Marc Earnest v. Jackson County, Missouri

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 14-016690

Employee: Marc Earnest

Employer: Jackson County, Missouri

Insurer: Jackson County, Missouri/Cowell Insurance Services, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Credibility of the employee

The parties asked the administrative law judge to determine the issue whether employee sustained any disability as a result of his work injury, and if so, the nature and extent of that disability. The administrative law judge determined that employee is permanently and totally disabled as a result of the effects of the work injury. Employer appeals that determination.

We note that the administrative law judge expressly relied, in part, on her determination that employee made a credible witness. Specifically, the administrative law judge found that employee's complaints of pain and disability were, in her view, credible. Employer argues, in its brief, that the administrative law judge erred in this regard, and that employee cannot be deemed a credible witness in light of various inconsistencies in his testimony.

We are mindful that the employee testified in-person before the administrative law judge. We acknowledge that there is evidence on this record that would support a contrary finding to that reached by the administrative law judge with respect to this issue. However, we are especially hesitant to overturn an administrative law judge's credibility determination, where, as here, the judge expressly relies upon her own firsthand observations of the testimony from a witness.

After careful consideration, we are not persuaded to disturb the administrative law judge's credibility determination as to the issue of the nature and extent of employee's disability referable to the work injury. For this reason, and because we otherwise agree with her analysis, we affirm the administrative law judge's award of permanent total disability benefits from the employer.

We note that the administrative law judge's award, in the first sentence of the second paragraph on page 4, states as follows: "On March 27, 2014, an MRI revealed a vertebral body fraction at T7 with increased height loss and osseous retropulsion that would result in mild spinal stenosis and light contact of the ventral surface of the spinal cord" (emphasis added). We hereby correct this obvious typographical error to read, instead, as follows: "On March 27, 2014, an MRI revealed a vertebral body fracture at T7 with increased height loss and osseous retropulsion that would result in mild spinal stenosis and light contact of the ventral surface of the spinal cord."

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Lisa Meiners, issued December 8, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of August 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Marc Earnest

Injury No. 14-016690

Employer: Jackson County, Missouri

Insurer: Jackson County, Missouri/Cowell Insurance Services, Inc.

Additional Party: N/A

Hearing Date: October 26, 2016

Checked by: LM/pd

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 11, 2014
5. State location where accident occurred or occupational disease was contracted: Jackson County, Missouri
6. Was above Employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While cutting down a tree, Employee sustained serious injury of his thoracic spine when the tree fell on him.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: body as a whole referable to chest and thoracic spine

The parties appeared for final hearing on October 26, 2016. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Marc Earnest, appeared in person and with counsel, Ron Edelman. The Employer, Jackson County, Missouri, through its ability to self-insure and through Cowell Insurance Services, Inc., was represented by Jared Bustamante.

The parties stipulated to the following:

1) that the Employer, Jackson County, Missouri, through its authority to self-insure, was operating under and subject to the provisions of Missouri Workers’ Compensation Law on or about March 11, 2014;

2) that Mr. Earnest was its employee;

3) that jurisdiction was proper in Jackson County, Missouri;

4) that Mr. Earnest sustained an accident that arose out of and in the course of his employment on March 11, 2014;

5) that the claim was filed within the time allowed by law;

6) that proper notice was given;

7) that the compensation rate is $\ 260;

8) that Employer provided medical expenses in the approximate amount of $\ 450,000;

9) that temporary total disability benefits were paid in the amount of $\ 8,207.45.

The following issues to be determined at this hearing are:

1) whether Claimant sustained any disability and, if so, the nature and extent of that disability;

2) whether the Employer is liable to the Employee for future medical care in order to cure and relieve the effects of the injury that was sustained on March 11, 2014; and

3) whether the Employer is liable to Employee for past medical expenses in the amount of $\ 1,870.05.

Claimant, approximately 35 years old, completed the tenth grade but obtained a GED in 2008. The majority of Claimant's vocational career involved heavy manual labor and truck driving. The majority of his prior jobs involved repetitive and heavy lifting, bending, prolonged standing and prolonged sitting. Claimant went to work earning $\ 9.58 per hour for Jackson County, Missouri in February of 2014. On March 11, 2014, he was using a chain saw to cut down what he described as an extremely tall tree with a diameter of 10 inches at the base. While in the process of cutting down the tree, the tree fell on Claimant, causing him to lose consciousness. He awoke with the tree lying across his torso and leg and was unable to move. He was taken to the hospital in a back brace via ambulance. X-rays revealed an acute compression fracture with retropulsion at the posterior/superior aspect of the T7 vertebral body. There was effacement of the anterior thecal sac and a paravertebral hemotoma from T7 to T9.

