William Rector v. Cosentino's, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-083623

Employee: William Rector

Employer: Cosentino's, Inc.

Insurer: Senty Insurance

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 $\S 287.480$ 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 March 9, 2020. The award and decision of Administrative Law Judge Kenneth J. Cain, issued March 9, 2020, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $\qquad 14th \qquad$ day of April 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Attest:


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

I believe that the administrative law judge should have found employee to be permanently and totally disabled from the combination of his pre-existing conditions and his August 14, 2015 primary injury.

Dr. James A. Stuckmeyer testified that employee was permanently and totally disabled due to the combined effect of the August 14, 2015 primary injury and his preexisting disabilities. Employer's vocational expert, Mr. Terry Cordray admitted that employee is permanently and totally disabled due to the combination of all conditions, including the pre-existing torn right bicep tendon, which disqualifies employee from sedentary, unskilled labor and also renders employee unable to compete in the open labor market. Vocational expert Mr. Micheal Dreiling also concluded that employee was permanently and totally disabled, but differed from Mr. Cordray in that he opined that employee was not able to compete for employment in the open labor market due to employee's August 14, 2015 primary injury alone and in isolation. Based upon the medical and vocational expert testimony regarding employee's permanent disability, I do not see how the administrative law judge could have found employee to be only 30 % permanently partially disabled from the primary injury, and not find him to be permanently and totally disabled.

For these reasons, I would find employee to be permanently and totally disabled. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No.: 15-083623

Employee: William Rector

Injury No.: 15-083623

Dependents: N/A

Employer: Cosentino's Price Chopper

Insurer: Sentry Casualty Company

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

Hearing Date: November 27, 2019

Briefs Filed: January 7, 2020¹

Checked by: KJC/lh

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: August 14, 2015.

1. State location where accident occurred or occupational disease occurred: Kansas City, Jackson County, Missouri.

1. Was above employee in the employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee, while in the course and scope of his employment as a meat cutter for Cosentino's Price Chopper lifted 75 to 80 pound boxes on April 14, 2015. While twisting and lifting such a box, he felt a pop in his right knee. The employee also alleged that he injured his cervical spine and left upper extremity while in therapy for his right knee injury when he lifted 10 to 12 pound dumbbells in each hand while lying on an incline bench.

¹ The parties were given an extended time to file briefs in the case, because the attorney for the State Treasurer had tried a permanent total disability case before the same judge in this case on the preceding day. That case also had numerous exhibits and complicated issues regarding the alleged permanent total disability.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

1. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right knee, cervical spine and left upper extremity.

1. Nature and extent of any permanent disability: Thirty percent to the employee's body as a whole. See additional findings of fact and rulings of law.

1. Compensation paid to date for temporary disability: $6,257.64

1. Value necessary medical aid paid to date by employer/insurer: $102,306.37.

1. Value necessary medical aid not furnished by employer/insurer: Undetermined. See additional findings of fact and rulings of law.

1. Employee's average weekly wages: 1,059.24.

1. Weekly compensation rate: 706.16/$464.58 per week.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: Undetermined. See additional findings of fact and rulings of law.

Weeks for permanent partial disability: 120 weeks @ $464.58 = $55,749.60. See additional findings of fact and rulings of law.

Weeks for temporary total (temporary partial disability): 8 3/7 weeks of temporary total disability benefits previously paid; 96 4/7 weeks owed in temporary total disability benefits @ $706.16 per week = $68,194.86. See additional findings of fact and rulings of law.

Weeks for permanent total disability: None.

Weeks for disfigurement: None.

1. Second Injury Fund Liability: None.

TOTAL: $123,944.46.

1. Future requirements awarded: Undetermined.

Said payments to begin as of date of the award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. John McKay.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No.: 15-083623

**FINDINGS OF FACT AND RULINGS OF LAW**

**Additional Party:** Treasurer of the State of Missouri as the Custodian of the Second Injury Fund

**Hearing Date:** November 27, 2019

**Briefs Filed:** January 7, 2020

**Checked by:** KJC/lh

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. The nature and extent of any disability sustained by the employee;
2. Liability of the employer for temporary total disability benefits for the period May 20, 2016 to May 2, 2018;
3. Liability of the employer for future medical treatment; and
4. Liability of the Second Injury Fund for compensation, and if so, the extent of any such liability.

At the hearing, Mr. William Rector (hereinafter referred to as Claimant) testified that he was born on February 1, 1952 and that he had been married for 42 years. He stated that he graduated from high school in 1970. He stated that he had no formal education since high school. He stated that he had no typing skills. He stated that he could type about 4 or 5 words per minute. He stated that he had no computer training.

Claimant testified that his last job was as a meat cutter for Cosentino's Enterprises, Inc. He stated that his job required a lot of lifting, twisting and work with heavy weights.

Claimant testified that he sustained an injury at work at Cosentino's on August 14, 2015. He stated that the injury occurred when he was picking up heavy boxes. He stated that he had to lift and twist as he picked up the boxes and that while doing so with a 75 to 80 pound box he felt a pop in his right knee. He indicated that he felt an immediate burning sensation in his knee.

Claimant testified that he reported the injury to Dick Haus, his supervisor, and to Jason, the assistant store manager. He stated that Jason drove him to the doctor's office. He stated that he had an MRI of his right knee. He stated that he had surgery on his right knee on September 18, 2015.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Claimant testified that following his August 14, 2015 accident at work, he had three surgeries in total on his right knee.² He stated that on October 6, 2016 he had a total right knee replacement. He also stated that he had knee injections.

Claimant rated his alleged right knee pain as a 3 or 4 to a 7 on the pain scale. He stated that he had popping and clicking in his right knee. He complained of constant swelling in his knee. He stated that he had to wear compression stockings and use ice. He stated that he elevated his right knee daily. He also stated that he had no pain in his right knee until his August 14, 2015 accident.

Claimant testified that he slept 8 hours per night prior to his August 2015 accident. He stated that now he only sleeps 3 hours per night. He also indicated, however, that he reclines about 3 hours per day. He stated that he keeps his right leg above his head while reclining.

Claimant testified that during the day he takes 8 to 12 Ibuprofen for pain relief. He stated that he sometimes takes Tylenol. He later stated that on average he takes 12 to 16 Ibuprofen daily. He also later testified that he slept 4 or 5 hours per night, while as indicated above, he initially indicated that he slept 3 hours per night.

Claimant testified that he had no problems getting dressed until he injured his knee on August 14, 2015. He stated that he now had trouble putting on socks and tying shoes. He stated that he had trouble getting down on his knees to do plumbing work around the house. He stated that he had difficulty going up and down stairs. He stated that he was now limited in driving. He stated that since August 2015, he was slower in moving his right leg from the gas pedal to the brake. He stated that he could only drive short distances.

Claimant testified that he could sit "maybe" one hour.³ He stated that he could stand for 1 hour. He stated that if he tried to work his knee would be swollen.

