The Law Office of Kurt H King

February 27, 2012

Employer Loses Motion for Change in Condition of Permanent Total Disabled Workers’ Compensation Claimant In Missouri

In 1996, a Smitty’s Supermarket employee fell off a pallet raised by a forklift and suffered head injuries which left him Permanently Totally Disabled (PTD), although his disability rating was 70% of the body as a whole.  However, at trial the Administrative Law Judge (ALJ) penalized the employer another 15% for failure to comply with the safety provisions of Missouri’s section 292.020.  In 2002, Missouri’s Labor and Industrial Relations Commission upped the award in favor of the employee from one of Permanent Partial Disability (PPD), determining instead that the employee was Permanently Totally Disabled (PTD). 

Later, after extensive medical treatment and rehab, the employee put his life together enough to marry, have a child, and work a string of jobs.  As a result, the employer filed in 2010 its second motion for an order of the Commission downgrading the employee’s injury from total to partial disability.  The Commission sent the motion to an ALJ for hearing.  Both sides hired doctors as experts but the employer’s doctor observed the employee only ” a single day” and failed to interview his wife, family, and others with details on how the injury continued to seriously affect the employee.

Ultimately, the Commission dismissed the employer’s motion because “although Employer had presented evidence that Claimant [Employee] had undergone numerous life changes since the original award in 2002, it ‘did not present any new MRI scans of [Claimant’s] brain or any other concrete evidence showing an actual physical change in condition of [Claimant’s] brain.’ ”   The Southern District of the Missouri Court of Appeals affirmed in Pavia v. Smitty’s Supermarket, Slip Opinion SD31275 filed  02-17-2012.

The moral of the story seems to be that an employer must bring in sufficient proof of change in the physical condition of the injured parts of the employee’s body in order to prove that that the employee is not longer Permanently Totally Disabled.  

And while this case involved an injury prior to the 2005 amendments to Missouri Workers’ Compensation laws, there seems to have been no change made to the applicable statute–287.470.  See Sachs Electric Co. v. Mapes, 254 S.W.3d 900, 902-03 (Mo. Ct. App. W.D. 2008), where the court continued to require proof of a change of physical condition even after the 2005 statutory amendments.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


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