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Jackson County v. Earnest

Court of Appeals of Missouri, Western District, Third Division

February 27, 2018

MARC EARNEST, Respondent.


          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge


         Jackson County ("Employer") appeals from the Final Award Allowing Compensation issued by the Labor and Industrial Relations Commission ("Commission") on the claim for workers' compensation benefits filed by Marc Earnest ("Claimant"). The award incorporated and supplemented the decision of the Administrative Law Judge ("ALJ"). Employer alleges that the "trial court"[1] erred because: (1) it relied on overruled case law and (2) the extent of the disability was against the substantial weight of the evidence. The award of the Commission is affirmed.


         Claimant began working for Jackson County as an entry-level laborer in February 2014. On March 11, 2014, Claimant was instructed by his supervisor to cut down a large tree. The tree fell on top of him, resulting in temporary unconsciousness. Upon waking, the tree was laying across his torso and leg. His co-workers pulled the tree off of him, and he was transported by ambulance to a hospital. Multiple x-rays and a later MRI revealed, inter alia, that Claimant suffered from an acute T7 compression fracture with retropulsion of the bone into the spinal canal. Claimant was initially hospitalized for about a week and given a back brace to wear at home.

         Due to believed fracture instability, Claimant was admitted to the hospital from April 1 to April 13 to undergo two surgeries. The surgeries included rib resection for bone grafting, partial removal of the T7 vertebra, and hardware placement for anterior and posterior spinal fusions. After the surgeries, Claimant was released from the hospital but continued to follow up with his surgeon, Dr. Wilkinson, often complaining of back pain and muscle spasms. Dr. Wilkinson prescribed physical therapy and opioid pain medications before referring Claimant to a pain specialist. On June 23, 2014, Dr. Wilkinson noted that he was "still concerned about [Claimant]'s ability to ever go back to his previous work."

         Around September 2014, Claimant began to regularly see Dr. Pang for pain management. For approximately a year, Dr. Pang prescribed Claimant various medications for his complaints of pain in the thoracic area and where his rib was resected as well as back spasms. Claimant also reported issues such as difficulty sleeping. His medications included pain medications, anti-inflammatories, and muscle relaxants. On June 5, 2015, Dr. Pang found Claimant to be at maximum medical improvement and imposed a fifty pound lifting restriction. The doctor opined that Claimant sustained a "fifteen percent permanent partial disability in regard to the thoracic spine, body as a whole." Claimant was referred to his primary care physician to continue his medication regimen.

         Throughout this time, Claimant also attended physical therapy as recommended by Dr. Wilkinson and Dr. Pang. On April 22, 2015, a Functional Capacity Evaluation was performed. Claimant was able to lift up to twenty pounds; carry up to twenty pounds; push forty-nine pounds, and pull fifty-seven pounds. Claimant reported, however, that movement aggravated his symptoms.

         Claimant testified at the hearing about the pain and limitations that he continues to experience. He stated that he has good and bad days and attempts activities accordingly. On a good day, he can walk about twenty minutes and stand for about thirty minutes. On a bad day, he can only walk for five to ten minutes and stand for as little as two to five minutes. Claimant can lift about thirty pounds from his waist to his shoulders and approximately ten to fifteen pounds from the floor to his waist but has minimal tolerance for bending and does not twist or turn his body. His pain is exacerbated by cold weather. Claimant tries to perform chores such as cleaning the kitchen, doing laundry, vacuuming, and cooking. He does yardwork such as mowing but that task can take as much as three days. He often only sleeps for about an hour and a half before waking due to back spasms, and he naps three to five times during a day when he is able.

         Dr. Stuckmeyer, a board certified orthopedic surgeon, conducted a medical evaluation of Claimant, which included a review of Claimant's medical records and an in-person physical examination. He noted Claimant's symptoms and complaints throughout his treatment with both Dr. Wilkinson and Dr. Pang as well as the medication regimens that both prescribed. Claimant similarly disclosed during Dr. Stuckmeyer's physical examination that he continued to have significant back pain, left-side rib pain, and occasional pain radiating into both lower extremities. Claimant was also having difficulty with prolonged standing, walking, lifting, twisting, sitting, driving, and sleeping. The doctor testified that these symptoms were consistent with Claimant's spinal fracture and major operative procedures involving the spine and chest wall. Claimant was continuing his medication regimen, which included pain medications, anti-inflammatories, and a muscle relaxant.

         Dr. Stuckmeyer imposed numerous work restrictions, which he testified were consistent with those he had placed on other individuals with similar injuries. These work restrictions included no prolonged standing or sitting; the need to change positions throughout the day; no repetitive lifting, bending, or twisting; no repetitive stair climbing; no ladder climbing; no driving of a commercial vehicle due to occasional OxyContin use; and no pushing, pulling, or lifting in excess of ten to fifteen pounds on an occasional basis. After reviewing the vocational assessment described infra, he "assessed a sixty percent disability to the body" as a whole.

         Michael Dreiling ("Dreiling"), a vocational rehabilitation specialist, testified that Claimant was not a realistic candidate for employment in the open labor market. In reaching this conclusion, he reviewed Claimant's medical records; interviewed Claimant regarding his educational background, work history, and physical condition; and administered an aptitude test.

         Dreiling testified that without considering other issues such as educational and work background, the work restrictions imposed by Dr. Stuckmeyer limited Claimant to less than a sedentary level of activity in the labor market. Although positions that could make the necessary accommodations might be available to a highly skilled individual in a sedentary office setting, Claimant fell outside of this demographic, as he had dropped out of high school, completed his GED in 2009, and his employment opportunities would be found in entry-level, unskilled positions that rely more on physical capabilities.

         Based on the work restrictions imposed by Dr. Stuckmeyer, Dreiling concluded that Claimant would not be able to perform tasks similar to those in his past positions involving concrete installation, cabinet manufacturing and installation, residential construction, over-the-road driving, fire and water damage cleanup, or wiring and installing boat parts. Claimant's previous employment relied on good physical functioning skills, and he had not acquired transferable job skills that were compatible with his current limitations.

         Claimant reported little experience using a personal computer and difficulties typing due to his level of pain. Claimant also noted that he needed to lie down for ten minute-periods approximately five times a day and that he had trouble concentrating due to pain. As examples, Claimant indicated ten minutes into the aptitude test that he was having problems focusing on the questions and he was constantly moving about the office during his interview, both due to his pain. Claimant scored at the eighth grade level on the aptitude test.

         Stuart Ford ("Ford") is a private investigator whose business performed surveillance on Claimant over three days in May 2015 and again on two days in June and July of 2016 for a total of approximately thirty hours. From the thirty hours of surveillance, Claimant was videoed being active for approximately ninety minutes in May 2015 and thirty-five ...

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