James Chambers v. City of Galena

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 15-088178

Employee: James Chambers

Employer: City of Galena (settled)

Insurer: Missouri Rural Services (settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo.

Having reviewed the evidence and considered the whole record, the Commission finds

that the award of the administrative law judge is supported by competent and

substantial evidence and was made in accordance with the Missouri Workers'

Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award

and decision of the administrative law judge dated April 15, 2020, and awards no

compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued

April 15, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______22nd ______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

Employee: James Chambers

I disagree with the finding that employee is not permanently and totally disabled. The persuasive evidence shows that employee is not able to compete in the open labor market.

The administrative law judge concluded that employee was not permanently and totally disabled because employee had a regular job that was "not sporadic or part-time." Award, p. 11. The award continued, "[s]ince 2015, [employee] has demonstrated that he is able to maintain steady, full-time employment regardless of any physical impairments." Id. However, the test to show permanent and total disability is not whether employee had maintained steady employment, but whether employee is able to compete in the open labor market.

I find persuasive that employee was to follow Dr. William Hopkin's restrictions, including the need to lie down periodically. With these restrictions, employee was unable to compete in the open labor market. Mr. Benjamin Hughes opined, "[n]oting Dr. Hopkins' restrictions, [employee] would be unable to compete and especially with the needing the ability to periodically lie down and rest."Tr., p. 1747. Mr. Hughes further stated that employee's "current work at the campground would be considered seasonal, gainful employment in my opinion--however, [employee] is accommodated in order to maintain the position." Tr., p. 1748.

Mr. Hughes later appeared to change his opinion to conclude that employee could compete in the open labor market because of a short video that showed employee scooping dirt into a barrel that he placed in the back of his pickup truck. However, this video did not contradict Dr. Hopkins' restrictions to lay down periodically. Outside of possibly bending, ${ }^{1}$ the video did not appear to show employee standing or walking for more than 30 minutes at a time, lifting over 15 pounds on occasion, walking on uneven surfaces, climbing ladders, or walking up or down stairs/steps. In the video, employee further did not lift dirt over his head, but only to his shoulder level.

Accordingly, I conclude that employee met his burden to establish that he is permanently and totally disabled. I would further assess liability against the Second Injury Fund. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1}$ Mr. Hughes indicated that employee was bending in the video, but I find that term vague. Accordingly, I do not find employee's actions in being able to "bend," while keeping in place the vast majority of Dr. Hopkins' restrictions, persuasive evidence that employee was able to compete in the open labor market. I am more persuaded that because employee needs to lie down periodically, employee is unable to compete in the open labor market.

1. Are any benefits awarded herein? No.
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 9, 2015.
5. State location where accident occurred or occupational disease was contracted: Nevada, 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: Employee was driving a truck with a loaded trailer that overturned after hitting a pothole.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Body as a whole.
14. Nature and extent of any permanent disability: 29.6 percent to the body as a whole, as recited in the stipulation for compromise settlement in the primary case between Claimant and Employer/Insurer.

1. Compensation paid to-date for temporary disability: $\ 1,976.00.
2. Value necessary medical aid paid to date by employer/insurer? $\ 17,424.17.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wages: Sufficient to yield the following rate of compensation.
5. Weekly compensation rate: $\ 329.38 for all purposes.
6. Method of wage computation: By stipulation.

1. Amount of compensation payable: Settled as to Employer/Insurer.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

James D. Chambers (Claimant) sustained work-related injuries on November 9, 2015. He settled his claim for the primary injury as against Employer/Insurer, which stipulation was approved on October 25, 2017. Claimant now seeks permanent total disability benefits against the Second Injury Fund. Claimant appeared personally and with his attorney, Scott R. Pettit and James Pettit. The Treasurer of the State of Missouri as Custodian of the Second Injury Fund appeared by Assistant Attorneys General Sheila Skulborstadt and Skyler Burks. The parties stipulated to certain facts and narrowed the issues, as follows:

