Dennis Dugan v. Lowe's

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. 1995) (citations omitted).

Employee's medical expert, Dr. Cohen, gave employee an 80\% permanent partial disability rating of the left knee and opined that employee was not capable of gainful employment. However, Dr. Cohen admitted that he was not qualified as a vocational expert and would defer to such an expert to determine whether employee was employable in the open labor market.

Dr. Kriegshauser, employee's treating doctor, believes that employee is employable in the open labor market. He gave employee 50 % permanent partial disability rating of the left knee. The only restrictions he placed on employee were to refrain from squatting, kneeling or climbing. Based on this, Dr. Kriegshauser is of the opinion that employee can perform sedentary work. Clearly, as employee's treating physician, Dr. Kriegshauser's opinion is extremely credible and reliable.

Mr. Weimholt testified as employer's vocational expert. He testified that employee is computer literate and capable of learning complex skills based on employee's previous work as a pilot. He also believes that employee has very strong verbal and language abilities. When taking into consideration the limitations placed on employee by Dr. Cohen and Dr. Kriegshauser, Mr. Weimholt believes that employee is employable in the open labor market in a sedentary position, such as a customer service or office position where he was sitting approximately two thirds of the time.

Even employee's vocational expert, Mr. England, felt that employee could work at a sedentary level. He believed that employee was likeable, sharp and had the ability to pick-up new tasks. He also testified that employee tested adequately in math, reading, problem solving and vocabulary skills for jobs in the open labor market, and that employee has a wide variety of job skills based on his prior work history.

Furthermore, Mr. England's opinion took into consideration the effects that employee's esophageal cancer had in causing employee to appear thin and frail. He believed that such an appearance would be a factor in a prospective employer's decision of whether or not to hire employee. Employee was not diagnosed with esophageal cancer until October 2003, well after his March 1, 2002, work injury. Therefore, employee's esophageal cancer and its effects should not have been a factor in determining his disability and should not have been considered by Mr. England in formulating his opinion. However, even when improperly taking those effects into consideration, Mr. England still felt employee could work in a sedentary position.

The record also shows that after his work injury, employee was prepared to return and work for employer in a customer service/operator position. However, for reasons unrelated to his physical capabilities, employee was not given that job. The jobs that he did apply for after his work injury, such as a greeter at Wal-Mart, are clearly not sedentary, and therefore not the type of job employee is qualified for.

Based on all of the above, I do not believe employee to be permanently and totally disabled. It is clear that employee is able to work in a sedentary position of employment. This is especially true considering employee was ready to return to work for employer in a customer service position after his injury. As such, I would not award employee permanent total disability benefits. However, I do believe that employee's work related injury resulted in 60 % permanent partial disability of his left knee.

Therefore, employee failed to show that he is permanently and totally disabled as a result of his work-related knee

injury. Accordingly, I would reverse the decision of the administrative law judge and award employee benefits for his work related injury which resulted in 60 % permanent partial disability of his left knee.

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

Alice A. Bartlett, Member

Employee: Dennis S. Dugan

Injury No.: 02-020762

Dependents: N/A

Employer: Lowe's

Compensation

Department of Labor and Industrial

Additional Party:

N/A Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured

Hearing Date:

January 29, 2007 Checked by: JED:tr

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 1, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Mo.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Future requirements awarded: Yes (See narrative Award)

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ronald J. Wuebbeling

This case involves a severe left leg injury resulting to Claimant with a reported accident date of March 1, 2002. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is not a party to this Claim.

Issues for Trial

1. Occurrence of an accident;
2. whether injury arose out of and in the course of employment;
3. future medical expenses (post MMI);
4. nature and extent of Permanent disability (alleged PTD).

Claimant, age 57, graduated high school in 1968. He was drafted by the Army and served as a helicopter mechanic (and pilot) in Vietnam and Korea. He received an honorable discharge in 1977. He worked as a warehouseman for Shell Oil from 1978 through 1993 when he exercised an early retirement option. While at Shell Oil he operated forklifts and other equipment and trucks. He worked for Central Hardware for seven months. His wife was able to get him a job with Act Media, an advertising company, which later became News America Marketing and then Field Marketing Management. His employment with these companies lasted from approximately 1994 through 2000 and required that he travel from store to store in up to a five state region. He would drive up to 2,000 miles every two weeks. Claimant also worked for Huffy for one year where he assembled and repaired equipment for various different companies. Claimant had also previously worked for Employer’s as a seasonal employee.

Claimant returned to work for Employer in February of 2002. He was hired as a Sales Representative and

his duties included stocking and assisting customers on the floor. He was paid $\ 10.30 per hour and worked between 33 to 37 hours per week. He worked at the Employer's located in Fenton, Missouri. On March 1, 2002 at approximately 2:00PM Claimant and a co-worker had lifted a push mower and placed it on a display that was about $41 / 2$ feet above the floor. After lifting the mower, he stepped back and turned to go down the aisle to do additional work in a different area of the store. As he stepped back and turned, his left knee buckled and he fell to the ground. The store manager then transported Claimant to Concentra.

Claimant was treated at Concentra on March 1, 2002 and was diagnosed with a severe left knee injury. He was given crutches, a