| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Wolfgang Kaschner |
| Employer: | Schlueter Painting Co. |
| Insurer: | Acuity Mutual Insurance Company |
| This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. 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. |
| Preliminaries |
| The parties asked the administrative law judge to resolve the following issues: (1) whether employer is liable for temporary total disability and temporary partial disability benefits from October 1, 2011, through February 29, 2012; (2) whether employer is liable for permanent partial disability benefits; and (3) whether employer is liable for permanent total disability benefits.The administrative law judge rendered the following findings and conclusions: (1) employer is not liable for permanent total disability benefits; (2) employer is liable for 139.2 weeks of permanent partial disability benefits; and (3) employee did not prove entitlement to temporary total or temporary partial disability benefits.Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in finding employer is not liable for permanent total disability benefits; and (2) in applying § 490.065 RSMo as to the issue whether employee’s witness, Michael Wilcox, should be considered an expert witness.On October 14, 2013, the Commission received a Motion to Submit Additional Evidence filed by employee. On December 17, 2013, the Commission denied employee’s Motion to Submit Additional Evidence.For the reasons stated below, we modify the award of the administrative law judge as to the issue of the nature and extent of disability employee suffered as a result of the work injury. |
| Discussion |
| Nature and extent of disability resulting from the work injury |
| The administrative law judge found that, as a result of the work injury, employee sustained a 60% permanent partial disability of the right shoulder, and did not suffer permanent total disability. In so finding, the administrative law judge speculated that employee may be permanently and totally disabled owing to a combination of the effects of the work injury with employee’s preexisting conditions of ill-being, or possibly |
Owing to post-accident worsening of employee's condition. For the following reasons, we disagree with the administrative law judge's determinations as to this issue.
While this case has been marked by significant confusion and errors on the part of rating and evaluating experts for both parties (such as Dr. Pelikan's report incorrectly suggesting employee's injury affected his left upper extremity and Mr. Dolan's report referencing an individual named Mr. Butler rather than the employee in this matter) there is no confusion or dispute with regard to the following facts.
As of July 31, 2010, the date of the work injury, employee was a 56-year-old high school graduate with some experience as a tile setter's helper but with a vocational history otherwise limited entirely to work as a painter. As a result of the July 2010 accident, wherein employee fell off a work bench and down a staircase, employee suffered a severe comminuted bone fracture injury to his dominant right upper extremity which ultimately necessitated three surgeries, including a partial shoulder replacement. The course of employee's treatment also required the removal of all of his teeth, because the authorized treating surgeon, Dr. Nogalski, determined that employee's dental issues posed an increased risk of infection. Upon releasing employee from his care, Dr. Nogalski identified a severely reduced range of motion of the right shoulder, and opined that employee is permanently restricted from lifting more than 5 pounds and cannot use his right arm at all above chest height as a result of the work injury. Employee requires the use of pain medications to relieve ongoing pain in his shoulder, and must take antibiotics three times a day for the rest of his life in order to prevent further infections.
Employee credibly testified regarding the effects of the work injury; from this evidence we find as follows. Employee has tried to learn to use his non-dominant left hand to perform the tasks of everyday life, but has experienced considerable difficulty with activities such as shaving. Employee is unable to drive because he can't use his right arm to operate even an automatic transmission. As a result of the removal of all of his teeth, employee must now wear dentures, but employee prefers not to wear them because he is unable to get used to having them in his mouth. As of September 30, 2011, the date employee reached maximum medical improvement, he was 57 years of age. After his release from medical treatment for the work injury, employee attempted to return to work performing light duty tasks on a part-time basis for his former employer, but was unable to continue owing to an inability to use his right upper extremity effectively, and he has never returned to full-duty work. Employee believes no other employer would have hired him to perform such work, because he worked so slowly owing to his right shoulder injury. Employee feels that the right shoulder injury has rendered him unable to perform any work. Employee receives Social Security disability payments as his sole source of income.
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).
The question presently before us is whether a 57-year-old man with little effective use of his dominant upper extremity can secure and maintain substantial and gainful employment on the open labor market. Employer's vocational expert, J. Stephen Dolan, answers that question in the affirmative, opining that employee could find work as a fast food counter worker or a pizza delivery person. We are not persuaded, and find this opinion so completely unrealistic as to undermine Mr. Dolan's credibility generally.
In light of the foregoing considerations, we are persuaded that employer has failed to present any credible evidence to rebut the opinion from employee's vocational expert, Timothy Kaver, that employee is currently unable to work, and that his reemployment possibilities are poor given his skills, disabilities, and physical restrictions. After careful consideration, we find most persuasive Mr. Kaver's opinion on this issue.
We find that employee is permanently and totally disabled as a result of the July 2010 work injury. Employer is liable for permanent total disability benefits.