Robert Allen v. Western Carriers Transport (Open)

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-113105

Employee: Robert Allen

Employer: Western Carriers Transport (Open)

Insurer: None

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

Date of Accident: July 6, 1999

Place and County of Accident: Camden County, Missouri

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 November 2, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued November 2, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of August 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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? Yes
4. Date of accident or onset of occupational disease: July 6, 1999
5. State location where accident occurred or occupational disease was contracted: Camden County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
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 employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was employed as truck driver for Employer and was involved in a motor vehicle accident.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left femur and left hip
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Robert Allen

Injury No.: 99-113105

1. Value necessary medical aid not furnished by employer/insurer? Undetermined
2. Employee's average weekly wages: $\ 500.00
3. Weekly compensation rate: $\ 333.33 for TTD/ $\ 303.01 for PPD
4. Method wages computation: Pursuant to Mo. Rev. Stat. §287.250

1. Amount of compensation payable: None

1. Future requirements awarded: None

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: James M. Hoffmann.

On July 5, 2006, the employee, Robert Allen, appeared by his attorney, Mr. James M. Hoffmann, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Western Carriers Transport, was not present at the hearing or represented by an attorney since they are uninsured and in bankruptcy. The Second Injury Fund was represented by Assistant Attorney General Kareitha A. Osborne. The parties agreed that this is a Second Injury Fund Only hearing for uninsured employer medical benefits and permanent disability combination benefits. The hearing was continued until July 11, 2006 to give Claimant the opportunity to submit additional evidence which was not presented on the first day of the hearing. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

1) Robert Allen (Claimant) sustained an accidental injury on or about July 6, 1999.

2) Venue is proper in the City of St. Louis by consent of the parties.

3) The Claim was filed within the time prescribed by the law.

4) Western Carriers Transport (Employer) has not paid any benefits to date.

1) Is Claimant an employee of Employer?

2) Did Employer receive proper notice of the injury?

3) Did the accident arise out of and in the course of employment?

4) What is the appropriate rate for this injury?

5) Is Claimant entitled to payment for an undetermined amount of past medical benefits related to this injury?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this accident?

7) What is the liability of the Second Injury Fund for uninsured employer medical benefits and permanent disability combination benefits?

The following exhibits were admitted into evidence:

A. Videotape of Claimant's deposition testimony from February 24, 2006

B. Deposition of Robert Allen dated February 24, 2006

C. Notice of Hearing for July 5, 2006 setting dated June 9, 2006

D. Deposition of Ronald E. Hoffmann, M.D., with attachments, dated May 31, 2006

E. Medical bills of Dr. Scott

F. Medical bill of St. John's

H. Medical bill of Lake Orthopedic Group

I. Medical bill of Unity Health

J. Medical bill of Dr. David East at Lake Internal Medicine Specialists, Inc.

K. Medical bill for an osteogenic stimulator

O. Medical bills of VNA of Central Illinois

Nothing submitted at the time of hearing

Claimant offered Exhibits G, L, M, N, P, Q, and R into evidence on the second day of the hearing. These exhibits purport to be some of the medical bills reviewed by Dr. Hoffmann which are allegedly related to the injury that forms the basis of this claim. The Second Injury Fund objected to the admission of these exhibits because the records are uncertified and lack a proper foundation. The Fund also objected to their authenticity since the exhibits contained extraneous handwriting, and blackened out or redacted portions. I indicated at the time of hearing that I would take the objections under advisement and rule on the admissibility of the exhibits in the final award.

Having now had a chance to review the exhibits and consider the objections raised by the Second Injury Fund, I am sustaining the objections of the Second Injury Fund and I rule that Exhibits G, L, M, N, P, Q, and R are inadmissible in this case. There has been no certification attached to any of these exhibits from a custodian of records, nor has there been any testimony from a custodian or other qualified witness to certify the method and time of preparation or the authenticity of the documents. Additionally, Claimant's attorney admitted at the hearing that he did make handwritten notes on the records and thus altered them from their original state. Accordingly, these exhibits amount to inadmissible hearsay that cannot be used as competent evidence by virtue of Mo. Rev. Stat. § 490.680. They are also inadmissible because of Claimant's failure to offer any of the supporting medical records into evidence. Meyer v. Superior Insulating Tape, 882 S.W.2d 735 (Mo.App. E.D. 1994) citing Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo. Banc 1989).

Finally, Exhibit D was admitted subject to the objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony and the expert medical testimony of Dr. Ronald Hoffmann, I find:

1) Claimant testified by videotaped deposition because of an inability to travel to the Division office in St. Louis for a hearing. He is a 71-year-old individual who was last employed as a truck driver for Employer. He worked for Employer for about 17 years prior to July 6, 1999. He did not have any certain route that he drove for Employer, but he regularly drove a Peterbilt tanker truck. He was given on the job training by Employer. Employer withheld taxes from his paycheck. Claimant estimated Employer had about 75 employees.

2) Claimant testified he was making approximately $\ 500.00 per week for the six years prior to July 6, 1999.

3) Claimant testified that on July 6, 1999, he was involved in a motor vehicle accident while he was driving a truck for Employer. He believed another driver came across the center line and stuck his truck. The accident occurred near Lake of the Ozarks. He was taken to the Emergency Room where he was told he had a fractured left femur. He testified a pin was placed in the femur first and then he had left hip replacement surgery. He also said he had a bone graft surgery. He could not remember the names of any of his doctors.

4) In addition to not remembering the names of his doctors, Claimant did not identify any of the medical bills as being related to, and the product of, his injury.

5) Claimant testified that Employer did not have workers' compensation coverage (insurance) and he has never received any workers' compensation benefits from Employer. Claimant testified it was his understanding that Employer filed bankruptcy.

6) Claimant has never gone back to work since the date of his injury. Claimant testified he cannot walk long distances (over 180 feet), but he can climb seven steps to get into his house. He said he can drive a vehicle but his wife will not let him do it because he has not gotten his eyeglass prescription filled yet. He said that the pain in his leg was one problem with these activities but his breathing condition also affected his ability to do them. Claimant is not receiving any further treatment and is not taking any medication for his leg injury.

7) Prior to this accident, Claimant testified that he had some problems with, and treatment for, chronic obstructive pulmonary disease (COPD). He said he was diagnosed with COPD in 1986 and he treated with Dr. Savage. Claimant saw Dr. Savage on 4/15/99, at which time he was getting short of breath. Claimant said that he had to get in and out of the truck, as well as climb up a ladder on the truck to open the dome lid for the tanker. Those activities were getting more difficult because of his breathing.

8) As of the time of his testimony, Claimant was treating with Dr. Fry for his COPD. Dr. Fry prescribed inhalers and Claimant was on oxygen. Claimant was on oxygen at his home with a long tube attached to a tank so that he can move around the house without disconnecting the hose. Claimant admitted that his lung condition and breathing has gotten quite a bit worse since his 1999 accident.

9) Dr. Ronald Hoffmann testified by deposition on behalf of Claimant on May 31, 2006 to make his opinions in this case admissible at hearing. (Exhibit D) Dr. Hoffmann is a retired, board certified, orthopedic surgeon. He is the Claimant's attorney's father and did not charge for