Kenneth Nance v. Aramark Uniformed Services Incorporated

administrative law judge. We suspect that claimant's credibility suffers from reasons not attributable to a lack of candor. Rather, employee's physical therapy records suggest that he may suffer from some form of mental condition or disability that affects his ability to follow instructions and hinders his recollection of specific facts, such as dates and prescribed medications. Accordingly, we will turn to the opinions of the expert medical witnesses to determine this issue.

Employer/insurer produced the testimony of Dr. David G. Kennedy, taken by deposition on April 5, 2016. Therein, Dr. Kennedy restricted employee to lifting no more than 30 pounds; occasional bending, twisting and/or stooping; and little to no overhead lifting. Dr. Kennedy opined that it would be safe for employee to perform light duty work, subject to Dr. Kennedy's medical restrictions and employee's tolerance. In addition, Dr. Kennedy determined that employee suffers from post-laminectomy syndrome, or as described by Dr. Kennedy, residual pain following employee's posterior fusion. We find that the testimony of Dr. Kennedy is the most persuasive with regard to employee's limitations referable to the work injury.

The Missouri Workers' Compensation Law defines "total disability" as the "inability to return to any employment." "The test for permanent total disability is whether the worker is able to compete in the open labor market." Employee is able to perform light duty work, subject to employee's tolerance and the work restrictions of Dr. Kennedy. We find that employee is able to compete in the open labor market. As such, we agree with the administrative law judge that employee is not permanently and totally disabled in connection with the November 13, 2012, work injury.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with an employee's compensable work injury. After careful consideration, we believe that the work restrictions imposed upon employee by Dr. Kennedy warrant a higher permanent partial disability rating. We find that employee has suffered a 60% permanent partial disability of the body as a whole in connection with the November 13, 2012, work injury. Accordingly, we conclude that employer/insurer is liable for 240 weeks of permanent partial disability benefits at the stipulated weekly permanent partial disability benefit rate of 433.58 per week for a total of 104,059.20 in permanent partial disability benefits.

Section 287.140.1 RSMo provides for an award of future medical care where the employee can prove that there is a reasonable probability of a need for future medical care that flows from the work injury. By deposition dated April 5, 2016, Dr. Kennedy agreed with counsel for employee that it would be reasonable, necessary and appropriate for employee to take anti-inflammatory medications. We find that there is a reasonable probability that employee will need future medical care flowing from the injury.

2 Section 287.020.6 RSMo.

3 *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. 2011).

4 *Conrad v. Jack Cooper Transp. Co.*, 273 S.W.3d 49, 51-54 (Mo. App. 2008).

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Injury No.: 12-104863

Employee: Kenneth J. Nance

We conclude that employee is entitled to, and employer/insurer is liable to provide, that future medical care that may reasonably be required to cure and relieve the effects of the work injury, including such care and treatments as recommended by Dr. Kennedy.

**Medical causation**

By his application for review, employee contests the administrative law judge's award and decision with regard to the issue of medical causation. Employee neither briefed nor provided oral argument on this issue before the Commission. As such, we decline to disturb the award of the administrative law judge on the issue of medical causation.

**Award**

We modify the award of the administrative law judge as to the issues of: (1) nature and extent of permanent disability and (2) liability for future medical care. We do not disturb the award of the administrative law judge on the issue of medical causation.

Employee is entitled to, and employer/insurer is hereby ordered to provide, that future medical care that may reasonably be required to cure and relieve the effects of the work injury.

Employer/insurer is liable for, and is hereby ordered to pay, permanent partial disability benefits in the amount of $104,059.20.

The award and decision of Administrative Law Judge Gary L. Robbins, issued September 26, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

This award is subject to a lien in favor of Cynthia M. Hennessey in the amount of 25% for necessary legal services rendered.

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

Given at Jefferson City, State of Missouri, this 30th day of November 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Kenneth J. Nance

Injury No. 12-104863

Dependents: N/A

Employer: Aramark Uniformed Services Incorporated

Insurer: Indemnity Insurance Company of North America

Appearances: Cynthia M. Hennessey, attorney for the employee.

Robert J. Amsler, attorney for the employer-insurer.

Hearing Date: June 22, 2016

Checked by: GLR/kg

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? November 13, 2012.
5. State location where accident occurred or occupational disease contracted: Butler 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 the employer insured by above insurer? Yes.

On June 22, 2016, the employee, Kenneth J. Nance, appeared in person and with his attorney, Cynthia M. Hennessey for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Robert J. Amsler. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Aramark Uniformed Services Incorporated was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Indemnity Insurance Company of North America.
2. On November 13, 2012, Kenneth J. Nance was an employee of Aramark Uniformed Services Incorporated and was working under the Workers' Compensation Act.
3. On November 13, 2012, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. T