Michael Bennett v. Schneider Electric Company

the portion of the award and decision of the majority of the Commission denying permanent total disability benefits and limiting the award of attorney fees. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified to award to employee permanent total disability benefits against the Second Injury Fund and to remove the attorney fee limit.

The administrative law judge correctly found that the employee suffered preexisting conditions that were a hindrance or obstacle to employment and that those conditions combined synergistically with the primary injury to cause a greater overall disability than the simple sum of the disabilities. Accordingly, the administrative law judge awarded permanent partial disability against the Second Injury Fund. The administrative law judge erred in not finding that employee was permanently and totally disabled.

[T]he term "total disability" is "defined 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." "It does not require that the claimant be completely inactive or inert."

"To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition."

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. 2003)(citations omitted).

The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Total disability means the "inability to return to any reasonable or normal employment."

Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. 1995)(citations omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).

The determination of whether plaintiff was totally and permanently disabled was a question of fact for the Commission. The Commission does not have to make its decision only upon testimony from physicians, it can make its findings from the entire evidence.

Cochran v. Industrial Fuels \& Resources, Inc., 995 S.W.2d 489, 497 (Mo. App. 1999)(citations omitted).

My review of the entire record reveals: Immediately before the primary injury herein employee was missing the tips of two fingers on his left hand; employee suffered from diabetes, and diabetes-related neuropathy and retinopathy; and, employee suffered some hearing loss. It is undisputed that employee suffered a work-related injury and the work-relatedness of the primary injury was not an issue for trial. As a result of the primary injury, employee's left leg was amputated below the knee. Employee testified regarding his many restrictions. The combination of employee's left leg amputation with the lack of sensation in his right leg creates balance difficulties for employee. He cannot sit, stand, or drive for extended periods. He has difficulty tolerating car rides. He has trouble typing. He cannot perform medium or heavy lifting. Employee's post-secondary education is limited to technical training as an electrician.

Employee testified that he has been unable to find employment in his physical condition. Dr. Lichtenfeld, who practices occupational medicine, testified that employee is unable to compete in the open labor market. Dr. Lichtenfeld is the only expert to offer testimony in this matter. Dr. Lichtenfeld testified that the combination of employee's primary injury with his preexisting disabilities rendered employee permanently and totally disabled. The Second Injury Fund offered no evidence to rebut the testimony of employee and Dr. Lichtenfeld. I find both employee and Dr. Lichtenfeld to be very credible.

Based upon my review of all the evidence, I find employee has shown that he is unable to compete in the open labor market and that no employer would reasonably be expected to hire employee in his present physical condition. I conclude that employee is permanently and totally disabled due to the combination of his primary injury with his preexisting conditions.

Apparently, the administrative law judge was unsatisfied with the Second Injury Fund's failure to rebut employee's proof. The administrative law judge went to great lengths to criticize the testimonial performance of Dr. Lichtenfeld. The administrative law judge should consider the evidence as presented by the parties and their counsel, not belatedly supply objections for a party where the party's counsel failed to object. The administrative law judge is certainly entitled to determine issues of credibility, but the supplying of objections on behalf of one party after the record is closed deprives the proffering party of the opportunity to respond and suggests a bias on the part of the fact-finder.

The administrative law judge's attack on Dr. Lichtenfeld was completely unwarranted. The administrative law judge criticized two of Dr. Lichtenfeld's responses as exceeding the questioning. Second Injury Fund counsel raised no objection to the responses. The administrative law judge criticized as non-responsive Dr. Lichtenfeld's answer, "I'm not sure," to a question regarding whether he saw restrictions in the medical records. Counsel for the Second Injury Fund raised no objection. Counsel for the Second Injury Fund had opportunity to clarify the response through follow-up questions. The administrative law judge's expectation that the non-lawyer witness be familiar with the rules of evidence and the burdens of proof such that he conforms his testimony to them is unreasonable.

The administrative law judge criticized as inexplicable Dr. Lichtenfeld's testimony that employee was not capable of performing keyboard work in a speedy manner because Dr. Lichtenfeld's "detailed history" did not contain employee's keyboard work. This criticism is unfounded for several reasons. First, Second Injury Fund counsel raised no objection and had opportunity to clarify the response through follow-up questions, if she so desired. Second, it is axiomatic that a person missing portions of two fingers on one hand and suffering from a disability of the long finger on the other hand would not perform keyboarding as efficiently and effectively as a person with a full complement of unimpaired digits. Finally, Dr. Lichtenfeld's report describes the history employee provided to Dr. Lichtenfeld regarding his finger amputations:

The patient stated that he has difficulty gripping and grasping items with his left hand. He frequently drops things. He stated that he has a poor ability to perform fine coordinated movements with his left hand. He has difficulty picking up change or turning a key. He also complains of numbness and tingling over his fingertips. The fingertips are very sensitive if he bumps them. They are also sensitive to hot and cold temperatures.

In light of the above history, rather than being "inexplicable," Dr. Lichtenfeld's testimony regarding keyboard work is quite easily explained.

The most ludicrous of the administrative law judge's attacks on Dr. Lichtenfeld is his attack on Dr. Lichtenfeld's inclusion in his report of details regarding the primary injury. The administrative law judge suggests the inclusion of such detail was needless, because the primary injury is no longer at issue. Dr. Lichtenfeld prepared the report in January 2004. Employee and employer/insurer entered into a settlement regarding the primary injury in March 2004. The primary injury was still in issue at the time the report was prepared and Dr. Lichtenfeld's painstaking detail regarding the primary injury was most certainly needed.

The administrative law judge erred in limiting the attorney fee award to employee's counsel to $\ 1,200.00. He bases the fee cap on perceived deficiencies in counsel's performance. As with his criticisms of Dr. Lichtenfeld, the administrative law judge's criticisms of employee's counsel are largely unfounded. The criticisms are primarily based upon counsel's failure to control and/or rehabilitate Dr. Lichtenfeld at deposition. Many of the matters with which the administrative law judge finds fault were matters about which Second Injury Fund counsel raised no objection at deposition. Basically, the administrative law judge points out objections he thinks the Second Injury Fund should have made and then criticizes employee's counsel for failing to cure or respond to them as if they had been made. The administrative law judge's limit on the attorney fee award is unreasonable.

I must make clear I find no fault with the handling of this matter by counsel for the Second Injury Fund. I only point out instances where counsel voiced no objection to highlight how the administrative law judge's decision to raise evidentiary objections after the record was closed deprived this employee of an opportunity to defend his evidence.

I must comment on the deposition of Dr. Lichtenfeld, which has come to the Commission for review with permanent marks throughout. (Claimant's Exhibit B.) I reiterate my previously expressed opinion that the addition of any permanent markings or annotations to documents, records, or depositions after their entry in the official record is inappropriate. Any marking, comment, or annotation added to the official record carries with it the possibility to prejudicing subsequent decision-makers. See Jones v. State Dep't of Public Health \& Welfare, 354 S.W.2d 37, 41 (Mo. App. 1962) ("We cannot assume that the referee's remarks were harmless and without prejudicial effect, since they were present in the record upon which the director made his decision."). If this case is appealed to the Missouri Court of Appeals, I want the appellate judges to know that the markings were not made by any member of this Commission.

Finally, if the administrative law judge made the markings in Dr. Lichtenfeld's deposition, consideration of the markings in conjunction with employee's lost opport