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