Clifford Potts v. State of MO, Fulton State Hospital

No.11-063860 (Mo. Lab. & Indust. Rel. Comm’n Jan. 26, 2018)
Full Opinion: [Clifford Potts v. State of MO, Fulton State Hospital]

Factual Background:

Prior to the date of accident the employee suffered from a number of pre-existing permanent partially disability conditions: learning disability, frostbite injury to both feet, type 2 diabetes with neuropathy into lower extremities, right knee pain, degenerative disc disease affecting cervical spine, and a history prior complaints to low back.  Employee’s learning disability and illiteracy was main focus in the decision. He was expelled in 7^th grade for behavioral and learning problems, diagnosed with learning disturbance in 1971, and admitted in 1972 to Hospital because of ongoing difficulties and behavioral issues. He escaped the hospital and became a ward of the Juvenile Court and was committed to Division of Mental Diseases. He was determined to only function at 4^th grade level, never returned to school, and did not obtain GED. He remained functionally illiterate. 

ALJ Decision:

The ALJ found the vocational expert’s testimony that employee is able to perform less demanding physical work such as assembly packing or office cleaning jobs persuasive. The ALJ held the employee is not PTD and therefore the SIF not liable for any PTD benefits. The employee appealed alleging the ALJ erred in concluding he did not meet his burden on the issue of PTD.

Analysis/Holding:

The Commission noted that the mere fact an employee could perform certain jobs does not necessarily compel a finding that the employee could compete for such jobs in the open labor market. The analysis must include whether the employee is “reasonably likely to be hired for such positions.” The vocational expert acknowledged that employee’s poor academic history and illiteracy will significantly limit his ability to perform jobs. The Commission evaluated his potential candidacy for assembly packing and office cleaning jobs and held the employee is unable to compete in the open labor market as a result of the primary injury in combination with his preexisting disability and thus the SIF is liable for PTD benefits.

The Takeaway:

In PTD cases, significant mental deficiencies will be involved in the analysis of whether the employee can compete in the open labor market.   The employer can use this argument to shift the liability onto the Fund.