On March 27, 2014, an MRI revealed a vertebral body fraction at T7 with increased height loss and osseous retropulsion that would result in mild spinal stenosis and light contact of the ventral surface of the spinal cord. It was also noted that osseous retropulsion contributed to the moderate bilateral T7 to T8 neuroforaminal compromise of the spinal cord. There was also a compression fracture at the T5 end plate along with swelling.

On April 1, 2014, Claimant was admitted to Centerpoint Medical Center by Dr. Wilkinson who, in his opinion, noted that he would require an open reduction internal fixation and fusion of his thoracic spine. On that date, Claimant underwent a resection of rib for bone graft, a T7 vertebrectomy, T6-T8 anterior fusion with autograft and placement of caged devices. Dr. Wilkinson performed T5-T9 posterial spinal fusion with the autograft, the T5-T9 screw and rod instrumentation, along with T7 lateral decompression. The second surgical procedure as noted above was performed by Dr. Wilkinson on April 9, 2014. Claimant was then released from the hospital on April 13, 2014 and referred to Dr. Pang to address Claimant's ongoing symptoms of pain in the thoracic-lumbar area following the March 2014 injury. Dr. Pang diagnosed Claimant as having chronic pain dysesthesia, closed fracture of the thoracic spine, all as a result of the March 11, 2014 accident. Dr. Pang throughout 2014 and up until spring of 2015 prescribed Claimant with various medications that ranged from Oxycodone to Gabapentin, as well Fentanyl patches.

On January 2, 2015, a repeat MRI scan was obtained. The cervical spine was revealed to be normal or without significant abnormalities. The MRI scan obtained of the thoracic spine revealed a posterial lateral fusion from T5-T9 as well as some evidence of T7-T8 neuroforaminal compromise, although poorly visualized due to the surgically placed hardware. Medical records of Dr. Pang reveal Claimant continued with increasing symptoms of pain and back spasms in the thoracic area and in the area where his rib was removed during authorized surgeries by Dr. Wilkinson.

On February 19, 2015, Claimant continued to complain of ongoing symptoms of thoracic back pain with left-sided rib cage pain that extended anteriorly. The claimant continued on Oxycodone, Gabapentin and a prescribed Voltaren Gel. Dr. Pang then recommended aquatic therapy. Dr. Pang also noted a desire to reduce narcotics and the Fentanyl dosages.

On April 17, 2015, Dr. Pang scheduled Claimant for a Functional Capacity Evaluation. At this time, Claimant was now off Oxycodone and was taking low doses of Hydrocodone. Dr. Pang at this time noted no exaggerated complaints of pain. The Functional Capacity Evaluation performed on April 22, 2015 demonstrated inconsistent and invalid performance. The FCE reflected that Claimant on this particular day had the ability to lift up to 20 pounds from floor waist, waist to shoulder; carry up to 20 pounds; and push 49 pounds of force and pull 57 pounds of force. Claimant, however, reported to the therapist that any type of movement aggravated his entire back symptoms. Several days after the Functional Capacity Evaluation, Dr. Pang noted that Claimant had neuropathic pain due to the removal of the ribs and thoracic pain as a result of the work injury on March 11, 2014.

On June 5, 2015, Dr. Pang found Claimant to be at maximum medical improvement and placed a restriction of no lifting greater than 50 pounds. Dr. Pang noted, "He is to have his primary care physician follow up regarding medication management and to continue the same medications, except no more Tramadol when the prescription ran out." Dr. Pang found that he had findings compatible with thoracic radiculopathy due to the injury and surgeries performed as a result of the March 11, 2014 accident and opined Claimant sustained 15 percent permanent partial disability in regard to the thoracic spine, body as a whole.

Claimant continues to have ongoing symptoms of significant pain in the thoracic region along with the area where the rib was removed as a result of the surgeries. He has difficulty with activities such as prolonged standing, walking, lifting and bending. He has difficulty twisting because it exacerbates his back, along with prolonged sitting, standing and driving. Claimant notes that his pain levels depend on his activity levels, that when he has an active day that his pain will radiate into both lower extremities and he will need to lie down. Indeed, medical records generated in April of 2015 note he had to sleep for two-and-a-half hours immediately after a day of prolonged standing. These complaints are noted in the physical therapy reports of April 2015. This, too, supports his testimony that his pain levels depended upon his activity level.

