Lawrence Gardner v. Contract Freighters, Inc.

(Affirming Award and Decision of Administrative Law Judge

After Remand from the Missouri Court of Appeals)

Injury No.: 01-157477

Employee: Lawrence Gardner

Employer: Contract Freighters, Inc.

Insurer: Self-Insured

Date of Accident: April 15, 2001

Place and County of Accident: El Paso, Texas (contract of hire in Joplin, Missouri)

This matter is before the Labor and Industrial Relations Commission (Commission) on a remand from the Court of Appeals, Southern District. The Commission had earlier reversed the award of the associate administrative law judge denying compensation in this matter by award dated December 17, 2004. The Court of Appeals, Southern District, has reversed the Commission award and directed that the Commission enter its award denying benefits.

In accordance with the decision of the Court, the Commission reinstates the award of the associate administrative law judge as supported by competent and substantial evidence and having been made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission reinstates and affirms the award and decision of the associate administrative law judge dated August 19, 2004, and awards no compensation in the above-captioned case.

The award and decision of Associate Administrative Law Judge Karen Wells Fisher, as issued August 19, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{22^{\text {nd }}}$ day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Employee: Lawrence Gardner

Injury No. 01-157477

Dependents: N/A

Employer: Contract Freighters Inc.

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: N/A

Insurer: Self-insured

Hearing Date: March 25, 2004

Checked by:

1. Are any benefits awarded herein? NO
2. Was the injury or occupational disease compensable under Chapter 287? NO
3. Was there an accident or incident of occupational disease under the Law? NO
4. Date of accident or onset of occupational disease: 4/15/01
5. State location where accident occurred or occupational disease was contracted: EL PASO, TEXAS
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? NO
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: DRIVING TRUCK FOR EMPLOYER
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: HEART ATTACK
14. Nature and extent of any permanent disability: -0-
15. Compensation paid to-date for temporary disability: -0-
16. Value necessary medical aid paid to date by employer/insurer? -0-
17. Value necessary medical aid not furnished by employer/insurer? -0-
18. Employee's average weekly wages: $\ 730.89
19. Weekly compensation rate: PERMANENT PARTIAL DISABILITY RATE - \$314.26 TEMPORARY TOTAL DISABILITY RATE - \$487.26
20. Method wages computation: AGREED

1. Amount of compensation payable: -0 -

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

1. Second Injury Fund liability: NONE

TOTAL: NONE

1. Future requirements awarded: NONE

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

I have adopted the award submitted by attorney, Ronald G. Sparlin, as my award. The award in this case is as follows:

The hearing of the above matter was held on March 25, 2004. The issues presented for determination were the following: whether the claimant sustained an accident arising out of and in the course of his employment, causation, nature and extent of disability, liability of the employer/self-insured for past temporary total disability benefits, liability of the employer/self-insured for past medical expenses, and liability of the employer/self-insured for future medical treatment.

The parties stipulated that the claimant's average weekly wage was $\ 730.89 with corresponding rates for temporary total disability of $\ 487.26 and permanent partial disability of $\ 314.26.

Lawrence Gardner filed a claim for compensation alleging an accident occurring on April 15, 2001. The formal claim alleged Gardner "encountered unusual stress in loading large rolls of wire" on the day in question which led to a myocardial infarction. Gardner was the only witness to testify live at trial.

The claimant, who is a 50 year old resident of Carrolton, Mississippi, testified that he was employed as a truck driver for Contract Freighters, Inc. (CFI) in April of 2001. He started with CFI in February 1999 and his job consisted of driving the truck and periodically securing loads, though he did not have to load freight. Gardner has made his living driving a truck over the road since being discharged from the United States Navy in 1973.

In describing his health prior to April of 2001, Gardner testified he had had some problems with his blood pressure in 1998. His wife had done a routine blood pressure check, the result was high, so Gardner consulted a doctor. The claimant actually saw a nurse practitioner in the doctor's office, she confirmed the diagnosis of high blood pressure, and started Gardner on appropriate medication. According to the claimant, he stayed on the medication for three or four months and then no longer took it because his blood pressure was down.

Gardner denied any symptoms of dizziness or unusual sweating before April of 2001. He reported no history of heart disease in his parents or siblings.

