Moss v Treasurer of the State of MO
2018 MO App. Lexis 1663
Dec. 26, 2018
The Court rejects the alleged error that claimant failed to prove the statutory elements of 287.190.6(2) for a physician to certify and demonstrate disability and affirms the award of benefits against the fund for total disability. The court found the requirement to demonstrate and certify total disability can be determined through vocational opinion even if the opinion is supported by inference from medical opinion.
"The term "certify" means "to attest as being true or as meeting certain criteria." Certify, Black's Law Dictionary (10th ed. 2014). And "demonstrate" means "to show clearly . . . to prove or make clear by reasoning or evidence . . . to illustrate and explain especially with many examples,"
"The Commission concluded that § 287.190.6(2) "does not imply or mandate any requirement that a medical expert . . . specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied." The Commission further explained that analysis of the extent of disability involves evaluating issues such as job requirements and availability, transferrable skills, and retraining prospects; it also noted, "[i]n many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment." The Commission then did "as [they] have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill [its] fact-finding duty to determine the nature and extent of [the] employee's disability." After doing so, the Commission concluded that § 287.190.6(2)'s requirement to demonstrate and certify was satisfied."
"We reject the Fund's contention that a finding of permanent and total disability can be made in only cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work."
The court relied in part on expert opinion from the Fund's own vocational expert that claimant was unemployable in the open labor market.
Dennis Moss v Dept. of Corrections
DOLIR 1-10-2018
ALJ Miner
Atty: Kiefer, McCain
The Commission affirmed an award of total benefits against the second injury fund and rejected an argument that medical evidence which did not expressly state claimant was totally disabled did not certify or demonstrate an incapacity to work.
The claimant was awarded 32.5% of the shoulder following two shoulder surgeries including a replacement. Claimant testified that the surgeries did not alleviate his severe pain. The Commission noted it would have increased the PPD award if the finding had been appealed as claimant had no meaningful use of the arm because it became symptomatic with minor activities such as lifting a gallon of milk.
The ALJ found claimant established he was PTD against the Fund, and found sufficient and competent evidence to support the award.
The Fund argued that no physician "certified" or "demonstrated" total disability. The Commission rejected the argument:
"It would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases."
"While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record."
