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Missouri: Refugee Awarded 'Total' for His Days in the Bosnian War

January 10, 2013 (3 min read)
Claimant’s “harrowing experiences” during the Bosnian war entitled him to permanent and total disability benefits against the Second Injury Fund, according to the Commission in the case Music v Red Brick Management, 2013 MOWCLR Lexis 1, which reversed a denial of SIF benefits by the ALJ.
The injured worker fell while painting a cabinet and alleged multiple physical and psychiatric injuries and states the event made symptomatic post-traumatic stress disorder from his experiences “to the many years of war [in Bosnia] and refugee status.” This case involved a post-reform 2008 accident, 13 years after the end of the Bosnian war.
The employer stipulated to disability for the low back and left shoulder, treated conservatively, but disputed the extent of any new mental disability even though its own expert conceded the accident produced some new mental disability. The Commission found claimant failed to establish a new PTSD but the Commission increased the award from 2% to 22% for a new ‘pain disorder’, awarded open psychiatric medical, and found the Fund liable for PTD based on vocational and psychiatric expert opinion that any total was due to a combination of primary injuries and pre-existing PTSD. The Commission suggested since claimant’s pain complaints were not explained by physical findings they most likely flowed from a psychiatric condition, contrary to other expert opinion. “Psychological factors best explains why employee's pain complaints are not in keeping with his physical injuries and why he finds no relief from conventional treatments such as pain medications.” The Commission agreed some expert opinion was inconsistent and unpersuasive as a basis to deny about $17,000 in medical bills.
In the current political debate about the second injury fund, the case is classic example of the second injury fund taking the bullet for an alleged permanent total. Claimant states he uses narcotics and spends most of the day in a recliner. Claimant’s expert suggested onerous work restrictions, and provided inflated ratings exceeding 100% PPD BAW attributable to the primary accident. Music was 49-years old, on social security, and did not return to work and couldn’t speak English. The Fund offered no expert opinion but argued there was no evidence of a prior hindrance or obstacle to employment when the prior PTSD never rose to the level to require treatment or work restriction. The Commission disagreed: “We are convinced employee's preexisting PTSD had the potential to combine with a future psychiatric injury to result in worse disability than would have resulted in the absence of the condition.”
The commission in Music disparages the findings and conclusions of the ALJ, who felt claimant lacked credibility.
The Commission dealt with somewhat similar facts in George v City of St. Louis, 2004 Mo WCLR Lexis 67, affirmed 162 S.W.3d 26 (Mo. Ct. App. 2005) in which a fire fighter alleged PTSD when he developed flashbacks of horrific experiences in Vietnam. In that case the Commission found the employer liable for PTD because the prior war experiences produced no disability prior to the primary injury/occupational disease.

 

 

 

 

 

 

 

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

 

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