Imagine identical injuries to two workers: one is a junior college graduate, the other lacks a high school diploma;one can read and compute fairly well, the other reads at the 8th grade level and performs math at the 6th grade level. The injury involves failed back syndrome, with the injured worker experiencing fairly constant pain and the inability to perform sustained physical work.
In the world of workers comp, the first worker is deemed “employable” and entitled to temporary total benefits, followed (in some states) with a lump sum settlement for permanent loss of function. The second worker, lacking the education and skills to transfer to another job, is awarded permanent total disability benefits. In the two claims involving identical injuries, a marginal education pays.
For many years, Missouri resident Todd Grauberger worked for Atlas Van Lines, moving furniture and household goods. He performed heavy lifting routinely, avoiding physically demanding work only when driving from pick up point A to delivery point B. Ironically, his injury did not involve heavy lifting: in December 2001, he bent over to put padding on a nightstand – something virtually anyone could do – and felt an immediate pain in his back. His herniated disc required surgery. Even after some minor improvements, he continued to suffer from substantial pain and numbness in his legs. He was diagnosed with a phrase that terrifies any injured worker – and any claims adjuster: “failed back syndrome.”
Grauberger filed for permanent total disability benefits. His employer countered with a vocational rehabilitation assessment that concluded – without directly interviewing Grauberger – that he could perform light factory work or perhaps drive a car or truck. But the claimant’s doctor countered that with a failed back and almost no transferable (non-physical) skills, Grauberger was unemployable for any position that he might be qualified to hold. In other words, his only employable asset was the labor of his body and his body was irreparably broken. In a unanimous decision, the Court of Appeals in Missouri sided with Grauberger and upheld the award of permanent total benefits.
Hiring Conundrum
Employers do not give much thought to transferable skills when they hire new employees. They simply hire people qualified to do the work. Indeed, for jobs requiring sheer physical strength, it is often cheaper to hire the lowest skilled available workers. But workers comp, long the great equalizer, takes a post-injury look at employability. Once maximum medical improvement has been reached, the issue for workers comp is simple: the worker is either employable or not. If employable, benefits come to an end. If there are no transferable skills and no reasonable prospect of employment, the benefits may continue for the lifetime of the worker.
Grauberger will never again have to worry about finding gainful employment. Because he can offer nothing of value to the labor market, and because of his persistent, debilitating pain, he will be supported by workers comp indefinitely. It’s an odd calculus, seemingly rewarding the absence of marketable skills beyond the strength in one’s body. In this Missouri case, limited skills and limited education secure a future well beyond the reach of a failed back and a failing body.
Tags: Disability, Missouri
