Key Takeaways

• Missouri’s Labor and Industrial Relations Commission ruled that without a competing PPD disability rating, an Administrative Law Judge is not free to substitute their own opinion.

• When only one party submits a PPD rating certified by a physician, that rating may be decisive on appeal – regardless of the ALJ’s view.

• Failure to obtain such a rating carries real risk. Employers and insurers who don’t secure a PPD rating could face higher disability awards.

Missouri’s Labor and Industrial Relations Commission recently signaled a shift in how it evaluates permanent partial disability (PPD) ratings on appeal – a change that may result in higher or lower PPD awards depending on the evidence presented.

The Commission’s decision reinforces the critical importance of obtaining and submitting a PPD rating certified by a treating physician or IME expert. When only one party offers a PPD rating, the Commission indicated that it will rely on that rating unless objective medical evidence supports a different result.

Commission Rejects ALJ’s Attempt to Substitute His Own PPD Opinion

In Bradley Barnett v. Kawasaki Motors Manufacturing Corporation (Injury No.: 23-040406) the Administrative Law Judge departed significantly from the only PPD rating in the record.

The employer submitted a 7 percent PPD rating provided by the treating physician after assessing the claimant’s shoulder. The claimant offered no competing rating.

Despite this, the ALJ awarded a 25 percent PPD, citing his own experience reviewing the treating physician’s ratings and relying on outdated, pre-2005 case law – existing before the Act was amended to strict construction – which permitted fact finders to consider all the evidence when assigning disability percentages. He wrote: “I am familiar with Dr. Mall’s ratings, having reviewed his reports in hundreds of cases. Based on the totality of the evidence – including medical records, credible testimony, functional limitations, and residual pain – I find Claimant has sustained a 25 percent permanent partial disability of the right shoulder…”

Commission Reverses – Citing Overreach and Lack of Medical Evidence

The Commission, in a 2-1 decision, reversed the ALJ and reinstated the 7 percent PPD rating, holding that the ALJ exceeded his authority by substituting a lay opinion for medical evidence and relying on generalized experience with the treating physician rather than the rating in the record.

The Commission’s decision emphasized longstanding Missouri law that the employee bears the burden of proving not only the occurrence of an injury but the extent of disability, supported by objective evidence. (Citing Meyer v. Superior Insulating Tape and Hawkins v. Emerson Electric.)

Because no expert opinion supported a PPD above 7 percent, the Commission found the ALJ’s award unsustainable.

Certified PPD Ratings Are Now Even More Critical

The Commission’s decision has strategic implications for all parties in Missouri workers’ compensation cases:

• When only one party submits a PPD rating, that rating may now carry significant, possibly determinative weight on Commission review.
• The decision may work in both directions:
  • A claimant who fails to obtain a rating risks receiving the employer’s rating by default, and
  • Likewise, an employer or insurer that does not obtain and submit a rating may face a higher award.
• Fact finders may now face a narrower lane to independently assign PPD levels without disability evidence from a certified physician.

What Employers and Insurers Should Do Now

To avoid unintended outcomes on appeal, employers and insurers should:

• Obtain a PPD rating certified by a physician in every case where permanent disability is at issue.
• Ensure the rating is thoroughly documented, with objective medical support.
• Submit the rating into evidence to protect against upward adjustments at the ALJ level or on appeal.

If you have questions or need more information, please contact:

• Charles H. Morasch
• Daniel T. Sanchez
• John M. Allen
• Randee E. Schmittdiel
• James R. Hess
• Or another member of our Workers’ Compensation team