Stancie Molder v. Bank of America

Two physicians and one vocational expert are of the opinion that employee cannot work in the open labor market. All three experts believe employee is unemployable due to a combination of her preexisting disabilities with her primary injuries. The Second Injury Fund offered no expert evidence to rebut employee's experts.

Dr. Koprivica testified that he believes employee cannot access the open labor market and that it is unrealistic to believe that any ordinary employer could accommodate the restrictions that are necessary from employee's numerous disabilities. Dr. Koprivica attributed employee's permanent total disability to a combination of her preexisting disabilities and her primary injuries. Dr. Koprivica was of the opinion that employee's primary injuries combined with her preexisting disabilities to result in a greater disability than their simple sum. Due to the primary injuries, Dr. Koprivica would restrict employee from repetitive hand use activities, including extensive typing, repetitive pinching, and repetitive grasping. He advised that employee should avoid repetitive wrist flexion/extension or ulnar deviation of the wrist, as well as exposure of her upper extremities to vibration. Dr. Koprivica specifically opined that he does not believe employee is permanently and totally disabled if he considers only the disability resultant from the primary injury.

Dr. Koprivica explained that at the time employee experienced the cumulative trauma to her wrists, she was operating under multiple physical restrictions due to her preexisting injuries. In particular, Dr. Koprivica would restrict employee from: constant bending at the waist, pushing, pulling, twisting, squatting, crawling, kneeling, climbing, sustained awkward postures of the lumbar spine, activities above the shoulder girdle, and repetitive pushing or pulling activities using her right shoulder. Further, Dr. Koprivica would limit employee to one hour or less of captive standing or walking with the option to sit. Those preexisting restrictions had already limited employee to performing seated work. After the primary injury limited employee's ability to use her hands, she could no longer perform even seated work.

Dr. Stuckmeyer examined employee. Based upon her global orthopedic problem, with cervical, right shoulder, lumbar, and bilateral wrists and elbows, Dr. Stuckmeyer recommended that employee observe the following limitations: no repetitive pushing, pulling, lifting or reaching with the upper extremities, no lifting greater than 5 to 10 pounds overhead on an occasional basis, no lifting greater than 5 to 10 pounds from waist to shoulder, no prolonged standing, no prolonged walking, no repetitive traversing of steps, no ladder climbing, no repetitive bending, and no repetitive torsional stresses. Dr. Stuckmeyer believed employee's primary injuries combined with her preexisting disabilities to result in a greater disability than the simple sum. Dr. Stuckmeyer testified he would defer to a vocational expert's opinion regarding whether there are employment opportunities for employee. If the vocational expert believes there are none, Dr. Stuckmeyer believes employee is permanently and totally disabled.

Mr. Bud Langston testified as a vocational expert for employee. Mr. Langston testified that employee is unemployable in the open labor market. In reaching his conclusion, Mr. Langston considered the physical restrictions imposed by Dr. Koprivica and Dr. Stuckmeyer, as well as, employee's age, education, training, and her capacity for rehabilitation and re-education. Based upon these considerations, Mr. Langston does

not believe that any reasonable employer in the usual course of business would hire employee in an open labor market position.

The administrative law judge misapplied the law to reach her conclusion that employee is not permanently and totally disabled.

The test for permanent total disability is whether, given the employee's situation and condition, he or she is qualified to compete in the open job market. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App. 2001). "The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired." Id. at 884.

Houston v. Roadway Express, Inc., 133 S.W.3d 173, 178 (Mo. App. 2004)

The administrative law judge addressed the issue of permanent total disability in the following manner: Is employee able to work? The administrative law judge found:

Ms. Molder is, in fact, working in the open labor market on a part-time basis and has been doing so since shortly after retiring from Bank of America. In Jason Rector v. Gary's Heating and Cooling and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 293 S.W. 3d 143 (Mo. Ct. App. S.D. 2009), the employee injured himself in 2004, went back to his place of employment and performed work on a part-time basis, was accommodated by the employer and was taking high doses of narcotic pain medication during the day. The employee then injured himself again on the job in 2005. The administrative law judge found that the employee was "able to work" following the 2004 injury and the combination of the 2004 and 2005 injuries rendered the employee permanently and totally disabled. The Court of Appeals affirmed the findings of the administrative law judge.

Given the part-time accommodated work that the employee was performing in the Rector case, the Court essentially found the employee to be employable on the open labor market prior to his 2005 work injury.

The same application can be made in this case. Ms. Molder is currently performing work on the open labor market, albeit part time, thus she must be considered employable on the open labor market.

The administrative law judge oversimplifies the Rector Court's reasoning. After reviewing the evidence, the Court found that the Commission's conclusion that Mr. Rector was not permanently and totally disabled was supported by the evidence. That evidence included the opinions of two medical experts, as well as, evidence that Mr. Rector was able to return to work on a regular basis (albeit not always for forty hours a week).

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By contrast, employee sporadically performs part-time work for Burch Automotive on an as-needed basis. Employee works zero to twenty hours a week. Employee has the option of not reporting to work if she is having a bad day. Burch Automotive accommodates employee by allowing employee to alternate between sitting, standing, and reclining to elevate her feet so long as there are no customers present. This irregular work is not employment in the open labor market.

More importantly, the uncontradicted opinions of three credible experts are in agreement that no reasonable employer could be expected to hire employee in her current condition.

Based upon this uncontradicted evidence, we find that employee is permanently and totally disabled due to a combination of her primary injury and her preexisting disabilities.

Employee is entitled to permanent total disability benefits from the Second Injury Fund. For the period April 10, 2008, through March 25, 2009, the Second Injury Fund owes to employee the weekly amount of $\ 54.19, for a total of $\ 2709.50 ( $\$ 54.19 \times 50 weeks). Thereafter, the Second Injury Fund shall pay to employee a benefit of \ 290.29 weekly for her lifetime, or until modified by law.

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.

The award and decision of Chief Administrative Law Judge Paula McKeon, issued December 22, 2009, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Stancie Molder

Injury No. 02-103900

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employers: Bank of America

Additional Party: Missouri Treasurer as Custodian for the Second Injury Fund

Insurers: American Home Assurance c/o AIG Domestic Claims

Hearing Date: November 4, 2009

Checked by: PAM/pd

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: September 25, 2002
5. State location where accident occurred or occupational disease was contracted: Kansas City, Clay County, Missouri
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
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Ms. Molder, during the