Total Disability Before Job Injury Precludes Fund Recovery

A claimant’s lack of candor about a prior medical condition while obtaining a new job may help to prove a prior disability.  In Cook v Buckley Powder Company, DOLIR 3-17-11, the Commission found that no employer would have hired claimant in his job to handle and lift explosives if he had been candid when he obtained his job that he used daily narcotics and had been on social security for at least six years for intractable back pain.  Claimant admits he didn’t think anyone would hire him if he told an employer that he was “all boogered up.”  He worked for about a month and states he hurt his arm lifting a 60 pound bag.

The claimant, 62, settled his 2007 claim against the employer after receiving temporary disability benefits for nearly a year. He failed to prove his permanent total claim against the second injury fund because he failed to prove that disability from his primary shoulder disability combined with his pre-existing back condition, because he was already unemployable solely as a result of pre-existing conditions.  His vocational expert asserted that he was not unemployable, because he was able to find a part-time job as a material handler at Powder Co.

Claimant testified he was on social security and spent most of his time watching television while living with his ex-fiance.

The Commission in several previous cases had rejected defenses from the second injury fund that claimant was not employable in the open labor market at the time of an accident because a claimant received social security benefits.

Johnson v Wal-mart, 4-8-09.

O’Conner v Ozark R-4 School District, DOLIR 7-14-09.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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