later this month.
ALJ Young
Chris Weiss
Keyla Rhoades
Experts: Solman , Mall, Berkin Volarich
I find the credible evidence supports the conclusion that Employee's 1995 left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such I find that excluding Employee's 1995 non-qualifying left knee injury from the analysis does not impact the ultimate conclusions regarding his employability. To conclude otherwise would lead to a nonsensical result in light of Employee's qualifying preexisting disabilities of 50% of the right ankle, 40% of the left ankle, 32.5% of the right knee and 22.5% of the right shoulder
lify
based on the enumerated criteria under § 287.220.3(a)a. Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562, 566 (Mo. banc 2022)
