The issue is whether the Commission erred in finding that Ms. Cooper is entitled to temporary total disability payments from April 26, 1994 through August 4, 1994, during which time she was released to work with restrictions. In deciding an appeal of a workers' compensation claim, this court engages in a two-step review process: In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence. Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo. App. 1995). In reviewing the Commission's award, the appellate court cannot substitute its judgment regarding questions of fact for that of the Commission. Id. Because, in this case, the Commission adopted the ALJ's findings and award, the "resulting consistency, especially as concerns credibility determinations, is a powerful factor in favor of upholding the Commission's award on appeal." Id. However, this court is not bound by those findings of the Commission that are clearly the interpretation or application of the law. Id.
The Workers' Compensation Law should be broadly interpreted in a liberal manner in favor of the employee. Minnick v. South Metro Fire Prot. Dist., 926 S.W.2d 906, 909 (Mo. App. 1996). Questions regarding the right of the employee to benefits must be resolved in the injured employee's favor. Id. Additionally, the court should interpret a statute's meaning in such fashion as to "give effect to every section of the statute, and to extend benefits to the largest possible class of workers." Id. However, the claimant in a workers' compensation proceeding has the burden of proving all elements of the claim to a reasonable probability. White v. Henderson Implement Co., 879 S.W.2d 575, 577 (Mo. App. 1994). Therefore, the burden was on Ms. Cooper to prove that she was entitled to temporary total disability benefits for the period from April 26, 1994 through August 4, 1994. Section 287.020.7 defines "total disability" as the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." "Temporary total disability" is a judicial creation that is defined by case law and not by statute. See Herring v. Yellow Freight System, Inc., 914 S.W.2d 816, 820 (Mo. App. 1995). The purpose of temporary disability awards is to cover the employee's healing period. Id. Temporary total disability benefits should be awarded only for the period before the employee can return to work. Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. 1985). Temporary total disability awards are owed until the claimant can find employment or the condition has reached the point of maximum medical progress. Vinson v. Curators of Univ. of Missouri, 822 S.W.2d 504, 508 (Mo. App. 1991). A temporary award is not warranted when further progress is not expected. Phelps v. Jeff Wolk Const. Co., 803 S.W.2d 641, 646 (Mo. App. 1991). In determining whether an employee is totally disabled, the main issue is "whether any employer, in the usual course of business, would reasonably be expected to employ the [employee] in [the employee's] present physical condition." Brookman v. Henry Transp., 924 S.W.2d 286, 290 (Mo. App. 1996). This standard is applied to temporary total disability, as well as permanent total disability. Contrary to the findings of the Commission, this does not mean that an employer is forced to either make light duty available to a claimant or pay temporary total disability benefits simply because the claimant remains under active medical care and there is a reasonable expectation that the employee's functional level might improve. An employer is only obligated for said benefits if the employee could not compete on the open market for employment. On the other hand, we also reject MCI's suggestion that the only issue in determining whether this standard is met is whether the claimant was physically able to perform any type of work, and that if the claimant
can do so, then temporary total disability is unavailable. The ability to perform some work is not the test for temporary total disability. Rather, as just noted, the test is whether the employee is able to compete in the open labor market given the employee's present physical condition. Id. Certainly the ability to perform some work is relevant to this determination, but it is not dispositive. To the contrary, a number of cases have recognized that a claimant can be totally disabled even if able to perform sporadic or light duty work. As we recently stated in Minnick, 926 S.W.2d at 910: Cases in this area specifically state that neither the worker's ability to engage in occasional or light duty work nor the worker's good fortune in obtaining work other than through competition on the open labor market should disqualify the worker from receiving . . . total disability benefits under Workers' Compensation Law. See e.g., Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849 (Mo. App. 1995) (claimant who did household repair work, lawnmowing, and automotive repair was entitled to total disability benefits because he did such activities at his own pace and with the assistance of others); Brookman v. Henry Transportation, 924 S.W.2d 286 (Mo. App. E.D. 1996) (mechanic who was not capable of doing his normal job nor competing on open job market but who was released to do light work after falling from ladder and whose condition was expected to improve was entitled to temporary total benefits, despite fact that, because of economic necessity, claimant swept floors for two weeks, did remodelling work for four weeks and worked as a telemarketer for three weeks). Id. (footnote omitted). Therefore, the fact that a claimant was capable of, but did not seek, sporadic or light duty work, would not in itself disqualify the claimant from receiving temporary total disability benefits. A nonexclusive list of other factors relevant to a claimant's employability on the open market includes the anticipated length of time until the claimant's condition has reached the point of maximum medical progress, the nature of the continuing course of treatment, and whether there is a reasonable expectation that the claimant will return to the claimant's former employment. Viewing the evidence in the light most favorable to the award, the evidence supports the Commission's finding that Ms. Cooper was entitled to temporary total disability benefits from April 26, 1994 through August 4,
- During this time, Ms. Cooper remained under Dr. Karges' care. Although Dr. Karges cleared Ms. Cooper
for light duty work on April 5, 1994, she had restrictions on the amount she could lift to her waist and over her head, which prevented her from returning to her job as an obstetric technician. Dr. Karges continued to devise a treatment plan for her that included pain medication, antidepressants and various methods of therapy and exercise. The specific relevant facts found by the ALJ, and adopted by the Commission, are as follows: When the claimant saw Dr. Karges on April 5, 1994, he referred her for a follow up rheumatological evaluation. It was Dr. Karges' opinion that if she had an underlying connective tissue disorder or rheumatological problem, her prognosis for gaining more function would not be good. . . . Although Dr. Karges indicated in April of 1994 that treatment modalities were limited at this point in time, he still wanted to try specific trigger point injections with anesthetic only if the
