FINAL AWARD ALLOWING COMPENSATION - Missouri · 2. On November 13, 2012, Kenneth J. Nance was an...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge)

Injury No.: 12-104863 Employee: Kenneth J. Nance Employer: Aramark Uniformed Services Incorporated Insurer: Indemnity Insurance Company of North America This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. Preliminaries The parties asked the administrative law judge to determine the following issues: (1) medical causation; (2) liability for future medical care; and (3) nature and extent of permanent disability.1 The administrative law judge determined as follows: (1) employee suffered an accident on November 13, 2012, resulting in permanent disability; (2) employer/insurer is not liable for future medical care; and (3) employee has a 45% permanent partial disability to his body as a whole as a result of the work injury. Employee filed a timely application for review with the Commission alleging that the administrative law judge erred: (1) in finding that employee is not permanently and totally disabled, and (2) by failing to consider the totality of the medical expert testimony regarding future medical care, specifically as to the testimony of Dr. David G. Kennedy. Employee raised the issue of medical causation, but neither briefed nor provided oral argument with regard to that issue. For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of (1) nature and extent of permanent disability; and (2) liability for future medical care. We do not disturb the award and decision of the administrative law judge on the issue of medical causation. Discussion Nature and extent of permanent disability The parties disputed the issue of the nature and extent of the permanent disability referable to the work injury and, specifically, whether it rendered employee permanently and totally disabled. The administrative law judge entered an award of permanent partial disability benefits, in part, because employee’s overall testimony was not consistent, convincing or credible. We defer to the credibility determination of the 1 The parties also asked the administrative law judge to address the issues of (1) employee’s average weekly wage, and (2) temporary and total disability. As noted in the administrative law judge’s award, the parties entered into a stipulation resolving these issues.

Injury No.: 12-104863 Employee: Kenneth J. Nance

- 2 - administrative law judge. We suspect that claimant’s credibility suffers from reasons not attributable to a lack of candor. Rather, employee’s physical therapy records suggest that he may suffer from some form of mental condition or disability that affects his ability to follow instructions and hinders his recollection of specific facts, such as dates and prescribed medications. Accordingly, we will turn to the opinions of the expert medical witnesses to determine this issue. Employer/insurer produced the testimony of Dr. David G. Kennedy, taken by deposition on April 5, 2016. Therein, Dr. Kennedy restricted employee to lifting no more than 30 pounds; occasional bending, twisting and/or stooping; and little to no overhead lifting. Dr. Kennedy opined that it would be safe for employee to perform light duty work, subject to Dr. Kennedy’s medical restrictions and employee’s tolerance. In addition, Dr. Kennedy determined that employee suffers from post-laminectomy syndrome, or as described by Dr. Kennedy, residual pain following employee’s posterior fusion. We find that the testimony of Dr. Kennedy is the most persuasive with regard to employee’s limitations referable to the work injury. The Missouri Workers’ Compensation Law defines “total disability” as the “inability to return to any employment.”2 “The test for permanent total disability is whether the worker is able to compete in the open labor market.”3 Employee is able to perform light duty work, subject to employee’s tolerance and the work restrictions of Dr. Kennedy. We find that employee is able to compete in the open labor market. As such, we agree with the administrative law judge that employee is not permanently and totally disabled in connection with the November 13, 2012, work injury. Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with an employee’s compensable work injury. After careful consideration, we believe that the work restrictions imposed upon employee by Dr. Kennedy warrant a higher permanent partial disability rating. We find that employee has suffered a 60% permanent partial disability of the body as a whole in connection with the November 13, 2012, work injury. Accordingly, we conclude that employer/insurer is liable for 240 weeks of permanent partial disability benefits at the stipulated weekly permanent partial disability benefit rate of $433.58 per week for a total of $104,059.20 in permanent partial disability benefits. Future medical care Section 287.140.1 RSMo provides for an award of future medical care where the employee can prove that there is a reasonable probability of a need for future medical care that flows from the work injury.4 By deposition dated April 5, 2016, Dr. Kennedy agreed with counsel for employee that it would be reasonable, necessary and appropriate for employee to take anti-inflammatory medications. We find that there is a reasonable probability that employee will need future medical care flowing from the injury.

2 Section 287.020.6 RSMo. 3 Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011). 4 Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-54 (Mo. App. 2008).

Injury No.: 12-104863 Employee: Kenneth J. Nance

- 3 - We conclude that employee is entitled to, and employer/insurer is liable to provide, that future medical care that may reasonably be required to cure and relieve the effects of the work injury, including such care and treatments as recommended by Dr. Kennedy. Medical causation By his application for review, employee contests the administrative law judge’s award and decision with regard to the issue of medical causation. Employee neither briefed nor provided oral argument on this issue before the Commission. As such, we decline to disturb the award of the administrative law judge on the issue of medical causation. Award We modify the award of the administrative law judge as to the issues of: (1) nature and extent of permanent disability and (2) liability for future medical care. We do not disturb the award of the administrative law judge on the issue of medical causation. Employee is entitled to, and employer/insurer is hereby ordered to provide, that future medical care that may reasonably be required to cure and relieve the effects of the work injury. Employer/insurer is liable for, and is hereby ordered to pay, permanent partial disability benefits in the amount of $104,059.20. The award and decision of Administrative Law Judge Gary L. Robbins, issued September 26, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award. This award is subject to a lien in favor of Cynthia M. Hennessey in the amount of 25% for necessary legal services rendered. Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this 30th day of November 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Employee: Kenneth J. Nance Injury No. 12-104863

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ISSUED BY DIVISION OF WORKERS’ COMPENSATION

FINAL AWARD

Employee: Kenneth J. Nance Injury No. 12-104863 Dependents: N/A Employer: Aramark Uniformed Services Incorporated Insurer: Indemnity Insurance Company of North America Appearances: Cynthia M. Hennessey, attorney for the employee. Robert J. Amsler, attorney for the employer-insurer. Hearing Date: June 22, 2016 Checked by: GLR/kg

SUMMARY OF FINDINGS 1. Are any 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? November 13, 2012.

5. State location where accident occurred or occupational disease contracted: Butler

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 the employer insured by above insurer? Yes.


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11. Describe work the employee was doing and how accident happened or occupational disease contracted: A pipe struck the employee on his head/between his eyes.

12. Did accident or occupational disease cause death? No.

13. Parts of body injured by accident or occupational disease: Head, neck and body as a

whole.

14. Nature and extent of any permanent disability: The Court found that the employee has a 45% permanent partial disability to his body as a whole as a result of his November 13, 2012 accident.

15. Compensation paid to date for temporary total disability: $38,867.78

16. Value necessary medical aid paid to date by the employer-insurer: $233,801.70.

17. Value necessary medical aid not furnished by the employer-insurer: None.

18. Employee's average weekly wage: $926.91. Agreed to by the parties in a letter dated

July 27, 2016.

19. Weekly compensation rate: $617.94 per week for temporary total and permanent total disability, and $433.58 per week for permanent partial disability. Agreed to by the parties in a letter dated July 27, 2016.

20. Method wages computation: Agreed to by the parties in a letter dated July 27, 2016.

21. Amount of compensation payable: $78,044.40 for permanent partial disability.

$2,445.92 for temporary total disability. See Award.

22. Second Injury Fund liability: N/A.

23. Future requirements awarded: See Award.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law. The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Cynthia M. Hennessey.


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STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW On June 22, 2016, the employee, Kenneth J. Nance, appeared in person and with his attorney, Cynthia M. Hennessey for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Robert J. Amsler. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows: UNDISPUTED FACTS: 1. Aramark Uniformed Services Incorporated was operating under and subject to the

provisions of the Missouri Workers’ Compensation Act, and its liability was fully insured by Indemnity Insurance Company of North America.

2. On November 13, 2012, Kenneth J. Nance was an employee of Aramark Uniformed Services Incorporated and was working under the Workers’ Compensation Act.

3. On November 13, 2012, the employee sustained an accident arising out of and in the course of his employment.

4. The employer had notice of the employee’s accident. 5. The employee’s claim was filed within the time allowed by law. 6. The employer-insurer paid $233,801.70 in medical aid. 7. Prior to trial, the employer-insurer paid $38,867.78 in temporary disability benefits. 8. The employee had no claim for previously incurred medical bills. 9. The employee had no claim for mileage.

10. The parties agreed that the employee reached MMI as of June 4, 2014. 11. The employer-insurer will pay a medical bill of $152.00 to Ferguson Medical Group.

