Jackson County Mo v Marc Earnest
WD 81803 Feb. 27, 2018
Employer appeals an award of permanent total affirmed by the Commission.
The court of appeals defers to findings of fact whether a person is employable in the open labor market, unless such finding is against the overwhelming weight of the evidence.
The court found the commission had not committed error by relying upon a decision that was over-ruled on an issue of law that was not in dispute.
The court commented in a footnote that it was "interesting" that the employer relied upon cases that were similarly over-ruled in its argument.
The court noted the commission had based its finding on the totality of the evidence, including doctor's opinions, and found its award supported despite inconsistencies in some of claimant's testimony involving topics such as the capacity to perform certain physical tasks.
The ALJ found video tape not persuasive on the issue if claimant was employable based on a "snapshot" in time, despite inconsistencies in his testimony and the physical activities demonstrated of cutting the grass.
The facts of the case involved a 2014 accident when a tree fell on an employee resulting in a compression fracture. Claimant stated he had severe limits in his ability to stand, sit, and other activities due to his surgeries.
"Due to believed fracture instability, Claimant was admitted to the hospital from April 1 to
April 13 to undergo two surgeries. The surgeries included rib resection for bone grafting, partial
removal of the T7 vertebra, and hardware placement for anterior and posterior spinal fusions. After
the surgeries, Claimant was released from the hospital but continued to follow up with his surgeon,
Dr. Wilkinson, often complaining of back pain and muscle spasms."
Experts: Stuckmeyer
Judge Ardini
