Kenneth Stewart v. J. B. Hunt Transport, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-075016

Employee: Kenneth Stewart

Employer: J. B. Hunt Transport, Inc.

Insurer: Insurance Company of the State of Pennsylvania

Date of Accident: July 5, 2003

Place and County of Accident: Shell Knob, Barry 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 June 1, 2007, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Paula A. McKeon, issued June 1, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 30^{\text {th }} \qquad$ day of August 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Kenneth Stewart

Injury No. 03-075016

Dependents: N/A

Employer: J. B. Hunt Transport, Inc.

Employee: Kenneth Stewart

Injury No. 03-075016

Dependents: N/A

Employer: J. B. Hunt Transport, Inc.

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: N/A

Hearing Date: May 21, 2007

Checked by: PAM/lh

On May 21, 2007, the parties appeared for hearing. The employee Kenneth Stewart appeared in person and with attorney Edward Williams. The employer and its insured appeared through attorney Howard Gosnell. The Division has jurisdiction of this claim pursuant to $\S 287.110$ RSMo.

The parties stipulated:

1) that both the employer and employee were operating under and subject to the provisions of the Missouri workers' compensation law;

2) that Kenneth Stewart was an employee of J.B. Hunt Transport;

3) that Kenneth Stewart provided notice and a timely claim for compensation was filed;

4) that Kenneth Stewart's compensation rate is $\$ 662.55 / \ 347.05 per week;

5) that Kenneth Stewart has past medical expenses totaling $\ 6,821.69;

6) that the employer/insurer provided no medical or temporary total disability benefits.

The parties requested the Division to determine the following:

1) whether Kenneth Stewart sustained an accident arising out of and in the course of his employment with J.B. Hunt on or about July 5, 2003;

2) whether Kenneth Stewart is entitled to past medical expense totaling $\ 6,821.69;

3) whether Kenneth Stewart is entitled to past temporary total disability from July 5, 2003 to August 23, 2004 or 59 weeks of compensation;

4) whether Kenneth Stewart sustained any permanent partial disability from a July 5, 2003 injury.

On July 5, 2003, Kenneth Stewart was performing delivery services for his employer J.B. Hunt and its client The Home Depot. The final delivery of the day was to a remote residence outside Shell Knob, Missouri. Stewart was driving a tractor trailer rig with flat bed and Moffit (forklift attachment) for deliveries that day.

Stewart testified that the road to the residence where the delivery was to be made was a very narrow gravel road with 2 to 3 feet ditches on either side. Stewart had difficulty maneuvering the truck which became stuck. Stewart then unhooked the Moffit and attempted to move the truck side that was stuck. Stewart testified that part of the road where he was working caved in causing the Moffit to shift and break away from the side of the road. This knocked the air out of Stewart and bounced him around inside of the cage of the Moffit. Stewart eventually was towed out which he paid for himself and returned to work in Springfield. Stewart also worked the following day and then returned to Kansas City for his normal days off (Monday and Tuesday).

Stewart contends he suffered a compression fracture as a result of this incident and requests past medical, temporary total disability and permanent partial disability.

There is not dispute that Stewart sustained a compression fracture. Stewart notified his employer that he sustained an injury and would need time off work. Stewart stated to his employer that his injury was from doing concrete work around his home and was not work related.

Stewart sought treatment from his family physician, Dr. Wiscombe, on July 9, 2003. Dr. Wiscombe clearly sites a history of injury from tearing out a concrete patio on June 6, 2003. Stewart also applied for a disability policy and received benefits claiming an injury on June 6, 2003 from concrete work at home.

Stewart readily admits that he lied about the injury to his employer because he was scared of the safety violations he committed. Stewart believed if he told the truth he would be fired. Stewart's employment was terminated in August 2003 shortly after he disclosed the "truth" to his employer regarding his injury.

Stewart was unapologetic that he lied to his employer. He clearly was intending to cover up numerous safety violations. Stewart lied on his application to receive disability benefits. Stewart lied to his initial treating doctor about the circumstances of his injury.

Stewart presented evidence that although there was work being performed at his house, it couldn't have been done by him because it began after his injury of July 5, 2003 in late July. Mr. Garcia, the contractor Stewart hired for the home repair, testified that he performed all the home repair work on the Stewart residence.

Stewart's testimony was not credible regarding the circumstances of his injury. He had numerous opportunities to inform his physician and his employer about the "truth" of his injury but failed to do so. Stewart has admitted he lied and collected insurance benefits pursuant to those lies.

While I find that Stewart's truck was stuck or involved in an incident, I cannot find that Stewart's physical injuries resulted from that July 5, 2003 incident. Stewart's credibility has been compromised. Since he is unable to convince me that his current testimony is the accurate version of events, I find that Stewart failed to meet his burden of proof regarding accident. Accordingly, Stewart's claim for compensation is denied.

A true copy: Attest: