Kenneth Stratton v. R&L Carriers

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-079592

**Employee:** Kenneth Stratton

**Employer:** R&L Carriers

**Insurer:** Trumbull Insurance Co.

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 January 26, 2021. The award and decision of Administrative Law Judge Mark Siedlik, issued January 26, 2021, 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 _12th_ day of July 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the award of the administrative law judge should be reversed.

I do not believe the administrative law judge should have sustained the objection to Dr. Greg Horton's medical report. Dr. James Stuckmeyer and vocational experts Ms. Michelle Sprecker and Mr. Terry Cordray all referenced Dr. Horton's evaluations of employee in their respective medical reports. Furthermore, the surveillance footage of employee was not comprehensive, and only focused on certain parts of employee's daily routine. Dr. Stuckmeyer's November 14, 2017 medical report recommended a vocational examination regarding employee's ability to compete in a labor market, and Mr. Cordray's August 7, 2018 vocational report indicated that employee could not compete in the labor market because Dr. Stuckmeyer's restrictions relegated employee to sedentary-level employment, and employee neither has the work history or skills transferable to sedentary jobs, and is therefore capable of performing only sedentary unskilled jobs, which make up 4 % of the jobs in the labor market. ${ }^{1}$ It is also important to note that Mr. Cordray's opinions regarding employee were based on his 47+ years of experience as a vocational rehabilitation counselor. ${ }^{2}$

For these reasons, I would find employer/insurer to be liable for employee's permanent total disability, and for employee's future medical treatment. Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1} See transcript at 132.

{ }^{2}$ See transcript at 77,133 .

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

FINAL AWARD

Employee: Kenneth Stratton

Injury No. 15-079592

Dependents: N/A

Employer: R&L Carriers

Insurer: Trumbull Ins. Co. c/o Sedgwick

Additional Party: N/A

Hearing Date: September 25, 2020

Checked by: MSS/pe

FINDINGS OF FACT AND RULINGS OF LAW

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? October 16, 2015

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

1. Was above employee in 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 happened or occupational disease contracted: While engaged in his employment with employer, employee suffered injury to his left calcaneus secondary to a fall.

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: Left foot.

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

1. Nature and extent of any permanent disability: 22.5% of the left foot

1. Compensation paid to date for temporary disability:

- Temporary Total Disability: 6,639.14

- Temporary Partial Disability: 0.00

1. Value necessary medical aid paid to date by employer/insurer? $28,677.50

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 828.42

1. Weekly compensation rate: 552.31 for TTD and $464.58 for PPD

1. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: See Award

- Unpaid medical expenses: None

- Temporary total disability (or temporary partial disability): N/A

- 33.75 weeks of permanent partial disability from Employer: $15,679.58

- Weeks of disfigurement from Employer: 0

1. Second Injury Fund liability: N/A

TOTAL: $15,679.58

1. Future requirements awarded: No

Said payments to begin immediately 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: Vanessa Starke, Esq.

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Kenneth Stratton

Injury No. 15-079592

Dependents: N/A

Employer: R&L Carriers

Insurer: Trumbull Ins. Co. c/o Sedgwick

Additional Party: N/A

Hearing Date: September 25, 2020

Checked by: MSS/pe

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on September 25, 2020. The parties were directed to submit proposed awards within the 30 days following the final hearing.

The employee appeared personally and through his attorney, Vanessa Starke, Esq. The employer appeared through its attorney, Ryan D. Weltz, Esq.

The parties entered into a stipulation of facts:

STIPULATIONS

(1) On or about October 16, 2015, R&L Carriers was an employer operating under and subject to The Missouri Workers' Compensation Law, and on this date was insured for workers' compensation losses by Trumbull Insurance Company.

(2) On the date of the injury, October 16, 2015, Kenneth Stratton was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about October 16, 2015, the employee sustained personal injury by accident, which arose out of and in the course of his employment with the employer.

(4) The accidental injury of October 16, 2015 occurred in Kansas City, Jackson County, Missouri. Venue is proper.

(5) The employee notified the employer of his occupational disease as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

(7) At the time of the claimed accident, the employee's average weekly wage was 828.42, which is sufficient to allow a compensation rate of 552.31 for temporary total disability compensation, and a compensation rate of $464.58 for permanent partial disability compensation.

(8) Temporary disability compensation has been provided to the employer in the total amount of 6,639.14. These benefits were paid at a rate of 553.26 from October 16, 2015 through January 7, 2016. Employer is not seeking credit for an overpayment of temporary total disability benefits based on rate. No additional dates of temporary total disability benefits are being claimed.

(9) The employer has provided medical treatment to the employee, having paid $28,677.50 in medical expenses.

ISSUES

1. The nature and extent of disability.
2. Whether Employee is entitled to future and/or additional medical care.

EVIDENCE PRESENTED

The employee testified live at the day of the hearing. Also, the employee offered for admission the following exhibits:

- Claimant's Exhibit 1 Dr. James Stuckmeyer Report, dated 2/9/17

- Claimant's Exhibit 2 Dr. James Stuckmeyer Report, dated 1/3/18

- Claimant's Exhibit 3 Deposition of Terry Cordray, dated 11/13/19

- Claimant's Exhibit 4 Medical Records

- Claimant's Exhibit 5 Prior Work Comp Records

- Claimant's Exhibit 6 Wage Statement

- Claimant's Exhibit 7 Dr. Greg Horton Report, dated 4/2/18

Claimant's Exhibit Nos. 1 through 6 were received and admitted into evidence without objection. Employer objected to the admission of Exhibit 7 as being medical hearsay. The report of Dr. Horton was never submitted into evidence by way of a 60-day submission, pursuant to RSMo. 281.210.7. Neither party deposed Dr. Horton. As such, Dr. Horton's report is inadmissible. Employer's objection is sustained and Dr. Horton's records will be considered for the limited and sole purpose of demonstrating which records were reviewed by the doctors and vocational experts whose reports are in evidence.

The employer and insurer did not present any witnesses at the hearing of this case, but did offer for admission the following exhibits:

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

Employer/Insurer's Ex A

Employer/Insurer's Ex B

Employer/Insurer's Ex C

Employer/Insurer's Ex D

Employer/Insurer's Ex

Employer/Insurer's Ex F

Employer/Insurer's Ex G

Employer/Insurer's Ex H

Employer/Insurer's Ex I

Employer/Insurer's Ex J

Employer/Insurer's Ex K

Employer/Insurer's Ex L

Employer/Insurer's Ex M

Employer/Insurer's Ext N

Employer/Insurer's Ex O

Employer/Insurer's Ex P

Dr. Amar Patel's December 10, 2019 Report

Dr. James A. Zarr's May 13, 2019 Report

Deposition of Michelle Sprecker.

April 11, 2018 Deposition of Kenneth Stratton

March 29, 2019 Depo of Kenneth Stratton (Noticed by SIF)

Video Surveillance and Corresponding Reports

September 23, 2016 EMG

North Kansas City Hospital Medical Records

Diagnostic Imaging Medical Records

Dickson-Diveley Midwest Ortho Medical Records

Vilmer & Vilmer Medical Records

October 24, 2016 ARC Physical Therapy FCE Report

Greg D. Horton, M.D., Medical Records

Kenneth Stratton Facebook posts

Itemization of Benefits

Wages

The exhibits were received and admitted into evidence.

The Court, upon request acknowledged judicial notice of the documents contained in the Legal File, including the report of injury, the claim, answer, and notice of hearing.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

Employee is a 55-year-old man who was formerly employed by R&L Carriers as a loading dock worker and then driver. On October 16, 2015, Employee was involved in the delivery of freight at a local Kansas City business when he slipped off the back of his truck and landed on his left foot, fracturing his calcaneus. Employee reported his accident to his dispatcher and drove his work vehicle back to the premises of his employer. He was then taken to the emergency room at North Kansas City Hospital.

At North Kansas City Hospital, Claimant underwent plain X-rays of his left foot. They revealed a mildly displaced fracture of the left calcaneus. A more detailed X-ray view of Claimant's left heel was taken and they revealed a moderately displaced fracture of the left calcaneus with overlying soft tissue swelling. A CT scan was ordered and it revealed a comminuted left calcaneus fracture. Employee was taken off work and was placed in a splint. He was prescribed pain medications and advised to follow up with an orthopedic physician.

