A claimant who is working but not "really" working cannot have a new claim of disability if he is already permanently and totally disabled, according to a recent Missouri decision. Archer v City of Cameron, 2014 Mo WCLR Lexis 15 (lexis.com) 2014 Mo WCLR Lexis 15 (Lexis Advance), and 2014 Mo WCLR Lexis 16 (Jan 30, 2014) (lexis.com) 2014 Mo WCLR Lexis 16 (Jan 30, 2014) Lexis Advance). Archer hurt his back on two occasions while working for City of Cameron. In 2008 he was driving a skid loader, struck a manhole, and he hurt his spine. He returned to work with 25-50 pound restrictions for another 2 years performing labor with the help of co-workers. Claimant worked until 2010 when he had another accident to his back bending over and was placed on 5 pound lifting restrictions while treating for an acute strain.The ALJ concluded claimant reported increased symptoms after 2010 so he had a new 7 1/2% permanent disability contrary to medical opinions. The ALJ awarded partial disability in the 2008 and 2010 accidents against the employer and total disability against the second injury fund from the 2010 accident.The Commission reversed the award of liability in the 2010 case against the employer and the second injury fund. It relied upon medical opinion that claimant was already totally disabled as a result of the 2008 accident and shifts liability for a total from the financially-challenged second injury fund to the employer. It found that the ALJ erred finding claimant employable in the open labor market in 2010 contrary to medical opinions that the 2008 accident rendered him totally disabled because claimant had gone back to work for 2 years. The Commission concluded "We find that during employee's return to work, employee was not performing the usual duties of his employment in the manner that such duties are customarily performed by the average person engaged in such work. Consequently, employee's return to work did not constitute proof that employee could compete for work in the open labor market." The Commission concludes that the degree of claimant's accommodation (taking breaks, obtaining help, missing days) would not be available to any other applicant in the open labor market in an arm’s length transaction. The Commission reached a similar conclusion in Ives v Triple Crown Services, 2012 Mo WCLR Lexis 216 (December 28, 2012) (lexis.com) 2012 Mo WCLR Lexis 216 (December 28, 2012) (Lexis Advance), found a claimant who returned to work for 6 years wasn't really working and disregarded opinions of the ALJ that claimant worked in the open labor market. This case demonstrates a strong exercise of the de novo powers by the Commission. Whether claimant is working or not "really" working based on the level of accommodation is a critical issue. The party facing a claim of total disability ignores this issue at its peril. The case demonstrates the easy burden to show a return to work is a 'failed' return to work even in an economy where most people don't remain employed by the same business for life. Employers who bring an injured worker back to work may received benefits of the worker’s experience but the benefit of returning an injured worker as a shield to a PTD claim may be a very weak one with the current Commission.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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