MO: Commission Thwarts Statutory Reform For 'Objective' Findings

MO: Commission Thwarts Statutory Reform For 'Objective' Findings

Statutory reform in Missouri requires that objective findings trump conflicting subjective findings.  When a doctor concludes claimant can work based on FCE results but claimant state he can't, does the FCE "objective" findings control?

In the case of Reichardt v Industrial Sheet Metal Erectors, DOLIR 11-10-11, 2011 MOWCLR LEXIS 226, the 60 year old claimant appealed an award of permanent partial disability benefits against the second injury fund and asserted he was unemployable. He states he spends 2-3 hours each day in a recliner to control his pain.  An FCE and other doctors concluded he was employable.  Claimant's work-related injury and subsequent back surgery resulted in some permanent restrictions resulting in permanent partial disability.  The ALJ concluded claimant was employable, and the 287.190.6(2) required the objective findings regarding work restrictions to control over restrictions from claimant's expert based on subjective symptoms that claimant must lie down regularly due to pain.

The Commission disagreed.   The Commission concluded the FCE is not an objective medical finding "as to pain" and there are no objective medical findings as to the "severity of pain."   The Commission found no conflict on the evaluation of pain and concluded claimant was unemployable based on pain complaints, modifying the award against the SIF from permanent partial to permanent total. The Commission further rejected the reliance of the SIF's expert that a prior neck and back surgery were not disabling because claimant did not identify any prior accommodation.

It is not clear from the decision whether the SIF presented any evidence how a functional capacity exam might base its restrictions on pain tolerance. Future cases relying upon FCE findings might consider further evidence on this issue.  The broader implication is the case essentially nullifies 287.190.6(2) and allows broader discretion to consider subjective complaints of a claimant regarding his capacity to work to award benefits when claimant has medical restrictions which by themselves do not prevent employment in the open labor market.  The suggestion that the Fund (or the employer) must utilize some test other than an FCE to negate such testimony about pain leaves little realistic prospect that objective findings have any greater evidentiary weight.

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

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