The claimant's testimony regarding his heart attack began with the events of April 13, 2001. On that date Gardner arrived in El Paso, Texas around 5:00 or 6:00 p.m. after driving about six hours. He checked in at the CFI terminal then spent the night in his truck. Gardner's work on April 14 began around 8:00 a.m. when he arrived at a customer's premises to pick up a load of coiled wire. The large coils of wire were sitting on pallets and were loaded into the truck by the customer. Gardner recalled there being at least five pallets. Gardner had to secure the load which required him to place blocks of wood on each of the four sides of the pallets. He then nailed the blocks to the floor of the trailer using long nails and a claw hammer. Gardner described the process as unusual for him and something he

had only rarely been called on to do. The claimant testified the work of securing the load was "strenuous" and, further, he recalled the weather that day as being hot. However, Gardner was confronted on cross-examination with his deposition testimony, in which he had specifically stated the weather that day was "just warm" and did not stand out as a hot day.

During the $11 / 2$ to 2 hours required to secure the load Gardner began feeling as if he was coming down with the flu, experiencing dizziness, sweating, and chest pain. When he had completed securing the load Gardner returned to the CFI terminal, fueled his truck, and then spent the remainder of the day in his truck. He continued to feel "fluish" the rest of the day. When Gardner awoke on the morning of April 15 he "felt fine" and had no symptoms at all. As a result, around 8:30 or 9:00 a.m., Gardner left El Paso with his load headed for his next stop in North Carolina. Gardner got as far as nearby Van Horn, Texas when his symptoms returned. He stopped and called his wife, who suggested he get to the hospital, and he then went to the emergency room of the Culbertson Hospital in Van Horn. After briefly being attended to in the emergency room, Gardner was transferred to a hospital in El Paso via ambulance.

The claimant was hospitalized at Sierra Medical Center in El Paso for three or four days where he was diagnosed with an acute inferior myocardial infarction which required angioplasty and the placement of a stent. Gardner thereafter returned to his home in Mississippi and came under the treatment of Dr. Seibel, a cardiologist. Through the time of trial Gardner was continuing to see Dr. Seibel every six months to monitor his heart condition. Dr. Seibel released the claimant to work in August of 2001 but with restrictions such that he was unable to drive for CFI. Gardner received a full release, with no restrictions, in September of 2001 after he passed a stress test. Shortly thereafter Gardner went to work driving for Metal Transportation as a truck driver, and Gardner had worked continuously up to the time of trial as a truck driver. His current employment is with Vortex Truck Lines as an over the road driver. His duties involve driving the truck only, with no loading or unloading.

At trial, the claimant complained of ongoing symptoms of shortness of breath (such as when he walks long distances), becoming easily fatigued, and swelling in his legs. Gardner continues to take several prescription medications related to his heart condition, and testified that he spends approximately $\ 80.00 per month on the medications. The claimant admitted that some of the medications are for his high blood pressure which was present before his heart attack. Gardner sought temporary total disability benefits for the time frame of April 16, 2001 through September 20, 2001. He identified Exhibits D and E as listing the medical bills and prescription charges for which he sought reimbursement, being $\ 233.00 and $\ 1975.00, respectively.

The claimant was cross-examined by counsel for CFI. Gardner admitted that he had essentially been of the same body shape and weight (255-260 pounds) for years before April 15, 2001. Gardner also testified that in the years preceding April of 2001 his lifestyle was such that he exercised rarely, at best. Further, Gardner had a history of smoking a pack of cigarettes a day for nearly thirty years.

Mr. Gardner was questioned further by the employer's attorney regarding his high blood pressure. The claimant began taking medication to control his high blood pressure in early 1999. Gardner stopped taking the medication based on his own assessment that his blood pressure was under control. However, Gardner admitted that neither the doctor nor nurse practitioner told him to stop the medication and he did not consult with them about it. Moreover, at the time he stopped the medication he still had an additional prescription to be filled. By April 15, 2001, Gardner had failed to take his medication for over a year.

Cross-examination revealed that Gardner arrived at the CFI terminal in El Paso on the evening of April 13, 2001, and that the day was uneventful. Gardner felt fine at all times on April 13. The work Gardner did on April 14 securing his load of pallets was all done inside the trailer, not out in the sun, and the work was completed well before noon.

Mr. Gardner admitted that when his symptoms returned on April 15 he was behind the wheel of his truck, which was an air conditioned, automatic that "drove like a Cad