John Bennett v. Yellow Transportation, Inc.

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: John Bennett

Injury No. 05-119892

Dependents: N/A

Employer: Yellow Transportation, Inc.

Insurer: Yellow Transportation, Inc., administered by Gallagher Bassett Services

Additional Party: N/A

Hearing Date: June 20, 2007

Checked by: ESF/1h

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: September 18, 2005
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
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? Yes.
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: While in the course and

scope of his employment driver was removing items from his truck when his left foot slipped and fell backwards landing on his left shoulder.

1. Did accident or occupational disease cause death? No. Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: left upper extremity.
3. Nature and extent of any permanent disability: Not determined at this time.
4. Compensation paid to-date for temporary disability: -0 -
5. Value necessary medical aid paid to date by employer/insurer? -0 -
6. Value necessary medical aid not furnished by employer/insurer? -0 -
7. Employee's average weekly wages: $\ 1,328.29.
8. Weekly compensation rate: $\$ 696.97 / \ 365.08.
9. Method wages computation: By Stipulation.

1. Amount of compensation payable: Employee did not request any particular monetary compensation. The only benefits Employee requested at this time was the additional medical care to be provided by the employer. This employer shall provide Employee with any and all medical care which shall cure or relieve the symptoms due to the injury to Employee's left shoulder.
2. Second Injury Fund liability: N/A
3. Future requirements awarded: Not determined at this time.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all benefits paid hereunto his attorney Mike Stang.

Employee: John Bennett

Injury No. 05-119892

Dependents: N/A

Employer: Yellow Transportation, Inc.

The Employee and Employer appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to §287.110. Employee, John Bennett, appeared in person and was represented by Michael Stang. The employer and insurer appeared by and through their attorney, Robert Wonnell.

The parties stipulated to the following: 1) that on or about September 18, 2005, Yellow Transportation, Inc., was an employer operating subject to the Missouri workers' compensation law and its liability was fully insured by Yellow Transportation, Inc., administered by Gallagher Bassett Services; 2) that John Bennett was its employee who was working in Kansas City, Jackson County, Missouri at the time of the injury; 3) that Employee's claim was filed within the time allowed by law; 4) that Employee's average weekly wage was 1,328.29 resulting in a compensation rate of 696.97 for temporary total disability and $365.08 for permanent partial disability compensation; 5) that Employer has paid no temporary total disability payments nor any medical payments to date.

The issues the parties requested the Court to determine are: 1) whether the Employee sustained an accident or occupational disease arising out of and in the course of employment; 2) whether the Employee notified the Employer of his injuries as required by law; 3) whether the Employer must provide the Employee with additional medical care;

The Claimant testified on his own behalf and the following exhibits were presented, all of which were admitted into evidence jointly without objection:

A - Medical records, Volume I B - Medical records, Volume II C - Depositions of John Bennett, Dr. Michael Poppa and Dr. James Zarr The Employer offered testimony of Pat Day, a dispatcher for Yellow Transportation; Alvin Schrepel, a line haul operations manager for Yellow Transportation; and Sam Mynatt, an injury coordinator and work compensation administrator for Yellow Transportation, Inc. Further the following exhibits were admitted into evidence without objection:

1 - Medical authorization form and Employee's statement of injury; 2 - Employee's notice of injury or reoccurrence and supervisor's report; 3 - Yellow Freight 9/2005 calendar 4 - Handwritten notes After reviewing all of the above evidence and testimony, the Court makes the following findings. John Bennett, hereinafter referred to as Employee, is a 64-year-old male who was working for Yellow Transportation, Inc., at the time of his injury on September 18, 2005. The Employee testified that he was injured when he was

removing equipment from his truck when his foot slipped and he fell back landing on his left shoulder and elbow. He testified that when he fell he laid there for a moment and someone in the yard came and helped him get back up. He did not recall who it was; it was dark. He sat for a while to make sure he was all right. He finished getting the last few things out of the truck and then went on into the office. He had apparently cut or scraped his elbow causing it to be bloody so that when he filled out or signed the sign-in sheet apparently he got blood on it. He believed that the dispatcher who was on duty that evening was Pat Day. He filled out his paperwork for the dispatcher but did not mention his fall as he was not too concerned about it. He felt he would be able to shake it off and go on. He drove on home which was approximately two and three-quarter hours. The next day while he was home in Nebraska, he became concerned because of pain in his left side, his chest, his shoulder and his arm. Employee had previously had serious cardiac complications requiring surgery and was very concerned that he was having additional cardiac problems. He went to Community Memorial Hospital and was admitted for his complaints of pain in the left side. A full cardiac workup was done ruling out any cardiac complications. Upon discharge he did mention to his doctor that he felt that it was possible that his left-sided pain was due to the fall that he received a few days before.

In returning the next week to work he spoke with Alvin Schrepel his supervisor. Mr. Schrepel was confused because Employee was supposed to have gone in for surgery on his right shoulder that week but Employee explained to him that apparently the surgery was canceled as the Employer/Insurer wanted to have a second opinion regarding the surgery. At that time, Employee states he told Mr. Schrepel that he had also injured his left shoulder but Mr. Schrepel did not appear concerned and walked away without any further discussion. Employee was eventually seen for a second opinion by Dr. Michael Gross on October 24, 2005, who recommended rather than surgery he should have steroid injections on the right shoulder. Employee did finally undergo surgery for his right shoulder on December 22, 2005, which was performed by Dr. Reckmeyer. Prior to that time on November 21, 2005, Employee was seen by Dr. Reckmeyer for his right shoulder. At that time, Dr. Reckmeyer notes that "complicating the situation is a new injury to the left shoulder. He reportedly slipped and fell off the semi-tractor trailer on September $18^{\text {th }}$ and injured his left arm and shoulder. He says he reported this to his boss but did not file a formal complaint/report of injury. Since that time he has had considerable difficulty and weakness and pain. The shoulder had a previous rotator cuff repair done in 1999. He had been functioning well without complaints of pain and weakness. Now he has difficulty reaching and lifting as well as pain at night with sleeping. He is here now to sort out this overall situation". Dr. Reckmeyer further stated, "Regarding his left shoulder, I believe he has a recent injury which is responsible for his current symptoms. He has all the signs and symptoms of a rotato