ISSUES: 1. Average Weekly Wage-Average weekly wage and wage rate was identified as an issue at trial. However, subsequent to trial, in a letter dated July 27, 2016, the parties agreed that the employee’s average weekly wage is $926.91 which provides a rate for temporary total and permanent total disability of $617.94 per week and a rate for permanent partial disability of $433.58 per week. 2. Medical Causation. 3. Future Medical Care. 4. Temporary Total Disability-At trial the parties identified temporary total disability as an issue. However, subsequent to trial, in a letter July 27, 2016, the parties enter into a stipulation resolving this issue. 5. Permanent Partial Disability v. Permanent Total Disability.


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EXHIBITS: The following exhibits were offered and admitted into evidence:

Employee Exhibits: 1. Claim for Compensation. 2. Report of David T. Volarich, D.O. 3. Deposition of David T. Volarich, D.O. 4. Report of Delores E. Gonzalez. 5. Deposition of Delores E. Gonzalez. 6. Deposition of Kenneth J. Nance. 7. Medical Records. 8. Letters from Hennessey Law Firm, LLC. 9. Records from Aramark Uniform & Career Apparel LLC. Employer-Insurer Exhibits: A. Report from Sikeston Imaging Center. B. Report from Sikeston Imaging Center. C. Report from Ferguson Medical Group. D. Report from Professional Imaging Center. E. Report from Professional Imaging Center. F. Report from Professional Imaging Center. G. Report from Kneibert Clinic-Main. H. Report from MBMC. I. Report from MBMC. J. Report from 24 7 Radiology. K. Report from Kneibert Clinic-Main. L. Report from MBMC. M. Report from MBMC. N. Report from MBMC. O. Report from MBMC. P. Records from Black River Medical Center. Q. Ambulance Transfer. R. Records from Poplar Bluff Regional Medical Center. S. Records from Kneibert Clinic. T. Records from Ferguson Medical Group. U. Records from Brain and NeuroSpine Clinic of Missouri, L.L.C. V. Records of David G. Kennedy, M.D., P.C. W. Records from Frontenac Surgery & Spine Care Center. X. Records from Frontenac Surgery & Spine Care Center. Y. Records from Frontenac Surgery & Spine Care Center. Z. Records from Injury Specialists. AA. Records from Focus on Physical Therapy.


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BB. Records from Ergo Science. CC. Records from Barnes-Jewish Hospital. DD. Records from Aramark Uniform Services, Incorporated. EE. Records from The Social Security Administration. FF. Records from The Social Security Administration.* GG. Records from Fidelity Workplace Services, LLC. ** HH. Deposition of David G. Kennedy, M.D. II. Deposition of Daniel L. Kitchens, M.D. JJ. Deposition of James M. England, Jr. KK. Records in Case Number C-1668-68. LL. Records in Case Number CV192-13CC. MM. Records from Aramark Uniform Services. NN. Records from my truescreen. *** OO. Photograph. PP. Photograph. QQ. Deposition of Tim D. Kaver. RULINGS ON OBJECTIONS: At trial, the Court took some objections under advisement to be ruled on with the case. *At trial, employee counsel objection to the introduction of Employer-Insurer FF which concerns Mr. Nance’s social security. Employee counsel indicated that the document was not relevant and an was an invasion of her client’s privacy. Mr. Nance provided testimony concerning this document. The Court rules that Employer-Insurer Exhibit FF is admissible. **At trial, employee counsel objected to the introduction of Employer-Insurer Exhibit GG which are records concerning the employee’s savings plan. Employee counsel indicated that the document was not relevant and an invasion of privacy. Mr. Nance did provide testimony concerning this document. The Court rules that Employer-Insurer Exhibit GG is admissible. ***At trial, employee counsel objected to the introduction of Employer-Insurer NN which is a “my truescreen” report regarding Spencer Stucker. Employee counsel maintains an invasion of privacy as she represents the interests of Mr. Nance’s family and Mr. Stucker is Mr. Nance’s grandson. The Court rules that Employer-Insurer Exhibit NN is admissible. STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW: STATEMENT OF THE FINDINGS OF FACT: Mr. Nance, his wife, Ms. Tyra, Mr. Foss, and Mr. DeSpain all personally testified at trial. In addition, Mr. Nance testified by deposition on August 1, 2014. All other evidence was presented in the form of medical records and reports, written records and reports, and deposition testimony.


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Kenneth J. Nance Mr. Nance was 68 years old at the time of his trial. He lives in Poplar Bluff and has lived there all of his life. He and his wife Connie have been married 50 years. He graduated from high school in 1966 and testified that he did not take any college courses. He testified that he was an above average student and does have the ability to learn. Mr. Nance began employment with Todd Uniforms when he was 22 years old. Todd was bought out by Aramark in 1996. He has worked for the company for 42 years. He began work as a route salesman and held that position until he was 64 years old and left employment. In that position he had a sales route and would sell uniforms, mats and other supplies a business might need. Mr. Nance’s job was physically demanding. He drove a step van similar to a UPS truck and delivered Aramark products to his customer base five days a week. He would load and unload his van each day and would deliver clean products to his customers and pick up soiled items for cleaning. Mr. Nance testified that he had a quota to develop $1,000.00 a week in direct sales and that he never had a problem meeting his quota. He used a pen and paper to prepare sales, orders and invoices from his customers until Aramark switched to hand held computers. He testified that this was a touch screen computer with no other method to enter data. He testified that this was the only computer he ever used. He denied that he had a computer at home. Mr. Nance denied that he ever used a computer of any other kind other than the hand held computer from Aramark. Mr. Nance denied ever using any other computer at the office for any reason. He testified that he did not know how to use a keyboard or a mouse. Mr. Nance described a vehicle accident in the 1990s but stated that he had no problems with his neck up until the date of his accident. He denied any lawsuit or settlement from a vehicle accident. He said that he did see a chiropractor for back pain in the 1980s. On November 13, 2012, Mr. Nance had an accident where he was struck between the eyes with a piece of pipe. The medical care that he received as a result of this accident is described later in this award. He testified that his low back bothered him for a while but it completely resolved. He testified that at the time of the hearing he treats his pain with showers and reclining in his recliner. He also testified that he has to lie down during the day to take naps due to his pain. He indicated that he can only sleep for two hours without pain. He further testified that he takes aspirin but does not take any prescription pain medications or anything else. Mr. Nance denied any of these problems prior to his accident. Mr. Nance complained of weakness in his right leg that started within hours of the accident. He indicated that he trips and falls due to the weakness. He said that he has used a cane since the operation and that his balance problems have gotten worse since he last saw Dr. Kennedy. Mr. Nance testified that Mr. Foss and Mr. DeSpain were his bosses at Aramark. Mr. Nance said that he last saw Mr. Foss in January 2013 and at that time Mr. Foss told him that he would retire


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on January 13, 2013. He said that he was forced to retire at that date due to his injury and had not discussed a retirement plan with his supervisors. He testified that Mr. Foss told him he was a hindrance and obstacle and that he was a “bad asset.” He testified that Mr. DeSpain told him he was a hindrance and that his vacation pay would not be processed until he resigned. He testified that he had no plans to retire and did not want to quit his job. He testified that there was no agreement that his grandson would start employment with Aramark, he would train him to take over his route and then he would retire. He also testified that he had about $6,500.00 in vacation pay and the policy was that you can get earned vacation pay any time you want. He indicated that he was not allowed to get the vacation pay unless he resigned and then turned it in. Mr. Nance was questioned about his physical complaints and what he had reported. He agreed that it was important to provide complete and truthful information about his physical problems. Despite his current list of complaints, he agreed that after the accident he did not mention problems with his legs or low back. After his accident his complaints were about weakness in his right arm and pain in his neck and right arm. It was also pointed out that at his deposition he only indicated pain in his right arm and neck and did not include other body parts. He testified that he did not discuss problems with headaches, balance problems, pain radiating down the outside part of his leg, weakness in his right leg, or having problems walking. He agreed that he did not mention his back or headaches or sleep problems. He also agreed at that time he did not mention any balance problems. At trial Mr. Nance was asked about prior automobile accidents. He testified that he was in minor fender benders and did not get any medical treatment. He also denied having physical problems from any prior automobile accidents and denied that he ever filed any lawsuits over any injuries or went to court over any such accidents. When he was shown Employer-Insurer Exhibits KK and LL, he indicated he forgot about them. At that time he did reveal that he was involved in a 1990 accident, that he did claim physical problems that he was treated for. After prompting he did admit that he was involved in a lawsuit that went to the Supreme Court. He also denied that after an accident with a work truck in 1990 that he had severe and disabling injuries to his head and body as a whole. He denied having sleeping problems after that accident until he was shown the petition in the lawsuit indicating that he had sleeping problems after the accident. Mr. Nance won a vacation due to his sales efforts. His testimony was that he did not take the vacation and sold it back to Aramark. Mr. Nance testified that he was never disciplined or reprimanded at work. He denied that he was ever disciplined for harassing another employee. He denied this event even when shown a letter of reprimand/Employer-Insurer Exhibit MM. He then said he refused to sign the letter. He also denied that he was disciplined about damaging another Aramark truck. Mr. Nance testified that he never withdrew approximately $190,000.00 from his 401k plan in October 2012, prior to his work accident, because he was going to retire. He testified that he was transferring money, as Aramark would no longer contribute in a matching amount to his plan. However, on cross examination he admitted that the 401k document indicated that Aramark did make contributions to his account after he withdrew the money.