(1) On November 9, 2015, the City of Galena, Missouri, was operating as a employer subject to the Missouri Workers' Compensation Law, and during this time was fully insured or self-insured. (2) At this same time, James D. Chambers was an employee of the above-named employer, and was working under and subject to The Missouri Workers' Compensation Law. (3) On November 9, 2015, Claimant sustained injuries by accident to his body as a whole, which arose out of and in the course and scope of employment. (4) The above-referenced employment and injuries occurred in Nevada, Missouri. The parties agreed to venue in Springfield, Greene County, Missouri. There is no challenge to jurisdiction or venue. (5) Claimant notified Employer of his injuries as required by $\S 287.420, RSMo. (6) The Claim for Compensation was filed within the time prescribed by \S 287.430, RSMo. (7) Claimant's average weekly wage \ 494.07, yielding a compensation rate of $\ 329.38 for all purposes. (8) Employer paid $\ 17,424.17 in medical aid. (9) Employer paid $\ 1,976.00 in temporary total disability. (10) Claimant reached maximum medical improvement on April 5, 2016.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

Injury No.: 15-088178

1. Nature and extent of permanent disability from the last injury.
2. Liability of the Second Injury Fund, if any.

The following exhibits were offered and admitted:

1. Report of Injury;
2. IME Report of Dr. William Hopkins dated July 19, 2016 and Addendum dated June 2, 2017;
3. Photos of Work Environment at James River Campground;
4. Dr. William Hopkins CV;
5. Deposition of Lance Clayton;
6. Deposition of Marcy Essary;
7. Vocational Evaluation Report of Phillip Eldred;
8. CV of Phillip Eldred;
9. Stipulation for Compromise Settlement 2006 injury with Employer, Stone County;
10. Stipulation for Compromise Settlement 2006 injury with Second Injury Fund;
11. Stipulation for Compromise Settlement 2015 injury with Employer, City of Galena, Missouri;
12. Medical Records of Peak Performance/Clay Therapy pages 100-164;
13. Medical Records of Mercy Hospital Aurora pages 165-201;
14. Medical Records of Nevada Regional Medical Center pages 202-234;
15. Medical Records of Springfield Neurological pages 235-530;
16. Medical Records of Cox Health pages 531-765;
17. Medical Records of Dr. Damon Thomas pages 766-820;
18. Medical Records of Dr. Damon Thomas/Crane Medical Care pages 821-1149;
19. MSHP Collision report for collision dated 11/09/2015;
20. Claimant's Worker's Compensation History;
21. City of Galena Employment file;
22. Claimant's Notes regarding Work Comp history (deposition Exhibit 1);
23. Claimant's list of Employment History (deposition Exhibit 2).
24. Dr. Lennard's rating of May 19, 2016;
25. Marionville School records;
26. Surveillance video from Employer;
27. OASYS report produced by Phil Eldred.

¹ The undersigned judge made no alteration or marks to any exhibit.

Page 4

I. Deposition of James Chambers on June 1, 2018 ..... AGO 001

II. C.V. - Benjamin Hughes, Rehabilitation Counselor ..... AGO 054

III. Benjamin Hughes' December 23, 2019 Report ..... AGO 056

IV. Deposition of Benjamin Hughes on January 3, 2020 ..... AGO 073

V. 2017 Form W-2 ..... AGO 168

VI. 2018 Form W-2c ..... AGO 169

VII. 2019 Form W-2 ..... AGO 170

VIII. Gateway Investigations Surveillance Video ..... AGO 171

IX. City of Galena Surveillance Video ..... AGO 172 (admitted over objection)

X. DORIR report certified on January 29, 2020 ..... AGO 173

XI. Dr. Lennard report of April 5, 2016 ..... AGO 175

XII. Eldred work history sheet

Claimant James D. Chambers is 51 years of age, had been married for 33 years, and has 3 grown children. He dropped out of high school before the $12^{\text {th }}$ grade. His academic skills are below high school level. He reads a newspaper. He has no GED. He is left hand dominant. He has no formal vocational training or military service, but holds a CDL passenger endorsement driver's license.

