Michael Onder v. St. Louis County

Employee also provided expert testimony from James Israel, a vocational rehabilitation counselor, who reviewed employee's medical records, administered achievement and skills testing, reviewed employee's employment history, identified transferable skills, and considered whether jobs could be found for employee in the open labor market, given the physical restrictions imposed by Dr. Musich. Mr. Israel ultimately opined that employee is permanently and totally disabled as a result of a combination of the primary injury and his preexisting disabling conditions.

Section 287.020.6 RSMo provides as follows: "The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The Missouri courts have identified the following test for permanent total disability:

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.

Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011)(citation omitted).

When the question is the nature and extent of permanent disability, the courts have consistently stated that the "degree of disability is not solely a medical question." ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

Elliott v. Kan. City School Dist., 71 S.W.3d 652, 657 (Mo. App. 2002)(citation omitted).

We note that the legislature, in 2005, did not abrogate the foregoing case law principles setting forth the test for permanent total disability and making clear that the question of employability is not solely a medical question. Nor did the legislature take any steps to narrow or restrict the well-established "special province" of the Commission to determine the nature and extent of permanent disability.

A proper analysis of employability requires not only the expert medical identification of disability and limitations but also consideration of issues such as job requirements, job availability, transferable skills, and prospects for retraining. In many (and perhaps most) cases, physicians do not possess the training, experience, or access to information

Injury No.: 09-035715

Employee: Michael Onder

- 3 -

necessary to render competent opinions regarding an injured worker's prospects for returning to any employment. We interpret § 287.190.6(2) to require that expert vocational opinions, and decisions from administrative law judges and this Commission, be fully supported by credible, competent, expert medical testimony.

We do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker's employability, cannot be supplemented (or refuted) by other expert testimony. We believe, and so hold, that the Commission maintains the authority to review evidence in the record in its entirety and to draw reasonable inferences therefrom.

For the foregoing reasons, and because we agree with the administrative law judge that the testimony from Dr. Musich and Mr. Israel in this matter is persuasive, we affirm the award of permanent total disability benefits against the Second Injury Fund.

We note in closing that we have addressed nearly identical arguments before. See, e.g., *Pamela Simpson*, Injury No. 07-095109 (LIRC, May 26, 2011). In the absence of any instructive decisions from the Missouri courts on the topic, the policy of the Commission remains unchanged with respect to application of the 2005 amendments to § 287.190.6(2) RSMo.

**Conclusion**

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued March 30, 2012, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 19th day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Michael Onder

Injury No.: 09-035715

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Injury to a

Employer: St. Louis County (previously settled)

Divisions of Workers'

Compensation

Department of Labor and Industrial

Relationships of

Injury Fund (SIF)

Relationships of Missouri

Jefferson City, Missouri

Insurer: Self (previously settled)

Hearing Date: January 10, 2012

Checked by: KMH

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: on or about May 7, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant developed bilateral carpal tunnel syndrome as a result of repetitive work.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: right and left hands and wrists
14. Nature and extent of any permanent disability: 17.5 % each wrist
15. Compensation paid to-date for temporary disability: $\ 707.60
16. Value necessary medical aid paid to date by employer/insurer? $\ 13,568.36

Employee: Michael Onder

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 619.20 / \ 404.66
4. Method wages computation: Stipulation

1. Amount of compensation payable:

61.25 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Indeterminate weekly differential $\ 214.54 payable by SIF for 61.25 weeks beginning September 24, 2009, and thereafter, $\ 619.20 weekly for Claimant's lifetime

TOTAL:

INDETERMINATE

1. Future requirements awarded: none

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:

Employee: Michael Onder

Departments: $\mathrm{n} / \mathrm{a}$

Employer: St. Louis County (previously settled)

Additional Party: SIF (Only)

Insurer: self (previously settled)

Injury No.: 09-035715

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter January 10, 2012. Michael Onder (Claimant) was represented by attorney Andrew Weigley. The SIF was represented by Assistant Attorney General Todd Metheny. Claimant and Employer/Insurer previously settled the primary claim in this matter.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

Claimant alleges he is permanently and totally disabled as a result of the combination of his disabilities.

The parties stipulated to the following:

1. Claimant sustained an injury by occupational disease while in the course and scope of his employment in St. Louis.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was self-insured.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's rates are $\ 619.20 for TTD and PTD, and $\ 404.66 for PPD.
6. Employer paid $11 / 7 weeks of TTD, or \ 707.60, and $\ 13,568.36 in medical ben