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Mr. Nance indicated he did not think he could work full time due to the pain he has and does not think he could do his prior job. He said that if he does anything he has severe pain. Shonda Tyra Ms. Tyra works at Aramark as a Senior Administrative Coordinator. She has been with Aramark for 15 years. She testified that she has known Mr. Nance all of the time she has worked for Aramark. She testified that part of her job duties are to work with invoices and new hires. She processes the paperwork for new hires including DOT physicals and drug screens. Ms. Tyra testified that Mr. Foss makes hiring decisions and that Mr. Foss made an offer of employment to Mr. Stucker. She was to process the paperwork for Mr. Stucker. Mr. Stucker is Mr. Nance’s grandson. She testified that Mr. Foss approached her on or before November 21, 2012, and told her he had made an offer to hire Spencer Stucker. Leonard Foss Mr. Foss is the General Manager for Aramark. He has been with Aramark for 24 years and in the past worked as a route salesman. He testified that he manages 195 employees in multiple states. He indicated that his biggest responsibility is the profit and loss statement and maintaining business. Mr. Foss testified that he expects route salesmen to increase business and grow revenue. He personally knows Mr. Nance and testified that he was always a top selling route salesman. He indicated that Mr. Nance was good at getting customers and had a great reputation. He described Mr. Nance as a top performer. Mr. Foss testified that he and Mr. Nance talked about retirement approximately six months prior to his accident. The discussion pertained to Mr. Nance’s grandson, Mr. Stucker, taking over his route after Mr. Nance’s retirement. Company policy is that a person has to be 21 to be a route salesman. Mr. Stucker was 20 at that time. Mr. Foss testified that he thought that this was a great idea as Mr. Stucker could take over Mr. Nance’s business and the customer service he had for 30 years. He indicated that the understanding was that Mr. Nance was going to retire in February 2013 and that they would bring on Mr. Stucker three months in advance, as Mr. Stucker turned 21 in early 2013. Mr. Nance could train him and introduce his to all of his customers in the training period. Mr. Foss testified that a job offer was made to Mr. Stucker about November 2012, as he thought he would make a good route salesman and could develop customer loyalty as Mr. Nance’s customer loyalty could easily shift to his grandson; however, Mr. Stucker decided not to take the job. He testified that the workup on Mr. Stucker was begun in November 2012. Mr. Nance was on light duty as of November 13, 2012 and had restrictions that kept him from doing his route.


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Mr. Foss denied telling Mr. Nance that he was a liability or an obstacle or an impediment. Mr. Foss testified that Mr. Nance was an excellent employee but he was written up for harassment of another employee. He also testified that Mr. Nance was disciplined for being involved with an incident with an Aramark truck. Mr. Foss was questioned about Mr. Nance’s 401 retirement account that he had at Aramark. He testified that Aramark still matches contributions by their employees and this has not changed in 10 years. He testified that the records show that a deposit was made to Mr. Nance’s account in November 2012 after he changed his account. John DeSpain Mr. DeSpain has worked for Aramark for 11 years and is the district manager for the Poplar Bluff District where Mr. Nance worked. He testified that he has known Mr. Nance since 2008. Mr. DeSpain testified that Mr. Nance is a very good salesman-he was called an “All Star.” He was very successful as a salesman and obtaining new customers. He testified that Mr. Nance won a trip to Mexico but backed out and did not go. He indicated that Mr. Nance did not sell that vacation package back to Aramark. He testified that Mr. Nance was real competitive with other salesmen. Mr. DeSpain testified that Mr. Nance was disciplined for harassing a fellow employee. Disciplinary action was taken on February 15, 2013. He talked to Mr. Nance on that date and put a letter in his personnel file. He testified that Mr. Nance refused to sign the letter. He also testified that in 2011there was an incident where Mr. Nance ran into another Aramark truck. He tried to conceal the wreck by putting the pieces of the truck back together. Mr. Nance was given a verbal warning as he came forward, admitted the incident, apologized and offered to pay for the damage. Mr. DeSpain testified that Mr. Nance used a hand held computer on his route where he made entries on the keyboard on his day-to-day sales, orders and activities. Mr. DeSpain said that Mr. Nance was one of the first salesmen to master the hand held computer. He testified that Mr. Nance had to download the computer daily in the morning and the evening. In addition to the handheld computer, Mr. DeSpain testified that Mr. Nance used a desktop computer at the office using the keyboard and the mouse. He testified that the computer had to be used as a time clock and that once a month Mr. Nance had to go through training on the computer. He testified that Mr. Nance also used a program on the computer called Zip Art to look up logo design for his customers. He testified that he saw Mr. Nance use the computer and would help him at times. Mr. DeSpain testified that way before he got hurt, Mr. Nance approached him about retiring and having his grandson take over his route. Mr. DeSpain thought this was a great idea. The discussion was for Mr. Nance to train his grandson on his route for 4-6 months before his grandson turned 21 on February 18, 2013. Mr. Nance was supposed to retire after his grandson turned 21 and could take over his route. Mr. DeSpain helped interview Mr. Stucker before Mr.


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Nance’s accident. A job offer was made but Mr. Stucker did not take over the route and declined the job. Mr. DeSpain denied ever telling Mr. Nance that he was an obstacle or hindrance. Connie Nance Ms. Nance is Mr. Nance’s wife. They have been married for 49 years and have lived together all of that time. She testified that prior to his accident her husband had no physical problems with doing stuff around the house-he was a workaholic. Since that accident she testified that her husband does not sleep well and is up a lot as he hurts. He takes Tylenol and Ibuprofen. She indicated that he sits in his recliner several times a day and he did not do that prior to his accident. She indicated that he is slow getting in and out of the car and that she does most of the driving. She also indicated that he stumbles and has no balance on uneven ground. She does not think he could do his prior job and does not think he could go five days without resting and reclining. Ms. Nance further testified that they do not have a computer in the house but she did see him use the hand held device. She was aware that their grandson put in an application at Aramark but was unaware of the circumstances. Medical records After his injury on November 13, 2012, Mr. Nance received his initial care at Black River Medical Center. They had limited facilities and transferred Mr. Nance to Poplar Bluff Medical Center. He was observed and released after 24 hours with a diagnosis of head trauma. Kneibert Clinic treated Mr. Nance on November 14, 2012. His personal physician took him off work. The employer-insurer sent him to Ferguson Medical Clinic on November 15, 2012. Mr. Nance was diagnosed with a cervical strain, head injury and wrist injury and was instructed to return to work on light duty. Due to his continued complaints, Mr. Nance was referred to Dr. Smith, a neurosurgeon, on January 17, 2013. He did complain of cramping pain in his legs at that time. He also had headaches and posterior cervical pain radiating into the right shoulder and right wrist pain with numbness in the hand. Dr. Smith ordered an MRI. That testing showed significant degenerative disc disease and osteophytes at C4-C7 with moderate central canal stenosis at C4-7. On February 5, 2013, Dr. Smith reported that Mr. Nance had a normal motor examination and sensation in all extremities. He reported that the lumbar MRI showed degenerative disc disease with herniations from L1-L5 causing foraminal and central canal stenosis. Dr. Smith stated that there was no myelopathy. His diagnosis was cervical stenosis, right wrist pain and lower extremity pain and cramping. He indicated that Mr. Nance could return to work on light duty. Dr. Kennedy, a neurosurgeon, saw Mr. Nance for the first time on March 5, 2013. He noted that there was restricted range of motion in the cervical spine, motor and sensory examinations were


