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Kerns v. Midwest Conveyor2/10/2004
off the main lift" while attempting to come down from a platform that was approximately eight feet off of the ground, causing him to fall backwards onto his head and knocking him unconscious, and that for purposes of the WCL, this was an accident that arose out of and in the course of his employment with the appellant. The appellant does not dispute this finding on appeal. The appellant also does not dispute the Commission's finding that as a result of that fall, the respondent suffered "swelling to the back of his head, fractured ribs, a bruised right lung and a laceration on his right arm at the elbow." What the appellant does dispute in this point is the Commission's finding that the respondent is permanently and totally disabled for purposes of the WCL, first claiming that there was no evidence supporting such a finding, and then claiming that even if there was, the finding was against the weight of the evidence. We disagree.
Section 287.020.3(3) defines a compensable injury , under the WCL, as:
violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom.
A claimant is considered totally disabled, for purposes of the WCL, if he is unable to return to any employment, not merely the employment in which he was engaged at the time of the accident. Section 287.020.7. The test for total disability is "whether any employer, in the usual course of business, would reasonably be expected to employ the employee in the employee's present physical condition." Boyles v. USA Rebar Placement, Inc., 26 S.W.3d 418, 424 (Mo. App. 2000). This standard or test "applies to all total disability claims--permanent and temporary." Id. A disability is considered "permanent" if it can be "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo. App. 1997).
In concluding that the respondent was permanently and totally disabled and awarding him benefits accordingly, the Commission found that he was: "unable to compete in the open labor market because of his cognitive deficits, physical pain, resulting depression and lack of transferable skills." As to the respondent's "cognitive deficits," the Commission found that:
the medical evidence conclusively shows that claimant suffers from memory loss, which would greatly affect his ability to work as an ironworker [his occupation of thirty years] again. Claimant has been shown to have increased deficits in complex problem solving skills. When tested by Dr. Nora Griffin-Clark, a neuropsychologist, claimant was unable to remember measurements, angles and lengths. These are skills that are necessary to work as an ironworker.
In making this finding, the Commission relied on the expert medical testimony of Dr. P. Brent Koprivica and Dr. Nicola Y. Katf. In claiming that there is no evidence to support the Commission's finding that the respondent was permanently and totally disabled, the appellant contends that the testimony of Drs. Koprivica and Katf was unreliable and not worthy of consideration in that it was based not on objective test results but solely on the subjective complaints of the respondent, which tests indicated were "exaggerated." In other words, the appellant is not contending that there was not substantial evidence to support the Commission's finding that the respondent was permanently and totally disabled, but that the expert medical
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