Thomas Dubuc v OTG (Settled)
Release Date: Nov. 16, 2020
Venue: Western District, 15-087903
Plot Summary: On remand, the Court of Appeals reversed a finding of PTD and ordered the Commission to apply 287.330.3 to the facts. The Commission granted the parties the right to submit briefs but found the remand to "apply the law to the facts" did not permit the petitioner to offer new evidence.
Discussion: The Commission now finds claimant's testimony about prior hernia repairs, without treating records, fails to satisfy the statutory requirement that a qualifying condition is "medically documented." The Division found claimant failed to show a genetic mutation (Factor V Lieden) is a qualifying condition which "aggravated or accelerated" the work condition. It found "generic" language by the expert about aggravation failed in the burden of persuasion. A majority added dicta ("not the basis of this award") to opine that employee over-relied on Second Injury Fund v Parker, WD 83030, which is on appeal, for the proposition the statute allowed consideration of multiple conditions and contends the controlling rule is combination of the primary with a single prior qualifying condition. The Commission previously concluded the two pre-existing conditions both represented 25% BAW PPD each.
The dissent felt evidence supported "previously documented" conditions and demonstrated aggravation, noting the potential for surgical complication of DVT. The dissent notes the majority's factual findings "defy common sense" and violates the "spirit of the law" to deny benefits to workers with "complex" medical histories. The dissent would have allowed additional evidence due a change in law "mid-stream" but felt evidence in the record supported an award of total against the Fund.
