Rodney Battles v. Heptacore Inc./Bloomsdale Excavating

1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. . .
2. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses. . .

As the court held in Downing v. McDonald's Sirloin Stockade, 418 S.W.3d 526, 529 (Mo. App. 2014), "[A]n employer's duty to provide statutorily-required medical aid to an employee is absolute and unqualified." (emphasis added) That is, [§ 287.140] requires an employer to provide an injured employee medical care but allows the employer to select the medical provider.'" (citing Martin v. Town and Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. S. D. 2007).

The parties stipulated that Mr. Battles was an employee of the employer, working subject to The Workers' Compensation Law of Missouri, and that on October 5, 2016, the employee sustained an injury arising out of and in the course of his employment. No party disputes that the employee underwent two back surgeries, and that the employer thereafter authorized Dr. Patricia A. Hurford to treat the employee for "Statuspost anterior lumbar fusion L4-5 with persistent post-laminectomy pain symptoms in the back and chronic left lower extremity radiculopathy in the L5 distribution."1 The employee produced receipts representing charges for medication prescribed by Dr. Hurford from August 2, 2021 through December 8, 2021, totaling \120.04. { }^{2}$

The employer has advanced no evidence that would demonstrate that the employee is not required to pay the billed amounts, that his liability for the disputed amounts was extinguished, and that the reason such liability was extinguished does not otherwise fall within the provisions of $\S 287.270$ RSMo. See Farmer-Cummings v. Pers. Pool of Platte Cnty., 110 S.W.3d 818 (Mo. 2003), and Maness v. City of De Soto, 421 S.W.3d 532, 545 (Mo. App. 2014). We conclude that the employer is liable to the employee for charges for prescription medication ordered by its authorized provider, Dr. Hurford, during the period August 2, 202, through December 8, 2021, in the amount of $\ 120.04.

We find that the employee did not establish the elements of his claim for reimbursement for mileage expenses associated with medical treatment, because his documentation did not identify any of the medical providers or facilities from which he sought treatment

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[^0]: ${ }^{1} Transcript, p. 1334.

{ }^{2}$ Id., pp. 1036-1052.

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and specified no mileage reimbursement rate. We further note that the employee's brief included no argument on this issue.

The award of the administrative law judge is modified.

Employer is liable to the employee for $120.04 in past medical expenses.

This award is subject to a lien in favor of Dean Christianson, Attorney at Law, in the amount of 25% for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Bruce Farmer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this _2nd_ day of February 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

SEPARATE OPINION

Shalonn K. Curls, Member

Kathryn Swart, Member

Attest:

*Kathryn Swart*

Secretary

I have reviewed the evidence, read the parties' briefs, and considered the whole record. Based on my review of the evidence and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find as follows:

I concur with the majority's award to the extent that it denies the employee's Motion to Strike the Employer's Responsive Brief and accepts the Substitute Brief of Employer/Respondent Bloomsdale Excavating.

I further agree that although Mr. Battles' work-related disabilities preclude him from returning to heavy labor employment, he is not permanently and totally disabled from employment in the open labor market as defined by the relevant statutes and case law.

I dissent from the majority's award to the extent that it affirms the administrative law judge's (ALJ's) finding of 20\% permanent partial disability (PPD) of the body as a whole. I would find that Dr. David Volarich's ultimate assessment of disability of 60\% of the body as a whole merits a higher PPD award.

I concur with the majority's opinion to the extent that it finds the employer liable to reimburse the employee for medicine prescribed by the employer's authorized treating physician Dr. Patricia Hurford.

I disagree with the majority's denial of the employee's workers' compensation mileage claim. The record includes an e-mail from the employee to his attorney dated August 23, 2021, correlating his mileage claim with trips to the pharmacy. ${ }^{3}$ The employee should be awarded reimbursement for mileage at the 2021 IRS mileage reimbursement rate based on mileage claim forms submitted into evidence as Claimant's Exhibit 21, the employee should be awarded reimbursement for 766 miles at the 2021 IRS mileage reimbursement rate of 56 cents per mile, a total of $\ 428.96.

