The majority finds that employee credibly testified concerning ongoing pain and functional limitations that attributable to various disabilities clearly enumerated in her medical treatment records. The majority notes that vocational rehabilitation expert Mr. J. Stephen Dolan relied on work restrictions imposed by medical expert Dr. Shawn Berkin as the basis for his opinion that employee is unable to obtain employment in the open labor market. The majority does not take issue with the work restrictions Dr. Berkin imposed nor does it discredit the opinion of vocational expert Mr. Dolan.
Section 287.190.6(2) provides, in pertinent part, "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." Citing the strict construction mandate of 287.800, the administrative law judge concluded that employee failed to meet her burden of proof on the issue of permanent total disability. The Commission majority endorses the administrative law judge's finding that employee failed to meet her burden of proof on the issue of permanent total disability because no medical doctor expressly "echoed, endorsed or ratified" Mr. Dolan's opinion that employee is unable to obtain employment in the open labor market.
Three days before the administrative law judge's April 5, 2019, Award, the Supreme Court denied transfer in the Western District case of *Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund*, 570 S.W.3d 110 (Mo. App. 2018). *Moss* specifically rejected the contention that 287.190.6(2) implies or mandates any requirement that a medical expert specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied. *Moss* holds that in determining if an employee is permanently and totally disabled "the Commission may rely on both evidence provided by a physician demonstrating and certifying the claimant's medical condition and functional abilities and evidence provided by other non-medical experts assessing whether, in light of his medical condition and functional ability, the claimant is employable."
*Moss* holds that § 287.190.6(2)'s mandate that permanent total disability "be demonstrated and certified by a physician" requires only "that a physician show clearly and attest as being true the employee's medical condition and resulting work-related restrictions post injury." Once a physician does that, "it is within the Commission's expertise to determine whether the employee, with the medial conditions and physical limitations confirmed by the physician, is employable." *Moss* expressly rejected the Second Injury Fund's contention that a finding of permanent and total disability can only be made in cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work.
Dr. Berkin's opinion complies with the criteria set out in *Moss* by attesting to employee's medical condition and imposing the following work-related restrictions:
- Avoiding rapid and extreme movements of her neck and maintaining her neck fixed for extended period of time.
- Limiting lifting to 20-25 pounds on an occasional basis and 15 pounds on a frequent basis.
- Avoiding lifting with her arm extended from her body, lifting, or working with her arm above shoulder level.
2 *Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund*, 570 S.W.3d 110, 117. (Mo. App. 2018).
3 *Id.* at 116.
4 *Id.*
MNKOI 0000811646
Injury No. 08-108467
Employee: Cherisse Williams
- 2 -
- Limiting pushing and pulling to 35 pounds.
- Avoiding forceful gripping, squeezing, pinching, pulling, twisting, turning and reaching with her right hand for extended period of time and limiting exposure to operating power tools or vibratory equipment.
The majority mischaracterizes Dr. Berkin's testimony as concluding that employee is not permanently and totally disabled. A close reading of Dr. Berkin's deposition testimony and reports reveals that Dr. Berkin confined his assessment of employee to his evaluation of permanent disability relating to her November 30, 2008, injury (42.5 percent of the body as a whole referable to the cervical spine) and a separate determination of employee's preexisting industrial disability (30 percent of the body as a whole of the cervical spine and 30 percent of the right wrist). Dr. Berkin noted that disability from employee's November 30, 2008, injury combined synergistically with her preexisting disabilities to result in overall disability greater than the amounts assessed individually. However, Dr. Berkin never opined on the subject of whether the total sum of employee's disabilities rendered employee permanently and totally disabled from employment in the open labor market. Dr. Berkin's reluctance to make such a determination was entirely reasonable, considering that evaluation of employee's employment prospects in the context of her educational level, vocational history, and Dr. Berkin's physical limitations, is the sort of determination better made by a vocational expert rather than a medical doctor.
Dr. Berkin simply confined his assessment of employee's disability to matters within his expertise.
The only evidence in the record regarding whether employee is unemployable due to the medical conditions and physical limitations demonstrated and certified by Dr. Berkin is the opinion of vocational expert Mr. Dolan. After vocational testing of employee and a review of her vocation profile, Mr. Dolan concluded, "Based on Mrs. Williams' education, work experience, academic skills, [and] work skills, and Dr. Berkin's permanent restrictions, Mrs. Williams is unable to perform any employment for which a reasonably stable market exists."5
Given Dr. Berkin's certification of employee's medical condition and work restrictions, and vocational expert Mr. Dolan's uncontroverted opinion regarding her employability in the open labor market, the majority's conclusion that employee is not permanently and totally disabled is against the weight of the evidence in this case. The majority's endorsement of the administrative law judge's finding that only a medical expert can establish that employee is unable to perform any work for purposes of a permanent total disability award is incorrect as a matter of law.
On this basis, I respectfully dissent.
Curtis E. Chick, Jr., Member
5 Transcript 553, 554.