A claimant who states he hurts too much to work can collect PTD benefits, even though an FCE based on "objective" findings concludes he can work in the open labor market. The court of appeals recently affirmed a Commission award of PTD against the second injury fund based on this conclusion, without issuing a separate opinion. Reichardt v Industrial Sheet Metal, 2012 Mo. App. Lexis 758 (June 5, 2012).
Section 287.190.6(2) requires "objective medical findings shall prevail over subjective medical findings" in cases in which there is inconsistent or conflicting medical opinions. The Commission considered whether this section prevented an award of PTD benefits based on pain complaints when an FCE found claimant could work based on its "objective findings". Reichardt v Industrial Sheet Metal, 2011 Mo WCLR Lexis 226. The Commission awarded PTD benefits, noting that the statute did not apply because the FCE was not an objective finding of pain. "The results of an FCE or the imposition of more liberal restrictions do not amount to objective medical findings as to pain. Rather, they simply demonstrate what a particular practitioner believes is an appropriate level of work activity for the employee. In fact, a review of the record in this matter reveals no objective medical findings whatsoever as to the extent and severity of employee's pain."
Claimant, 60, had chronic back pain and a 1999 fusion prior to his 2008 work related back injury. He testified he had to recline 2-3 hours a day to relieve his back pain. The Commission in its award does not quote any expert opinion for its conclusion that an FCE does not measure pain or that any expert really discussed the FCE at all or its role to define vocational limits within a claimant's pain tolerance. There is no evidence identified in the opinion that any objective medical test exists to measure pain. The case undermines statutory reform to provide greater evidentiary weight to objective evidence and resumes pre-reform status when a claimant's testimony about pain may trump any other evidence such as an FCE.
The Court of Appeals found a separate published opinion had no precedential value.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
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