rheumatological evaluation was normal. . . . The rheumatological evaluation was done after April 5, 1994, and showed no abnormalities. During the July 6, 1994, visit, Dr. Karges and the patient elected to proceed with a trial of trigger point injection therapy, and one trigger point injection was given on July 6, 1994. Dr. Karges ordered that the claimant have three sessions of myofascial detriggering therapy and limbering exercises and kept her on medication. He made a follow-up appointment for her at the completion of her physical therapy. . . . When the claimant returned for a follow-up visit on July 19, 1994, Dr. Karges found no positive response to the trigger point injections and, therefore, did not continue that modality of treatment. He was concerned at this point that they were dealing with a "chronic soft tissue pain problem" and recommended a TENS unit. He also continued the anti-inflammatory and antidepressant medication. The claimant was instructed to return for a follow-up visit on August 4. The claimant did indicate upon her return visit on the [sic] August 4, 1994, that she had some temporary improvement with her pain immediately following short usages of the TENS unit. Her physical exam, however, was much the same as it had been. It was Dr. Karges' opinion at that time, on August 4, 1994, that the claimant had reached the maximum medical improvement and that they "had exhausted the routine medical interventions at that point." (References to exhibits omitted). As is evident, Ms. Cooper was actively involved in an evolving course of treatment with Dr. Karges and needed to be available for appointments with Dr. Karges and for therapy. Further, Ms. Cooper remained employed by MCI with an intention of returning to work there. The question is whether, from this evidence, it was reasonable to infer that no employer would have been reasonably expected to hire Ms. Cooper under the circumstances which existed from April 26, 1994, through August 4, 1994. Although the evidence is purely circumstantial, "the existence of only circumstantial evidence on a material issue is no bar to recovery of and by itself." Vaughn v. Taft Broadcasting Co., 708 S.W.2d 656, 661 (Mo. banc 1986). But, "[t]he circumstantial evidence must establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn." Id. A significant fact in judging the reasonableness of the inference that a claimant would not be hired is the anticipated length of time until the claimant's condition has reached the point of maximum medical progress. If the period is very short, then it would always be reasonable to infer that a claimant could not compete on the open market. If the period is quite long, then it would never be reasonable to make such an inference. Here, the period of three to four months is within the middle ground, where the decision involves the exercise of discretion.(FN4) This court finds that, under the evidence, it was not an abuse of discretion for the Commission to find that it was reasonable and probable that Ms. Cooper was unable to obtain temporary employment on the open labor market when she was under duty restrictions, recuperating from a work-related injury, under active medical treatment, and had the intention to return to her former occupation. With this inference, there was substantial evidence to support the Commission's finding that Ms. Cooper was entitled to temporary total disability benefits. Having found that there is competent and substantial evidence to support the award, the second step in
the review is to consider all the evidence in the record, including that which is unfavorable to the award, to determine whether the award is against the overwhelming weight of the evidence. Davis, 903 S.W.2d at 557. MCI's argument under the first step of the review under Davis was based on its claimed lack of evidence that Ms. Cooper was unable to any employment elsewhere. Its argument under the second step of the review is very similar. MCI asserts that even though Ms. Cooper may have reached the point of maximum medical progress on August 4, 1994, Dr. Karges released her to light duty work on April 5, 1994. Although MCI did not have any light duty work available for Ms. Cooper during this period, it did not have a duty to provide her with light duty work. Thus, MCI contends that because section 287.020.7 defines "total disability" as the inability to return to any employment, and there was no evidence that Ms. Cooper tried to obtain light duty work elsewhere, she is not entitled to temporary total disability benefits. In our resolution of the first prong of the Davis test, we found that there was substantial evidence, albeit circumstantial, to support the Commission's award. Here, when we consider all the evidence in the record, we find there is no overwhelming evidence which would compel a contrary result. The fact that Dr. Karges cleared Ms. Cooper for light duty work during the period in question does not overwhelmingly outweigh the evidence supporting the finding that she was entitled to temporary total disability benefits. Ms. Cooper had restrictions on the amount she could lift, she was actively undergoing medical treatment in which further progress was expected, and she had every intention of returning to her job at MCI as an obstetric technician. There is a reasonable inference from this evidence that no employer would have been reasonably expected to hire her and, thus, she was unable to compete in the open job market. Because the Commission's award was supported by substantial and competent evidence, and was not against the overwhelming weight of the evidence, its decision granting Ms. Cooper temporary total disability benefits for the period from April 26, 1994 through August 4, 1994 is affirmed. Footnotes: FN1. All statutory references are to the Revised Statutes of Missouri 1994. FN2. TENS is an acronym for transcutaneous electrical nerve stimulation. Dorland's Illustrated Medical Dictionary 1668 (28th ed. 1994). FN3. MCI argues in its brief that that no temporary total disability payments should have been paid after April 5,
- However, MCI did not make a claim before the ALJ or the Commission for credit for benefits it paid from
April 5, 1994 through April 25, 1994. Because it did not raise this issue before the Commission, MCI is precluded from raising this issue on appeal. Vinson v. Curators of Univ. of Missouri, 822 S.W.2d 504, 508 (Mo. App. 1991). FN4. An employee would be wise to avoid dependence upon an inference by presenting evidence of the employee's efforts to obtain employment when released to light duty or expert testimony concerning the likelihood of obtaining employment on the open labor market under the employee's circumstances.
Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.