Claimant testified that he injured his neck and left shoulder while lifting weights in therapy for his right knee injury on November 9, 2015. He stated that the injury occurred while he was lying on an incline bench and lifting 10 to 12 pound dumbbells in each hand one at a time above his head. He stated that he got off balance and popped something in his left shoulder and neck. He stated that he experienced numbness in his thumb and fingers. He stated that he reported the injury to the physical therapist and to his employer.

Claimant testified that after he received no response from his employer, he went to his family doctor for treatment of his neck and left upper extremity complaints. He stated that his family doctor ordered an MRI which showed that he "probably" had a herniated disk in his neck. He stated that he eventually received treatment. He stated that he did not have surgery.

Claimant rated his alleged neck pain as a 2 to 5 on the pain scale. He stated that his pain was made worse by looking in an upwards direction. He rated his alleged pain in the left upper

² Claimant admitted on cross-examination that he considered an aspiration of his knee as a surgery.

³ Claimant's employer offered video surveillance into evidence. The video surveillance showed that Claimant could sit for more than one hour.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

extremity as a 4 to a 6 on the pain scale. He stated that he had no pain in his neck, left shoulder or left arm until his accident in physical therapy.

Claimant testified that he had several medical impairments prior to his August 14, 2015 accident at work. He stated that he had coronary artery disease prior to his accident at work. He stated that he had been diagnosed with atrial fibrillations and high blood pressure. He stated that he had angioplasty surgery with stents implanted prior to his accident at work.

Claimant also testified that he had a torn ligament in his right elbow and a tear of his biceps tendon in his right arm prior to his August 14, 2015 accident at work. He stated that he did not have surgery for either condition. He admitted that the injuries were not a result of a work accident. He also did not serve in the military.4

Claimant did testify that he had injured his right knee in a work-related accident prior to his August 14, 2015 accident at work. He stated that he had arthroscopic surgery on his knee prior to his August 2015 accident at work. He stated that he settled his workers' compensation case involving his prior right knee injury based on a permanent partial disability of 10 percent of the knee.

Claimant testified that he was able to return to his job as a meat cutter after his prior right knee injury. He stated that he worked overtime after his prior knee injury and surgeries.

On cross-examination by his employer, Claimant acknowledged that he had testified on direct examination that he had no pain in his right knee until his August 14, 2015 injury at work. He was then confronted with his 2016 deposition where he testified that he had "minor" pain in his knee prior to his August 2015 knee injury at work. He was also confronted with his 2016 deposition testimony where he stated that standing, bending and kneeling made his preexisting right knee pain worse. He admitted that he had testified in his deposition that his knee bothered him at work prior to August 2015.

Claimant reiterated that he elected not to have surgery for his biceps tendon tear which occurred prior to his August 2015 accident at work. He testified that he made $50,000 per year as a meat cutter for Cosentino's Price Chopper grocery store. He stated that he worked 6 days per week. He testified that as the first meat cutter at Price Chopper, he was also the assistant manager. He stated that he supervised other employees. He admitted that prior to resigning from his job at Price Chopper he did not speak with anyone at the store about another job.

Claimant testified that he was now getting 1,000 per month with his pension and 2,000 per month in social security benefits. He stated that he "doubted" that Price Chopper had another job that would pay him what he was now making.

4 Section 287.220 RSMo. 2005 and as amended effective with January 1, 2014 provides that the Second Injury Fund is no longer liable for permanent partial disability benefits where the primary injury occurs on or after January 1, 2014. The amended statute also restricted liability in permanent total disability cases against the Second Injury Fund. Injuries resulting from military service, however, may constitute preexisting disability for purposes of Second Injury Fund liability under the amended statute.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Claimant admitted that he meets with his friends 3 or 4 times per week for lunch. He stated that he has a few drinks when he meets with his friends. He stated that he did not always wear a knee brace.

On cross-examination by the Second Injury Fund, Claimant testified that he had no problems in performing his job prior to his August 14, 2015 accident at work, despite his two prior knee surgeries, heart surgery and biceps tendon injury. He stated that he had no restrictions at work and no accommodations. He stated that he was not taking any prescribed medication.

Other Testimony at the Hearing

Claimant's wife, Ms. Shari Rector, provided corroborating testimony. She testified that she and Claimant no longer went for walks or rode bicycles. She testified that they no longer went on vacation. She testified that she now did most of the mowing.

Mr. Gary Brammer, the meat director for Cosentino's Price Chopper Stores, testified for Claimant's employer. He testified that the company accommodates the restrictions of employees who sustain work-related injuries. He testified that if the employee believed that he could no longer do his job as a meat cutter after an injury; the company would find another job for the employee. He stated that the company would have found another job for Claimant if Claimant had told the company that he wanted to continue working. He stated that the company would have found a job for Claimant in another store if necessary. He stated that Claimant was a valuable employee. He stated that Claimant was reliable and that Claimant had no serious disciplinary issues.

Mr. Aaron Green, the director of human resources for Cosentino's Price Chopper, also testified for Claimant's employer. He testified that he had held the director position since March 2017. He stated that he previously worked as the senior safety and risk manager for Cosentino's Price Chopper. He stated that he worked in that position from 2011 until 2017.

Mr. Green testified that Cosentino's had 4,750 employees. He stated that there were about 150 current openings. He stated that the company accommodates people with restrictions. He too testified that the company would find other work for an employee if the employee could not continue in his current job after an injury at work. He specifically testified that if Claimant had come to him and asked for another job, he would have offered Claimant another job. He testified that if Claimant had told him that he had difficulty with sitting or standing, he would have offered Claimant a job which would have accommodated those restrictions. He stated that Claimant could have worked part time if he wanted such a job. He stated that the company had employees who worked in pricing where they put labels on tubs. He indicated that the company would have offered Claimant a job in pricing.

On cross-examination, Mr. Green admitted that the company did not have beds to allow a worker to lie down and elevate his leg above his heart to control swelling.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Mr. Page Troop, a private investigator, testified for Claimant's employer. Mr. Troop testified that he had been a private investigator for 23 years. He stated that he previously worked for a sheriff's department.

Mr. Troop testified that he observed Claimant on multiple days. He stated that Claimant was not limping during the days he observed him. He stated that Claimant was wearing shorts on the days he observed him. He stated that Claimant was not wearing a knee brace. He stated that Claimant was not "visibly" in pain. He stated that he observed Claimant at a restaurant/bar where Claimant was observed talking with friends and laughing and smiling and drinking alcoholic beverages for several hours each time. He stated that Claimant drove himself to the bar and home on each occasion. He stated that he observed Claimant in the restaurant/bar on 4 or 5 different days. He also identified the CDs containing the video surveillance.5

Medical Evidence

James A. Stuckmeyer, M.D., an orthopedic surgeon, testified for Claimant. He stated that he examined Claimant on three occasions, January 26, 2016, April 11, 2017 and July 17, 2018. He noted Claimant's history. He noted that Dr. Wise's arthroscopic procedure on Claimant's right knee in September 2015 contained findings descriptive of an acute injury and showed what was an "absolute predisposer to arthritis". He noted that Claimant had a right knee total replacement on October 6, 2016.

