Tuesday, October 17, 2017

Published:09/30/2014

Employee was a deli worker in a grocery store. On her way to the turn off a fryer, she slipped on some grease and fell on her back, trapping her arm underneath her and hitting her head on the floor. She was diagnosed with arm fractures, disc herniations, and a strain/sprain of her cervical and thoracic spine. She received treatment for all of her injuries, including surgeries on her arm and back. Even after extensive physical therapy, Employee continued to complain of back pain and pain in her right leg.

The issue presented in Ballard was whether the opinion of Ballard’s medical expert that Ballard must recline throughout the day was supported by objective medical findings.

An ALJ determined, based on the testimony of the Employee, the Employee’s independent medical examiner’s testimony, and the testimony of the Employee’s vocational expert, that the Employee was permanently and totally disabled. The ALJ found that she was taken out of the open labor market because of her frequent need to recline throughout the day.

Employer appealed to the Missouri Court of Appeals for the Southern District. The Employer argued the doctor’s opinion that Employee needed to recline throughout the day was based on subjective findings, which are disfavored by R.S.Mo. § 287.190.6(2). Because the findings were subjective, argued the Employer, the ALJ misapplied the law in finding that Employee was permanently and totally disabled.

Section 287.190.6(2) states that if medical opinions conflict or are inconsistent, objective medical findings shall prevail over subjective findings. Therefore, if the Court found that Employee’s doctor’s opinion that Employee needed to recline throughout the day is a subjective opinion, the objective opinion of Employer’s doctor’s opinion would govern.

The Southern District decided, however, that the Employee’s doctor had in fact described what medical findings formed the basis of his opinions. The Employee’s doctor stated that he thinks her need to recline throughout the day is consistent with the objective impairment of the Employee’s lower back. Based on this opinion, the Southern District upheld the ruling of the ALJ.