The Commission affirms an award of partial disability that claimant's assertion of unrelenting pain was inconsistent with surveillance video even though his expert suggested he should cut off his leg.
In 2008 claimant jumped out of a runaway truck resulting in injuries to his knee, ankle, and underwent multiple surgeries. The employer paid more than $300,000 in benefits for medical and TTD disability. Dr. Myers felt he was 100% disabled at the knee and he should consider an amputation.
Claimant alleges he rolled his ankle on a job in Texas in 2011 and aggravated a condition that was chronically painful.
The ALJ found his complaints of severe and unrelenting pain to lack credibility and that claimant failed to prove he was permanently and totally disabled. He awards 70% of the left ankle and 35% for the knee. He found the expert ratings of 20% for the knee to be inadequate. He awards open medical, noting hardware and an untreated ACL injury.
"The fact that Claimant claims to have experienced absolutely no pain relief from the fusion certainly raises a red flag. "
"The fact that Claimant continues to ride his motorcycle, in light of his complaints of severe, unrelenting ankle pain, raises another red flag. Claimant’s recent purchase of a Jeep with a manual transmission, requiring him to operate the clutch with his left foot, raises a red flag as well, as does Claimant’s operation of heavy equipment (excavator), as shown on the surveillance video.
The fact that Claimant has told medical and vocational experts that he must use a cane to get in and out of vehicles (due to his ankle pain), when that is clearly not the case (as evidenced by the surveillance video) raises yet another red flag."
"Additionally curious is Claimant's testimony that his use of narcotic medication makes him sleep and causes him a lack of concentration.
The ALJ noted claimant did not demonstrate any sleepiness or lack of concentration, although claimant stated his use of narcotic medication produced such symptoms. The ALJ noted "unless claimant is obtaining narcotic medication from a non-prescription source, he simply cannot be taking the large amounts to which he testified."
Page v OCCI (Travelers)
2018 MO WCLR LEXIS ____ (1/30/2018)
ALJ Dierkes
Atty: Holwick, Newmark, Doner
Experts: Hammond, Wiemholt, Myers, Thaler-Kane