Dr. Stuckmeyer indicated that Claimant had five surgeries in total on his right knee, two of which preceded Claimant's August 14, 2015 accident at work. He stated that Claimant had 2 aspirations and an injection in his knee.

Dr. Stuckmeyer testified that Claimant told him that he had not improved following his knee replacement on October 6, 2016. He noted that Claimant provided a history of ongoing symptoms of significant right knee pain on a daily basis. He stated that Claimant complained of difficulty with prolonged standing, walking, bending, squatting and traversing steps. He stated that Claimant complained of swelling in his calf with increased activities. He concluded that Claimant reached maximum medical improvement from his August 14, 2015 injury at work on May 2, 2018 as found by Dr. Eggers.

Dr. Stuckmeyer concluded that Claimant had sustained a permanent partial disability of 50 percent of his right knee at the 160 week level as a result of the injury Claimant sustained in the August 14, 2015 accident at work. He also concluded that Claimant would need future medical treatment for his knee injury, including revisions to the knee replacement.

In addition, Dr. Stuckmeyer testified he examined Claimant on February 5, 2016, for Claimant's alleged cervical spine injury while in therapy for his knee injury. Dr. Stuckmeyer noted that Claimant had a full range of motion of his cervical spine. He noted that Claimant had

5 The video surveillance depicted what Mr. Troop testified that he observed. The video surveillance also showed that Claimant sat between 2 1/2 and 3 hours at the bar on each occasion. Claimant did not get up or change positions during the 2 1/2 to 3 hours. He was not fidgeting. He did not appear to be in pain. He did not elevate his leg during the 2 1/2 to 3 hours.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

normal reflexes. He noted that Claimant had a full range of motion of his right elbow. He stated that Claimant's most significant finding was a loss of grip strength.

Dr. Stuckmeyer concluded that Claimant sustained a permanent partial disability of 15 percent to his body as a whole due to the cervical spine injury Claimant sustained in therapy for his right knee injury. He concluded that Claimant needed ongoing pain management for his cervical spine injury.

Dr. Stuckmeyer also concluded that Claimant had sustained permanent partial disability prior to his August 14, 2015 accident at work. He concluded that Claimant had sustained a permanent partial disability of 20 percent to his body as a whole due to Claimant's heart surgeries in 1996 and 2000. He noted that Claimant had shortness of breath due to his coronary problems. He concluded that Claimant had sustained a permanent partial disability of 10 percent to the right knee predating his August 14, 2015 accident at work.

In addition, Dr. Stuckmeyer concluded that Claimant had sustained a permanent partial disability of 20 percent of the right elbow at the 210 week level due to Claimant's biceps tendon tear and lateral epicondylitis prior to the August 14, 2015 accident at work. He concluded that Claimant's preexisting injuries were a hindrance or obstacle to Claimant's employment or reemployment.6

Finally, Dr. Stuckmeyer initially concluded that Claimant was permanently and totally disabled due solely to the injuries Claimant sustained in his August 14, 2015 accident at work. Later, following a different question posed to him on direct examination, Dr. Stuckmeyer stated that Claimant was permanently and totally disabled due to the combined effect of the disability Claimant sustained in the August 14, 2015 accident at work and Claimant's preexisting permanent partial disability.

He also stated that Claimant was not "medically" able to compete for employment in the open labor market. He stated that Claimant was not able to work 8 hours per day, 40 hours per week and 52 weeks a year.

On cross-examination by Claimant's employer, Dr. Stuckmeyer admitted that Claimant had degeneration in his right knee prior to his August 14, 2015 accident at work. He noted that Claimant's MRI prior to Claimant's August 14, 2015 accident confirmed the degeneration.

Dr. Stuckmeyer admitted that Claimant had degenerative changes at multiple levels of his cervical spine prior to the incident in therapy. He stated that he could "guarantee" that Claimant had weakness and difficulty with supination due to his preexisting complete rupture of his biceps tendon. He stated that Claimant's preexisting epicondylitis meant that Claimant had pain with gripping and grasping activities.

6 As set out later in the award, per the statute as amended effective with January 1, 2014, Claimant's prior right knee injury was the only preexisting injury which resulted from a work or military accident. See § 287.220 RSMo. 2005 and as amended effective with January 1, 2014. Also, there was no evidence that any of Claimant's other preexisting impairments substantially aggravated Claimant's August 14, 2015 injuries at work.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Finally, Dr. Stuckmeyer testified on cross-examination, that he retired from doing surgery in 1997 due to a traumatic wrist injury. He stated that 95 percent of the individuals he evaluated were at the request of Claimants' attorneys.

On cross-examination by the Second Injury Fund, Dr. Stuckmeyer testified that Claimant needed to use an ice pack when he elevated his right leg. He admitted that he told Claimant to rotate his position throughout the day between sitting, standing and lying down.

Dr. Stuckmeyer's reports

Dr. Stuckmeyer's reports were cumulative of his testimony. He noted, however, that Claimant's December 12, 2015 FCE showed that Claimant could lift more than 100 pounds to his waist level and more than 100 pounds above his shoulders. He noted that Claimant's December 2011 biceps tendon injury involved a complete disruption of his biceps tendon distally. He noted that Claimant's February 2014 MRI of his right knee showed that Claimant had tricompartmental degenerative joint disease, chondromalacia of the medial femoral condyle, a full thickness defect and a tear of the posterior horn of the medial meniscus.

Dr. Stuckmeyer noted in his reports that Claimant needed numerous restrictions involving his right knee prior to the August 14, 2015 accident at work. He noted that Claimant needed restrictions of no repetitive bending, squatting, crawling and stair and ladder climbing. The restrictions he rendered due to Claimant's right knee injury in the August 14, 2015 accident at work were similar.

Claimant's Employer's Medical Evidence

Claimant's employer offered into evidence the medical report of Jeffrey Krempec, M.D. a board certified orthopedic surgeon with Drisko, Fee and Parkins. Dr. Krempec concluded that Claimant reached maximum medical improvement on May 22, 2018. He noted that he performed claimant's right total knee replacement on October 6, 2016.

Dr. Krempec noted that Claimant told him on April 20, 2018 that his "biggest" problem was swelling in his knee and leg when he stands for any period of time. He noted that there was no etiology for Claimant's continued symptoms. He also noted that Claimant had "large" varicosities throughout his right leg.

Dr. Krempec noted that he referred Claimant to his partner, Dr. Eggers, to make sure that "nothing had been left out". He noted that Dr. Eggers had concluded on May 22, 2018 that Claimant was "on course with a standard total knee replacement". He noted that Dr. Eggers concluded that Claimant was at an appropriate level in his recovery. He noted that Dr. Eggers found that Claimant had no restrictions or limitations and full "functional" motion of his right knee. He noted that Dr. Eggers found that Claimant would continue to improve.

