Bobbie Strode v. Des Peres Hospital

Fund liability. However the corrected award was issued on June 8, 2006, after employer/insurer submitted its application for review; therefore, the amended award is void. We modify the May 26, 2006 award to correct the error and find that the Second Injury Fund has no liability in this case.

The Commission agrees with the ultimate conclusion reached by the administrative law judge, that employee is permanently and totally disabled as a result of her back condition.

The Commission agrees that appropriate workers' compensation benefits were awarded employee.

The award and decision of Administrative Law Judge Mathew D. Vacca, issued May 26, 2006, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 8^{\text {th }} \qquad$ day of March 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee was permanently and totally disabled.

Permanent and total disability is defined by section 287.020.7 RSMo (2000) 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.

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. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. S.D. 1995) (citations omitted).

Employee resumed work as a nurse five months after her work-related injury, but quit after she was unable to sustain the work. Employee never subsequently sought employment that would have been more in line with the restrictions recommended by Dr. Volarich or Dr. Lange. Employee never attempted work at a light or even sedentary exertional level. This is important to note as employee may be unable to sustain work in the nursing

field, but could still be capable of maintaining work in a less physically demanding profession. In order to be entitled to permanent total disability benefits employee must show that she cannot return to any employment, not just her former work.

Furthermore, I find fault with the administrative law judge's decision with regard to two key issues. The administrative law judge noted in his decision that the employer did not have permanent light duty available; however, that should not have been a determining factor. The key factor is whether employee is employable. The administrative law judge also cited Dr. Lange in support of his finding of permanent total disability; however Dr. Lange opined that although he did not feel employee was capable of her past work, that she was not permanently and totally disabled from all work. Dr. Volarich opined that employee should only consider sedentary or light work in the future but chose to defer to vocational experts to determine whether work was available.

Vocational experts, June Blaine and James England, both opined that employee was employable in the open labor market and the types of jobs presented would allow her to work within the sedentary to light work demands.

Therefore, employee failed to show that she is permanently and totally disabled as a result of her work-related back injury. Accordingly, I would reverse the decision of the administrative law judge.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Alice A. Bartlett, Member