Business owner proves himself a total with a new back injury

The commission affirmed an award of lifetime benefits for disability for a new back injury despite a tumultuous history of prior back problems, according to the recent  case Laster v Laster, 2013 MO WCLR Lexis 218 (December 5, 2013).

The tale begins in June 2005 when a 43-year old claimant states his back and leg hurt lifting a shop vac out of a van.   Claimant ultimately sought treatment in mid-July and by the end of the summer he was diagnosed with a disc herniation.  By January 2006 claimant had a L3-5 fusion.  In 2007 claimant was back in surgery again for a failed fusion and underwent revision surgery.   He described constant back and hip pain.  His surgeon felt he could work and could not explain claimant’s symptoms from a solid fusion.   Claimant, as the company owner, apparently self-directed care back to his own personal surgeons (Kennedy and Robson) and  pain management with Drs. Barry and Rachael Feinberg.  Claimant’s testimony was unchallenged that he earned $1000 a week despite the lack of any documentation. 

When the last accident was of a magnitude to render claimant disabled by itself  the prior conditions are ignored.   In this case after claimant’s accident in 2005 he treated for several years, underwent two multi-level back surgeries, and the specials approached $400,000.  Claimant described severe symptoms with any activity and a need to lie down frequently for pain relief.    ALJ Kohner noted it was “confusing” that Dr. Poetz alternately appeared to argue that that the Fund was liable, unless it wasn’t, and then the employer was liable.

Dr. Poetz, claimant’s expert, did not testify there was any synergistic effect with prior back disabilities to invoke any Fund liability.     In a different time this type of case was a slam dunk for fund liability with claimant's   7 year history of back pain, previous settlements for disability, a prior two-level fusion, and  an incapacity to work for most of the 4 ½ years before his latest accident.  The ALJ found Dr. Poetz’ opinions the last accident alone rendered claimant PTD was the only “clear forensic evaluation on this issue.”   The ALJ noted the testimony was apparently admitted without objection to Dr. Poetz’ qualifications and that he “appears” to be a licensed physician to render such opinions.

The ALJ awarded open medical and concluded expert testimony from Dr. Robson that he had nothing further to offer orthopedically could not be construed that claimant did not require any future care.  The ALJ accepted that claimant may require imaging studies and additional conservative treatment.  Claimant testified he treated his intractable back pain with Aleve and felt stronger medications impaired his ability to interact with his children. 

These facts beg the question whether claimant was not already an odd-lot total even before the latest accident if the only way he could work was by being his own boss.   The fact that claimant failed attempts to return to work after the 2005 accident appears to only reinforce that issue.  The ALJ noted claimant started his own firm because he could not find any job in the labor market with his restrictions and as the owner he had the unique ability to control his own accommodations and avoid activities.  Claimant had been out of work because of chronic back pain and had operated the business for only a few months before asserting he had a new injury. 

Commission finds worker a total for back strain despite reading problems

A claimant with reading difficulties was awarded total disability for a back strain.  Barker v Laclede County, 2013 MO WCLR Lexis 219 (December 9, 2013). The ALJ concluded the incapacity to work flowed from the last accident alone even though learning difficulties further impaired the worker's capacity to work or obtain vocational retraining.

Claimant, 62,  described disabling back symptoms  following a 2010 accident for a back strain superimposed on degenerative changes.  An FCE indicated he was limited to handling 14 pounds.  An annular tear was suspected but never confirmed on MRI.   Claimant obtained a report from Dr. Volarich who felt he had permanent partial disability and imposed various  restrictions.  Claimant's vocational expert concluded claimant was unemployable.    The employer contends claimant was able to return to driving a truck, an expert found he could work without restrictions, and claimant on his own  had a 35-head cattle farm.

The Commission affirmed the decision, without a separate opinion.  The decision contained a detailed discussion of the employer defense that any inability to work was not  the last accident alone because claimant's reading difficulties combined with his primary injury to limit his ability to work.  

The ALJ noted the employer failed in its burden to show that claimant's inability to work flowed from a combination of prior medical conditions.   No one established an inability to read flowed from a medical condition.   The fact that claimant attended special education classes according to school transcripts did not support the inference that he had a learning disability.  A vocational expert declined testify as to the specific diagnosis.  The ALJ further accepted that claimant's illiteracy was not a prior vocational barrier, even though the voc experts indicate the same condition after the accident is toxic to his ability to work or  his ability to retrain..

The employer offered literacy classes for claimant to read which claimant refused to attend.  The ALJ dismissed the offer as it  "occurred in the context of litigation and the employer and insurer defending against a claim of permanent total disability." It is unclear from the opinion whether this offer was a  tender of vocational services under 287.149.   Claimant denies he was offered any classes and the ALJ found he lacked credibility on this issue but his pain complaints were considered credible.    The ALJ  noted that it was "reasonable" for claimant to not pursue  to classes as the employer was not offering to pay claimant TTD at the same time.  It is "understandable" that he "would not be eager or desirous to pursue such a program...." and any failure to refuse could not infer a desire not to work." 

The case visits a familiar theme that if an ALJ believes claimant is in too much pain to work and finds at least one expert to agree the employer buys the claim even though the diagnosis is not typical for total disability or the claimant has a "egg-shell" skin, a weak spine more prone to injury, or only a few arrows in his educational quiver.  The employer was able to obtain only some prior school records (the fact it obtained any at all is somewhat amazing given claimant's age) but hit a profound tactical problem of blaming the Fund when the Fund was not even in the court room and had not been named as  a party. 
   
ALJ  Wilson
Atty:  Murphy, Barnhart
Experts:  Volarich, Eldred, England

Commission modifies award to allow total disability

The Commission modified an award of 50% BAW to Permanent Total Disability to a state employee of a prison who hurt her neck when she backed into a dock and found the employer's vocational testimony that jobs were available just wasn't enough that jobs were available for her.  Ketchum v Mo Dept. of Corrections, 2013 Mo. WCLR Lexis 215 (Nov. 22, 2013).

The case involved a 58-year old employee who was diagnosed with multi-level arthritis and a lateralized disc.  The employer's treating physician, Dr. Coyle, went ahead with a three-level fusion and released claimant 6 months after her surgery.  She returned to work for a month and then went on long-term disability.  She told her expert after the surgery she still felt horrible.   ALJ Strange awarded her 50% disability, and rejected opinions from claimant's vocational expert that she was unemployable.  Claimant's expert asserted that she had no prior disability and her neck before the accident was totally asymptomatic.

The Commission, however, modified the award to total disability.  The commission concluded that it was the employer's burden to rebut  a PTD case to show that claimant could work, that positions exist in significant numbers in the open labor market and the claimant could reasonably compete for positions.  The employer's vocational expert indicated claimant was capable of performing jobs such as a cashier, a home health care worker, and security work.  The Commission concluded it could not assume such factors without testimony apparently calling for too much of a leap of faith that Missouri has a lot of cashiers and home health care workers or to make an inference that a claimant can work certain jobs means a claimant can work certain jobs.  The case is a clear warning to prove every statutory defense explicitly instead of relying upon reasonable inference. 



ALJ  Strange
Atty:  Van Camp
Treaters:  Coyle, Guarino
Experts:  Eldred, England