Dr. Krempec noted in his July 13, 2018 report that Claimant was 73 inches tall and 265 pounds. He noted that Claimant had swelling in both legs. He noted that Claimant's increased swelling of his right lower extremity could be related to Claimant's heart condition, or renal insufficiency or valvular incompetency. He did note that the swelling was greater on the right

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

where Claimant had the recent total knee replacement. He noted, however, that a total knee replacement would cause an increased blood flow to the lower extremity for a 2-year period. He noted that Claimant would continue to improve during the 2-year period. He recommended that Claimant get thigh-high TED hose for the bilateral lower extremity edema.

Dr. Krempec also recommended that Claimant get 5-year post-operative x-rays to evaluate the implant placement. He concluded that Claimant had sustained a permanent partial disability of 23 percent of his right knee at the 160 week level.

Eden Wheeler, M.D., a specialist in physical medicine and rehabilitation, with Prime Care Consultants performed an "Independent Medical Evaluation" of Claimant on October 24, 2018. She noted Claimant's history of a knee injury and later a neck injury in physical therapy while lifting 10-12 pound dumbbells while lying on an inclined bench.

Dr. Wheeler noted that Claimant complained that his knee pain was worse with prolonged sitting, standing, walking and climbing stairs. She concluded that Claimant's multilevel severe preexisting degenerative changes in his cervical spine as shown by an MRI prior to his August 14, 2015 accident at work, were the prevailing factor for Claimant's cervical spine and left trapezius and lateral digits complaints. She stated that his lifting incident in physical therapy was "likely" a trigger for his complaints.

Dr. Wheeler also noted that she did not concur with Dr. Stuckmeyer's opinion that Claimant had an altered gait on a consistent basis. She stated that she observed Claimant's gait while he was in her examining room and later when he was walking in the parking lot. She stated that his gait was not altered. She stated that Claimant had no antalgia while walking in the parking lot. She stated that his gait pattern was smooth and fluid. She noted that he did not use any assistive devices. She also stated that she reviewed the video surveillance provided to her. She stated that Claimant's gait was normal in the video surveillance.

Dr. Wheeler concluded that Claimant's 30-pound weight gain since his August 14, 2015 accident at work was not "helpful" for his lower extremity complaints. She noted that he weighed 280 pounds and that he was "morbidly" obese. She concluded that Claimant needed no restrictions due to his right knee injury in accordance with the opinions of Drs. Krempec and Eggers.

Dr. Wheeler also concluded that Claimant had a normal range of motion of his cervical spine, left shoulder and left upper extremity. She noted that he had a normal neurological, motor and sensory examination of his cervical spine. She concluded that Claimant had not sustained any disability due to his alleged cervical spine and left upper extremity injuries.

10

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Claimant offered into evidence the reports and deposition testimony of Michael Dreiling, a vocational rehabilitation consultant. Mr. Dreiling testified that he evaluated Claimant on April 26, 2016 and on May 25, 2017.7

Mr. Dreiling noted the restrictions rendered by Dr. Stuckmeyer for Claimant's injuries in the August 14, 2015 accident at work and for Claimant's pre-existing right knee injury, coronary artery disease, hypertension, atrial fibrillations, biceps tendon rupture and epicondylitis. He noted that Dr. Stuckmeyer's restrictions for Claimant's preexisting injuries and conditions involved no repetitive kneeling, crawling, squatting or stair and ladder climbing, restrictions on repetitive pushing and pulling and gripping and grasping and strenuous lifting and to avoid exposure to excessive heat. He noted that Dr. Stuckmeyer's restrictions for Claimant's right knee injury in the August 14, 2015 accident were similar to the restrictions for Claimant's prior right knee injury. He noted that Dr. Stuckmeyer did render a new restriction after Claimant's August 14, 2015 accident. He noted that the new restriction involved the need for frequent bouts of recumbency during the day to elevate his right leg above his heart.

Mr. Dreiling concluded that Claimant was permanently and totally disabled. He stated that Claimant was not able to compete for employment in the open labor market due to Claimant's injuries in the August 14, 2015 accident alone and in isolation.

Mr. Dreiling also, however, rendered a conflicting opinion. He concluded that Claimant could not work an 8 hour day, 5 days a week, 52 weeks a year due to the combination of Claimant's preexisting restrictions and limitations and those due to Claimant's August 14, 2015 accident at work. He stated that no employer would be expected to hire Claimant to perform work in the ordinary course of business due to the combined effect of Claimant's restrictions and limitations from the August 14, 2015 accident at work and Claimant's preexisting restrictions and limitations.

On cross-examination by Claimant's employer, Mr. Dreiling admitted that he only relied on the restrictions and limitations rendered by Dr. Stuckmeyer. He admitted that Claimant had not furnished to him any of the reports of Claimant's treating doctors. He acknowledged that he did believe that Claimant's treating doctor had released Claimant to return to work at full duty. He acknowledged that he understood that Claimant had resigned from his job as a meat cutter at Price Chopper. He admitted that in his opinion, Claimant was permanently and totally disabled due to a combination of Claimant's limitations from his August 14, 2015 accident at work and Claimant's preexisting limitations.

On cross-examination by the Second Injury Fund, Mr. Dreiling testified that if Claimant had to lie down during the day, that restrictions alone would render Claimant permanently and totally disabled.

7 Claimant argued at the hearing and proved that he did not reach maximum medical improvement until May 2, 2018. Thus, Mr. Dreiling's opinion in May 2017 that Claimant was vocationally permanently and totally disabled was rendered while Claimant was still recovering from his injuries.

11

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Claimant's employer offered into evidence the report and testimony of Terry Cordray, a board certified vocational rehabilitation counselor. Mr. Cordray testified that 50 percent of his referrals were from employees and 50 percent from employers. He testified that in rendering his opinions in Claimant's case he relied on the reports and findings of Drs. Krempec, Eggers, Wheeler and Stuckmeyer. He also stated that he reviewed Mr. Dreiling's vocational report.

Mr. Cordray testified that Claimant would present "well" in a job interview. He noted that Claimant's IQ was average. He too concluded that Claimant would not be able to do any job for which he was qualified to do based on Dr. Stuckmeyer's restriction that Claimant needed to be allowed frequent breaks of recumbency to elevate his leg. He acknowledged that none of Claimant's treating doctors concluded that Claimant needed any such breaks to elevate his leg.

Mr. Cordray concluded that Claimant could do sedentary unskilled jobs based on the reports of Drs. Krempec, Eggers and Wheeler. He stated that Claimant could work as a cashier in a parking garage at Kansas City International Airport. He stated that cashier positions in parking garages allow the worker to sit or stand as needed. He stated that he could "guarantee" that Claimant could get a job as a parking lot attendant or cashier if he would work a night shift.

Mr. Cordray testified that Claimant could do other jobs, such as escort driver, local courier, and flower and food deliverer. He stated that Claimant could work in retail sales with his friendly personality. He stated that Claimant could do light truck delivery work. He also stated that on the morning of his deposition, he reviewed job postings. He stated that there were a number of jobs posted that Claimant could do.

Mr. Cordray testified that Goodwill had job openings for retail sales associates. He stated that Claimant could do those jobs. He stated that Goodwill was also very amenable to hiring individuals with injuries and disabilities. He stated that Claimant could do the 5 job openings posted by Securitas Security Services. He stated that the usher jobs posted were jobs where the person would stand at venues such as the Sprint Center and direct people to keep moving and stay to the left. He stated that Claimant could do the job posted for a Sealy mattress sales associate. He stated that Claimant could do the job posted by Enterprise for an airport shuttler and as a sales agent at the airport.

On cross-examination by Claimant, Mr. Cordray testified that he no longer considered advanced age a negative factor in employment. He stated that statistics now show that more people over the age of 65 are entering the workforce than people over the age of 16. He stated that many employers prefer older workers due to their dependability and reliability as opposed to younger workers.

Mr. Cordray acknowledged that Claimant's lack of typing and computer skills would preclude Claimant from competing for such jobs as a telemarketer or bill collector. Again, however, he emphasized that Claimant's "friendly" personality and experience in interacting with the public would be useful in jobs dealing with the public such as a cashier and in retail sales.

12

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

On redirect examination, Mr. Cordray explained that there were two types of security officer jobs. He stated that one type was what vocational consultants referred to as "door shakers". He stated that door shakers checked the bathrooms, closets, offices and walked the perimeter of the building. He stated that the other type of security officer was a surveillance system monitor. He stated that those jobs were at casinos and large office buildings and hospitals. He stated that the surveillance system monitor set in front of a bank of televisions where he could observe someone shoplifting or trespassing or a dealer in a casino pocketing money. He stated that the surveillance system monitor's job was to call the police when someone was shoplifting or trespassing. He stated that the surveillance monitor was not required to do any standing or walking. He stated that they could alternate between sitting and standing. He stated that Claimant could do such a job and that such jobs were available on a regular basis in casinos.

Law

After considering all the evidence, including Drs. Stuckmeyer's, Krempec's, Eggers' and Wheeler's opinions, the numerous medical reports and records, the vocational reports and testimony, the video surveillance, Claimant's and his wife's testimony, the other testimony at the hearing, and after observing Claimant's appearance and demeanor, I find and believe that Claimant did not prove either his employer's or the Second Injury Fund's liability for permanent total disability benefits. He did prove his employer's liability for permanent partial disability benefits. He also proved his employer's liability for additional temporary total disability and future medical benefits as set out in the award. He did not prove the Second Injury Fund's liability for any benefits.

Burden of Proof

Claimant had the burden of proving all material elements of his claim. *Fischer v. Arch Diocese of St. Louis - Cardinal Richter Inst.*, 703 SW 2nd 196 (Mo. App. E.D. 1990); overruled on other grounds by *Hampton vs. Big Boy Steel Erections*, 121 SW 3rd 220 (Mo. Banc 2003); *Griggs v. A.B. Chance Company*, 503 S.W. 2d 697 (Mo. App. W.D. 1973); *Hall v. Country Kitchen Restaurant*, 935 S.W. 2d 917 (Mo. App. S.D. 1997); overruled on other grounds by *Hampton*. He met his burden as set out above.

Permanent Total Disability

Total disability is defined in the statute as an inability to return to any employment and not merely inability to return to the employment in which the employee was engaged in at the time of the accident. See § 287.020 (6) *RSMO.2005*; *Fletcher v. Second Injury Fund*, 922 S.W.2d 402 (Mo. App. 1995); *Kowalski v. M-G Metals and Sales, Inc.*, 631 S.W.2d 919 (Mo. App. 1982); *Crums v. Sachs Electric*, 768 S.W.2d 131 (Mo. App. 1989).

Missouri Courts have made it clear that the test for permanent total disability is whether any employer in the usual course of business would reasonably be expected to employ the injured worker in his present physical condition. *Boyles v. USA Rebar Placement, Inc.*, 25 S.W.3d 418

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

(Mo. App. W.D. 2000); Cooper v. Medical Center of Independence, 955 S.W.2d570 (Mo. App. W.D. 570); Brookman v. Henry Transportation, 924, S.W.2d 286 (Mo. App. 1996).

Claimant argued that he was permanently and totally disabled. He argued that either his employer or the Second Injury Fund was liable for the benefits. The Second Injury Fund, however, per the statute, cannot be liable for any benefits in the case. The legislature amended § 287.220 RSMo. 2005 effective with January 1, 2014 to provide that the Second Injury was no longer liable for any permanent partial disability benefits in cases where the primary injury occurred after January 1, 2014. See Cosby v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 579 S.W.3d 202 (Mo. banc 2019). Claimant's primary injury occurred on August 14, 2015.

The legislature in the amended statute did preserve Second Injury Fund liability in certain permanent total disability cases where the injury occurred after January 1, 2014, but it restricted the types of cases wherein the Fund had any liability. Under the 2014 amendments and effective with January 1, 2014, the preexisting disability needed to establish Second Injury Fund liability in permanent total disability cases where the injury occurred after January 1, 2014, is limited to disability from 1) a direct result of military duty in any branch of the United States Armed Forces; or 2) a direct result of a compensable injury as defined in Section 287.020; or; 3) not a compensable injury, but such preexisting disability must directly and significantly aggravate or accelerate the subsequent work-related injury. The statute specifically provides that the third requirement "shall" not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury.

Thus, in Claimant's case, his most severe preexisting injuries, his coronary artery disease and surgeries and the complete rupture of his biceps tendon were not applicable under any of the three requirements as set out above. Claimant did not serve in the United States Armed Forces. Neither his coronary artery disease and heart surgeries, nor his biceps tendon rupture resulted from a compensable work injury as defined in § 287.020 of the Workers' Compensation Act. Also, Claimant offered no medical evidence nor proof showing that either his preexisting heart condition or his preexisting rupture of his biceps tendon significantly aggravated or accelerated his subsequent alleged work-related injuries to his right knee and alleged cervical spine and left upper extremity injuries in physical therapy for his right knee injury.

Dr. Stuckmeyer, Claimant's medical expert, did not conclude that Claimant's preexisting coronary artery disease or biceps tendon rupture aggravated or accelerated Claimant's alleged right knee or cervical spine and left upper extremity injuries resulting from Claimant's August 14, 2015 accident at work. Nothing in the medical records discussed any aggravation or acceleration of Claimant's subsequent alleged work-related right knee and cervical spine and left upper extremity injuries by his preexisting coronary artery disease and biceps tendon rupture.

Claimant's only preexisting injury which met any of the three criteria as set out above, was his work-related right knee injury. Claimant, however, settled his workers' compensation case involving his work-related right knee injury based on a permanent partial disability of 10 percent

14

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

of his right knee at the knee or 160-week level. The 10 percent settlement represented 16 weeks of permanent partial disability.

The statute, as amended effective with January 1, 2014, provides that the employee must have a medically documented preexisting disability equaling a minimum of 50 weeks of permanent partial disability for the preexisting disability to serve as a basis for a permanent total disability claim against the Second Injury Fund. Id. Thus, Claimant failed to prove the Second Injury Fund's liability for any compensation. The remaining issues in the case pertain to the liability of his employer for benefits.

