Rusty Archer v. City of Cameron

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007, unless otherwise indicated.

The first question we must answer in our review of both awards is this: What is the nature and extent of the disability employee sustained as a result of the 2008 injury, considered in isolation? As will be explained below, we conclude employee was rendered permanently and totally disabled by his January 16, 2008, injury.

Contemporaneously with our issuance of this award, we are issuing our award reversing the administrative law judge's award of permanent total disability benefits against the Second Injury Fund in Injury No. 10-075527.

The administrative law judge has accurately summarized the evidence presented in this matter. We adopt her findings thereon except as modified and supplemented herein.

"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 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. ${ }^{3}$

Both Dr. Stuckmeyer and Mr. Dreiling opined that employee was rendered permanently and totally disabled by the 2008 injury. The administrative law judge disregarded both opinions. The administrative law judge faulted each opinion because the administrative law judge believed employee "worked in the open labor market laying concrete from 2008 up to September 16, 2010." We disagree with the characterization of employee's job as "in the open labor market." Employee's position was not in the open labor market - employee occupied the job.

More importantly, employee's return to his job after his 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 his position in February 2007 when he 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

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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).

worker to his 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 cost-effective 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.

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 his physical condition as it existed as of the time his disability became permanent, and expect the injured worker to perform the duties in the manner in which they are customarily performed.

When employee returned to work for employer after the 2008 injury, employer accommodated employee's restrictions. Employee's co-workers helped him "a lot" with duties he performed on his own before the 2008 injury. Employee had to take frequent breaks during the work day in an effort to alleviate his pain. Employee missed work frequently. Employee would have been unable to return to work without accommodation and assistance. We find that during employee's return to work, employee was not performing the usual duties of his employment in the manner that such duties are customarily performed by the average person engaged in such work. Consequently, employee's return to work did not constitute proof that employee could compete for work in the open labor market. The administrative law judge's finding to the contrary was in error as was her determination to disregard the opinions of Dr. Stuckmeyer and Mr. Dreiling on that basis.

The overwhelming weight of the evidence favors a finding that employee was rendered permanently and totally disabled by the effects of the 2008 injury, considered in isolation.

In Dr. Stuckmeyer's opinion, employee sustained the following permanent disabilities as a result of the 2008 accident: 15% permanent partial disability of the body as a whole referable to the cervical spine, 10% permanent partial disability of the body as a whole referable to the thoracic spine, and 15% permanent partial disability of the body as a whole referable to the lumbar spine. In light of those permanent disabilities, Dr. Stuckmeyer believes that going forward employee should observe and/or will be constrained by the following permanent physical restrictions and limitations: no lifting greater than 30-35 pounds, occasionally, and no overhead lifting greater than 20-25 pounds, occasionally. Dr. Stuckmeyer reviewed voluminous medical records regarding employee's work injury. On February 9, 2011, Dr. Stuckmeyer conducted a physical examination of employee. Upon discussing employee's medical history and then-current complaints, Dr. Stuckmeyer concluded that employee's pain increased after the 2010 accident, but that by the time of the February 2011 examination, employee had "essentially returned to baseline in regard to his spinal complaints." It is Dr. Stuckmeyer's opinion that employee's 2010 injury did not

cause the need for any additional physical restrictions and did not result in any additional physical limitations. Dr. Stuckmeyer testified that employee has no impairment associated with his 2010 work injury. Dr. Stuckmeyer believes employee was at maximum medical improvement by the time Dr. Stuckmeyer examined employee on February 9, 2011. After considering Mr. Dreiling's opinion about the vocational impact of employee's disabilities, Dr. Stuckmeyer formed the opinion that employee is permanently and totally disabled as a result of the January 16, 2008, accident.

Dr. Wheeler first examined employee on June 4, 2008. Dr. Wheeler believes employee reached maximum medical improvement as of September 4, 2008. In Dr. Wheeler's opinion, employee sustained an 8% permanent partial disability of the body as a whole as a result of the January 2008 accident. Dr. Wheeler believes that going forward employee should observe and/or will be constrained by the following permanent physical restrictions and limitations: no lifting over 70 pounds, no overhead lifting over 40 pounds, and only occasional bending and reaching. Dr. Wheeler examined employee again on October 10, 2012. Dr. Wheeler reviewed medical records covering the period since she last examined employee. She was unable to identify any additional disability caused by the 2010 injury.

Treating physician Dr. Middleton examined employee multiple times between February 2010 and December 2012. Dr. Middleton testified that across that period - which the careful reader will note straddles the date of the 2010 injury - employee's physical examination stayed essentially the same.

We accept the unanimous opinion of the medical experts that employee sustained no new disability as a result of the 2010 injury. We find that employee reached maximum medical improvement as of September 4, 2008, as opined by Dr. Wheeler.

Both vocational experts who testified in this matter - Michael Dreiling and James England - believe that employee is permanently and totally disabled.

Mr. Dreiling considered employee's physical restr