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

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[^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 ve