Liability of Claimant's Employer for Permanent Total Disability Benefits

Section 287.220 RSMo. 2005 and as amended effective with January 1, 2014 provides that: "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability". (emphasis added). Claimant's employer did not dispute that Claimant injured his right knee in his August 14, 2015 accident at work. His employer also did not dispute that Claimant injured his cervical spine and left upper extremity in therapy for his right knee injury or that it would be liable for the injuries had Claimant sustained any disability.

The alleged cervical spine and left upper extremity injuries, however, were minor at best. Claimant, who weighs more than 260 pounds, testified that he sustained the injuries while lying on an incline bench and lifting 10 to 12 pound dumbbells in each hand one at a time. No doctor concluded that he sustained any fractures, dislocations or herniated disks in his alleged injury in therapy. He did not have surgery. His neurological, motor and sensory examinations were normal. His range of motion was normal.

Claimant's MRI prior to the alleged cervical spine and left upper extremity injuries showed that he had severe degenerative disease in his cervical spine. Dr. Wheeler concluded that Claimant's severe degenerative problems were the prevailing factor for Claimant's alleged cervical spine and left upper extremity injuries. She concluded that the incident in therapy might have been a triggering effect, but not the prevailing factor in causing his complaints. Dr. Stuckmeyer concluded that the incident in therapy was the prevailing factor.

Thus, the issue is whether Claimant was rendered permanently and totally disabled due to his right knee injury in the August 14, 2015 accident at work, after which he had a total knee replacement and his minor at best cervical spine and left upper extremity injuries. The answer to the question is no. Claimant did not prove that the injuries alone rendered him permanently and totally disabled.

While Claimant had a total knee replacement, as referenced above, the evidence also showed that he had severe arthritis and degeneration in his right knee prior to his August 2015 accident at work. He had two right knee arthroscopies prior to his August 14, 2015 accident at work. His MRI in 2014 showed that he had tricompartmental arthritis in his right knee.

8 The statute must be strictly construed. See § 287.800 RSMo. 2005.

15

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Tricompartmental arthritis, or arthritis in all three compartments of the knee, often results in the need for a total knee replacement. His 2014 MRI also showed that he had chondromalacia of the medial femoral condyle in the right knee, a full thickness defect and a tear of the posterior horn of his medial meniscus.

Claimant's own expert, Dr. Stuckmeyer, concluded that Claimant needed numerous restrictions and limitations prior to Claimant's August 2015 accident at work due to Claimant's preexisting right knee injuries and disability. The restrictions rendered by Dr. Stuckmeyer after Claimant's August 2015 accident at work and the total knee replacement were mostly the same as those he had concluded were needed prior to the accident and knee replacement.

Dr. Stuckmeyer also concluded that Claimant was permanently and totally disabled due solely to the injuries Claimant sustained in and as a result of Claimant's August 14, 2015 accident at work. He initially rendered that opinion in his April 14, 2017 report. The most credible evidence, however, showed that Claimant had not even reached maximum medical improvement from his injuries as of April 2017.

Claimant's right knee was aspirated after that date. Claimant had a right knee arthroscopy after that date. Dr. Eggers, a practicing orthopedic surgeon, who evaluated Claimant for a second opinion at the request of Claimant's treating orthopedic surgeon, concluded that Claimant reached maximum medical improvement on May 2, 2018. The evidence supported Dr. Eggers' opinion. Claimant even argued at the hearing in support of Dr. Eggers' opinion. He argued at the hearing that he was temporarily and totally disabled until May 2, 2018, and that therefore, his employer owed additional temporary total disability benefits.

Thus, Dr. Stuckmeyer's initial opinion that Claimant was permanently and totally disabled as of April 2017 was clearly in error and not supported by any credible evidence. Claimant could not have been permanently and totally disabled and temporarily and totally disabled at the same time. In addition, per Dr. Stuckmeyer's April 2017 opinion, as referenced above, and his later opinion, Claimant's employer was liable for the permanent total disability benefits.

Dr. Stuckmeyer, however, also testified on direct examination, following the rendition of all of his opinions, that Claimant was permanently and totally disabled due to a combination of Claimant's disability in the August 14, 2015 accident at work and Claimant's preexisting permanent partial disability. Per that opinion, Claimant's employer was not liable for the permanent total disability benefits. That opinion was apparently solicited by Claimant due to the mistaken belief that the Second Injury Fund had potential liability for permanent total disability benefits.

The contradictory opinions clearly detracted from the weight to be given to either opinion. Under the statute, both the employer and the Second Injury Fund cannot be liable for permanent total disability benefits in the same case. The sequential analysis as set out in the statute for determining liability provides as follows: "After the compensation liability of the employer for the last injury, considered alone has been determined by the administrative law judge or the commission, the degree or percentage of disability that is attributable to all injuries

16

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge. . ." Id.

Thus, if the evidence shows that the disability solely from the last accident renders the employee permanently and totally disabled, the analysis stops there. In Claimant's case, there was no need for the latter opinion by Dr. Stuckmeyer attributing liability to the Second Injury Fund if Dr. Stuckmeyer was definite and certain in his opinion that Claimant's employer was liable for the benefits.

Claimant's employer's evidence was definite and certain. Claimant's employer did not offer conflicting opinions. Claimant's employer's evidence supported its position that it was not liable for permanent total disability benefits.

Dr. Krempec, Claimant's treating orthopedic surgeon, concluded that Claimant had sustained permanent partial disability due to Claimant's right knee injury and the knee replacement he performed. Dr. Krempec also treated Claimant for several months after the knee replacement. He did not conclude that Claimant was permanently and totally disabled.

Dr. Krempec further noted that Claimant's subjective complaints were not supported by the objective evidence. He concluded that there was no "etiology" for Claimant's complaints. The evidence and the video surveillance, as set out below, supported Dr. Krempec's opinion about Claimant's subjective complaints.

In contrast, Dr. Stuckmeyer never treated Claimant. He rendered the conflicting opinions as set out above. He admitted on cross examination that he had not practiced orthopedic surgery for more than 20 years. He was hired in Claimant's case strictly for litigation purposes. His opinions were not entitled to as much weight as those of Dr. Krempec, Claimant's treating orthopedic surgeon. Dr. Stuckmeyer's opinions, unlike Dr. Krempec's were not supported by the evidence.

In addition, Dr. Krempec referred Claimant to Dr. Eggers, another practicing orthopedic surgeon, for a second opinion due to Claimant's unsupported subjective complaints. Dr. Eggers did not conclude that Claimant was permanently and totally disabled. He concluded on May 22, 2018 that Claimant was "on course for a standard knee replacement." He concluded that Claimant had no restrictions or limitations. He concluded that Claimant had full "functional" motion of his right knee. He noted that Claimant would continue to improve. Dr. Krempec also concluded in his April 2018 report that Claimant would continue to improve.

