Glasco v Treasurer of the State of MO
WD 80186 October 24 2017
The court of appeals affirms a denial of a PTD claim against the second injury fund.
The Commission noted it was "constrained" to deny the claim and revered an award of total.
The Court of Appeals noted the claimant's experts omitted critical information, "suggests" claimant misunderstood the nature of the stipulations at hearing, did not assert an alternate claim of partial against the fund, misunderstands the decision from the Commission and basis for the reversal, and raises points on appeal that are "difficult" to understand and without merit.
Claimant injured her left knee in 2011 from a fall. She had a history of constant pain in the left leg. She settled with Citicorp for 15% of the knee and pursed a claim of total against the Fund.
The issues at the hearing was whether she had a compensable injury, whether she had prior disability, and the liability of the second injury fund.
Claimant relied upon expert opinion of Dr. Zimmerman and Michael Dreiling, a vocational specialist. Zimmerman was unaware of the complete medial history which suggested she could not really do "anything" as a result of medical conditions that predated the accident. The vocational expert also relied upon an incomplete history that did not consider she had "severe" pain prior to the work accident and had recently received short term disability leading up to the accident. He conceded the prior back condition rendered her virtually unemployable due to her back condition.
The opinion lacks details about her job at the time of the accident but indicates she had returned from a recent short term leave.
Dr. Drisko indicated that she was totally disabled from the back condition alone. Dr. Thomas testified he did not feel the accident impacted her back condition.
The Commission reversed an award of total disability against the fund and found insufficient evidence to establish a combination effect to support fund benefits because the experts found the claimant disabled solely due to the pre-existing low back condition. The Commission noted no alternate claim of permanent partial disability benefits. The Commission noted the experts did not consider synergy because there was no claim for partial disability benefits.
The Commission applied "old law" unaffected by statutory changes after January 2014.
Claimant alleged the parties stipulated to permanent total based on overwhelming facts and had no additional burden to show synergy. The court found the stipulations never addressed the extent of disability or the Fund's liability and the issue of synergy only applied to a claim for partial disability, which was never asserted.
The decision distinguishes between being employed and being employable in the context of a total claim. A claimant could be employed in a limited capacity, sporadic work, highly accommodated, or back at work after an absence but may be unemployable in the open labor market but still be deemed totally disabled. The court defers to factual findings regarding employability and "when" someone is totally disabled.
The commission could find claimant was unemployable due to the pre-existing back condition alone unrelated to the accident and could discredit other opinion that were provided demonstrably and critically incorrect information.
The case was tried in 2015. The commission notes plaintiff counsel requested two extensions of time and then did not file a brief. 2016 MO WCLR Lexis 63. ALJ Rebman had awarded total disability against the Fund.
Hon. James Welsh
Experts: Zimmerman, Drieling