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grossly normal and that reflexes were normal and symmetric. Dr. Kennedy reported that Mr. Nance did not complain of any headaches or any issues in his lower extremities. He also reported that there was significant disc herniation which in combination with the osteophyte formations was causing severe right foraminal stenosis. He also indicated that there was moderate foraminal stenosis at C4-C6. Dr. Kennedy took Mr. Nance off work. On April 9, 2013, Dr. Kennedy, with the assistance of Dr. Raskas, performed a C5-C6 partial vertebrectomy with C5-7 microdiscectomy, C4-5 microdiscectomy, allograft fusion C4-C7, fusion C4-C7, plating and self-drilling screws. The post-operative diagnosis was cervical spondylosis with intractable cervical radiculopathy C4-C7. Mr. Nance initially reported that he had substantial improvement. However, on June 20, 2013, due to pain complaints, Mr. Nance was referred to Dr. Feinberg who is a pain management physician. Dr. Feinberg provided cervical facet injections. Mr. Nance reported that he had pain in the back of his neck, his left arm posteriorly and laterally and the radial aspect of forearm on his right arm. Mr. Nance reported that the pain did not wake him from sleep at night and did not report any complaints to his back or legs. Dr. Feinberg reported that Mr. Nance was not using an assistive device and could sit and stand without difficulty. On September 17, 2013, Dr. Kennedy noted that Mr. Nance has some balance problems and was using a cane. On December 19, 2013, Dr. Kennedy and Dr. Raskas performed a revision fusion surgery from C4-C7. As of January 2014, Dr. Kennedy determined that Mr. Nance had normal motor and sensation and his reflexes were equal and symmetric. His treatment records do not mention further balance problems. Testing showed motor and strength testing to be normal. Dr. Kennedy referred Mr. Nance for an FCE to evaluate his abilities. The FCE report indicated: -there were some signs of Mr. Nance failing to provide full effort. -the test exceeded the limits for self-limiting behavior. -Mr. Nance performed with an inconsistent effort. -Mr. Nance could do a sedentary job but the results were tainted by self-limiting behavior and should be considered a minimal tolerance. -Mr. Nance could perform a sedentary job in a normal eight hour work day. -there was no mention of the use of a cane. Dr. Volarich Dr. Volarich was retained by Mr. Nance’s attorney to conduct an IME. He reviewed records as part of his evaluation. Dr. Volarich saw Mr. Nance on March 17, 2015. He prepared reports dated March 17, 2015, February 25, 2016, March 10, 2016, and testified by deposition on March 21, 2016. Dr. Volarich evaluated Mr. Nance for two separate injuries. One for heat exhaustion of June 25, 2012, and the other for his accident of November 13, 2012. His testimony primarily focused on the latter injury; however he rated Mr. Nance as having a 1-2% permanent partial disability of the body as a whole as a result of his heat exhaustion.


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Dr. Volarich testified that the November 13, 2012 accident caused a whiplash injury to Mr. Nance’s neck and also jarred his low back. Dr. Volarich testified as to the effect that the November 13, 2012 accident had on Mr. Nance’s neck: -it caused Mr. Nance to develop myeloradiculopathy -he had disc herniations at three levels from getting hit in the head like that. -it not only caused acute radicular symptoms, but it also aggravated his underlying degenerative changes that you would expect a 60 year old man to have so it caused a previously asymptomatic condition to also worsen. -he found asymmetric bulk in the extremities. Generally the left side was strong and the right side was weaker. - there was right calf atrophy. -Mr. Nance came to the office holding a cane in right hand because of significant right calf and foot weakness. He walked slowly and carefully. His right ankle inverted when he tried to push off his toes. -the cervical range of motion was reduced. The worst neck pain occurred with extension. -the lumbar spine showed loss of flexion and extension. Side bending was stiff but no pain. Left straight leg raise was without difficulty to 80 degrees. On the right at 45 degrees Mr. Nance complained of neck pain that radiated into the right arm. -the right upper extremity was generally weaker. Dr. Volarich provided his diagnoses: 1-cervical myeloradiculopathy involving the right upper and right lower extremities secondary to disc protrusions, C4-5, C5-6, and C6-7, as well as aggravation of underlying degenerative disc disease and degenerative joint disease. Status post anterior cervical discectomy with fusion and instrumentation, C4-5, C5-6, and C6-7 with partial vertebrectomies at C5 and C6. He reported that myeloradiculopathy means the cord was compressed and was causing not only upper but lower extremity radicular symptoms as radiating pain. 2-the second diagnosis is pseudoarthrosis of the cervical fusion. Status post anterior approach requiring bilateral foraminotomies, lateral mass fusion and facet fusions, C4-5, C5-6 and C6-7. Pseudoarthrosis means non-union of the original anterior fusion so they went posteriorly and did foraminotomies. 3-the next diagnosis is post-laminectomy syndrome with continuing cervical myelopathy. Post-laminectomy syndrome is also called failed back syndrome. That means the surgery really did not improve his symptomatology. It’s not anything the surgeons did incorrectly; he just did not heal properly. Continuing cervical myelopathy means that he has ongoing symptoms of the upper and lower extremity. -the next diagnosis was minor lumbar strain injury. -last diagnosis was closed head trauma causing loss of consciousness with no significant residuals. Dr. Volarich provided causation opinions stating: -the 11/13/12 accident was the substantial contributing factor, as well as the prevailing or primary factor causing the cervical myeloradiculopathy involving the right upper and lower extremities secondary to disc protrusions, C4-5, C5-6, and C6-7, that required anterior and


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posterior fusions from C4 through C7, and from which he continued to experience symptoms consistent with post-laminectomy syndrome and continuing cervical myelopathy. -this injury also caused a mild lumbar strain that required conservative care. -Mr. Nance had no central nervous system symptoms from the closed head trauma. -the work injury was the prevailing factor causing his symptoms, need for treatment and resulting disabilities. Dr. Volarich was asked to explain how an injury to the head, to the neck, a cervical type injury could have lower extremity symptoms. He said “That’s the myelopathy portion of the diagnosis. Myelopathy means that the cord has been damaged, the spinal cord in the cervical spine has been damaged. There’s pressure-enough pressure on the cord that not only does it impact the nerve roots to the upper extremity, in this case, it also impacted the nerve roots to the right lower extremity.” Dr. Volarich agreed that Mr. Nance’s use of a cane was related to this accident. He indicated that Mr. Nance used his cane for weakness in the lower extremity. Dr. Volarich provided permanent partial disability ratings from the 11/13/12 accident: -80% permanent partial disability to the body as a whole at the cervical spine. The rating accounts for his ongoing neck pain, lost motion, right upper extremity radicular symptoms, right lower extremity myelopathic symptoms with significant weakness in the right lower extremity and significant atrophy in the right calf. -5% permanent partial disability to the body as a whole at the lumbar spine due to the mild lumbar strain injuries causing occasional low back muscle aching. -disability from his mild concussion or mild right wrist strain was not found since those symptoms resolved. He further opined that Mr. Nance is permanently and totally disabled as a result of the work-related injury of 11/13/12 standing alone. He indicated that the severity of this injury to the cervical spine far outweighed any of his other injuries. He also indicated that if Mr. Nance had any pre-existing disability in his spine because of arthritic change, it was too small to quantify since he was asymptomatic prior to 11/13/12. Dr. Volarich reviewed Ms. Gonzalez’s report and maintained that it corroborated his opinion that Mr. Nance is permanently and totally disabled. His opinion was also that Mr. Nance needed future medical care as a result of his accident. He stated that in order for Mr. Nance to maintain his current state he will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications (NAID’s), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of his complaints. He also recommended that Mr. Nance be fitted with a right ankle foot orthotic to stabilize his footdrop and weakness in the right calf so he can ambulate more fluently. He further recommended that Mr. Nance be properly trained in the use of a cane to help with ambulation. He did not believe that additional physical therapy would be of any benefit since Mr. Nance has permanent nerve damage to the right upper and right lower extremities. Counsel for the employer-insurer challenged Dr. Volarich’s comments and opinions and the basis for his comments and opinions.


