Gladys Gaeke v. Curators of the University of Missouri

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the September 17, 2012, award and decision of the administrative law judge, as modified herein. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

From 1989 through September 2004, employee worked out of her home as a small farm educational assistant for the University of Missouri Extension Services, the employer herein. On August 19, 2003, employee was 73 years old. On that date, employee drove from the home of a client in her pickup truck and pulled onto Highway AA in Webster County. A vehicle estimated to be traveling in excess of 60 miles per hour rear-ended employee's pickup truck. As a result of the accident, employee suffered a burst fracture in her thoracic spine, a closed head injury, and neck pain radiating into her left arm. Employee spent a week in the hospital and two weeks in a rehabilitation facility after the accident. After her release from the rehabilitation facility, employee spent months in rehabilitating on an out-patient basis. Employee injured her left knee while engaged in physical therapy prescribed to help her recover from her work injuries.

Employee filed workers' compensation claims against employer and the Second Injury Fund seeking permanent total disability benefits, among other benefits. After a hearing on the claim, the administrative law judge awarded to employee permanent partial disability benefits from employer. The administrative law judge awarded no benefits from the Second Injury Fund.

Employee filed an Application for Review of the administrative law judge's award alleging the administrative law judge's determination that employee is not permanently and totally disabled is in error.

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2002, unless otherwise indicated.

Employee alleges she is permanently and totally disabled. "Pursuant to section 287.020.6, the term 'total disability' means the 'inability to return to any employment and not merely 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 the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. 'Total disability' does not require the employee to be completely inactive or inert, rather, it means the inability to return to any reasonable or normal employment." ${ }^{2}$ Courts have ruled "inability to return to any employment" means that the employee is unable to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. ${ }^{3}$

The administrative law judge found that "claimant suffered only permanent partial disability from the last accident as [employee] was able to work full time at her job for more than one year after her release from Dr. Lennard. This was a job on the open labor market." We disagree with the characterization of employee's job as "on the open labor market." Employee's position was not in the open labor market - employee occupied the job.

More importantly, employee's return to her job after recovering from her injury is not proof that employee could then compete in the open labor market. "Compete," means, "to seek or strive for something (as a position, possession, reward) for which others are also contending." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 463 (2002). Employee last competed for her position in 1989 when she was hired.

An employer deciding whether to bring its injured worker back to work may be motivated by different factors than an employer filling a vacant position in the open labor market. An injured worker's employer has many potential incentives to return its injured worker to work even if the worker is no longer able to perform all of the duties the job ordinarily entails. An employer may want to return an injured worker to her job to reciprocate for the worker's loyalty to the employer. Or an employer may feel compelled to return an injured worker to her job to foreclose bad feelings that could give rise to legal action arising out of other events in the employment relationship. It may be more costeffective for an employer to put a trained, injured worker back to work in a diminished capacity than it is to hire and train a new worker, even though the new worker has more physical abilities. But in an arms-length recruitment process those same employers would not reasonably be expected to hire candidates who cannot perform all of the duties of the jobs in the manner that such duties are customarily performed by average persons engaged in such employments over candidates who can perform all of the duties of the jobs in the customary manner.

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[^0]: ${ }^{2}$ Underwood v. High Rd. Indus., LLC, 369 S.W.3d 59, 66-67 (Mo. App. 2012)(internal citation omitted).

${ }^{3}$ See, e.g., Kowalski v. M-G Metals \& Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. 1982).

It is for reasons such as those above that the critical question in permanent total disability cases is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker given in her physical condition as it existed as of the time her disability became permanent, and expect the injured worker to perform the duties in the manner in which they are customarily performed.

We affirm the administrative law judge's determination that employee reached maximum medical improvement on May 24, 2004. Consequently, we must answer that critical question considering employee in her physical condition as it existed on May 24, 2004, at a time when she was 74 years of age.

Employee testified about the lingering effects of her work injury. When employee returned to work for employer, employee was often limited to conducting telephone consultations with her clients due to her back pain. On many occasions when employee was feeling well enough to travel to client homes, she had to get a ride to the homes because she was still in too much discomfort to drive. After the work injury, employee was never again able to walk the fields with her clients during consultations. Employee could sometimes drive or ride about a client's property in a vehicle during a consultation. But other times employee was limited to visiting with her clients in their homes about their needs. After the work injury, employee was physically unable to take soil samples. Nor could she demonstrate planting or pruning techniques for her clients. Upon returning from client visits, employee usually had to lie down due to back pain.

Employee's work injury affected far more than her ability to perform her duties for employer. Employee was no longer able to perform many of the chores she previously performed on the farm she owns with her husband.

Employee's daughter testified to her observations regarding her mother's limitations after the work injury. She testified that some days her mother was in such pain that she could not conduct visits to client farms so employee performed telephone consultation. Approximately 25 % of the time employee visited clients employee's husband drove her because employee was not feeling well enough to drive. If employee needed files for client visits, employee's family members had to load them into the vehicle because their weight exceeded employee's lifting restrictions. Employee's daughter observed that employee was relegated to the role of an observer on her visits. Employee's daughter observed that her mother had difficulty recalling information regarding farm matters and had to spend time researching matters about which see had good recall before the work injury.

Employee's daughter confirmed that after the work injury, employee's ability to help husband with farm chores was greatly diminished because she could no longer drive the tractor, lift hay bales, birth calves, or many of the other farm chores. After the work injury, employee was not even able to garden or go shopping.

Dr. Lennard is board certified in physical medicine and rehabilitation, a specialty that deals with the diagnosis and treatment of acute and chronic musculoskeletal and peripheral

nerve disorders. Dr. Lennard initially examined employee on January 16, 2004. He released employee to full duty without restrictions on May 24, 2004, having determined employee was at maximum medical improvement. As of that date, employee reported that she continued to have an ache in her back at the site of her fracture. Examination revealed employee was permanently tender at her fracture site between T10 and T12 in the midline and right. Employee also complained of headaches.

Dr. Lennard's final diagnosis was status post-T11 fracture; closed head injury; cervical strain; and, left knee strain. Dr. Lennard opined that as a result of the work accident employee sustained a 15\% permanent partial disability of the body as a whole referable to the thoracic fracture; 5 % permanent partial disability of the body as a whole referable to the cervical spine strain and resultant neck pain; 5 % permanent partial disability of the left lower extremity at the knee; and, 10 % permanent partial disability of the body as a whole referable to the closed head injury. In reaching his opinions, Dr. Lennard reviewed and considered medical records of treatment related to the work injury and Dr. Choe's report of February 12, 2003.

Dr. Paul examined employee for the purpose of rendering his expert medical opinions. Dr. Paul recommended several physical restrictions to which employee should adhere in light of the medical conditions resultant from the August 19, 2003, accident. Dr. Paul recommends the following restrictions on employee's physical activities solely due to the effects of the work injury

- never lift over 10 pounds (lumbar)

- limit lifting to 10 pounds occasionally, no more than 2-1/2 hours in an eight-hour workday (lumbar);

- limit sitting to one-hour increments, no more than four hours in an eight-hour day (lumbar);

- change positions every 30 to 60 minutes (lumbar);

- avoid holding head in fixed position for greater than 30 minutes without a 5minute break (cervical spine);

- avoid repetitive use of neck in full extension or full flexion (cervical spine);

- avoid use of left shoulder for excessive overhead work (elbow);

- avoid lifting over 30 pounds with left arm from waist to shoulder (elbow);

- avoid repetitive use of left arm for tasks away from body (elbow);

In addition to the above restrictions, Dr. Paul identified other limitations employee experiences as a result of her work injury. He opined employee should avoid climbing, balance work, stooping, bending, kneeling, crouching, and crawling. Employee should also limit reaching and handling. Dr. Paul indicated that employee should periodically recline during the day to reduce pai