Kenneth Weber v Kraft Foods Inc.
No. 08-124473
Sept 7, 2017
The Commission modified an award of permanent partial to permanent total against the second injury fund and found a 65-year old employee who had gone back to work for 5 years part-time was not precluded from a PTD award because his accommodated job was unavailable in the open labor market.
Claimant had a history of prior 22% disability to his spine and sustained a new injury to his neck and back that required surgeries. The employer settled the case for 12.5% before trial. The ALJ found that claimant's 2008 accident caused a need for a 2008 back fusion and a 2009 neck fusion caused 30% new disability and the conditions combined to support a SIF award with a 20% load.
The Commission disagreed with the conclusion that claimant established that he could work in the open labor market, even though he had been employed five years on a part-time basis. It concluded claimant had not competed in the open labor market for the job for a customer service based on testimony from the car wash owner that he was hired out of compassion. The commission noted that claimant did not demonstrated he maintained employment in the open labor market because his position was accommodated and the owner let him leave for personal breaks and tolerated claimant's difficulty to remember simple tasks. The basis of the Fund's liability was based on orthopedic conditions and not on any rateable learning or mental disability.
The claimant introduced testimony from Dr. Garth Russell that claimant's two-level fusions rendered him unemployable because he is "constantly" hurting despite a history that minimizes his symptoms. The doctor did not regard part-time work as an "employable situation." Gary Wiemholt testified that claimant had physical limitations, that he could not be hired in former jobs, he could not be retrained, and that he did consider his part-time work "to constitute full employment."
The Commission noted that part-time work can be considered work in the open labor market but distinguished this case because claimant could come and go as he pleased and the employer felt he could not "realistically" find work anywhere else.
A defense vocational expert noted that claimant did not have work restrictions from treating physicians that prevented his ability to work.
ALJ Dierkes
Atty: Pirmantgen, Dunham,
Experts: Russell, Wiemholt, England