Employee established care with orthopedic surgeon Steve Vilmer. Dr. Vilmer reviewed the diagnostic studies and immobilized the foot. He continued Employee off work. While off work, Employer paid temporary total disability benefits. Dr. Vilmer retired from the practice of medicine and Employee's care was transferred to Dr. Stanley Bowling at Dickson Diveley.

101958672.v1

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

Dr. Bowling evaluated Employee on April 11, 2016. Dr. Bowling ordered an MRI of Employee's left ankle and foot to deduce whether there were any surgical lesions. Dr. Bowling noted that the MRI showed the calcaneal fracture had not yet fully healed. Dr. Bowling recommended and prescribed a bone stimulator to facilitate union of the fracture. Dr. Bowling did not recommend surgery. Over the course of several months, Employee followed-up with Dr. Bowling while using the bone stimulator to promote healing of the fracture. On receiving continued reports of pain, Dr. Bowling ordered electrodiagnostic testing in order to ascertain the presence or absence of nerve injury. On September 23, 2016, the EMG study was administered by Dr. Mark Killman. The study did not reveal any evidence of nerve injury to the left leg, left ankle, or left foot.

Dr. Bowling reviewed the EMG report and determined Employee was at maximum medical improvement. Employee was then seen by Dr. Stuckmeyer for an independent medical examination. Dr. Stuckmeyer found that Claimant was not at maximum medical improvement and recommended additional orthopedic care. Subsequently, Dr. Bowling saw the claimant again to discuss the recommendation of Dr. Stuckmeyer that claimant undergo a subtalar fusion. Dr. Bowling agreed that this could be a beneficial operation, but he would not agree to perform it unless Employee would discontinue smoking, which Employee has never done. Dr. Bowling recommended a brace for Employee's left foot and referred Employee to Dr. Horton for any additional treatment recommendations.

Dr. Horton also determined that a subtalar fusion was contraindicated unless Employee would quit smoking cigarettes. Employee did not discontinue smoking, so Dr. Horton's treatment was limited to prescribing a medication for pain. Dr. Horton ordered an updated CT scan, which was completed on September 8, 2017. Dr. Horton reviewed the study and determined that the fracture of the calcaneus had healed. Dr. Horton did not recommend surgery. He indicated Employee should continue to wear his brace. Employee was seen again by Dr. Stuckmeyer for a disability assessment on January 30, 2018. He was seen by Dr. James Zarr and Dr. Amar Patel for independent medical examinations in 2019.

Surveillance Footage and Deposition Testimony of Employee

Employer engaged private investigators on multiple dates to obtain clandestine video surveillance of the Employee. The earliest surveillance footage is consistent with the known history of recovery following the work accident. Surveillance obtained in November 2015 demonstrates Employee using crutches to assist with ambulation. Surveillance obtained in February 2016 shows that Employee had become capable of ambulation with a single crutch. By April 2016, however, the surveillance footage shows the Employee to be fully capable of walking without any apparent difficulty. Footage obtained on April 13, 2016 shows the claimant working in his yard and using a weed whip for twenty-plus minutes.

In early January 2017, additional surveillance footage again shows Employee able to walk without difficulty. He is observed carrying groceries. Of note, he appears to use his left foot to push himself into his truck without any particular difficulty. This stands in contrast to medical histories and testimony provided that he is incapable of bearing weight on his left foot. He is observed again on October 26, 2018 getting into and out of his pick-up truck without any apparent difficulty. On October

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

28, 2018, the private investigator obtained footage of Employee engaged in the cleaning of a State Farm Insurance agency. During the 30-plus minutes of footage, Employee is observed sweeping, mopping, and cleaning windows. He is not observed to have any physical difficulty performing the work.

The surveillance footage is problematic, particularly when compared to Employee's testimony in the case. Employee's deposition was taken by counsel for the Employer on April 11, 2018. During examination that was likely guided by the surveillance footage, counsel for Employer asked Employee about whether he is capable or has engaged in any yard maintenance since the time of his accidental injury. The Court finds the following excerpt instructive:

Q: Are you able to do housework and chores, things like that?

