Workers' Compensation

Missouri: Smoking Pot May Support Disability Claim

The commission reversed a denial of benefits and awarded permanent total benefits against the Second Injury Fund and noted that a prior habit of smoking pot daily for twenty years might be regarded as a hindrance or obstacle to employment. Mandina v Glass Group, 2012 Mo WCLR Lexis 196 (Nov. 21, 2012).

The Commission found that the ALJ applied the incorrect standard whether claimant’s prior medical conditions were an actual obstacle or hindrance to employment. Regarding the drug issue, the decision provides an inconsistent finding whether prior poly-substance abuse was a factor in the award.  The Commission finds substance abuse is a hindrance or obstacle for purposes of Fund liability because a reasonable employer might anticipate a greater liability for someone injured on the job with that history.  In the same paragraph, though, the Commission omits substance abuse in its list of prior conditions.  “When we analyze employee's preexisting major depression, panic disorder with agoraphobia, substance abuse, and migraine headaches, we are convinced that each of these conditions were serious enough to represent a hindrance and obstacle to employment at the time of the work injury, because we believe that a cautious employer could reasonably perceive employee's psychiatric conditions and migraine headaches as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). Accordingly, we conclude that at the time employee sustained the primary injury, employee suffered from preexisting permanent partially disabling conditions in the form of major depression,  panic disorder with agoraphobia, and migraine headaches that were serious enough to constitute hindrances or obstacles to her employment or reemployment for purposes of § 287.220.1 RSMo.”

The second injury fund denied that claimant had any permanent injury from exposure in her 2004 accident to “fumes” at work, that noxious fumes caused PTSD, or that she had any prior disabling conditions.   The psychiatric experts disputed whether or not she had PTSD.  The Commission found that claimant’s accident caused PTSD, and that her prior medical conditions had a potential to combine to trigger fund liability.  The Fund’s psychiatric expert concluded that claimant smokes pot every day and this habit “takes away her motivation to get out of the house and return to work.”

The Commission found claimant credible when she stated she stopped smoking pot a year before the 2011 hearing and that the Fund’s vocational expert relied upon wrong assumptions about continued substance abuse. Claimant reports she self-medicated with marijuana to treat depression.   The Commission excused other inconsistent statements due to claimant’s psychiatric condition.

The employer settled the case before the hearing.  Claimant reported severe symptoms and denies she ever leaves her home without a medical assistant.

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

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