The evidence presented at trial by the employee consisted of the live testimony of James G. Hawley, the employee; medical records from Dr. Henry Steele; medical records from St. Louis Orthopedic Institute; and the deposition of Dr. David B. Robson. The employer-insurer presented the live testimony of Terry Webster who was the immediate supervisor Mr. Hawley, the live testimony of Mr. Webster's supervisor, Allen Hemrich, and the deposition of Dr. August Ritter III.
James G. Hawley began his employment with 360 Fiber, Incorporated (360) in 1999. 360 was involved in the business of installing fiber optic cables all over the country. The employee performed his initial duties as a fiber optics splicer with a splicing crew, however his job duties also turned to general construction when 360 began having financial difficulties. Terry Webster was the supervisor of the crew that Mr. Hawley was assigned to. It was agreed that the employee kept 360's truck, trailer and other equipment and tools at Mr. Hawley's residence in Reynolds County, Missouri. Part of the equipment that 360 had on their splice trucks was a generator. This arrangement was made, as it was more convenient for the splicing crews to have the equipment based locally then to have it based at a central pickup point.
Mr. Hawley had not actually performed any services for 360 since December 14, 2001. That was the last time the he performed any duties with his splicing crew. At that time he was paid a check that included payment for hours worked, safety hours and a bonus. Due to the bankruptcy proceeding that 360 was going through, all splicing crews were being laid off. It was well known within the company that it was in financial trouble and was laying off all splicing crews. No splicing crews performed any duties for 360 in 2002. Mr. Hawley did not perform any duties for 360 in 2002.
Mr. Hawley testified that he injured his back on February 1, 2002, as he was loading a generator into the back of a truck that belonged to 360 . Through a series of telephone calls over several days, Allen Hemrich had made arrangements to pick up 360 property and had driven to the employee's property on that day to pick up the 360 property the employee kept at his
The employee had back problems that are documented and treated as early as 1984. Records show that he received treatment for his back in January 2001, and had an accident where he was thrown off a horse in December 2001. The medical records document that prior to the events of February 1, 2002, the employee had undergone at least one MRI evaluation that showed numerous back problems at multiple levels to include a herniated disc at L5-S1.
The employee provided testimony recounting his version of the alleged accident of February 1, 2002 and the events leading up to the accident. He testified that he was an employee of 360 on an on-call status that did not change prior to February 1, 2002.
Mr. Hawley testified that he had a lack of trust with 360. He testified this lack of trust existed as a result of financial promises that he said 360 made and did not keep. In January 2002, the employee testified that he got a call from Terry Webster advising him to report to Minnesota with the splicing truck and other equipment. The employee indicated that he did not want to go due to preexisting matters at his home. It was agreed that he did not have to report to Minnesota with the rest of his crew. Mr. Hawley indicated that he knew that 360 was in financial trouble and that the other splicing crews had been laid off.
Mr. Hawley testified that a few days prior to February 1, 2002, Terry Webster called and advised him that he was going to be laid off and that Mr. Webster wanted to pick up 360 property. Mr. Hawley testified that there was a dispute regarding the 360 property he had at his property over storage fees, and an additional dispute over money he felt 360 owed him regarding the trailer. In a telephone call with Mr. Webster, the employee advised Mr. Webster that he was not going to allow anyone to take possession of the 360 property that he had at his property, and that in addition he was not going to allow anyone on his property to recover the property.
A couple of days later the employee testified that Allen Hemrich called and said that he was on his way to pick up the 360 property. Mr. Hawley testified that he told Mr. Hemrich that he was not going to be allowed to pick up the 360 property or to come on his property due to disputes over what he claimed 360 owed him. On January 29, 2002, when Mr. Hemrich called, the employee told him he could not pick up anything, as he was busy. On January 31, 2002, Mr. Hawley testified that when Mr. Hemrich called and told him he was on his way to pick up equipment, he advised Mr. Hemrich that unless he got a list of equipment that 360 wanted, he would not turn over any property. After Mr. Hemrich faxed a list, the employee advised he would not return some property.
Mr. Hemrich called at about 9:30 A.M. on February 1, 2002, and said he would be there about noon. On that day about 10:45 A.M., Mr. Hawley informed Mr. Hemrich that he had a job interview at noon and he would not be available until after the meeting.
Mr. Hawley testified that before Mr. Hemrich arrived at his property to take possession of 360 equipment he told Mr. Hemrich that the splice truck was stuck in the mud and had bad brakes. Additionally, the employee testified that he had taken all of the 360 property that was in the truck and loaded it onto a trailer. He then drove it to the edge of his property line where he placed the property on the ground. Included in this property was a generator.
Mr. Hawley testified that Mr. Hemrich arrived, and they met at an access road adjacent to his property at about 2:15 P.M. on February 1, 2002. Mr. Hemrich asked for and was given permission to turn his truck around on the employee's property. The employee testified that he would not let Mr. Hemrich near the splice truck as he felt they were too aggressive. The splice truck nor the trailer could be seen from the area where the employee placed the 360 equipme