Most of Claimant's jobs have been labor intensive. In the 1980's Claimant worked part time as a farm laborer. In the early 1990's, he worked at Rantz Concrete painting, patching and loading/unloading yard ornaments. In the late 1990's, Claimant worked for Stone County Road and Bridge where he operated a dump truck, trimmed and cut trees, hauled material to potholes and helped build new roads. It was during this employment that he ruptured two discs in his neck, underwent surgery, obtained permanent lifting restrictions, and started on narcotic pain medications. Claimant continues to take Hydrocodone, Soma, and Percocet. Following his release from treatment, in December 2007, Stone County Road and Bridge could not accommodate his physical restrictions from the work related disability.

From 2008 to 2011, Claimant worked as an OATS shuttle bus driver. Because of a lack of funding, however, Claimant did not many work hours. In 2009, he found part-time, seasonal work on the weekends with James River Outfitters (referenced either as JRO or James River Campground in the deposition testimony). From 2012 to 2014, Claimant also worked with Galena Schools as a bus driver. The bus driving position ended, however, when one of his medications became classified as a narcotic and DOT regulations prohibited a school bus driver from taking narcotic medication.

In 2014, Claimant became a maintenance man for the City of Galena which required him to mow the city park and the right-of-ways, check and install water meters, and patch potholes. It was while in this employment that Claimant as injured on November 9, 2015, in a vehicular accident. He received treatment for the injuries and was released to return to work effective April 6, 2016. The City of Galena, however, severed its employment relationship with Claimant rather than accommodate the restrictions imposed by Dr. William O. Hopkins. Claimant's work at James River Outfitters, however, has continued. Although still seasonal, it became full-time.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

Injury No.: 15-088178

**Injury of November 9, 2015**

According to the Uniform Crash Report (Ex. 19), the accident occurred about 12:45 p.m. Claimant was driving a City of Galena pickup truck pulling a 10 foot trailer loaded with 33 sheets of 14 foot 8 inch galvanized roofing tin. The trailer was overloaded, causing the rear of the pickup to swerve, skid across the centerline, then cross back over the centerline and run off the right side of the roadway and overturn.

Hospital records from the date of the accident reveal that Claimant was diagnosed with an acute cervical sprain and discharged. On November 16, 2015, Claimant went to the emergency room at Mercy Aurora with complaints of neck and back pain. He was diagnosed with upper back strain and muscle spasms of the neck, given a new prescription of Naproxen, ordered to continue to take Soma and Hydrocodone and remain off work until November 19, 2015, with restricted to light duty until re-evaluation.

Claimant came under the care of Dr. Ted Lennard who continued with conservative treatment and prescription medications. Subsequent MRIs revealed no recurrent disc herniation or impingement in the lumbar, nor any herniation or impingement in the thoracic spine. Consequently, Claimant had no surgery as a result of this injury. On April 11, 2016, Dr. Lennard found Claimant to be at maximum medical improvement. He issued permanent restrictions to avoid prolonged bending and the lifting over 40 pounds Claimant treats with Dr. Damon Thomas to manage his pain medications.

**Prior Surgeries**

- **Lumbar Condition**

As early as February 24, 2004, Claimant had complained of low back pain with radicular symptoms. In February 7, 2005, an MRI revealed an L5-S1 disc bulge. Two months later, Claimant underwent a hemilaminectomy and microdiscectomy at L5-S1 on the right by Dr. Mark Crabtree. During his treatment, Claimant began taking Soma, Vicodin, and Naprosyn.

- **Neck Injury**

Claimant suffered a cervical injury while working at Stone County Road and Bridge on October 10, 2006. After conservative treatment failed, Claimant underwent an anterior cervical discectomy for decompression and arthrodesis, C4-5 and C5-6 with left anterior iliac crest bone graft and internal fixation using the Depuy Uniplate. When released by the treating surgeon, he was advised to avoid strenuous manual labor and overhead lifting. From February 22, 2008 to October 8, 2015, Claimant's primary care physician prescribed a variety of narcotic pain medications and muscle relaxers.

**Settlements**

Claimant settled the October 10, 2006 workers' compensation claim with the Stone County Road and Bridge based on a stipulated rating of 30 percent permanent partial disability to the body as a whole. (Ex. 9). He settled his Second Injury Fund claim related to that same 2006 injury for 15 percent permanent partial disability to the body as a whole (Ex. 10). With respect to the November 9, 2015 injury, Claimant settled with the City of Galena for 29.6 percent to the body as a whole. I find the percentages in these settlements to accurately portray the Claimant's degree of disability from each of the work injuries.

Both parties offered a surveillance video of less than five minutes in length in which Claimant is seen shoveling debris and placing the debris into a barrel, and then driving to other locations to perform the same function. ${ }^{2}$ A number of experts relied on the video in developing their opinions.

Lance Clayton is the owner of James River Outfitters. Marcy Essary is Claimant's supervisor. Both testified credibly by deposition. They indicated that Claimant, Claimant's wife Juliana, and Marcy Essary are managers at JRO. Claimant and Juliana Chambers operate as a team, providing two-thirds of the administrative work at the campground.

The JRO campground consists of a $20 \times 20 foot shower house, 10-15$ trailers and about 50 RV and tent sites. It owns and rents out to customers up to 90 canoes, 45 rafts, 70 kayaks and 40 tubes. JRO owns seven buses used to transport customers for float trips. JRO employs boat loaders, bus drivers, and office employees who run the store and check-in patrons. Usually, JRO bus drivers also work through the week performing maintenance, including weed-eating, mowing, painting and checking electrical boxes. Although mostly level, it still is a campground with unpaved areas. The managers supervise up to 20 employees on Saturday and fewer persons during the week.

Since 2016, Claimant's role has been to manage all the drivers and boat loaders, and assign tasks for the drivers who maintain the facility during the week. He also supervises all of the summer help. Claimant personally repairs the electrical power boxes at the camp sites. This requires that he load tools into the golf cart, drive to an electrical box, sit on a 5 -gallon bucket, and change out a plug or breaker. Claimant uses a tractor and backhoe at the beginning of the season to get the campground ready for the season. Claimant has a CDL license allowing him to transport passengers up the river. Claimant drives the five mile float route (about 14-16 miles round trip). He takes boys with him to load and unload boats from the trailer. Claimant may rest after doing two rounds of bus deliveries.

The owner is aware of Claimant's medical restrictions and provides accommodations, allowing him to work at his own pace, sit and stand as needed, use a golf cart on the grounds, avoid lifting in excess of 15 pounds, avoid climbing ladders or steps without railings, avoid repetitive work with his right arm, and have workers help with heavier aspects of the job. He also may rest or lie down as needed in his camper, although some of the administrative work can be completed from the camper. Despite his disabilities, Claimant still participates in the annual employee float trip.

[^0]

[^0]: ${ }^{2}$ The original surveillance video, which Claimant provided to the Second Injury Fund, included an audio of some unidentified individuals making comments about the work Claimant was seen performing. Claimant altered the original video to remove corresponding audio. This was admitted as Exhibit 26. The Second Injury Fund then offered the same video with the audio portion, to which Claimant objected to the whole as hearsay. In overruling the objection to the admissibility of the Fund's Exhibit IX, it was not the undersigned's intention to foreclose all hearsay objections to specific statements contained in the video. Irrespective, the undersigned does not consider the audio portion of Exhibit IX to be of any evidentiary or persuasive value. The administrative law judge does not rely on the audio portion in making her decision in this case.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

Injury No.: 15-088178

Claimant earns 11 or 12 per hour, and works Sunday through Saturday, about 50 hours per week. In addition to his salary, Claimant lives on the campsite in his own camper-trailer, rent-free, and may keep his camper on the grounds throughout the year. He has no written job description.

**Expert Opinions**

*Dr. Ted Lennard* was a treating physician. In an office visit note dated April 5, 2016, Dr. Lennard noted discrepancies between Claimant's subjective complaints of pain and his physical presentation in the video surveillance showing Claimant repeatedly bending, shoveling debris, lifting material overhead into the bed of a pickup truck, and lifting a barrel, without apparent physical difficulty. On April 11, 2016, Dr. Lennard opined that Claimant had reached maximum medical improvement for his injury of November 9, 2015. He imposed permanent restrictions to avoid prolonged bending and lifting over 40 pounds. In his report of May 19, 2016, Dr. Lennard concluded that Claimant had sustained a work related injury causing a 25 percent permanent partial disability attributable to the lumbar spine, of which 10 percent was preexisting, and a 5 percent partial disability attributable to the lumbar spine. Thus, Dr. Lennard's rating to the last work accident was 15 percent to the whole body. Dr. Lennard gave permanent lifting restrictions of 40 pounds secondary to his previous low back surgery.

*Dr. William O. Hopkins* examined Claimant on July 19, 2016, at the request of his attorney. He concluded that the work accident of November 9, 2015, was the direct and prevailing factor in causing injuries to Claimant's cervical spine, thoracic spine, lumbar spine and right shoulder. He found the following permanent partial disabilities:

- 45 percent of the cervical spine, of which 30 percent was from the October 10, 2006 work injury;

- 30 percent of the lumbar spine, of which 15 percent preexisting;

- 9 percent thoracic spine;

- 20 percent at the 232-week level with impingement symptoms; and

- 17.5 percent for preexisting right carpal tunnel entrapment.

Dr. Hopkins issued permanent work restrictions as a result of the November 9, 2015 work injuries, and his previous injuries, as follows: alternate standing and walking of 30 minutes each; no overhead work due to the cervical spine injury; no repetitive work with the right arm; no bending; no lifting over 15 pounds; no walking on uneven surfaces; no climbing ladders; and no steps without handrails, and then only occasionally; and have the ability to lie down and rest periodically. In his analysis, Dr. Hopkins stated:

> It is my opinion that when one combines the permanent partial disabilities involving his cervical spine and lumbar spine with his additional permanent partial disabilities from his cervical spine and lumbar spine, dorsal spine and right shoulder from his work injury on or about November 9, 2015 a significant enhancement of the combined disability rises above the simple arithmetic sum of the separate disabilities. It is my opinion that would create a disability above the simple arithmetic sum of his combined disabilities by an addition 10%.

It is my opinion that the combined effect of the disabilities resulting from his work-related injuries and disabilities attributable to all conditions preexerting [sic] at the time the work injury was sustained, result in his permanent total disability. Based upon the disabilities of Mr. Harrington [sic], no employer in the usual course of business seeking persons to perform duties of employment in the usual and customary work would reasonably be expected to employ him in his condition.

(Ex. 2, pp. 11-12).

Page 8

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

Injury No.: 15-088178

**Ben Hughes**, a vocational expert, testified on behalf of the Second Injury Fund. He noted there were two distinct sets of restrictions, one of which allowed Claimant to work into the medium level and the other removing him from employability. Mr. Hughes stated:

> Assuming the restrictions of Dr. Lennard, Mr. Chambers could expect to work at the sedentary, light and into the medium levels when observing the Dictionary of Occupational Titles (DOT). He could return to driver types of jobs such as van/shuttle driver. Noting his vocational/educational background and academic testing, he would do well in a number of unskilled/semi-skilled jobs including ticket sales/taker, cashier, parking lot attendant, office cleaner, fast food employee, and order filler.

(Ex. 2, p. AGO p. 71). Noting Dr. Hopkins' restrictions, Mr. Hughes conceded that Claimant would be unable to compete in the open labor market; however, Mr. Hughes did not believe Claimant was permanently and totally disabled.

Mr. Hughes observed the surveillance video, describing it in his deposition and in his report. He said he did not take into consideration any of the audio portion of the video. He did not believe that Claimant was shown in the video to be extraordinarily slow in bending over and picking up debris with a straight shovel and dumping it into a barrel around 15 times. He did not believe Claimant demonstrated any pain while performing these functions. Mr. Hughes concluded in his report,

> Observing this video and noting only a couple of minutes being viewed where the man is seen shoveling/moving dirt, I am much more confident that he is capable of some sedentary and light level of work. This would certainly include jobs where being seated is a portion of the job description and includes ticket sales/taking, cashiering, parking lot attendant and any of the mentioned driver positions.

(Ex. 2, p. AGO 72).

Mr. Hughes believed that Claimant's activities in the video were outside Dr. Hopkins' restrictions. As Mr. Hughes noted, Claimant's current employer Lance Clayton had said he was not so much doing Mr. Chambers a favor, but was providing him with a job. Mr. Hughes enumerated a list of Claimant's job responsibilities in his current seasonal but full-time position, including walking on around the campground, riding a golf cart, ensuring that canoes, rafts, and kayaks were loaded properly, supervising other employees. Mr. Hughes noted that Claimant maintained his CDL and drove the shuttle bus. Although Claimant did not have a high school diploma or GED, Mr. Hughes believed academically Claimant still could work in a number of occupations.

Mr. Hughes acknowledged that Claimant was accommodated in his work and could take rest breaks and self-regulate his posture as needed. Despite accommodations and the seasonal aspect of the job, Mr. Hughes believed that Claimant currently was gainfully employed in the open labor market in the light category of work. As Mr. Hughes noted, it would be "Quite rare, indeed" for someone working 40 to 50 hours per week on a seasonal basis to claim that they are permanently and totally disabled (Ex. 2. AGO p. 76). Finally, Mr. Hughes noted in deposition that Claimant had applied for unemployment benefits during the off-season and in doing so, Claimant needed to be ready, able, and willing to work.

Page 9

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

Injury No.: 15-088178

Phillip Eldred, a vocational rehabilitation counselor, offered a vocational opinion contrary to that of Mr. Hughes. He found Claimant to be unemployable in the open labor market as a result of his injury on November 9, 2015, combined with his pre-existing injuries and medical conditions to his lower back and his neck, both of which required surgical repair. Mr. Eldred considered Claimant's lack of education, lack of computer skills, and vocational test results that were less than the high school level, to be significantly limiting. Mr. Eldred concluded that Claimant's vocational restrictions at this current time are less than sedentary work level. As a result of Claimant's pain, restrictions, limited education and vocational options, and the use of narcotic pain medications, it is unlikely an employer in the normal course of business would consider employing Claimant.

Despite his ultimate conclusion on employability due to the combination of disabilities, Mr. Eldred acknowledged that Claimant had been working full-time for multiple seasons since the issuance of his report. Mr. Eldred agreed that Claimant's work for James River Outfitters in Galena, Missouri, albeit accommodated, included 40 to 60 hours of labor each week for more than 5 months per year. Mr. Eldred believed, however, that if Claimant lost that employment, it was unlikely that he would be able to obtain different employment with the same accommodations.

Present Condition and Work Status

For his continued complaints of pain, Claimant's primary care physician, Dr. Damon Thomas, prescribes Hydrocodone, Soma and Percocet in addition to over-the-counter medications such as Aleve. Since November 9, 2015, Claimant has slept in a recliner, finding it difficult to get up from a bed. Claimant believes his activities are in accordance with Dr. Hopkins' restrictions. Claimant continues his full-time, seasonal employment with James River Outfitters.

Credibility Findings

Claimant testified at the hearing that before 2015, he had only occasional pain. Although he suffered no new herniation to his spine, and his back injury was not so severe as to require any surgical intervention, he now contends he is in constant pain that emanates from the top of his head to his lower back and involves everything in between.

Based on his review of the surveillance video, however, Dr. Lennard noted a discrepancy between Claimant's physical complaints and demonstrated capabilities. The surveillance video [silent version] clearly indicates that Claimant has the ability to bend frequently, use a shovel, and lift at least 15 pounds. Claimant also admitted to being able to operate a backhoe up to 30 minutes, operate a truck for longer than that, drive a commercial vehicle loaded with canoes, paddles, seat cushions, and customers, work more than full time up to nine-hour days, albeit accommodated. He also participates in float trips. Moreover, his annual application for unemployment benefits, certifying that he is "ready, willing, and able" to work, does not comport with his contention that he is so physically disabled as to be unable to obtain employment on the open labor market. Based on these facts, and having personally observed Claimant's demeanor at the hearing, I find that Claimant has exaggerated the degree of his physical complaints from the last injury.

I also accept the vocational opinion of Mr. Hughes over that of Mr. Eldred in this case.

Page 10

The burden of proving an entitlement to compensation is on the employee per $\S 287.808$ RSMo. The employee must prove all elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). The Second Injury Fund has no obligation to present contrary or conflicting evidence with regard to an employee's claim for permanent total disability benefits. Dunn v. SIF, 272 S.W.3d 267, 275 (Mo. App. E.D. 2008). Administrative Law Judges and the Labor and Industrial Relations Commission must weigh the evidence impartially without giving the benefit of the doubt to any party and are to construe strictly the statutory provisions. § 287.800.1 RSMo; Treasurer of Missouri-Custodian of the Second Injury Fund v. Witte, 414 S.W.3d 455, 461 (Mo. banc 2013).

Here, Claimant seeks permanent total disability benefits against the Fund. "The term 'total disability' as used in [Chapter 287] shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." § 287.020.6 RSMo; Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003). Permanent total disability means an employee is unable to compete in the open labor market, Forshee v. Landmark Excavating and Equip., 165 S.W.3d. 533, 537 (Mo. App. E.D. 2005), in the manner that duties are customarily performed by the average person engaged in employment. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849 (Mo. App. S.D. 1995). It is within the province of the Administrative Law Judge to determine the extent of any permanent disability. Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. E.D. 1998).

Appellate courts previously have ruled that "neither the worker's ability to engage in occasional or light duty work nor the worker's good fortune in obtaining work other than through competition on the open labor market should disqualify the worker from receiving such total disability benefits under the Workers' Compensation Law." Minnick v. S. Metro Fire Prot. Dist., 926 S.W.2d 906, 910 (Mo. App. W.D. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). A good example of such case is Molder v. Missouri State Treasurer, 342 S.W.3d 406, 413 (Mo. App. W.D. 2011), in which the employee's job was highly accommodated, irregular, zero to 20 hours per week, and there was uncontradicted opinions from three experts that no reasonable employer could be expected to hire the employee in her current condition. 342 S.W.3d at 409. That is not this case. The facts in the instant case are so distinguishable from those of Molder and its progeny, that a different conclusion is warranted.

Mr. Chambers' work is regular. Through his employment at JRO, Claimant works more than full time. His employment, while seasonal, is not sporadic or part-time. He has an array of duties requiring maintenance, administrative, and supervisory skills. His duties also include driving passengers in a bus. He maintains a commercial driver's license and operates a backhoe and a truck. Since 2015, Claimant has demonstrated that he is able to maintain steady, full-time employment regardless of any physical impairments. Nothing in Missouri's Workers' Compensation Law requires that an employee be deemed permanently and totally disabled because they receive accommodations on the job. An employer's provision of accommodations also does not mean the job has been provided through an employer's benevolence. The employer in this case clearly disputed that inference by stating he was providing a job and not a favor.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

The conclusion that Claimant is not permanently and totally disabled is supported by the testimony of vocational expert Benjamin Hughes who credibly opined that Claimant was maintaining gainful employment, and has done so for almost five years since his last injury. Irrespective of his limited education, he is not performing rudimentary tasks on an inconsistent basis. Rather, he possesses demonstrated managerial and supervisory skills and the ability to work full time and even overtime.

As there is no longer any provision for permanent partial disability under § 287.220 RSMo, for cases arising after January 1, 2014, and Claimant is not permanently and totally disabled from a combination of preexisting disabilities and the disabilities, the Second Injury Fund has no liability in this case.

I certify that on **4-15-20** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **A. M.**

**Victorine R. Mahon**

Chief Administrative Law Judge

Division of Workers' Compensation