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Dr. Volarich agreed that he is a nuclear medicine physician and is not an orthopedic or neurosurgeon. He also agreed that he has not performed surgeries for probably 35 years. Dr. Volarich did not have the deposition of Mr. Nance and does not know what he said then about his abilities or what he said he could and couldn’t do-he agreed that all he knows is what Mr. Nance told him on March 17, 2015. The records show that Mr. Nance experienced two incidents of heat exhaustion. When Dr. Volarich asked Mr. Nance about his heat exhaustion, he denied having a prior heat exhaustion. The disability that doctor gave to Mr. Nance regarding heat exhaustion is because he believes it was Mr. Nance’s first incident of heat exhaustion. Dr. Volarich testified that there is no disability from the second heat exhaustion. Dr. Volarich discounted Dr. Wilkerson’s records that he saw where a prior heat exhaustion was reported. Dr. Volarich was asked about his findings, what was contained in the prior medical records and what Mr. Nance related to him: -Dr. Volarich agreed that if Mr. Nance had told him that he had ongoing back complaints or had treatment, he would have put it in his report. -Dr. Volarich agreed that none of the physicians note complaints from Mr. Nance with regard to his lumbar back. He agreed that Mr. Nance just said he had mild symptoms. Dr. Smith’s records say Mr. Nance reported bilateral cramping in his legs. Dr. Smith ordered the lumbar MRI. That MRI showed moderate to advanced multilevel degenerative disc disease, spondylosis, and discopathy associated with foraminal and central canal stenosis and bilateral foraminal stenosis from L1 all the way through L5. Dr. Volarich agreed that not one of the findings is related to Mr. Nance’s accident. -Dr. Volarich agreed that with regard to Mr. Nance’s right leg, he made no complaints to any healthcare provider who treated him on the day of the accident with regard to his right leg other than an abrasion. That would be Black River Medical Center, the ambulance and Poplar Bluff Regional Medical Center. -Dr. Volarich agreed that Mr. Nance went to Kneibert Clinic (Mr. Nance’s general health care provider) and did not report to Dr. Wilkerson or any doctor there that he had any difficulties with his right leg after the accident. Dr. Wilkerson was never told that he had any problems with his right leg. The employer-insurer sent Mr. Nance to Ferguson Medical Clinic two days after the accident and the doctor did not record any problems with the right leg. Mr. Nance never complained of right leg problems to anyone at Ferguson. -Dr. Volarich also agreed that Dr. Kennedy did not make any notations of Mr. Nance having problems with his right leg. Dr. Volarich also agreed that the only time Dr. Kennedy made any note about leg problems was that Mr. Nance complained about left leg cramping after the second surgery. This was January 28, 2014. -When Dr. Volarich saw Mr. Nance he was using a cane. He agreed no health care provider/no physical therapist prescribed the cane. He indicated that Mr. Nance chose to use the cane himself and was using it improperly. He held it in the right hand and it should have been on the opposite. -Dr. Volarich indicated that Mr. Nance’s sensation in the lower extremities was normal. He agreed that other than bilateral leg cramping pain in the records of Dr. Smith, there is no mention of right leg pain by a physician until November 25, 2014 when Mr. Nance saw Dr. Kitchens.


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This was over two years after the accident and that this is the first statement that Mr. Nance has right leg pain. -Dr. Volarich agreed that Mr. Nance never told him that he had to lie down each day. Dr. Volarich testified that “I don’t think he told me that, but I thought that he needed to do that.” He further agreed that that is his recommendation and not anything Mr. Nance told him he does. -Dr. Volarich agreed that there is no medical provider that has documented that Mr. Nance told them he needed to lie down in the day. He agreed that Dr. Kennedy did not say that Mr. Nance should lie down during the day. He agreed that Dr. Kitchens never said that Mr. Nance needed to lie down in the day and no physical therapist said that. He agreed that if Mr. Nance had told him he had to lie down in the day he would have put it in the report. -Dr. Volarich agreed that the only statement that Mr. Nance may need to lie down is because it’s his recommendation. -Dr. Volarich agreed that Mr. Nance told him that the only thing he was taking for pain is over-the-counter Aleve. He agreed that at that time the only doctor treating Mr. Nance was Dr. Wilkerson and he was not prescribing any pain medications for Mr. Nance as of 7/7/14. -Dr. Volarich agreed that there is nothing in Dr. Wilkerson’s medical records that indicate that Mr. Nance had complaints regarding his right leg-nothing about altered gait or about problems walking at all. He also agreed that Dr. Wilkerson’s records say nothing about Mr. Nance using a cane. -Dr. Volarich agreed that the medical records say nothing about headaches. -Dr. Volarich said that when he tested the reflexes in Mr. Nance’s right leg they were less than normal. He agreed that Mr. Nance does not have hyper reflexive responses to testing. -Dr. Volarich agreed that since Dr. Kennedy released Mr. Nance on June 4, 2014, he has not seen any doctor for treatment for his injury. He has not received any medication or any medical care of any kind since that release. -Dr. Volarich agreed that Mr. Nance is not taking any prescription pain medications for any of his work injuries. He agreed that his fusion is stable. He agreed that the chances from an infection from the surgery 2 ½ years ago is pretty low. He said that Mr. Nance is a diabetic and he has a greater chance of getting an infection. -Dr. Volarich agreed that Mr. Nance is getting social security retirement, not disability-he never applied for disability. -Dr. Volarich agreed that there can be other causes for Mr. Nance’s gait disturbance, but he says he thought it was the myelopathy. Dr. Kennedy Dr. Kennedy testified by deposition on April 5, 2016. Myelopathy was a condition that was referred to in the case. Dr. Kennedy testified that myelopathy is a condition involving the spinal cord wherein there is some type of lesion, be it compressive or intrinsic to the spinal cord that is causing dysfunction of the spinal cord usually manifested as varying degrees and varying combinations of weakness, sensory loss, abnormal and typically hyperactive reflexes and other manifestations. Depending on the level of the spinal cord involved often you find motor disturbance with or without gait disturbance.


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Dr. Kennedy testified that a person with myelopathy will have hyperactive reflexes which mean that: -reflexes are automatic responses to stimulation of a muscle bundle and normally those reflexes are graded from one to four, or one to five depending on the system used. -in a normal circumstance when you tap on a muscle bundle, you get a detectable contraction of the muscle. If that’s not detectable, we call that hypoactive. -if it’s far more active than normal where there is essentially ballistic movement associated with the stimulus, that is what is called hyperreflexia. -what it represents is that the spinal cord is not able to inhibit that reflex satisfactorily, so the spinal cord has both an excitatory component where it makes things go and it also has a braking component where it makes things stop. -in the context of myelopathy one of the clinical signs that is often evident is hyperactive reflexes wherein the spinal cord is not providing the inhibition or braking effect so to speak on the reflexes. Dr. Kennedy testified that if a person had hypoactive reflexes that would not be consistent with someone who has myelopathy. He indicated that if there is a traumatic event, the myelopathy should manifest itself with symptoms at the same time as the accident and it is unlikely that over time a person would develop myelopathy in the right leg due to pressure from an edema when the person has a cervical injury as Mr. Nance did. His opinion was that Mr. Nance does not have a myelopathy in his right leg due to the cervical injury. He reported that Mr. Nance had some evidence of spinal canal compromise in the initial studies, but that was not manifested at the times that he saw him with respect to leg function or symptoms. Dr. Kennedy testified that Dr. Smith was the first neurosurgeon to report that Mr. Nance did not have a myelopathy. Dr. Kennedy testified that Mr. Nance did not make any complaints of right leg pain in all of the time he was treating, but did complain of some right ankle pain. Dr. Kennedy examined Mr. Nance on May 21, 2014 and reported his findings: -Mr. Nance had some ongoing pain at the base of the cervical spine and residual pain in the shoulder blade area and right arm. -Mr. Nance had some residual numbness in his fingers which is relatively common after this kind of surgery. -Mr. Nance had some scattered sensory loss in his right arm and some weakness in the right upper extremity. If we grade full strength at five in the biceps and triceps area, maybe four out of five. -the progression of films showed that the fusion was fully fused. After the 2014 examination, Dr. Kennedy testified that he did not think that Mr. Nance could return to unrestricted activity and that is why he recommended an FCE. Dr. Kennedy reviewed the FCE and commented: -the bottom line was that he did not think that Mr. Nance was able to perform normal activity again. -Mr. Nance had some issues with pain and some loss of mobility that I think restricted his ability to give full effort.