I dissent from the majority's award because it affirms the ALJ's denial of the employee's claim for future medical. The ALJ unfairly assailed the employee's credibility based on surveillance videos purporting to show that the employee engaged in activities that exceeded limitations imposed by his medical providers. This evidence does not demonstrate any deceitfulness on the employee's part because the employee expressly admitted to all of these activities in his deposition and hearing testimony. (See Transcript, pp. 29, 32-34, 1355-1356, and 1358). Furthermore, the employer's videotapes fail to accurately portray the extent of the employee's disability because they fail to include the employee's need to recover from the exertion involved in performing the activities in question for a limited time.

The employer/insurer's payment of $\ 170,310.41 for past medical treatment connotes a significant injury. The ALJ's denial of needed future medical treatment to treat the employee's chronic back pain, including a spinal cord stimulator, based solely on his negative assessment of the employee's credibility, is against the weight of the evidence. The employee can never return to hard labor, the only work he has ever performed,

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[^0]: ${ }^{3}$ Transcript, p. 1031.

Improve: Battles, Rodney

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because of his work-related disability. He now suffers chronic pain due to a failed discectomy and subsequent unsuccessful back fusion performed by the employer's designated physicians in a failed effort to cure and relieve his compensable injury. The ALJ's denial of needed future medical treatment, based solely on his condemnation of the employee's character, appears retaliatory.

**Conclusion**

I concur with the majority's order denying the employee's Motion to Strike the Employer's Responsive Brief and accepting the Substitute Brief of Employer/Respondent Bloomsdale Excavating.

I concur with the majority's award of reimbursement for past medical expenses relating to prescription medication ordered by the employer's authorized provider Dr. Hurford.

I dissent from the majority's limitation of employer/insurer's liability for permanent partial disability to 20% of the body as a whole, as awarded by the ALJ.

I also dissent from the majority's denial of reimbursement for past medical-related mileage expenses and future medical treatment consistent with the ALJ's award.

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Employee: Rodney Battles

Injury No.: 16-082564

Dependents: N/A

Employer: Heptacore Inc./Bloomsdale Excavating

Additional Party: Second Injury Fund

Insurer: Arch Insurance Co.

Hearing Date: December 13, 2021

Briefs filed: February 7, 2022

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

1. Are benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 5, 2016
5. State location where accident occurred or occupational disease was contracted: Callaway County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee bent over to pick up a 10-pound form and felt a pop in his back.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Low back
3. Nature and extent of any permanent disability: 20% body as a whole
4. Compensation paid to-date for temporary disability: $38,525.65
5. Value necessary medical aid paid to date by employer/insurer: $170,310.41

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1. Value necessary medical aid not furnished by employer/insurer? 0

1. Employee's average weekly wages: 927.96

1. Weekly compensation rate: 618.64 TTD $477.33 PPD

1. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

Permanent partial disability from Employer: 20% BAW - $38,186.40

Unpaid medical expenses: None

1. Second Injury Fund liability: None

1. Future requirements awarded: None

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 25% lien of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Dean Christianson

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On December 13, 2021, the parties appeared for a final hearing in Jefferson City, Missouri. Rodney Battles ("Claimant") appeared personally and by counsel, Dean Christianson. The employer and insurer appeared by counsel, James Laramore. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, appeared by counsel, Taylor Ordnung, Assistant Attorney General. The parties requested an opportunity to file post-hearing briefs. The record was completed and submitted on February 7, 2022.

The parties have stipulated to the following facts:

1. The Missouri Division of Workers' Compensation has jurisdiction over this case.
2. Venue for the evidentiary hearing is proper in Cole County.
3. The claim for compensation was timely filed and proper notice was given.
4. Both the employer and Claimant were covered under the Missouri Workers' Compensation Law at all relevant times.
5. On October 5, 2016, Claimant sustained an accident arising out of and in the course of employment.
6. Claimant's average weekly wage was 927.96, the temporary total disability and permanent total disability rate is 618.64, and the permanent partial disability rate is 477.33.
7. The employer paid 170,310.41 in medical benefits.
8. The employer paid $38,525.65 in temporary total disability benefits.

1. Whether Claimant is permanently and totally disabled.
2. Whether Claimant is entitled to additional or future medical treatment.
3. Whether Claimant sustained any permanent partial disability.
4. Whether the Second Injury Fund is liable for permanent total disability.
5. Whether Claimant is entitled to past medical expenses.
6. Whether Claimant is entitled to mileage.

Claimant testified at the hearing in support of his claim. I take administrative notice of the division's files related to Claimant. Claimant offered the following exhibits admitted without objection:

- Exhibit 1 Deposition of Dr. Volarich

- Exhibit 2 Deposition of Timothy Lalk

- Exhibit 3 Certified records of Athletico (cert 6/25/19)

- Exhibit 4 Certified records of Dr. Hug (cert 1/23/18)

- Exhibit 5 Certified records of SSM St. Mary's Hospital

- Exhibit 6 Certified records of Signature Medical Group

- Exhibit 7 Certified records of Jefferson City Medical Group (cert 12/11/17)

The employer offered the following exhibits admitted without objection:

The Second Injury Fund offered the following exhibit admitted without objection:

**DISCUSSION**

Claimant was 46 years old at the time of the final hearing. He was 41 years old on the date of injury - October 5, 2016. Claimant resides in Tipton, Missouri. He has a high school education with an OSHA certification as a crane operator. His past work experience was primarily as a machine operator through the Operator's Union Local 513 in St. Louis.

Claimant began his primary job with the employer on May 13, 2016, as a crane operator. On October 5, 2016, he was operating a crane at the Fulton State Hospital. He started his shift at approximately 7:00 a.m. in the morning and the incident occurred at 7:30 a.m. He drove his machine to a pile of forms to pick up and transport to his co-workers. He noticed that some of the forms had flipped over. He bent over to pick up a 10-pound form by bending over at the waist. As he picked up the form, he claims he felt a pop in his back. He also claims his leg went numb.

Claimant testified that he continues to have low back pain down to his left foot. It feels like his left foot is in a vise. He has some good days and some bad days. He takes Gabapentin three times per day, Tramadol two times per day, Oxycodone one time per day, and Ibuprofen one time per day. He often lays on an ice pack approximately two times per day. He is able to sleep 5 - 6 hours per night. He rides his motorcycle 1 - 2 times per week. He did recently use a mini excavator to dig up his basement. He works out at the gym approximately one time per week.

On cross-examination, Claimant admitted to regular trips and vacations. In late January 2021, he took a trip to Lynchburg and Nashville, Tennessee. The drive time for that trip was seven hours, one way. In March 2021, he flew to San Diego. The trip involved a layover in Las Vegas and the return trip involved a layover in Charlotte, North Carolina. In July 2021, he drove to Gatlinburg, Pigeon Forge and Nashville, Tennessee, for a family trip. The drive time was approximately 10.5 hours each way. He attended his daughter's wedding in October 2021, which involved a full day of pre-wedding activities, the wedding and the reception. The next day, he drove his side by side to the church to assist with cleanup. In 2020, he took a driving trip to Colorado. In 2019, he took vacations in both Mexico and Florida. In 2018, he took a driving trip to Oregon and South Dakota. He did all of the driving on this 10-day trip.

Since the work accident, Claimant regularly works out about four days a week at Adrenaline Fitness in Tipton, Missouri. This included weight training. He also participated in an 11-month training program at the gym involving an eating plan from mid-2019 to 2020 which caused him to lose 30 pounds.