Claimant also testified on good days he is able to take his dog out, clean the kitchen, load the dishwasher, although it is difficult to bend. He is able to perform some laundry, vacuuming and cooking. Claimant stated he on occasion forces himself to attempt lawn work. Some days are better than others and that he experiences back spasms every night despite the activity level. Claimant describes after an active day that he "shuts down," that cold weather causes his muscle spasms, causes his back to tighten, and he experiences longer muscle spasms. Claimant testifies that he tries to do as much as he is physically capable of doing, which isn't much. Claimant does not feel that he is capable, based on his thoracic and chest pain, of performing sustained full-time employment.

Claimant presented the medical testimony and report of a Dr. James A. Stuckmeyer. Dr. Stuckmeyer found that the March 11, 2014 accident was the prevailing factor of the unstable T7 burst fracture along with the status post T5-T9 decompression instrumentation and fusion, the result of T5 vertebral body fracture, left-sided chest wall pain, thoracic back pain, and persistent muscle spasm secondary to the surgeries. Dr. Stuckmeyer found the following restrictions should be placed on Claimant as a result of the March 11, 2014 accident: no prolonged standing, walking greater than tolerated, with no repetitive lifting, bending or twisting involving the thoracic spine; the ability to change positions throughout the day; no repetitive stair climbing; no

ladder climbing; no commercial driving of a vehicle due to narcotic medication; no pushing, pulling, lifting activities to exceed 10 to 15 pounds on an occasional basis. Dr. Stuckmeyer also found that Claimant should limit prolonged sitting and be allowed to change positions as needed for pain control. Dr. Stuckmeyer assessed 60 percent permanent partial disability body as a whole as a result of the March 11, 2014 accident but felt that Claimant's employability should be assessed by a vocational expert.

The employer provided the defense that Claimant is employable in the open labor market by first presenting two surveillance tapes and showing that Claimant was inconsistent on whether or not he mowed his yard. The employer also presented the testimony of an investigator for the Blue Eagle Investigations. The investigator wrote a report and testified what he observed Claimant performing in May of 2015 and on June 1, 2016. The investigator performed 30-and-three-fourths hours of surveillance and surveilled Claimant performing activities for one hour and 25 minutes. In May of 2015, it reveals Claimant mowing his front lawn, pushing a broom and using a hose. The surveillance of June 2016 reveals that Claimant was walking in what appears to be a Home Depot without assistance. The employer also presented the Functional Capacity Evaluation which shows that Claimant has medium level restrictions.

While I consider the employer's evidence, I do not find that the Functional Capacity Evaluation or the activities shown on the surveillance tapes translate to Claimant's ability to perform sustained employment. These are mere snapshots in time. Indeed, the authorized treating physician, Kam-Fai Pang, reviewed the 2015 surveillance and noted: "My opinion is that a one-time surveillance video of one activity is not always reflective of one's capability to hold a full-time job working eight hours per shift which may be constantly physically demanding." Indeed, Dr. Pang noted that the video did not demonstrate anything unusual or inconsistent in regard to his functional capacity. I infer Dr. Pang's statements contained in the June 5, 2015 report that Claimant may not be capable of constant physical demanding activity eight hours per shift or could hold a full-time job working eight hours per shift. I agree with Dr. Pang's assessment of the employer's evidence.

While the employer argues that Claimant performed activities such as mowing the front part of his lawn, performing some gardening, using a hose, and walking in Home Depot, there are cases that hold an employee who performs some work on an ongoing basis is still entitled to permanent total disability benefits. Although, a case from 1995, Gordon v. Tri-State Motor Transit, 908 SW 2d 849 (MO Court of Appeals 1995), notes the claimant performed jobs as mowing jobs, assisting installation of siding of his house, building and helping install cabinets in his home, doing some body work on his automobiles, installing a battery in one of his vehicles, he also did household jobs, operated a backhoe for a short period of time. However, the court held that "Claimant clearly is active to the extent of his physical limitations and tolerances, but he does not have to be bedridden, in a wheelchair, or inert to be declared permanently totally disabled." The court found that given the claimant's age, education, physical condition, no employer could reasonably be expected to employ him.

