Barnett v Harley Davidson
May 1, 2018
2018 MO WCLR LEXIS ___
The Commission affirms an award of 25% for disability benefits from repetitive overhead trauma and treatment related to a herniated cervical disc.
The Commission relies upon an expert who it concludes "could have been more thorough" but found sufficient evidence to adduce prevailing factor even the absence of articulating that conclusion with the "magic" statutory words and relied upon treating records which did not clearly document a work onset. The court noted that proof of repetitive trauma required expert testimony, but there was enough expert opinion to reach a conclusion. The commission suggested Dr. Bailey, the defense expert, over-relied on a written job description. Claimant performed overhead work with his hands as an assembler and stated he had to keep his neck in an awkward position.
The Commission rejected the alleged error that the ALJ failed to credit an offset for PTO benefits when the issue was not preserved at hearing and the application for review raised the issue but failed to articulate the time period which was being asserted. The employer did not show specific payment figures and testimony that claimant received "around $300" was insufficient to show a credit or to show an exception to 287.270.
The Commission considered the merits of the brief but noted the application did not comply with state rules because it was argumentative and not a fair and concise statement of facts "without argument."
The award represented about $47,000.
ALJ Pottenger
Atty: Spooner, Billam
Experts: Bailey, Hopkins