He is able to drive on a daily basis and does not require the assistance of anyone to take him places. He does not use a handicap placard in his vehicles. He owns a car, Dodge pickup, Polaris side by side, and a Harley Davidson motorcycle. He operates all of his vehicles without complication. He has no problem getting in and out of his truck or car. His truck does not have side rails but he can get in and out without problems. He regularly drives his Polaris around town for shopping and errands. He can lift a gas tank to put fuel in his side by side. He is able to lift a sprayer in and out of the back of his side by side. He is able to regularly operate his Harley Davidson motorcycle, and manually back it in and out of the garage. He is able to maintain balance of the bike with both legs. He can shift weight to turn the bike. He is able to sit and ride the bike without seatback support.

He regularly mows his lawn with a riding mower. He also is able to weed eat his lawn. He is able to manually hook and unhook a trailer without problems. He is able to load and unload his mower to his trailer without problems. He is able to pick up and carry concrete cinder blocks without problems. He does his own grocery shopping and can carry groceries. He takes out his own trash, including pushing the trashcan to the road and back.

Claimant did not seek treatment until October 10, 2016, when he went to see his cousin, Dr. Huff, a chiropractor. Although Dr. Huff's notes are not clearly legible, there is no description of the mechanism of injury in the medical record. Claimant had received treatment for neck and low back pain from Dr. Huff since at least 2004.

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Claimant then came under the care of Dr. Taylor who diagnosed him with pre-existing congenital stenosis and lumbar transitional vertebrae at L5-S1. He also diagnosed him with an L4-5 disc herniation. Dr. Taylor performed a laminotomy and decompression at L4-5 on December 5, 2016. Dr. Taylor last saw Claimant on June 22, 2017, and placed him at MMI from a surgical standpoint.

Due to ongoing complaints, Claimant was sent to Dr. Crane who performed an L4-5 fusion on November 15, 2018. After ordering a CT myelogram, which showed a solid fusion and reviewing an April 24, 2019, Athletico FCE report, Dr. Crane placed Claimant at MMI and stated that Claimant could return to work without restrictions.

The Functional Capacity Evaluation was performed on April 12, 2019. The FCE report shows that Claimant gave less than full and consistent effort on 11 of 37 validity criteria. This was determined by several objective factors, including his objective range of motion, inconsistent testing, subjective complaints disproportionate to objective findings of dysfunction and do not correlate with observed movement, exaggerated behaviors, and an absence of kinesiophysical signs.

Even with subpar effort, Claimant met 13 to 14 job demands (92.86% of job demands) for the "medium" physical demand level. He is able to lift 30 lbs. 12" to waist, and 40 lbs. from his waist to his shoulders. He can carry 30 lbs. five feet. He can kneel and squat, and do sustained squatting and kneeling. He can climb stairs and a ladder. He can sit for frequent periods. He can stand and walk on both even and uneven surfaces. He can get in and out of a truck cab. He can clean track with a shovel.

Claimant has continued to see Dr. Hurford for pain management. Her last record, dated January 4, 2021, indicates she was weaning him off all medications.

In light of the findings below, a more complete summary of Claimant's medical treatment is unnecessary.

Experts

Dr. Crane

Dr. Crane was a treating physician. On April 24, 2019, he placed Claimant at MMI and stated he could return to work without restrictions. In a report dated June 21, 2019, Dr. Crane opines there is no other impingement or herniation on any nerves that would explain his continued symptomology. He states that in his professional medical opinion, within a reasonable degree of medical certainty, that the injury sustained on 10/5/2016 resulted in an 8% permanent partial disability of the lumbar spine. He opines no future treatment is required.

In a follow-up report dated September 16, 2020, after review of additional records, Dr. Crane noted his disagreement with Dr. Volarich's opinion that there was a non-union of the fusion. Dr. Crane reviewed the CT myelogram imaging of March 8, 2019. He notes that there is no stenosis, and that the fusion is solid as clearly seen in the anterior imaging of the same series. He notes bone bridging in images #16-20. There is no evidence of loosening of the hardware.

