Terry Jenkins v. Superior Bowen Asphalt Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-165056

Employee: Terry L. Jenkins

Employer: Superior Bowen Asphalt Company

Insurer: ACIG Insurance Co. c/o RSKCO

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: 1984 through December 1, 2001

Place and County of Accident: Kansas City, Jackson County, Missouri and various job sites

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 2, 2005. The award and decision of Administrative Law Judge Mark S. Siedlik, issued June 2, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of September 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee:

- The parties stipulated that:

- From 1984 through December 1, 2001, Superior Bowen Asphalt Company (Superior) was an employer working subject to Missouri's Workers' Compensation law with its liability fully insured by ACIG Insurance Company;

- Mr. Jenkins was its employee working subject to the law in Kansas City, Jackson County, Missouri, and at various job sites; and

- Mr. Jenkins notified Superior of his alleged occupational disease and filed his claim within the time allowed by law.

The parties requested the Division to determine:

1. Whether Mr. Jenkins sustained an occupational disease arising out of and in the course of his employment; and
2. whether he is entitled to medical treatment.

Mr. Jenkins testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

Superior presented the testimony of Danny Marks and the following exhibits, which were admitted into evidence:

Employee's objections as to relevance of Exhibits 5-9 and 12-15 were overruled.

Based on the above exhibits and the testimony of Mr. Jenkins and Mr. Marks, I make the following findings. Mr. Jenkins worked as a Teamster truck driver, or lowboy truck/trailer driver, for Superior from 1984 until December 1, 2001. His job duties included loading and unloading heavy construction equipment onto an 18-

wheel, tandem-axle trailer up to 20 times per day. In order to load and unload the equipment, Mr. Jenkins was required to maneuver 100-pound ramps to drive the equipment onto and off the trailer. He also had to secure the equipment in place for transport with a "boom ratchet." Loading and unloading the equipment required repeated climbing on and off the heavy equipment. It also required repeated bending at the knees, kneeling and squatting, while pushing and pulling weighted objects.

He drove the truck loaded and unloaded with equipment between Superior's headquarters in Kansas City, Jackson County, Missouri, and various job sites, primarily throughout the metropolitan area. Driving required repeated climbing in and out of the truck cab. While driving, particularly in city traffic, Mr. Jenkins was required to repeatedly shift, brake, use the clutch, and accelerate an 18-wheel truck.

Mr. Jenkins performed these job duties for Superior for more than 17 years. He generally worked between March and December due to weather. He averaged 50 hours per week and in some years averaged 60 to 70 hours per week. (Ex. P, 11).

Due to his bilateral knee complaints, Mr. Jenkins was referred to Dr. Browne, an orthopedic surgeon, in May 2002. Dr. Browne diagnosed Mr. Jenkins with degenerative joint disease of both knees. Dr. Browne recommended Synvisc injections; a series of three injections were given to each knee in June and July of 2002. Mr. Jenkins' complaints did not resolve and Dr. Browne recommended a total knee arthroplasty.

Mr. Jenkins was evaluated by Dr. Stuckmeyer, an orthopedic surgeon, on March 14, 2003, at the request of Mr. Jenkins' attorney. For his evaluation, Dr. Stuckmeyer interviewed Mr. Jenkins about his job duties, his preexisting injuries and conditions, his complaints and treatment, and his current complaints (Ex. C). Dr. Stuckmeyer reviewed Mr. Jenkins' medical records and conducted a physical examination.

Dr. Stuckmeyer noted the following job duties for Mr. Jenkins: repetitive loading and unloading heavy equipment; jump off the trailer and get in and out of the truck numerous times; and moving 100-pound ramps. Dr. Stuckmeyer determined that as a result of those job duties at Superior, "Mr. Jenkins suffered significant repetitive trauma to both the right and left knee." (Ex. C, p. 4). It was Dr. Stuckmeyer's opinion that Mr. Jenkins' job duties "increased the mechanical stresses and strains on both the right and left