The surveillance tape and the Functional Capacity Evaluation does not show that Claimant is capable of sustaining full-time employment or performing those tasks on a regular basis. I infer Dr. Pang's opinion of June of 2015 to state doubts of employability as well. Indeed, the fact that Claimant made a good faith effort to attend his physical therapy, to wean himself from heavy narcotics and perform on occasion some activity cannot be held against him.

I find Claimant's complaints of pain and his disability are credible. I find this based on the overall evidence presented at trial. I find Claimant is unable to perform prolonged sitting, standing and walking. I find that Claimant on occasion can lift up to 20 pounds. I find Claimant has difficulty with bending, twisting, crawling, climbing and lifting over 40 pounds, all a result of the March 11, 2014 accident. I find the medical conditions as diagnosed by Dr. Pang and Dr. Stuckmeyer are the result of the last accident. Based on Claimant's testimony, the testimony of the experts, and medical records including the opinion of Dr. Pang of June of 2015, I find that Claimant is unemployable in the open labor market as a result of the March 11, 2014 accident.

As further evidence of permanent total disability, the claimant also presented Michael J. Dreiling, a vocational expert who testified by deposition, conducted an interview, reviewed medical records/reports and vocational testing. Dreiling, after considering Claimant's vocational history and physical capabilities as revealed by his testimony, the testing performed, as well as Dr. Stuckmeyer's restrictions, opined that Claimant was unemployable in the open labor market. Dreiling found that Claimant had no transferable skills based on his performance, on his prior work history, and is not a candidate for any type of formal, academic or vocational training activities based on the vocational testing. Dreiling, when taking into consideration the vocational profiling including the medical restrictions advised by Dr. Stuckmeyer as well as Claimant's description of pain and how it impacts his ability to function, found that he is not capable of performing any kind of substantial gainful employment in the open labor market at any exertional level, including unskilled sedentary work. Dreiling noted if Claimant could function at a medium level work and ignoring all the other factors making up his vocational profile including significant pain issues that he possibly could work at a medium level unskilled job. However, based on Dr. Pang's comment from June of 2015, along with Dr. Stuckmeyer's opinion, I find and agree with Dreiling, Stuckmeyer, and Dr. Pang that Claimant is unemployable in the open labor market based on the March 11, 2014 accident. I do not find Claimant could perform sustained work activities required in the open labor market.

The next issue is whether the employer is liable to the employee for future medical care. Missouri Statute 287.140 states:

"1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve the effects of the injury."

Dr. Pang, the authorized physician, states the following: "He is to have a primary care physician follow up regarding the medication management. Continue the same medications, except no more Tramadol when the prescription ran out." At that time, Claimant was prescribed many authorized medications as outlined in Dr. Pang's May 12, 2015 medical record. Additionally, Claimant has several artificial surgical orthopedic instruments placed in his thoracic spine as a result of the March 11, 2014 accident. (See Missouri Statute 287.140(8).) As such, based on Dr. Pang's recommendation but not limited should an authorizing physician suggest surgical or other types of treatment and Missouri Statute 287.140(8), the employer is liable to the employee for future medical care in order to cure and relieve the effects of the March 11, 2014 injury.

The next issue is whether the employer is liable to the employee for past medical expenses in the amount of $\ 1,870.05. Claimant presented Exhibit C which outlines the medications and expenses not paid for by the employer/insurer. Those medications were taken as a result of the thoracic and chest pain due to the multi-level fusion and originally prescribed by Dr. Pang but now by Claimant's primary care physician. Dr. Pang upon releasing Claimant from care noted Claimant should go to his primary care physician regarding medication management and to continue the same medications. I find Claimant was prescribed the "same medications" and followed the authorized treater's request. Therefore, I find the employer is liable to the employee for past medical expenses in the amount of $\ 1,870.05 since the authorized treating physician stated to receive the prescriptions from a primary care physician.

The employer is liable to Claimant for weekly permanent total disability benefits beginning June 5, 2015 and past medical expenses of $\ 1,870.05. The employer is also liable to Employee for future medical care in order to cure and relieve the effects of the March 11, 2014 accident and under $\S 287.140(8)$.

This award is subject to an attorney's lien of 25 percent for services rendered by Mr. Ron Edelman.

Made by:

Lisa Meiners

Chief Administrative Law Judge

Division of Workers' Compensation