| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Melvin Campbell |
| Employer: | Vantage Homes (Settled) |
| Insurer: | Cincinnati Insurance Company (Settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| 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 determine the sole issue of Second Injury Fund liability. |
| The administrative law judge rendered the following determinations: (1) employee failed to prove by a reasonable certainty that he is permanently and totally disabled as a result of a combination of the work injury of May 1, 2006, and his preexisting conditions or disabilities; and (2) employee met his burden of proving Second Injury Fund liability for permanent partial disability in the amount of 43.18 weeks. |
| Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in finding the Second Injury Fund is not liable for permanent total disability benefits.For the reasons stated below, we modify the award of the administrative law judge referable to the issue of Second Injury Fund liability. |
| Discussion |
| Permanent total disability |
| The administrative law judge accurately recounted the facts pertinent to the primary injury, employee’s preexisting conditions of ill being, employee’s medical history, and the testimony provided by the evaluating experts. Accordingly, there is no need for us to supply additional findings, and instead we hereby adopt and incorporate the administrative law judge’s findings as to these matters. We also deem appropriate and reasonable, and hereby adopt as our own, the administrative law judge’s determinations with respect to the nature and extent of permanent partial disability referable to employee’s preexisting conditions of ill-being and the primary injury.Turning to the question of permanent total disability, we note that, in reaching his determination that employee is not permanently and totally disabled, the administrative |
Iaw judge substantially relied on the opinions from the Second Injury Fund's vocational expert, James England, and on the fact that employee accepted a job offer from a friend and performed the job for about a year and a half after the primary injury. We wish to acknowledge that this is a close case, and that substantial and competent evidence exists on this record to support the administrative law judge's determinations with respect to this issue. Ultimately, however, we disagree for the following reasons.
Employee has a learning disability, a fourth grade education, and an IQ of 63. Mr. England admitted that most individuals with an IQ that low would be limited to working in sheltered workshops. Mr. England further admitted that he could not remember ever seeing someone with an IQ that low functioning in a regular job setting, and that employee's low IQ would present a "tremendous" obstacle to his learning new tasks. Mr. England did testify that employee is "competitively employable," but provided the caveat that this would only be in jobs involving repetitive types of work that can be learned through observation. Mr. England also admitted that he focused on the question of what jobs employee could physically and mentally perform, rather than the question whether any employer would be reasonably likely to hire employee to perform such jobs. The latter question is obviously more relevant for our purposes. Given these important concessions, and after careful consideration, we do not deem Mr. England's testimony to persuasively support a finding that employee is capable of competing for work in the open labor market.
With respect to employee's work for CMS Homes after the primary injury, we note that employee obtained this job from a friend and former supervisor, Jeff Sheets, who knew about employee's physical restrictions and disabilities, and who provided employee with full accommodations with regard to any heavy lifting, overhead work, or other duties employee was unable to perform. Before Mr. Sheets hired employee to work at CMS Homes, employee spent about a year and a half looking for jobs, but no employer would hire him because of his physical restrictions, age, and education. And, even though Mr. Sheets was a friend, he ultimately fired employee from CMS Homes because of employee's inability to keep up with the work. Employee looked for work continuously thereafter, but to date has not found any employer willing to hire him. Given all of these circumstances, we do not deem employee's work for CMS Homes to constitute persuasive evidence supporting a finding that employee is capable of competing for work in the open labor market.
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.
Scott v. Treasurer of Missouri-Custodian of the Second Injury Fund, 417 S.W.3d 381, 387 (Mo. App. 2014).
We deem it appropriate to infer that employee will not be the only candidate applying for any jobs available in today's open labor market, and that in order to secure competitive employment, employee will need to demonstrate his suitability for the work at a level at least equal to that of a competing applicant. When we apply the appropriate standard for permanent total disability, we find it exceedingly difficult to imagine that any reasonably prudent employer will choose employee over virtually any other candidate, given that
employee cannot read or write or follow even moderately complex directions, has no transferable skills, can only perform repetitive job tasks, and can only learn such tasks through direct observation. Even if we were able to imagine employee securing a job, we find it even less likely that an employer would keep employee once his limitations were fully apparent, especially given the uncontested evidence that employee was not able to keep a job even where he was working for a friend.
In light of the above considerations, we find most persuasive the opinion from the vocational expert Jeffrey Magrowski (and we so find) that employee is unable to compete for any type of employment in the open labor market as a result of the combination of the effects of his preexisting cognitive limitations and disabilities and his physical restrictions and disability resulting from the primary injury.