MO: Claimant Loses Permanent Total Claim When Her Vocational Expert Concedes She Can Be Trained As Cashier

The court of appeals rejected claimant's PTD claim against the second injury fund based on inconsistent opinions of her vocational expert. Carkeek v Treasurer of the State of Mo., WD 73377 (Mo. App. Oct. 11, 2011) (Free Download), affirmed an award of PPD but a denial of PTD benefits awarded by the Commission. (Lexis.com subscribers can access the Lexis enhanced version of the Carkeek v. Treasurer of Mo. - Custodian of the Second Injury Fund, 2011 Mo. App. LEXIS 1325 (Mo. Ct. App. Oct. 11, 2011) decision with summary, headnotes, and Shepard's).

Claimant's medical expert, Dr. Koprivica, stated he deferred to a vocational expert to determine whether claimant was unemployable. He did not consider the situation "overwhelming" to reach that conclusion on his own even though he had "concerns" regarding claimant's capacity to work.   Claimant's vocational expert, Cordray, provided conflicting opinions that claimant was unemployable and that sedentary work restrictions did not preclude work as a cashier and the 57 year old claimant could be "cash registered trained."

The claimant argued the Commission could not disregard evidence finding claimant PTD as the Fund offered no contrary expert opinion.  The court distinguished Angus v Second Injury Fund, 328 S.W.3d 294 (Mo. App. 2010) and found the rule did not apply to internally inconsistent evidence, and suggested Angus may have a narrow application to evidence of medical causation and may not apply to an opinion of a vocational expert.

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

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