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-he is not saying that Mr. Nance was faking. He thinks that his pain and loss of mobility and so forth was a barrier. -he reported that Mr. Nance was able to lift about 30 pounds and should not do much overhead lifting. -he was not concerned about the notations of lack of full effort. He thinks a pretty accurate picture of what Mr. Nance’s capabilities actually were was obtained. Dr. Kennedy imposed restrictions: -he did not want Mr. Nance lifting more than 30 pounds. -no more than occasional bending, twisting or stooping and little or no overhead work. He testified that Mr. Nance could perform light duty work subject to tolerance. He testified that since Mr. Nance was not taking any prescription pain medications and hadn’t taken any since his prescriptions ran out, he said that subject to tolerance it would be safe for him to try light duty. Dr. Kennedy rated Mr. Nance with a 30% permanent partial disability. Dr. Kennedy further testified that in his treatment of Mr. Nance he did not see any evidence of any edema in the spinal column at the cervical level that would be causing him myelopathy. He testified that there were degenerative changes in the lumbar spine and some degree of foraminal encroachment at multiple levels that could certainly produce some level of root irritation. He also testified that Mr. Nance never told him that he needed to lie down during the day. He indicated that if Mr. Nance claims he has to lie down during the day it could be from his cervical injury or his low back problems. He also testified that if Mr. Nance had told him of headaches he would have put it in his notes. He further reported that Mr. Nance has not required any medical care since he released him and that says there is no evidence of infection 2 ½ years after the surgery. He testified that the fusion is solid and that there is zero chance that Mr. Nance will need future medical treatment for his neck. He reiterated that he believes that Mr. Nance is employable. He says that he achieved solid fusion and significant reduction in the radicular symptoms so he thinks that subject to the restrictions that he placed on Mr. Nance, he can be employed. During cross examination Dr. Kennedy testified that: -prior to his accident Mr. Nance had no prior conditions that constituted a hindrance to employment. -when asked about credibility he replied that he and Mr. Nance had a good relationship and he thinks he had a good idea of what his legitimate complaints were. -he saw no drug seeking or malingering. -he does not believe that Mr. Nance needs to lie down because of his injury. He testified that if this didn’t show for over a year after the last surgery it is not likely that it would be related. -since he has not seen Mr. Nance in a couple of years, things other than the work injury could be causing him problems. -he again said that Mr. Nance never discussed the need to lie down.


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Dr. Kitchens Dr. Kitchens was retained by the employer-insurer to conduct an IME. He testified that he is board certified in neurological surgery. He: - reviewed records provided to him. -performed a physical examination on Mr. Nance. -examined Mr. Nance on November 25, 2014 and prepared a report dated November 25, 2014. -he wrote an addendum on June 3, 2015 and a third report on January 14, 2016. Dr. Kitchens also testified about myelopathy. He indicated that: - myelopathy is injury to the spinal cord. -there are several causes including medical diseases, structural diseases such as tumors, trauma, fractures, disc herniations, and dislocations which can also cause spinal cord damage. He described the symptoms of a myelopathy: -usually started by burning pain, numbness, loss of dexterity, gait instability. -pathologic reflexes typically are signs of myelopathy and they include hyperactive reflexes, clonus and loss of dexterity in the hands. -hypoactive reflexes are not a symptom of myelopathy. Dr. Kitchens testified that he tested Mr. Nance to see if he had myelopathy and the testing showed that he did not. He further testified that based on his review of the records, the scans and the images he did not see any evidence of an edema in the spinal column causing a myelopathy in Mr. Nance. He reviewed the lumbar MRI’s and said they showed multiple level lumbar degenerative disc disease, facet atrophy, disc bulging and foraminal stenosis. His opinion was that Mr. Nance did not develop a myelopathy in his right leg due to his cervical injury at work as there were no physical damage findings of myelopathy. He further testified that all of the neurosurgeons and PAs that saw Mr. Nance found that he did not have a myelopathy. As part of his records review, Dr. Kitchens reviewed the FCE report. His opinion is that Mr. Nance is employable and can work full time in accordance with the FCE as: -he had a 3 level fusion. -although he had some right-sided radiculopathy, he still had good strength. -his fusion appears to have healed satisfactorily. -he did not have over exacerbated symptoms of gait instability-weakness that would prevent him from working. -the FCE that indicated he would work in the light duty category. Dr. Kitchens was asked his opinion as to what caused Mr. Nance’s alleged right leg problems. He responded: -there can be many cases that would cause the right leg problem. -it could be a problem with his ankle or foot or an orthopedic issue. -it could be related to his advanced degenerative disc disease, foraminal stenosis in his lumbar spine.


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-in general, it is something below the level of his thoracic area given the isolated symptoms that he has. -so, either an orthopedic type problem or a lumbar radiculopathy could cause difficulties. -the difficulty of his foot going out on him would suggest an L5 nerve problem. Mr. Nance has right foot eversion where his foot goes out to the right and he has trouble bring it in. Dr. Kitchens testified that Mr. Nance did not tell him that he would lie down during the day-if so he would have put it in his report. He indicated that he does not believe that it is a medical necessity for Mr. Nance to have to lie down during the day. He also testified that Mr. Nance did not tell him that he was experiencing headaches-if so he would have included it in his report. He further indicated that Mr. Nance filled out a patient questionnaire and he did not report headaches. He further testified that in Dr. Smith’s records running up through Dr. Volarich’s records there is no record of Mr. Nance making complaints about headaches. He also indicated that Mr. Nance did not report balance issues when he examined him. His opinion was that a cervical fusion would not cause a balance issue. He did report that balance issues may occur from myelopathy. Dr. Kitchens testified that the fusion is solid. He reported that Mr. Nance has not required any prescription pain meds since Dr. Kennedy released him and this indicated the success of the surgical fusion and healing. During cross examination Dr. Kitchens agreed that the parties were contentious with each other as to myelopathy. He testified that lower motor symptoms are usually not symptoms of myelopathy. He agreed that Mr. Nance had headaches after the accident, however he said that the headaches are separate from the cervical spine-the spine is not causing headaches. Dr. Kitchens testified that when he saw Mr. Nance he rated his pain as 5/10. He also reported that when Mr. Nance filled out his questionnaire he did not include loss of sleep. Dr. Kitchens testified that to his knowledge, Mr. Nance did not follow up with anyone for pain treatment or physical therapy or anti-inflammatory medication. He reported that as of November 25, 2014, Mr. Nance reported that he was pain free. Ms. Gonzalez Ms. Gonzalez is vocational expert that was retained by the employee’s counsel to prepare a vocational evaluation of Mr. Nance. She interviewed Mr. Nance on April 22, 2015, prepared a report dated April 30, 2015 and testified by deposition on March 25, 2016. In preparation for her evaluation, Ms. Gonzalez reviewed medical records and documentation. She provided a summary of medical records in her report. Mr. Nance was 67 years old at the time Ms. Gonzalez saw him. Ms. Gonzalez reported that Mr. Nance never attended any college. She also reported that Mr. Nance has no computer skills and cannot type. She also reported that he is receiving social security retirement benefits in the amount of $1,968.00 per month. After her interview she summarized the pain complaints that Mr. Nance made to her as:


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-pain in his neck that radiates down his right arm to his fingers. -pain that radiates down his right leg to his toes. -numbness and tingling in the fingers on his right hand. -trouble gripping with his right hand. -cannot sit for longer than 30 minutes. -cannot stand for longer than 10-15 minutes. -cannot walk for longer than 5-10 minutes before needing to sit and rest. -cannot lift more than 10 pounds. -reaching up with his right hand causes increased pain. -he must hold a stationery object for support when bending or kneeling. -stooping causes increased neck pain. -he loses his balance easily. -he must hold a railing when climbing stairs. -he wears glasses. -he is able to drive 60 minutes before needing to stop. -he has difficulty turning his neck when driving. -he does not sleep well and awakens 3-4 times each night. -he takes a daily nap lasting 2 hours. -he takes breaks when mowing with a riding mower. -his wife does all the household chores. -he has increased neck pain in cold, wet or humid environments and with weather changes. -he experiences daily headaches that last for hours, although he does not experience nausea, dizziness, or lightheadedness. Her report also indicated: -Mr. Nance does not have transferable skills secondary to his significantly restricted residual functional capacity. -based solely on the results of his achievement testing, Mr. Nance would not be expected to assimilate to a new work environment or learning situation that required basic reading, sentence comprehension, spelling or math skills. -that the medical evidence shows that Mr. Nance has significant limitation of functional capacity secondary to injuries he sustained to his neck, low back, and diagnosis of a closed head trauma. -that the medical evidence corroborates continued, significant, residual complaints that present a chronic hindrance in his ability to perform basic work functions and some activities of daily living. Ms. Gonzalez reports that if credence is given to the opinions of Dr. Volarich, Mr. Nance has permanent physical disabilities which prevent him from performing his past jobs or any job on the open labor market as a result of his severely reduced physical residual functional capacity. She made no mention of the employee’s physical disabilities if credence is given to the opinions of Dr. Kennedy, Dr. Kitchens, Jim England or the FCE. She further says that when abiding by these imposed by Dr. Volarich, Mr. Nance would be left with a residual functional capacity of less than sedentary work which does not exist on the open


