Missouri: A "Working" Claimant is Not a Total (sometimes)

Claimant's capacity to return to work for 1 1/2 years after her back injury defeated her SIF claim that she was permanently and totally disabled.  Her duties such as data entry, answering phones or monitoring suicidal patients were considered a ‘real job’ in the open labor market. 

Claimant was a health care technician and she moved a patient in 2001 and her back popped, resulting in conservative care for a strain and a 20 pound permanent restrictions.  Claimant states she returned to work because of job accommodation and performed essentially a "desk" job.  The court considered the nature of her job duties after her accident, and the duration of her employment, to determine if her post-accident employment was a bonafide return to work in the open labor market or merely sporadic employment.  Claimant contends she was only employable with KU Medical Center because of accommodation, and that her position ended when the employer was no longer able to accommodate her restrictions.

Claimant received PPD benefits of nearly $20,000 against the employer (back strain) and over $4600 against the Second Injury Fund (diabetes) but appealed her denial of a PTD claim against the second injury fund. She asserted that her back strain combined with prior diabetes and arterial disease to make her unemployable.  She last worked in 2003.  The case was tried 7 years later in 2010.   Claimant failed to persuade the Commission that her prior disability as it existed at the time of the work-injury was sustained combined with the primary injury to render her permanently and totally disabled.  The court of appeals affirmed the denial of PTD benefits. 

Claimant contends the second injury fund offered no vocational evidence and her vocational testimony was un-contradicted.  The commission, however, concluded claimant's own testimony contradicted her expert.  Claimant testified her symptoms related to the heart did not require any restriction and described her condition after a stent as "fine."  Her heart condition worsened after her 2001 accident.  Claimant testimony that she could not continue her with current employer did not satisfy the standard of total disability that she could not return to any gainful employment. Selma Lewis v Kansas University Medical Center, WD 73817 (Mo. App. 12-6-2011). 

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

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