(See Second Injury Fund Cases for Combination PTD Cases)
In Carey v Lee Apparel Co., Inj. Nob. 98-026849 (LIRC) 2002, PTD against employer after cervical surgery even though employee worked for 3 1/2 months after the last employer, and only testimony was that of voc. rehab. person. Dissent by one Commissioner that there was no medical evidence to establish PTD, no doctor indicating PTD, including the treating doctor and claimant's expert doctor, the only testimony being vocational testimony.
In Cruthis v Famous Barr, Inj. No. 95-185604 (LIRC) 2002, the ALJ?s denial of PTD reversed by Commission, who held that ALJ's heavy reliance on videotapes was error. One Commissioner dissented, indicating videotapes showed body motions inconsistent with her objective complaints, including taken in a seated position, holding her head between her knees, for substantial periods of time while digging. She helped her husband pick up a large lawn mower out of a pick-up truck, and other various physical activities which she testified she could no longer do.
In Davis v Fyr-Fighter of Missouri, Inj. No. 99-027164 (LIRC) 2002, the ALJ?s finding 50%of the body reversed, PTD award against employer allowed, ALJ?s finding of exaggeration of complaints discounted. There was surgery and fusion at L3 to L5-S1, pedicle screws, formaminotimies, bilaterally, a discectomy at L3-4 and cystectomy at L5-S1.
In Kerns v Midwest Conveyor, Inj. No. 95-083550, (LIRC) 2002, TTD allowed, dissent that there was only tenuous medical causal connection on inability to function, the history of prior spine stenosis and degeneration of the left hip, numerous other injuries. (Note: It would appear this should be a 'combination' against the Fund type case, but it was held not to be.)
In Landman v Ice Cream Specialty, 2022 WL 31057468(Mo.App. E.D. 2002 ), the employer held solely liable, for the total disability. Affirmed.
In Bunker v Rural Electric Cooperative, 46 S.W.3d 641 (Mo. App. W.D. 2001), The court of appeals ruled that in order to modify a previous permanent total award under Section 287.470, the employer must prove a change in the 'physical' condition. In this case, claimant obtained a college education, returned to gainful employment after the PTD award had been entered. The Court denied the employer's request to terminate PTD on the grounds there was no change in the 'physical' condition.
(From a practical standpoint, be alerted that, although you try to deduct the proximal disability from the distal disability, we now have an appellate court case specifically stating it is in the total discretion of the Judge. Even if you get an agreement for settlement on that basis, and the settlement does not go through, that does not mean the Judge is going to follow that.)