A permanently and totally disabled claimant with a traumatic brain injury did not lose benefits because he was working, according to the Missouri Court of Appeals, when the employer failed to show a change in physical condition. The case is Pavia v Smitty's Supermarkets, No. 31275 (Mo. App. SD 2012) 2012 Mo App. Lexis 187 (2-17-2012).
Claimant had several jobs since his 1996 accident and was in a management training program in 2010. The employer's expert, Dr. Stillings' concluded after 8 years the claimant still had some TBI symptoms but his symptoms had improved. The employee's expert, Dr. Cohen, identified no significant improvement. Claimant's mother and wife both testified regarding claimant's continued difficulties and the constant assistance he requires from family members.
The Commission denied the employer's request to terminate benefits based on a change of physical condition. The court of appeals refused to disturb the Commission's finding on credibility between experts. The court noted the employer must demonstrate a change in a physical condition. Dr. Stillings did not demonstrate a physical change by a psychiatric exam although Dr. Cohen, a neurologist, performed "physical" tests of the brain. The decision does not explain this distinction in diagnostic testing any further. The original award relied upon MRI findings of physical brain damage and the employer in its motion or a change of circumstances offered no further diagnostic tests.
The employer in 2010 argued for a second time a change in cognitive condition. The employer must demonstrate in a pre-reform case a change in physical condition, and statutory changes in 2005 that required strict construction did not apply in this pre-reform case. The court criticized the employer for a misleading argument regarding the appropriate standard of review. The court noted when the employer argued a change of condition in its first hearing in 2007 it offered no timely evidence.
Claimant was 17-years old when he fell 15-20 feet in a warehouse and fractured his neck and sustained a TBI. Since the accident he worked at an automobile dealership, a cabinet company, and a car leasing company. The original award included life-time benefits that claimant was totally and permanently disabled and included a safety penalty against the employer for all past and ongoing benefits.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
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