MO: Commission Finds Gainful Employment While Resting

MO: Commission Finds Gainful Employment While Resting

Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.

The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced un-refuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant's prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the conditions combined, and the Fund's vocational expert provided no persuasive testimony to refute the finding.

The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant's vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment.  A claimant may have other attractive traits to justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant's prior capacity to perform essential job functions with or without accommodation instead of vague vocational opinions whether a hypothetical employer in the open labor market deemed a job accommodation as toxic.

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