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Hampton v. Big Boy Steel Erection12/9/2003
In this workers' compensation case, Big Boy Steel Erection (employer) appeals from the final award of the Labor and Industrial Relations Commission (commission) allowing compensation and modifying the award of the Administrative Law Judge (ALJ). The ALJ found that Larry Hampton (claimant) had sustained a 25% permanent partial disability of the body as a whole, caused by an injury he sustained to his back while working as an ironworker. The commission modified the award and found permanent and total disability. The employer appeals, contending that the commission erred in awarding permanent total disability benefits because the award was not supported by competent and substantial evidence and the award was against the overwhelming weight of the evidence.
After opinion by the Court of Appeals, Eastern District, the case was transferred to this Court. Mo. Const. art. V, section 10 . The commission's award is affirmed.Background The claimant was injured while working for the employer as an ironworker. He slipped on a beam and fell. An MRI revealed degenerative disc disease, multi-level disc bulge and relative narrowing of the spinal canal.
Dr. Mirkin, a surgeon with a sub-specialty in spinal conditions, treated the claimant and diagnosed degenerative disc disease. Dr. Mirkin released the claimant to work without restriction but eventually told him not to lift more than 50 pounds. He later concluded that the degenerative disc disease was not attributable to the claimant's activities at work and the claimant had suffered no permanent partial disability that was attributable to work.
Dr. Lauryssen, a neurosurgical specialist, examined the claimant and found that the claimant had continuing intractable incapacitating pain and recommended a surgical fusion.
Dr. Margolis, a neurologist, examined the claimant and found pre-existing degenerative disc disease and that the claimant suffered an injury in the workplace accident. Dr. Margolis noted that the claimant's employment had "significantly contributed" to the development of degenerative disc disease. He concluded that the claimant was 30% permanently and partially disabled, 25% from the workplace injury and 5% from the pre-existing disc disease.
Dr. Bernstein, a vocational rehabilitation specialist with a Ph.D. in educational psychology, examined the claimant. He found that the claimant would have difficulty lifting even relatively low amounts of weight (10-15 pounds), sitting, standing, or walking for prolonged periods, or engaging in repetitive bending, stooping, balancing or climbing. He concluded that the claimant was unemployable in the open labor market based on his age, lack of transferable skills, and physical limitations caused by obesity, degenerative disease of the spine and hypertension.
Karen Kane, a vocational consultant with a master's degree in education, reviewed the record without personally interviewing the claimant. She did a transferable skills analysis and labor market survey. She relied upon the Dictionary of Occupational Titles and contacted prospective employers. She did not consider the claimant's claims that he could not lift more than 10 to 15 pounds and could not stand or sit for more than a short period of time. Her conclusion was that the claimant "would be able to seek, accept, be hired, and maintain full-time, gainful employment."
The claimant filed a claim for workers' compensation benefits for the back injury. At the hearing before the ALJ, the claimant testified that he never went back to work on full duty, but did work briefly on light duty as a supervisor. He testified that he is never pain free despite medication. He typically lies down
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