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labor market. She says employers expect employees to be in an upright position and on a task working at a competitive rate, not resting when needed, including in a recumbent fashion. During her deposition testimony Ms. Gonzalez testified that: - she takes the medical treatment, the restrictions, the ratings of disability, and the opinions of the physicians into account when performing her vocational evaluation. She also said that there is more taken into consideration than just the restrictions imposed by a physician. -Mr. Nance had no transferable skills due to his residual functional capacity. -the medical opinions of Dr. Kennedy, Dr. Kitchens and Dr. Volarich disagree as to Mr. Nance’s residual functional capacity: She says if “credence” is given to Dr. Volarich, her opinion is that the Mr. Nance is not employable in the open labor market. She testified that Mr. Nance’s complaints about lying down were consistent with what Dr. Volarich said. Ms. Gonzalez did not provide any opinions as to the reliability of the opinions of Dr. Volarich. She also did not provide her opinions if credence is given to the information that is in the FCE or the opinions of Dr. Kennedy or Dr. Kitchens. When questioned by the attorney for the employer-insurer, Ms. Gonzalez indicated: - she agreed that her work almost always involved reports for litigation. She rarely helps someone get a job. -she saw Mr. Nance one time for about 2 hours. -she had not read Mr. Nance’s deposition and does not know what he said about his ability to do things-she only knows what he told her. -she agreed that Dr. Volarich is the only physician who believes that Mr. Nance is unemployable. -she agreed that Dr. Kitchens and Dr. Kennedy limit Mr. Nance to sedentary light work. -she agreed that no doctor or healthcare provider said that Mr. Nance needed a cane. -she agreed that no treating doctor says that Mr. Nance has to lie down during the day. This includes three neurosurgeons-Dr. Smith, Dr. Kennedy and Dr. Kitchens. -she said it is unimportant whether any medical provider reported that Mr. Nance told them he needed to lie down during the day. -she agreed that Dr. Volarich’s records do not say that Mr. Nance reported that he needed to lie down in the day. She reported that Mr. Nance told her that he needs to lay down-she agreed that she is the first person that he told that to. -she agreed that as to medical providers who treated Mr. Nance, no one provided a diagnosis of a right leg problem. -she agreed that she did not mention that Mr. Nance took a real estate course at Three Rivers College. -during the discussion held about her statement that employers prefer to hire young people, she agreed that some employers prefer older people due to work ethic and experience and because they can pay them less.


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James M. England, Jr. Mr. England is a vocational expert that was retained by the employer-insurer to determine the employability of Mr. Nance in the open labor market. He interviewed the employee on September 29, 2015, prepared a report dated October 12, 2015 and testified by deposition on April 28, 2016. In preparation for his evaluation, Mr. England reviewed medical records, conducted testing and interviewed Mr. Nance. In his report, Mr. England provided a lengthy twelve page summary and discussion of the medical records and documentation that he reviewed. His initial impression of Mr. Nance was that he was pleasant and cooperative and would make a nice impression in a job interview. Mr. England indicated that Mr. Nance was using a cane that he stated he used for support as he was having trouble with left foot drop issues. Mr. England indicated that the employee sat for approximately forty-five minutes with no observable difficulty and then went into the testing portion of the interview and completed the tests he was asked to complete. Mr. England reported that Mr. Nance’s scores were “actually fairly good.” Mr. England also summarized the results of the FCE and the opinions of the physicians who discussed the employee’s physical limitations. He noted that the FCE indicated that: -“the overall level of work was significantly limited by Mr. Nance’s self-limiting behavior and that the light level of work indicated a minimal ability rather than a maximum ability.” -Mr. Nance could work in a light job if he did not have to stand and walk through the majority of the work day. Mr. England reported that Dr. Kennedy felt that the employee could lift no more than 30 pounds and that he should do no more than occasional bending, twisting or stooping. He reported that Dr. Kitchens felt that Mr. Nance was capable of functioning within the restrictions noted by the Functional Capacity Evaluation. He further reported that “Only Dr. Volarich seemed to ignore the results of the FCE and assigned restrictions that would limit the man to sedentary to light work with no lifting and to jobs within that range that allow flexibility of movement, but added the need to rest when needed, including in a recumbent fashion.” Mr. England’s report indicated that when Mr. Nance was asked to describe a typical day, there was no mention of the need to lie down. Mr. England provided his Summary and Conclusions: -Mr. Nance is 67 and is beyond normal retirement age. -he has a high school education and worked for one employer through a normal work life of 40 years. -he reached the point after the primary injury that he was no longer able to do the specific requirements of his job with Aramark and was apparently released by them as a result. -under the restrictions noted by the FCE as well as Dr. Kennedy or Dr. Kitchens, he would be precluded from his past work, but would not be precluded from entry-level positions such as security work, some cashiering positions, a variety of sales work, etc.


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-even under Dr. Volarich’s restrictions with the exception of the need for recumbency, he would still be able to perform many of these types of work. -the trier of fact in this matter will have to determine which of the doctors’ restrictions appear to be more in line with his true functional ability as shown by the FCE. Tim D. Kaver Mr. Kaver is a vocational expert that works for England and Company Rehabilitative Services as a vocational rehabilitation counselor. He was retained by the employer-insurer to conduct a labor market survey for Mr. Nance. He prepared a labor market survey dated June 6, 2016, and testified by deposition on June 20, 2016. Mr. Kaver testified that the purpose of a labor market survey is to discover an individual’s employment potential and to make sure there are jobs available in a local market for a client. Among the things he considers are physical limitations, transferable skills, education, age, and work history. He indicated that Ms. Gonzalez makes referrals to his assistant. Mr. Kaver read Mr. England’s report and deposition as part of his preparation to conduct his labor market survey. He testified that he found 14 positive job leads for Mr. Nance that were open at the time he conducted his survey. He also reported that the employee’s age was not a barrier to those jobs. Mr. Kaver testified that 7 of his contacts were light duty positions and 7 were for sedentary positions. Mr. Kaver discussed each of these positions that he located. During cross-examination, employee counsel asked Mr. Kaver is he assumed that Mr. Nance was capable of light duty. He responded that: -if he is asked to assume Dr. Kennedy is accurate then Mr. Nance could do light duty. -if he is asked to assume the FCE results are accurate then Mr. Nance could do sedentary duty. -Dr. Kushman quoted the FCE so he’s sedentary release. -Dr. Volarich indicated that Mr. Nance would be unable to work primarily because he needs to assume a recumbent position periodically throughout the day. Mr. Kaver agreed that Mr. Nance is unemployable if you assume he is unable to remain in a sitting or standing position and must lie down periodically. When questioned about computer skills required in the potential placements, Mr. Kaver indicated that some required entry level skills such as data entry and retrieval. Mr. Kaver testified that Mr. Nance performed such skills at his prior job.


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RULINGS OF LAW: 1. Average Weekly Wage and Wage Rate This issue was raised by the parties at trial; however in a letter dated July 27, 2016, the parties resolved this issue by stipulation. Based on the stipulation provided by the parties, the Court finds that the employee’s average weekly wage is $926.91 which provides a rate for temporary total and permanent total disability of $617.94 per week and a rate for permanent partial disability of $433.58 per week. 2. Medical Causation and 3. Future Medical Care. There is no question that on November 13, 2012, the employee had a serious accident that resulted in multiple surgical intrusions. The employer-insurer paid $233,801.70 in medical care as a result of that accident. There is no question that the care provided and paid for by the employer-insurer was medically causally related to the employee’s accident. The Court so finds. However, the employee maintains that his right lower extremity problems and his subsequent use of a cane are also related to his accident. While the evidence show significant disability as a result of the November 13, 2012 accident, the evidence also shows that the employee had substantial degenerative problems that existed prior to that accident. The Court finds that the employee’s right lower extremity complaints and the use of a cane are not medically causally related to his accident of November 13, 2012. The records indicate that the employee has not taken any prescription pain medications or received any medical care since he was released in 2014. Whether credible or not, his testimony was that he lies down or takes showers to deal with his pain issues. No treating physicians who have treated the employee indicated that he needs future/additional medical care. The only physician who indicated that the employee needs future/additional medical care is Dr. Volarich. Both Dr. Kennedy and Dr. Kitchens indicated that the employee will not need additional medical care. The Court finds that the medical opinions of Dr. Kennedy and Dr. Kitchens are more convincing and persuasive than the opinion of Dr. Volarich. The Court finds that the employee has not presented convincing and credible evidence that he needs future/additional medical care as a result of his accident. The Court further finds that the employee has not met his burden of proof on the issue of future/additional medical care. The employer-insurer is not ordered to provide future medical care as a result of the employee’s November 13, 2012 accident. 4. Temporary Total Disability This issue was raised by the parties at trial; however, in a letter dated July 27, 2016, they stipulated to temporary total disability. Based on the stipulation provided by the parties, the Court finds that the employer-insurer was responsible to pay $41,313.70 to the employee as