A: Housework, I do some, but it's limited because I can't be on my foot for any amount of time.

Q: What about stuff like yard maintenance, are you able to do any of that?

A: No.

Q: You don't mow your own yard?

A: No, I can't.

Q: Do you have someone else do it?

A: Yes.

Q: What about like raking up?

A: Okay. I'm going to explain one more time. I cannot walk on uneven surfaces through a yard. I can't do it. Anything that has to do with me walking through grass, through a yard, I cannot do.

Q: Okay. And I don't mean to make you repeat yourself 10, 20 times.

A: It's getting old.

Q: Do we need to take a break?

A: Real old.

***

Q: We were off the record to take a quick break and so we're going to go back on and kind of continue where we left off. And as I explained, Mr. Stratton, I'm just trying to get an idea of your physical capabilities because that bears on a question that I think is going to come up in terms of whether there's an expectation that you'll be able to work again, so these are questions that I need to get through. And I'm not trying to second guess you or ask the same thing a bunch of different times, so if we can just get through that, that's all I'm trying to do. You said you have difficulty working, doing any kind of yard work or anything like that, true?

A: Yes. (Employer/Insurer's Exhibit D, pages 28-30)

Employee was deposed again on March 29, 2019, this time for the now dismissed Second Injury Fund. The following passage from that deposition bears discussion:

Q: What about when you're walking or on your feet, can you carry anything of much weight?

A: No.

Q: Do you still have problems with getting in and out of the shower?

A: Yes.

Q: You can't walk on uneven surfaces like through a yard?

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

A: No.

Q: And you can't be on your left foot for any kind of—for any length of time; is that true still?

A: That's true.

Q: You can't go hunting anymore because you're not able to walk into the woods, correct?

A: Correct.

Q: And you're limited in the amount of housework that you can do?

A: Yes.

Q: You can't do any yard maintenance at all because you can't go out on the uneven ground; is that true?

A: Correct.

Q: You don't mow the yard at all?

A: No.

Q: Do you have to hire someone else to do that?

A: Girlfriend does it. (Employer/Insurer's Ex. E, pps. 18, 19)

Independent Medical Examinations

Dr. Amar Patel:

Dr. Amar Patel is a board-certified orthopedic surgeon. He is licensed to practice medicine in the States of Missouri and Kansas. He is a member of the American Association of Orthopaedic Surgeons, the American Orthopaedic Foot and Ankle Society, the Missouri State Orthopaedic Association, the Missouri State Medical Association, and the Southern Orthopaedic Society.

Dr. Patel performed an independent medical examination of the Employee at the request of the Employer and issued a report, dated December 10, 2019 (Employer/Insurer's Exhibit A). This report post-dates the most recent report of Dr. Stuckmeyer by nearly two years. Additionally, Dr. Patel reviewed the surveillance videos described above. The Court sees no indication that the surveillance footage was ever reviewed by Dr. Stuckmeyer.

Dr. Patel summarizes the medical history of the case succinctly and provides an update on Employee's reported complaints. Those complaints are the same as relayed during Employee's two depositions and at the final hearing in this matter. Dr. Patel ordered X-rays that demonstrated stable configuration of the calcaneal fracture with no overt radiographic evidence of nonunion. Dr. Patel diagnosed Employee with a healed calcaneal fracture. Dr. Patel noted that Employee has continued to smoke, limiting potential treatment options. Dr. Patel stated that he could not reconcile any sedentary duty work restriction with the surveillance videos he reviewed. Dr. Patel stated, "[t]here are several instances where the patient is seen ambulating with minimal guarding or obvious use of assistive device. He is seen on several videos carrying items, performing maintenance of both his household as well as what appears to be a commercial property. I therefore am unable to support his restriction of sedentary only duty.

I agree with Dr. James Zarr's evaluation or assessment of light duty only with a lifting restriction of up to 25 pounds. He would likely be required to wear a brace during his work-related activities and may additionally limit uneven ground and repetitive climbing. I do believe, on the basis

101958672.v1

8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

of his relatively recent surveillance, that he is likely physically capable of being gainfully employed."

(Employer/Insurer's Exhibit A)

Dr. James Zarr:

Dr. Zarr has served as the Medical Director of Rehabilitation Services at North Kansas City Hospital since 1991. He occupied that same role at Overland Park Regional Medical Center and Baptist Medical Center as well. He is a diplomate of the American Board of Physical Medicine and Rehabilitation, and the American Board of Electrodiagnostic Medicine and is a fellow of the American Academy of Physical Medicine and Rehabilitation.

Dr. Zarr conducted an independent medical examination of the Employee on May 13, 2019 at the request of the Employer (Employer Exhibit B). Dr. Zarr provided a comprehensive recitation of the relevant medical history to date. Dr. Zarr conducted a physical examination on Employee's foot, including range of motion testing, sensory examination, and reflex testing, where permitted. He diagnosed Employee with "persistent left heel pain secondary to left calcaneal fractures which have now healed." He stated Employee had reached maximum medical improvement.

Dr. Zarr notes his review of the above-described surveillance footage. Dr. Zarr concluded that the footage demonstrated "continued improvement in his ability to stand and walk. His gait has become significant (sic) better to the point that he has only a very mild antalgic gait in October 2018. The patient does not use any walker or cane. There is no brace visible on his left foot or ankle. The patient does not demonstrate any pain behavior."

Dr. Zarr continued, "[i]n fact, by October 2018 this patient is shown sweeping and washing windows on the ground floor of what appears to be a State Farm Insurance office. Therefore, I feel this patient is capable of performing light duty work with no lifting up to 25 lbs." Dr. Zarr offered no other permanent restrictions and provided a disability rating of 10% to the left lower extremity at the level of the left heel/hind foot. Dr. Zarr concluded, "I do not have any recommendations for future medical treatment. Once again, I do feel this patient is capable of engaging in substantial and gainful employment. All of my opinions have been rendered within a reasonable degree of medical certainty."

Dr. James Stuckmeyer

Dr. Stuckmeyer provided an addendum report on January 30, 2018 (Claimant's Exhibit 2). In it, he referred to his examination of February 8, 2017 (Claimant's Exhibit 1). It appears that February 8, 2017 was the last and only time Dr. Stuckmeyer examined Employee. Dr. Stuckmeyer does not appear to have ever viewed the surveillance footage that Dr. Patel and Dr. Zarr were provided. At the time of the only examination performed by Dr. Stuckmeyer, Employee indicated a complete inability to traverse uneven ground and that he required the use of a cane to ambulate.

Vocational Experts:

Michelle Sprecker:

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

Ms. Sprecker is a vocational rehabilitation expert who evaluated Employee at the request of the Employer on July 11, 2018 (Claimant's Exhibit C.) Subsequent to that evaluation, Ms. Sprecker reviewed the independent medical examination reports of Dr. Patel and Dr. Zarr. Ms. Sprecker reviewed extensive medical documentation and the aforementioned surveillance footage and reports. She consulted with numerous industry-specific treatises to arrive at her conclusions of employability. She interviewed Employee, administered testing, and arrived at conclusions regarding whether Employee is employable in the open labor market.

Employee advised Ms. Sprecker that he does not access social media. The Court notes that this is factually inaccurate (See Employer/Insurer's Exhibit N). That report to Ms. Sprecker is also contrary to Employee's testimony at final hearing. The Court is unsure why Employee would profess to not having social media accounts when his profile, which was apparently publicly viewable at the time, demonstrated that he did.

Ms. Sprecker engaged in a comprehensive effort to identify Employee's relevant work history, transferable job skills, and to apply that vocational profile to the work restrictions given by the physicians whose opinions are in evidence, Dr. Patel, Dr. Zarr, and Dr. Stuckmeyer. Ms. Sprecker concluded and testified the claimant retains the physical ability to return to the open labor market even under the more limiting physical restrictions provided by Dr. Stuckmeyer (See Employer/Insurer's Exhibit C, pp. 22-23).

Terry Cordray

Mr. Cordray is a vocational expert who was retained by counsel for Employee. Mr. Cordray prepared a vocational report, dated August 7, 2018 (Claimant's Exhibit 3). In that report, Mr. Cordray arrived at the conclusion that Employee was not employable in the open labor market on the basis that the restrictions given by Dr. Stuckmeyer relegated Employee to sedentary-level employment (See Claimant's Ex. 3, p. 59). Mr. Cordray concluded his report by stating, "I reserve the right to review all opinions based on additional information as received." (See Claimant's Ex. 3, p. 60)

Following the issuance of his report, counsel for employee wrote a letter to Mr. Cordray dated September 27, 2019 (See Claimant's Ex. 3, p. 8). The letter advises Mr. Cordray that counsel for Employer "furnished me with some surveillance footage he had secured throughout the course or (sic) Mr. Stratton's treatment and duration of this case." The letter continues, "Below I have summarized what I believe to be the most relevant and important parts of the surveillance. I ask you to please review the specific parts of the footage, and to take in to (sic) consideration Mr. Stratton's explanation behind his actions in them, so they may be properly addressed at your deposition on November 13, 2019."

Despite being specifically requested to review the surveillance in preparation for his deposition, Mr. Cordray did not (See Exh. 3, p. 9). "I barely looked at the surveillance." When asked about his review of the surveillance and reports specifically, Mr. Cordray admitted he did not review the surveillance report or any surveillance footage, despite being asked to (See Claimant's Ex 3, p. 10). The Court took note of the following exchange during the cross-examination of Mr. Cordray:

10

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

Q: The final sentence on the first page [of the report] said, "Mr. Stratton presented walking with a significant limp on the left."

A: Yeah. That's in my notes as well.

Q: Okay. And so that left an impression on you?

A: It would leave an impression on a prospective employer. That's why I put it on.

Q: As a prospective employer, if someone walks in the way he's walking in, he appears to either have a disability or some sort of ongoing medical concern?

A: There may be something you would want to inquire about.

***

Q: So when you say that he was walking with a significant limp, I mean, from what distance are you making that observation?

A: From the waiting room into this room, so just that very short distance.

Q: Okay. But—

A: You know, I'm here. I come on in and I'm watching someone walk to this room from the waiting room, so it's just a few feet.

Q: Okay. So when you say it was a significant limp, I mean, if you can describe what you were seeing.

A: It was noticeable, you know. And for me, I am so conservative, for me to document something and repeat it in a report is something that, in my opinion, would provide an impression on a prospective employer.

Q: And that was essentially the first impression you had of him?

A: Sure. (See Exh. 3, pp. 11-13)

Mr. Cordray, confronted again about the surveillance evidencing the lack of a discernible limp, stated that it would be within the purview of the medical doctors to review the surveillance and determine whether the surveillance warranted revision of work restrictions. Mr. Cordray, though, did not review the reports of the only two physicians who did review the surveillance, Dr. Patel and Dr. Zarr. (See Exh. 3, p. 21).

FINDINGS AND CONCLUSIONS

In a Workers' Compensation case, the burden of proving an entitlement to compensation is on the employee, Section 287.808, RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800, RSMo.

The parties present two issues for adjudication. The issues are addressed below.

NATURE AND EXTENT OF DISABILITY

In determining the extent of disability, and employability, deference must be given to medical experts, based on their examinations, and findings. Vocational experts' opinions must be based on physical restrictions, and other factors and address transferable skills and employability.

11

101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

The Court finds the opinions of Dr. Patel and Dr. Zarr to be more persuasive on the question of work restrictions. Dr. Patel and Dr. Zarr reviewed the surveillance footage that shows Employee's demonstrated ability to stand for prolonged periods of time, bear weight on his foot, carry items, perform yard maintenance, and perform cleaning activities. Employee testified and told physicians, and vocational experts he could do none of these things. Dr. Patel and Dr. Zarr based their opinions on more reliable and objective evidence, such as surveillance footage, the EMG study, the functional capacity evaluation, and their own physical examination findings. Their opinions are simply more credible than those of Dr. Stuckmeyer, who relied more on subjective evidence such as Employee's statements.

The testimony of the claimant many times is contradicted by medical opinions and objective demonstrable facts. The claimant's testimony on multiple instances has been in direct contrast with the video surveillance. He testified he cannot and does not do yard work, but the surveillance proved otherwise. He testified he cannot bear weight on his left foot, but the surveillance proved otherwise. He testified he could not perform chores, but he volunteered to assist his girlfriend with commercial cleaning services. The surveillance is an important part of this case and was never reviewed by Dr. Stuckmeyer. Mr. Cordray did not review the surveillance footage or reports, even though he was directly asked to do so by counsel for Employee, who stated in her transmittal letter that the surveillance was both relevant and important.

Mr. Cordray testified that Employee's significant limp was the first impression he made of the Employee. The Court notes no limp in the most recent surveillance footage. That fact was relied upon by Dr. Patel and Dr. Zarr to determine that Employee did not require a limitation to sedentary-only employment. This Court requires no physician's opinion to determine what is plain from the video surveillance: Employee can walk and stand without any apparent difficulty. He does not require a limitation to sedentary work.

The surveillance shows a progression that is true to the records: Employee sustained an injury that forced him to avoid weight-bearing on his left foot for a period of time. He initially needed crutches to ambulate and then a single crutch. For several years now, though, he has been able to ambulate without any such assistance and without any observable difficulty. The final two physicians who saw Employee both regarded his fracture as healed. Updated diagnostic studies confirmed that.

The Court finds that Employee is capable of light-duty work. Ms. Sprecker testified that Employee is employable with such restrictions. The opinions of Ms. Sprecker, Dr. Patel, and Dr. Zarr are consistent and based upon the full evidentiary record in this case. The opinions of Dr. Stuckmeyer and Terry Cordray are contrary to objective surveillance evidence, which critically undermines their credibility. Employee has not sustained his burden of proof to demonstrate that he is incapable of engaging in substantial and gainful employment. As such, the inquiry must turn to a determination of what permanent partial disability Employee is entitled to.

For the same reasons discussed above, the Court is persuaded that the opinion of Dr. Zarr is more credible than that of Dr. Stuckmeyer regarding Employee's permanent partial disability. Dr. Zarr provided a 10% rating to Employee's foot. Dr. Stuckmeyer has not physically examined Employee since February 9, 2017. The progression of improvement evident from the surveillance renders the opinion of Dr. Stuckmeyer diminished in value.

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101958672.v1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Stratton

Injury No. 15-079592

The Court finds that Employee has suffered a 22.5% permanent partial disability to his foot at the 150-week level. He is entitled to 33.75 weeks of permanent partial disability compensation at the rate of 464.58, or 15,679.58, all of which is due and owing.

FUTURE MEDICAL CARE

The evidence is not supportive of a finding that the employee is entitled to future medical care. Dr. Stuckmeyer indicated Employee may need additional care, but his last examination of the claimant was nearly four years ago. Since then, surveillance footage demonstrates significant recovery on the part of the Employee. Also, in the course of two more recent independent medical examinations, updated X-rays were obtained showing further healing of the fracture at issue. The prior discussions of a possible need for subtalar fusion are too remote in time to be indicative of a need for additional care. First, over the years, no such need for that surgery has eventuated. Second, Employee was not willing to discontinue cigarette smoking so that treatment could proceed.

Employee testified that he still uses a brace for his foot. No evidence has been adduced that the brace is medically necessary. The Court is unable to make a finding that medical treatment should be left open for the brace, or the need to repair or replace the device, on the record established. Employee's testimony was that he has not been seen by an authorized physician since he was discharged by Dr. Horton and that occurred in November 2017. Employee takes no prescription medications for the work injury. Dr. Patel and Dr. Zarr both indicated the fracture is healed and is, presumably, stable. Neither recommended Employee proceed with any additional care.

Accordingly, after consideration and review of the evidence, I find and conclude that the evidence is insufficient to support a claim for future medical care. The request for future medical care is denied.

The award is subject to modifications as provided by law.

An attorney's fee of 25% of the benefits ordered to be provided is hereby approved, and shall be a lien against the proceeds until paid. Interest as provided by law is applicable.

Date: __________________________

I certify that on _1-26-21_

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 __________________________

101958672.v1

Made by: __________________________ mark siedlik

Mark Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation