Robert Powell v. LME, Inc.

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testimony, Dr. James Stuckmeyer's restrictions, and vocational expert Mr. Terry Cordray's opinion, that the employee was PTD as a result of his March 9, 2016, work injury. Accordingly, the ALJ assessed liability for the employee's PTD solely against the employer/insurer.

The ALJ awarded future medical treatment related to the employee's need for management of ongoing back pain, including consideration of a spinal cord stimulator, major depression, and somatic symptom disorder. She specifically excluded future medical treatment for the employee's preexisting ADHD or Bipolar Disorder.

The employer/insurer filed a timely application for review, alleging the ALJ erred:

- In not dismissing the employee's claim because the hearing was not concluded within thirty days as required by $\S 287.460$ RSMo.

- By misstating the legal standard that applies to proof of a compensable accident as set out in § 287.020.3(1) RSMo.

- By determining the employee to be PTD, because his psychiatric condition had not reached maximum medical improvement (MMI).

- Failing to credit the employer/insurer's experts Dr. Alexander Bailey and Dr. Neal B. Deutch, regarding the employee's ability to return to employment other than the work he was engaged in at the time of the accident.

- By relying on sitting restrictions imposed by Dr. Stuckmeyer in that Dr. Stuckmeyer provided no restrictions for the length of time the employee could or can sit.

- By finding the employee's work injury to be the prevailing factor causing his mental injury, in that the employee's testimony indicated his mental injury was related to his employment termination and therefore not compensable under § 287.120.9 RSMo. ${ }^{1}$

Whether the employee's claim should be dismissed because the ALJ failed to conclude the hearing within thirty days

Section 287.460 RSMo provides, "The hearing shall be concluded within thirty days of the date of commencement of the hearing, except in extraordinary circumstances where a lengthy trial or complex issues necessitate a longer time than ninety days." The ALJ specifically found that "extraordinary circumstances' existed in this matter that necessitated the hearing conclude longer than ninety days after commencement." ${ }^{2}$ The employee's brief included an expansive discussion of the circumstances that resulted in several continuances, including, inter alia, a change in the employee's prescription medications that adversely affected his mental state and a postponement the ALJ initiated relating to Covid concerns. The employee's attorney further noted that the employer did not object on the record to any of the requested continuances. We defer to the ALJ's judgment in conducting her hearing. We find that the ALJ properly

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[^0]: ${ }^{1}$ Section 287.190 .9 states, "A mental injury is not considered to arise out of and in the course of employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer."

${ }^{2}$ Award, p. 3.

Improvee: Robert Powell

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exercised discretion in allowing the hearing to last longer than thirty days, as permitted by § 287.460 RSMo.

Whether the ALJ applied the correct legal standard in determining that the employee sustained a compensable accident as set out in § 287.020.3.(1) RSMo.

Section 287.020.2(1) provides, in pertinent part, "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

At the hearing, the employer/insurer's attorney stipulated that "at issue [is] whether the treatment that Mr. Powell has received, whether the work injury was the prevailing factor of causing said need for treatment . . . and resulting disability therefrom." 3

We are not persuaded that the ALJ's use of the above wording to characterize the issue of the prevailing factor standard, as opposed to parroting the exact language set out in § 287.020.2(2), constituted the application of an incorrect legal standard. We find the employer/insurer's hyper-technical argument on this issue disregards the plain meaning of the ALJ's award and represents, from a logical standpoint, "a distinction without a difference". See Treasurer of Mo. v. Majors, 506 S.W.3d 348, 353 (Mo. App. 2016).

Whether the ALJ erred in determining the employee to be PTD because his psychiatric condition had not reached MMI

At hearing, all parties stipulated to April 12, 2018, the date of Dr. Bailey's release, as the date the employee reached MMI. ${ }^{4}$ We find that the employer/insurer's stipulation on this issue, on the record, precludes it from raising this issue on appeal to the Commission.

Whether the ALJ erred in failing to credit the employer/insurer's experts Dr. Bailey and Dr. Deutch, regarding the employee's ability to return to employment other than the work he was engaged in at the time of the accident

We agree that competent and substantial evidence in the record could support a different conclusion regarding the nature and extent of the employee's permanent disability. That said, we defer to the ALJ's first-hand assessment of the employee's credibility, including his self-reported physical limitations, ${ }^{5}$ her evaluation of the expert testimony produced by both sides at the hearing, and her findings relating to the nature and extent of the employee's permanent disability.

Whether the ALJ erred in relying on sitting restrictions imposed by Dr. Stuckmeyer in that Dr. Stuckmeyer provided no restrictions for the length of time the employee could or can sit

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[^0]: ${ }^{3} Transcript, pp 7-8.

{ }^{4}$ Id., p. 8. We note that the employer/insurer's attorney at this juncture of the hearing, Mr. Adam M. Brillhart, has not subsequently represented the employer/insurer in this matter.

${ }^{5}$ See Dubuc v. Treasurer of Mo. Custodian of the Second Injury Fund, WD84171 (March 8, 2022), at 11-13, Motion for Rehearing or Transfer pending.

No party disputes that Dr. Stuckmeyer did not impose sitting restrictions. We note the ALJ's award did not affirmatively find that Dr. Stuckmeyer imposed sitting restrictions. Rather, the award referenced vocational expert Mr. Cordray's testimony that "in light of Dr. Stuckmeyer's restrictions that Employee could not return to his prior employment as a truck driver which required him to twist and turn and perform prolonged sitting, as well as lifting and carrying items over 50 pounds." ${ }^{6}$

In our review of the hearing transcript we note that on direct examination, as well as in his written assessment dated November 18, 2018, Mr. Cordray specifically recounted Dr. Stuckmeyer's findings as not including specific sitting restrictions. ${ }^{7}$

This testimony was muddied when the employer/insurer's deposition attorney ${ }^{8}$ asked Mr. Cordray to confirm that Dr. Stuckmeyer was "the only Physician who restrict[ed] [the EE's] ability to sit." Mr. Cordray responded, "Yes, right." ${ }^{9}$

The employer/insurer's attorney, intentionally or unintentionally, based this question on an inaccurate premise. This created confusion and prompted Mr. Cordray to provide a response that was inconsistent with his earlier testimony and his written report. We consider this isolated, inaccurate statement by Mr. Cordray to constitute an honest mistake that does not discredit his hearing testimony as a whole and written report.

The ALJ found, consistent with Mr. Cordray's testimony, that Mr. Cordray "noted throughout his examination that Employee required the need to alternate sitting and standing throughout the two-and-a-half-hour meeting." ${ }^{10}$ Mr. Cordray further noted the employee's self-reported restriction on standing as " 30 minutes at the most."11

We find, as a factual matter, that the employee had significant standing restrictions, based on the employee's credible hearing testimony, his self-reported restrictions, and vocational expert Cordray's personal observation during his examination.

Whether the ALJ erred in finding the employee's work injury to be the prevailing factor causing his mental injury, in that the employee's testimony indicated his mental injury was related to his employment termination and therefore not compensable under $\S 287.120 .9$ RSMo.

Employer/insurer advanced no arguments relating to this alleged point in his brief. We conclude that the employer/insurer has abandoned this point.

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[^0]: ${ }^{6} Award, p. 11.

{ }^{7} Transcript, pp. 1789-1790, 1848.

{ }^{8}$ We note that attorney Ms. Abagail L. Pierpoint represented the employer/insurer in the March 9, 2016, deposition of Mr. Cordray, and has not subsequently appeared on employer/insurer's behalf in this matter.

${ }^{9} Transcript, 1817.

{ }^{10} Award, p. 11; Transcript, pp. 1787-1788.

{ }^{11}$ Transcript, p. 1806.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Emily S. Fowler are attached hereto and incorporated herein to the extent not inconsistent with this decision and