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temporary total disability benefits. The employer-insurer actually paid $38,867.78 to the employee as temporary total disability benefits. The difference between the amounts is $2,445.92. The employer-insurer is ordered to pay the employee an additional $2,445.92 as payment for temporary total disability. 5. Permanent Partial Disability v. Permanent Total Disability The employee claims that he is permanently and totally disabled solely from the disabilities caused by his November 13, 2012 accident. The employer-insurer claims that the employee is still employable in a sedentary or light duty position and is not permanently and totally disabled as a result of his November 13, 2012 accident. Both parties have presented evidence in support of their position. The employee offered his testimony, his wife’s testimony and the rating opinions of Dr. Volarich and Ms. Gonzalez. The employer-insurer offered the records of all the doctors who treated the employee, the testimony of Ms. Tyra, Mr. Foss, Mr. DeSpain, as well as the medical opinions of Dr. Kennedy and Dr. Kitchens and the rating opinions of Dr. Kennedy, Dr. Kitchens, Mr. England and Mr. Kaver. In general, the Court finds that the testimony and credibility of the employee is substantially affected by a comparison of his testimony and evidence against all of the other evidence in the case to include: 1. the differences between his testimony at trial and the information he previously provided or didn’t provide to his medical providers. 2. the differences between what the employee testified to at trial and the testimony in his prior sworn testimony. 3. the differences between what he testified to at trial and the testimony of Ms. Tyra, Mr. Foss and Mr. DeSpain, including documentation supporting their testimony. The Court has included many of these matters in the statement of the findings of fact. To point out a few examples the Court notes: -the employee denied that he had ever been disciplined at Aramark; yet the testimony of Mr. Foss and Mr. DeSpain as well as Employer-Insurer Exhibit MM indicated that the employee was disciplined in February 2013 for harassing another employee. When confronted with Exhibit MM he testified that he refused to sign it. He also was disciplined for causing damage to an Aramark truck. -the employee denied that he knew how to or used a computer at work; yet the testimony of Mr. DeSpain was that he assisted the employee in the use of the computer and that he was required to do some work on the office computer. -the employee denied that there was a plan for him to retire and that his grandson would take over his route. The testimony of Mr. Foss, Mr. DeSpain and documentation disputes this matter. In addition, the evidence is that his grandson did apply at Aramark and was offered a job. It is interesting that his grandson turned 21 about the same time as the employee was scheduled to retire. -the employee denied that he withdrew funds from his 401 and when confronted with Employer-Insurer Exhibit GG he indicated that Aramark quit matching employee contributions. Employer-Insurer Exhibit GG shows that contributions were in fact made to this account.


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-the employee denied that he had any prior injuries or was involved in any car wreck other than fender benders, or lawsuits. When confronted with Employer-Insurer Exhibits KK and LL his response was that he forgot. -at trial the employee provided an extensive list of his disabilities. However, even though he agreed that it was important to report his disabilities to the treating doctors and evaluators, he admitted in his deposition that he did not discuss problems with headaches, balance problems, pain radiating down the outside of his leg or weakness in his leg or having problems walking. While each matter taken singly might not create a pattern or an impression, when all of the examples contained in the evidence are evaluated, they affect the overall credibility of the employee’s testimony and the factual information he presented in support of his claim that he is permanently and totally disabled. The Court specifically finds that: -the employee’s overall testimony when compared to all of the evidence in this case is not convincing, consistent or credible in significant matters in this case. -the combined testimony of Ms. Tyra, Mr. Foss and Mr. DeSpain is substantially more credible than the testimony of the employee. -the opinions of Dr. Kennedy, Dr. Kitchens, Mr. England and Mr. Kaver are substantially more credible when they are compared to all of the evidence in the case, and especially when they are contrasted to the opinions of Dr. Volarich and Ms. Gonzalez. The most specific example documenting the lack of credibility of Dr. Volarich’s and Ms. Gonzalez’s position concerns the employee’s need to lie down in order to deal with his pain. Nowhere in the records prior to Dr. Volarich was this disability reported or claimed by the employee. He did not even report that problem to Dr. Volarich. Dr. Volarich confirms this. Dr. Volarich indicated that he added it on his own. Ms. Gonzalez relied on the opinions of Dr. Volarich as support for her vocational opinion. She apparently did not consider the opinions of Dr. Kennedy or Dr. Kitchens concerning employability. Her report specifically makes mention of and relies upon the employee’s need to lie down in the day as a justification supporting her position that the employee is permanently and totally disabled and unemployable in the open labor market. In his assessment of the employee, and as justification for his opinion that the employee was permanently and totally disabled, Dr. Volarich assessed that the employee suffered from a myeloradiculopathy as a result of his accident. Dr. Smith, Dr. Kennedy and Dr. Kitchens, all neurosurgeons, specifically refute this matter and based upon their testimony and assessment they determined that the employee did not suffer from a myeloradiculopathy that was caused by his accident. The Court finds that the medical evidence supports the findings of the neurosurgeons and not Dr. Volarich. The employee certainly has a serious injury that resulted in a great deal of medical care. However, the Court finds that the evidence that the employee presented in support of his position that he is permanently and totally disabled is not convincing and not credible when compared to the evidence that the employer-insurer presented supporting their position that the employee has


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a permanent partial disability as opposed to a permanent total disability as a result of his November 13, 2012 accident. The employee claims that he is unemployable in the open labor market as a result of his November 13, 2012 accident. There is no question that he cannot return to his old position at Aramark and he cannot perform in a position that requires that degree of physical activity. The evidence that the employee is employable in either a sedentary or light duty position is supported by the evidence, is clear and convincing, and is more persuasive than any evidence to the contrary. Any theory that the employee does not have the mental ability to be employed in a variety of positions is not supported by the evidence and is not accurate. The position that the employee does not have transferable skills is not supported by the evidence and is not accurate. By all accounts, overall the employee was an excellent employee and was an outstanding salesman. He definitely has transferable skills. Based on a consideration of all of the evidence in the case the Court finds that: -the evidence presented by the employee is not persuasive as to the issue of permanent total disability. -the employee’s position that he is permanently and totally disabled as a result of his November 13, 2012 accident is not persuasive or convincing when compared to all of the evidence in the case. -in general the employee’s overall testimony was not consistent, convincing or credible. -the employee has not met his burden of proof on the issue of permanent total disability. -the employee is not permanently and totally disabled as a result of his November 13, 2012 accident. While the Court has found that the employee is not permanently and totally disabled as a result of his November 13, 2012 accident; there is more than ample evidence that the employee had a serious accident, received a significant amount of medical care and does have substantial disability as a result of that accident. The Court finds that: -the employee received a permanent partial disability to his body as a whole of his November 13, 2012 accident. -the employee has a 45% permanent partial disability to his body as a whole as result of his accident. Based on a consideration of all of the evidence in the case, the employer-insurer is ordered to pay to the employee $78,044.40 as permanent partial disability compensation. Furthermore, based upon the stipulation of the parties, the Court orders that the employer-insurer pay $152.00 as payment for a bill to Ferguson Medical Group.


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ATTORNEY’S FEE: Cynthia M. Hennessey, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney’s fee shall constitute a lien on the compensation awarded herein. INTEREST: Interest on all sums awarded hereunder shall be paid as provided by law. Made by: _______________________________________ Gary L. Robbins Administrative Law Judge Division of Workers' Compensation

FINAL AWARD ALLOWING COMPENSATION - Missouri · 2. On November 13, 2012, Kenneth J. Nance was an...

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Transcript of FINAL AWARD ALLOWING COMPENSATION - Missouri · 2. On November 13, 2012, Kenneth J. Nance was an...