Thus, neither of the two practicing orthopedic surgeons found that Claimant had any restrictions or limitations on the use of his right knee. Only Dr. Stuckmeyer who has not practiced orthopedic surgery for more than 20 years found that Claimant had numerous restrictions. One of the restrictions listed by Dr. Stuckmeyer in his April 2017 report was that Claimant needed frequent bouts of recumbency to elevate his right leg above his heart to relieve swelling. That restriction which Claimant argued supported his claim for permanent total disability benefits, was initially rendered when Claimant had not even reached maximum

17

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

medical improvement. 9 Dr. Stuckmeyer rendered the restriction only 6 months after Claimant's knee replacement. Claimant received additional treatment to improve his condition after Dr. Stuckmeyer rendered the restriction.

Furthermore, the evidence did not support the restriction. Neither Dr. Krempec nor Dr. Eggers rendered such a restriction. Both wrote their reports a year after Dr. Stuckmeyer initially rendered the restriction. Dr. Krempec noted that Claimant had swelling in both legs, but more so on the right. He indicated that because the swelling was bilateral, it might be due to Claimant's preexisting heart problems or renal failure or valvular incompetency. 10 He also stated, however, that swelling was typical following a knee replacement due to the increased blood flow to the knee as part of the healing process.

Neither Dr. Krempec nor Dr. Eggers found that Claimant's swelling was out of the ordinary or disabling. Both noted that Claimant was at an "appropriate" point in the healing process in their April and May 2018 reports. Both, as noted above, concluded that Claimant would continue to improve. Dr. Krempec stated that Claimant would continue to improve for 2 years post the knee replacement. Dr. Stuckmeyer, as noted above, initially rendered the restriction only 6 months after Claimant's knee replacement. The most credible evidence clearly supported the opinions of Drs. Krempec and Eggers.

Dr. Krempec did advise Claimant in April 2018 to wear TED hose or compression stockings to control the swelling in both of Claimant's legs. He did not conclude that Claimant needed frequent bouts of recumbency to elevate his leg above his heart during the workday to control any swelling.

The video surveillance in the case was pertinent. The video surveillance was performed on several days in late July and early August 2018. In the video surveillance Claimant was captured on several days going to a bar/restaurant. He was wearing shorts on each day in the video surveillance. He was not wearing a brace. He was not wearing the compression hose prescribed by Dr. Krempec, his treating orthopedic surgeon, only three months earlier. Claimant did not explain why if the swelling was so severe that he needed to frequently elevate his leg, he chose not to follow his doctor's instructions to wear compression hose to control the swelling.

The video surveillance also supported Claimant's employer's argument that Claimant was not permanently and totally disabled. The video surveillance contradicted Claimant's testimony about being unable to sit for more than one hour. The video surveillance showed that Claimant was able to sit at a bar table and drink what appeared to be alcoholic beverages and converse with his friends or other bar patrons between 2 1/2 and 3 hours on each occasion. 11 He

9 Dr. Stuckmeyer stated in his July 2018 report that his opinions remained unchanged "in regard to disability and employability as outlined in my extensive prior commentaries". Claimant's employer argued that Dr. Stuckmeyer did not render the restriction until his 5th report in the case.

10 Dr. Stuckmeyer did not comment on the significance of Claimant's swelling in both legs or whether the bilateral swelling was important in determining whether the knee replacement caused Claimant's right leg swelling.

11 Claimant would not be required to sit for more than 2 1/2 to 3 hours on a job without changing positions with a morning break, lunch break and afternoon break.

18

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

sat for the entire period. He did not get up one time or change positions. He did not appear to be in any pain. He was not shifting positions. He did not elevate his leg on any occasion.

In addition to the video surveillance, there was other evidence which contradicted Claimant's complaints. Claimant complained of difficulty in driving due to his knee replacement. Yet, he admittedly drives on a regular basis or several times per week to the bar/restaurant to meet his friends. Dr. Stuckmeyer noted in his April 2017 and August 2018 reports that Claimant walked with an "obvious" antalgic gait during the examinations. No other doctor made such an observation.

Thus, the evidence showed that when Claimant knew that he was being observed by Dr. Stuckmeyer, he walked with an "obvious" antalgic gait. When he did not know that he was being observed, he did not limp or walk with an "obvious" antalgic gait. He was captured in the video surveillance going to the bar/restaurant on several occasions. He was not limping or walking with an antalgic gait. Dr. Wheeler noted that following her examination of Claimant she watched him as he was walking in the parking lot of her building. She too noted that Claimant was not limping or walking with an antalgic gain. She noted that his gait was smooth and fluid.

Similarly, there was no objective evidence to support Claimant's pain complaints. Dr. Krempec, as noted above, found that there was no etiology for Claimant's complaints. Dr. Eggers found that Claimant was on course for a total knee replacement and that Claimant had no restrictions or limitations.

The medical evidence and the video surveillance did not support Claimant's allegation that he was rendered permanently and totally disabled due solely to the injuries he sustained in or as a result of his August 14, 2015 accident at work. He did not prove his employer's liability for permanent total disability benefits based on the medical evidence and the video surveillance. He also failed to prove that he was permanently and totally disabled based on the vocational evidence.

Vocational Evidence on Claimant's Alleged Permanent Total Disability

Mr. Dreiling, Claimant's vocational expert, admitted that the only medical reports he relied on were those rendered by Dr. Stuckmeyer. Thus, he gave no consideration to the findings and opinions of Claimant's treating physician, Dr. Krempec, nor those of Drs. Eggers and Wheeler.

Mr. Dreiling concluded that Claimant was permanently and totally disabled based on the restrictions rendered by Dr. Stuckmeyer. Mr. Dreiling also initially rendered that opinion in April 2017, only 6 months after Claimant's knee replacement. Claimant, as noted earlier, argued that he was temporarily and totally disabled until May 2, 2018. The evidence supported Claimant's argument. Thus, Mr. Dreiling's initial opinion was clearly premature. The evidence did not support his initial opinion, nor his later opinion.

Mr. Cordray testified that he based his opinions on the medical reports of Drs. Krempec, Eggers, Wheeler and Stuckmeyer. Mr. Cordray was more thorough in his report than Mr. Dreiling. Mr. Cordray's opinions were supported by the evidence. Mr. Dreiling's were not.

19

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Mr. Cordray testified that based on the opinions of Drs. Krempec, Eggers and Wheeler Claimant could do sedentary unskilled work. He testified that Claimant would not be able to do unskilled sedentary work if Dr. Stuckmeyer's restriction that Claimant needed frequent bouts of recumbency during the day due to the swelling in his leg was correct. As noted in the previous section, the evidence did not support that restriction.

The evidence also clearly supported Mr. Cordray's opinion that Claimant could compete for work in the open labor market. Messrs. Brammer and Green, the meat director and the human resources director for Claimant's employer, provided testimony which supported Mr. Cordray's opinion. Their testimony showed that Claimant could compete for employment in the open labor market and that the company would have hired Claimant for other jobs if Claimant had indicated that he wanted to keep working.

Both testified that Claimant voluntarily resigned from his position at the Price Chopper grocery store. Both testified that Claimant never expressed any interest in further employment. Mr. Green testified that Price Chopper had numerous stores in the Kansas City metropolitan area and that Price Chopper routinely had numerous job vacancies. He testified that Claimant was a good worker.

Mr. Green testified that Price Chopper would have accommodated Claimant's restrictions and found a job for Claimant if Claimant had expressed any interest in continuing with his employment. He testified that Price Chopper had jobs where the employee could sit or stand as needed. He stated that Price Chopper could have placed Claimant in a job in the pricing department where Claimant could have sat or stood as needed and that the job only required the ability to place labels on tubs. Claimant clearly had the ability to do that job per the medical reports of Drs. Krempec, Eggers and Wheeler, who were credible in their opinions.

Both Messrs. Brammer and Green were also credible in their testimony. Claimant's response to their testimony was that as the First Meat Cutter he was the highest paid employee in the store, other than the store's manager. He testified that he would have made less money than he was now making if he had taken one of the other jobs in the store.

The test for permanent total disability benefits is whether the person can do any work for which he is qualified to do and not whether the employee can do his last job. See § 287.020 RSMO.2005; Fletcher; Kowalski; and Crum. The amount of money the job pays has nothing to do with whether the person is permanently and totally disabled.

In addition to the testimony of Messrs. Brammer and Green, Mr. Cordray testified that there were numerous jobs that Claimant could do. He testified that Claimant could work as a parking lot cashier, escort driver, local courier, flower and food deliverer, retail sales person and light truck delivery driver. He stated that he could "guarantee" that Claimant could get a job as a parking lot cashier, if Claimant wanted such a job and would accept some of the less desirable hours. Similarly, he stated that Claimant's "friendly" personality would be an asset if Claimant sought employment in retail sales and other jobs requiring people contact.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

Mr. Cordray testified that he reviewed job postings on the morning of his deposition. He testified that Claimant could do several of those jobs, including the postings by Goodwill Industries for several retail sales associates. He stated that Claimant could do the job posted for a Sealy mattress sales associate, and the jobs as an airport shuttler or sales agent for Enterprise. He testified that Securitas Security Services had 5 job openings posted that Claimant could do. He stated that the usher jobs posted by Securitas were jobs at the Sprint Center where the worker directed people where to go.

Mr. Cordray testified that Claimant could do a job as a security surveillance system monitor where Claimant could sit or stand in front of a bank of televisions and watch for shoplifters or trespassers in hospitals or large buildings or at casinos to observe whether dealers were pocketing money. He stated that security surveillance system monitor jobs in casinos were readily available.

Mr. Cordray made a credible witness. The evidence supported his testimony. The medical evidence and the video surveillance, as set out above, supported his testimony that Claimant was not permanently and totally disabled. Claimant failed to prove his employer's liability for permanent total disability benefits.

Permanent Partial Disability

Claimant proved his employer's liability for permanent partial disability benefits. Dr. Stuckmeyer concluded that Claimant sustained a permanent partial disability of 50 percent of his right knee at the 160-week level due to Claimant's August 14, 2015 injury at work. Dr. Krempec concluded that Claimant sustained a permanent partial disability of 23 percent of the knee at the 160-week level.

Based on the evidence, Claimant proved that he sustained a permanent partial disability of 45 percent of his right knee at the 160 week level, or 72 weeks of compensation. Claimant also proved that he sustained a permanent partial disability of 7.5 percent to his body as a whole due to the cervical spine and left upper extremity injuries he sustained in therapy for his right knee while lifting 10 to 12 pound dumbbells in each hand while lying on an incline bench. Dr. Stuckmeyer concluded that Claimant sustained a permanent partial disability of 15 percent to his body as a whole as a result of the injury. Dr. Wheeler concluded that Claimant's preexisting degenerative disk disease was the prevailing factor for Claimant's cervical spine and left upper extremity complaints.

Claimant did prove that he sustained an accident involving his cervical spine. The 7.5 percent permanent partial disability resulted in 30 weeks of compensation. (400 x 7.5 = 30 weeks). The 72 weeks plus 30 weeks, equaled 102 weeks, or a permanent partial disability of 25.5 percent to Claimant's body as a whole. Claimant, however, also proved that the disability to his right knee combined with the disability to his cervical spine and left upper extremity to result in an overall disability to his body as a whole of 30 percent or 120 weeks of compensation. At a rate of 464.58 per week for 120 weeks, Claimant's employer is liable for 55,749.60 in permanent partial disability benefits. Claimant's employer is ordered to pay that amount to Claimant.

Issued by Division of Workers' Compensation

Employee: William Rector

Injury No. 15-083623

The parties stipulated that the compensation rate for temporary total disability benefits was $706.16 per week. Claimant's employer also stipulated prior that it paid temporary total disability benefits in the amount of $6,257.64. Claimant's employer stipulated that it paid the benefits for the period September 18, 2015 to October 11, 2015, October 6, 2016 to November 3, 2016 and March 8, 2018 to March 16, 2018. Claimant argued that he was owed temporary total disability benefits for the period May 20, 2016 to May 2, 2018.

The evidence supported Claimant's argument that he was temporarily and totally disabled for the disputed period. Dr. Eggers, Claimant's employer's expert, concluded that Claimant was temporarily and totally disabled until May 2, 2018. Dr. Eggers was credible in his opinion. The evidence supported his opinion. Claimant met his burden of proof.

Thus, there were 101 5/7 weeks in the period May 20, 2016 to May 2, 2018. As noted above, Claimant's employer paid benefits representing 5 1/7 of the 101 5/7 weeks, or from October 6, 2016 to November 3, 2016 and from March 8, 2018 to March 16, 2018. Therefore, Claimant's employer is liable for an additional 96 4/7 weeks of temporary total disability benefits, which at the rate of 706.16 per week equals 68,194.86. (101 5/7 minus 5 1/7 weeks previously paid = 96 4/7 weeks). Claimant's employer is ordered to pay that amount to Claimant.

Claimant had a total knee replacement. The statute at § 287.140 RSMo. 2005 provides that the employer must provide all reasonable and necessary medical treatment needed to cure and relieve the employee from the effects of the injury. Section 287.140.8 RSMo. 2005 provides that:

> The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof.

Claimant's employer conceded in its brief that it was liable for future knee replacements and any treatment needed for any future prosthetic devices. In addition, Dr. Krempec, Claimant's authorized treating orthopedic surgeon, and Dr. Stuckmeyer, Claimant's expert, concluded that Claimant needed future medical treatment for the knee replacement.

Again, Claimant met his burden of proof. Claimant proved that the case must be left open to provide him with any future prosthetic devices needed and any medications, doctors' examinations, repairs or alterations to the devices and hospital and diagnostic charges and any other medical treatment needed to cure and relieve him of the effects of his right knee injury in the August 14, 2015 accident at work.

22

Claimant, however, did not prove that he needed any future medical treatment for his alleged cervical spine and left upper extremity injuries resulting from lifting 10 to 12 pound dumbbells in therapy. He had severe preexisting degeneration in his cervical spine and sustained at best a minor injury in the therapy for his knee injury.

I certify that on 3-9-20

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 $\qquad$


Kenneth J. Cain

Administrative Law Judge

Division of Workers' Compensation