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Dr. Crane testified that the objective findings on the physical examinations and the CT myelogram testing showed a solid fusion and a good result from the surgery. He had no real explanation for Claimant's ongoing, subjective symptomology. He did note that Claimant failed a portion of the FCE.

Dr. Volarich

Dr. Volarich performed an independent medical examination on Claimant on two occasions. Dr. Volarich concluded that Claimant has left leg radiculopathy secondary to a disc herniation at L4-5, persistent significant left L5 radiculopathy, and status post one-level fusion. He states that Claimant and is at MMI and has a rating of 60% of the body as a whole. He asserted that, if a vocational assessment cannot identify work suited for Claimant, then he believes he is permanently and totally disabled. Dr. Volarich recommended significant restrictions, including a 20-pound lift, avoid bending, twisting, lifting, pushing, pulling, carrying, climbing, and other activities as needed, no handling of weight overhead, and avoiding maintaining a fix position for more than 30 minutes.

On cross-examination, Dr. Volarich admitted that the hardware installed by Dr. Crane appears to be in good shape. He admitted that there were no other significant bulges or facet arthropathy at any level causing stenosis. He admitted that Claimant's physical examination was inconsistent with the FCE report. He admitted that physical examination showed Mr. Battles' muscle tone in the lower extremities and bulk in the lower extremities to be normal. Mr. Battles' lower extremity strength was normal. His lower extremity reflexes were normal.

Mr. Lalk

Mr. Lalk is a vocational rehabilitation counselor. He evaluated Claimant at the request of Claimant's counsel. Mr. Lalk concluded that Claimant was permanently and totally disabled. He based his opinions upon the subjective complaints of Claimant, his personal observation, Claimant's deposition, and the restrictions provided by Dr. Volarich.

Mr. Lalk stated that if he based his opinion on the records of Dr. Hurford and Dr. Crane, or on the FCE, or on Mr. Lalk's evaluation, that he would have to conclude that Mr. Battles is able to function normally and be employable in the labor market.

Ms. Skahan

Ms. Skahan is a vocational consultant and evaluated Claimant at the employer's request. Ms. Skahan reviewed the medical records, including the FCE report, Claimant's deposition, and the IME reports. More importantly, Ms. Skahan, unlike Mr. Lalk, reviewed surveillance video of Claimant.

Ms. Skahan states within a reasonable degree of vocational certainty that Claimant is employable in the open labor market. She placed specific emphasis on his appearance during their meeting. She testified that he appeared very fit and in-shape. Most people she sees four years post-accident have deteriorated significantly since the accident. She noted that Claimant lost 30 pounds after the accident by getting into shape. He was using no ambulatory devices. He has also

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taken several vacations with his family. He volunteers at his church, had volunteered to give tours at the McClay House, and works out three times a week (including treadmill and weight lifting).

Ms. Skahan found that Claimant has transferable skills for driving, following work orders and oral instructions, hand-eye coordination, working to precise measurements, using hands and arms, lifting, and more. She saw no barriers to reemployment based off his test scores, consistent with Mr. Lalk. She found the pain ratings did not correlate to his vacation actions. Further, based upon his current income status through Social Security Disability and a pension, she believes that he has no incentive to return to work. She testified that his riding a motorcycle was inconsistent with the left lower extremity symptoms that he subjectively exhibited.

Surveillance

Surveillance videos of Claimant were admitted into evidence as Exhibits E and F. Claimant admits he is depicted in the videos. These videos were taken over numerous dates in the summer and fall of 2021. These videos depict him doing several activities such as driving, going up and down stairs, backing out a motorcycle, riding the motorcycle, grocery shopping, lifting groceries, assisting another person with a motorcycle or scooter, and standing, bending, and walking without a limp or apparent difficulty. They show him mowing, weed eating, lifting and carrying cinder blocks, and hooking/unhooking a trailer to his truck. The videos show Claimant participating in a day-long wedding of his daughter in the fall of 2021, and show him able to stand, sit, and walk for long periods without difficulty. The videos consistently show Claimant performing physical activity without any apparent pain or physical limitations.

FINDINGS OF FACT AND RULINGS OF LAW

The claimant in a workers' compensation case has the burden to prove all the essential elements of his claim, including the causal connection between the injury and work. *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 313 (Mo. App. 2016). The claimant does not have to establish the elements of his case with absolute certainty; it is sufficient if he shows them by reasonable probability. *Moreland v. Eagle Picher Techs., LLC*, 362 S.W.3d 491, 504 (Mo. App. 2012).

The claimant only meets his burden of production when he submits enough competent and substantial evidence that supports a finding of all facts that are required to support the claim for benefits. The claimant has both the burden of production of evidence and the burden of persuasion to prove his claim for benefits. *Annayeva v. SAB of TSD of City of St. Louis*, 597 S.W.3d 196, 199 (Mo. banc 2020).

Before discussing the issues in dispute, I will address Claimant's credibility. I find that Claimant is not a credible witness. I reviewed all the surveillance videos. Those videos show Claimant engaging in physical activity entirely inconsistent with his testimony. The videos refute the statements Claimant made to his treating physicians and the IME doctors. My credibility finding does not rest solely on the videos. I carefully observed Claimant's demeanor while testifying and conclude that he was not being truthful regarding his condition and his ability to work.

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Claimant's lack of credibility also affects consideration of the medical testimony. For an expert's opinion to have a rational basis, it must be based on accurate information. See, Missouri Pipeline Co. v. Wilmes, 898 S.W.2d 682 (Mo. App. 1995). See also, Glasco v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, 534 S.W.3d 391 (Mo. App. 2017). When a medical expert bases their opinion upon an incomplete or incorrect history, the opinion is suspect and entitled to little weight. It is clear that most of the physicians and other experts did not review the surveillance videos. Their opinions must be viewed as inaccurate or incomplete if they did not review the videos or relied on subjective statements from Claimant.

Section 287.020 .6 states that "'total disability' . . . shall mean inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for total disability is the worker's ability to compete in the open labor market. Greer v. SYSCO Food Service, 475 S.W.3d 655, 664-65 (Mo. banc 2015).

The test for permanent and total disability is whether a claimant is able to compete in the open labor market given his or her condition and situation. Messex v. Sachs Elec. Co., 989 S.W.2d 206, 210 (Mo. App. 1999). "An inability to return to any reasonable or normal employment" further defines total disability. The issue, in making this determination, is whether or not an employer, in the normal course of business, would be reasonably expected to employ the individual in the usual course of business, and if the claimant, in his present physical condition could be reasonably expected to perform the work for which he is hired. Thornton v. Haas Bakery, 858 S.W.2d 831, 834 (Mo. App. 1993).

After careful review of the medical records, expert testimony, and the other evidence, I find that Claimant has failed to meet his burden of proof. I find that Claimant is not permanently disabled. I find that Claimant is capable of working in the open labor market.

These findings are supported by the records. The FCE found that Claimant gave less than full effort. Nevertheless, Claimant met 13 of 14 job demands ( 92.86 % of job demands) for the "medium" physical demand level. Dr. Crane testified that there was "some exaggeration of symptoms." Ex. A, p. 23. Dr. Crane released Claimant with no work restrictions. While Dr. Hurford recommended a 30 -pound lifting restriction, there is no indication that she reviewed the surveillance videos. To the extent her restriction is based on Claimant's subjective complaints, it is not valid.

For largely the same reason, I cannot rely on Dr. Volarich's opinions or Mr. Lalk's opinion. It is highly doubtful that their opinions would remain the same after viewing the surveillance.

The surveillance shows Claimant doing physical activity well in excess of the restrictions noted in Dr. Volarich's reports. He rides his motorcycle several times per week, used a mini excavator, attended and assisted in his daughter's wedding cleanup, goes shooting, drives his side-by-side, drives unassisted, picking up groceries, mowing the lawn, and hooking and unhooking up a trailer. He takes regular vacations, many of which required substantial driving.

I find the opinions of the treating physician, Dr. Crane, and Ms. Skahan, more credible. Ms. Skahan testified that Claimant is employable in the open labor market. He has numerous

Issued by DIVISION OF WORKERS' COMPENSATION

transferable skills, and there are a number of available jobs within a 60-mile radius of his home. She found him to be fairly highly educated. According to both experts, Claimant functions cognitively at a high school level at the very least. He graduated high school in 1993. He passed his CDL drivers' testing, and has held it since 1993. He has been fork-lift certified, crane operation certified, and OSHA certified. He has past experience as foreman of a power plant, where he used a computer and supervised employees.

I find the surveillance video is persuasive evidence that Claimant's physical abilities are greater than that conveyed to the Dr. Volarich and Mr. Lalk. I find that Claimant is capable of performing at least a medium level of employment consummate with his high school level education and function.

I find Claimant did not meet his burden of proof on the issue of permanent and totally disability. I find that Claimant is employable in the open labor market. Because Claimant is not permanently disabled, the Second Injury Fund has no liability.

Permanent Partial Disability

Permanent partial disability "means a disability that is permanent in nature and partial in degree . . . ." Section 287.190.6. Extent and percentage of disability is a finding of fact within the special province of the fact-finding body, which is not bound by the medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony and arriving at percentage of disability. *Fogelsong v. Banquet Foods Corp.*, 526 S.W.2d 886, 892 (Mo App. 1975).

Dr. Hurford assigned a PPD rating of 10% of the lumbar spine. Dr. Crane opined and assigned a PPD rating of 8% of the lumbar spine. Dr. Volarich rated Claimant at 50%, then increased it to 60% of the lumbar spine after the second surgery.

After careful review of the evidence, I find that Claimant has a permanent partial disability of 20% of the body as a whole. I find Dr. Crane and Dr. Hurford's ratings more credible for the reasons set forth above. The surveillance documents that Claimant had a very good recovery and demonstrates a level of physical activity consistent with this PPD finding.

Future Medical Treatment

Claimant seeks an award for future medical care. Section 287.140.1 provides, in part, that "the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Claimant bears the burden of proof on this issue. *Rana v. Landstar TLC*, 46 S.W.3d 614, 622 (Mo. App. 2001). The "employee must show something more than a possibility that he [or she] will need such medical care and treatment." Id. Claimant needs to "show a 'reasonable probability' that, because of [the] work-related injury, future medical treatment will be necessary." *Stevens v. City of Citizens Memorial Healthcare Foundation*, 244 S.W.3d 234, 237 (Mo. App. 2018).

After careful review of the evidence, I find that Claimant has not met his burden of proof. I find that future medical treatment is not needed for the work injury. I acknowledge that Dr.

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Hurford had been providing ongoing treatment. However, I find that her treatment is based on Claimant's subjective complaints. Because I do not find Claimant credible, I am not relying on Dr. Hurford's record of ongoing treatment. Instead, I find that Dr. Crane's opinion is credible and that Claimant does not need further medical treatment for the work injury.

Past Medical Expenses and Mileage

Claimant is not a credible witness; therefore, I find that he has not shown he is entitled to past medical expenses or mileage.

CONCLUSION

Claimant is awarded 20% permanent partial disability or $38,186.40.

Claimant's requests for permanent total disability, future medical care, past medical expenses, and mileage are denied.

I certify that on Mar 09 2022 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: __________________________

Maele by: __________________________

Bruce Farmer

Administrative Law Judge

Division of Workers' Compensation

By: __________________________

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