A claimant who returns to work may still be a permanent total, according to a recent Missouri Commission case that finds a claimant who returns with accommodations or who experiences difficulty performing job duties may still be unable to maintain gainful employment. Discovery of a potential permanent total claim only begins with the issue if claimant returned to work, and requires further investigation how claimant performed job duties after a work injury.
Claimant went back to work 7 months in the recent decision, Blaine Lyman v Allmon Construction, a decision that awarded permanent total benefits affirmed by the Commission on 7-22-10. Claimant is a 59-year old carpenter who fell and fractured his hip and developed various complications in his treatment including bone infection, DVT and decreased vision. He obtained employment after his 2002 accident as a part-time electrician’s helper for 7 months in 2004, until he resigned. He performed jobs 2-3 days a week at a slower rate and could not work on some projects due to his physical limitations and diminishing vision.
Comment: This decision is not shocking, in light of a Commission decision affirmed earlier this year that found a 4 year return to employment as a failed attempt at return to work. In Williamson v Emery Sapp & Sons, DOLIR 3-16-10, the Commission awarded PTD benefits to a 39 year old claimant who fell 40 feet off of a bridge, resulting in fractures and a head injury. Claimant returned to work for his uncle’s company from December 2003 to Feb. 2008 which was deemed a failed return to work. Claimant had job performance issues and a helper to keep him “on task.” The Division noted claimant did not have to compete for the job because he worked for a relative, and his work was not evidence that he could maintain employment because the employer furnished many “second” chances and “infinitely more opportunities.”
Other recent cases, too, have noted failed attempts to return to work In Fischer v. Montgomery County, DOLIR 6-15-10, claimant returned to work as a driver for 7 months until he was fired. Claimant treated for a head injury and conversion disorder, and reported when he returned to work he experienced confusion and would lose directions.
In Dilks v U-Haul, DOLIR 2-3-10, claimant’s vocational expert indicated work of claimant’s self-employment as a car detailer did not satisfy industry standards and symptoms impaired his capacity to assume more duties.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts