Travis Anderson v. Veracity Research Co.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-137562

Employee: Travis Anderson, deceased

Dependents: Stephanie Anderson, widow; Skylar Anderson and Courtney Anderson, dependent children

Employer: Veracity Research Co.

Insurer: Westport Insurance Co.

Date of Accident: July 19, 2003

Place and County of Accident: Blue Springs, Jackson 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 April 4, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Emily Fowler, issued April 4, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad$ 26TH day of November 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Travis Anderson, deceased

Injury No: 03-137562

Dependents: Stephanie Anderson, widow

Skylar Anderson, DOB 10/20/94

Courtney Anderson, DOB 9/15/96

Employer: Veracity Research Co.

Insurer: Westport Insurance Co.

Hearing Date: February 13, 2008

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? No
4. Date of alleged accident or onset of occupational disease: July 19, 2003
5. State location where accident occurred or occupational disease was contracted: Blue Springs, 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? No
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: Employee was driving and was involved in a fatal automobile accident.
12. Did accident or occupational disease cause death? Yes

Date of death? July 19, 2003

1. Part(s) of body injured by accident or occupational disease: Death
2. Nature and extent of any permanent disability: Death
3. Compensation paid to-date for temporary disability: $\ .000
4. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
5. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
6. Value of burial costs $(\ 5,000.00 alleged) $\ 0.00

1. Employee's average weekly wages: $\ 535.71
2. Weekly compensation rate: $\ 357.04
3. Method wages computation: Stipulation

Benefits Currently Due:

Medical Expenses

Medical Already Incurred ..... $\ 0.00

Less credit for expenses already paid ..... $(\ 0.00)

Total Medical Owing ..... $\ 0.00

Temporary Disability

59 4/7s weeks (10/28/1998 to 12/201999) ..... $\ 0.00

Less credit for benefits already paid ..... $(\ 0.00)

Total TTD Owing ..... $\ 0.00

Costs of Recovery

Employee's Attorney's fees ( 25 % of $\ 9,131.35 ) ..... $\ 0.00

Deposition, postage and copy charges ..... $\ 0.00

Total Costs of Recovery ..... $\ 0.00

Total Benefits Due: ..... $\ 0.00

Ongoing Benefits

Medical Care ..... $\ 0.00

Temporary Disability from 12/21/1999 until employee reaches MMI ..... $\ 0.00

Total Ongoing Benefits ..... $\ 0.00

Total Award ..... $\ 0.00

1. Second Injury Fund liability: N/A ..... None

0 weeks of permanent partial disability from Second Injury Fund ..... None

Uninsured medical/death benefits: ..... None

Permanent total disability benefits from Second Injury Fund: ..... None

-- weekly differential ( --) payable by SIF for -- weeks beginning ..... None

-- and, thereafter, for Claimant's lifetime. ..... None

Total: ..... $\ 0.00

1. Future requirements awarded: None

Employee: Travis Anderson, deceased

Injury No: 03-137562

Dependents: Stephanie Anderson, widow

Skylar Andersson, DOB 10/20/94

Courtney Anderson, DOB 9/15/96

Employer: Veracity Research Co.

On February 13, 2008, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The claimant, Stephanie Anderson, widow of Travis Anderson, appeared in person and with counsel, Jerry Kenter. The employer appeared through Steven Quinn. TheSecond Injury Fund was not a party to the case. The primary issue the parties requested the Division to determine was whether or not the deceased suffered an accident arising out of and in the course of his employment. For the reasons noted below, I find that Travis Anderson did not sustain a compensable accident on July 19, 2003.

The parties stipulated that:

1. On or about July 19, 2003 ("the injury date"), Employer was working subject to Missouri's Workers' Compensation law with its liability fully insured by Westport Insurance Co.; 2. Travis Anderson was its employee working subject to the law in Blue Springs, Jackson County, Missouri;
2. The employer was of the alleged injury and a claim was within the time allowed by the law; and
3. Employer provided no medical care.

The parties requested the Division to determine: 1. Whether Travis Anderson sustained an accident arising out of and in the course of his employment? 2. The extent to which the employer may raise defenses as its answer to claim for compensation was not timely filed. 3. Whether claimant must reimburse witness Barbara Todd $\ 197.10 for expenses reasonably incurred producing herself for a deposition at the request of claimant.

Claimant introduced testimony from Stephanie Anderson, Stephen Buckley, P.E., and Vidal Alexander. Claimant presented the following exhibits, all of which were admitted into evidence without objection other than exhibits $\mathrm{K} \& \mathrm{~N}$ which were admitted over objection:

Although the employer did not call any live witnesses, it did present the following exhibits, all of which were admitted into evidence without objection other than objections contained within the depositions

The widow of deceased employee Travis Anderson was the first witness to testify. She testifiedas to the marital status of she and the deceased as well as the fact that two children were born of that marriage: Skylar Anderson born October 20, 1994 and Courtney Anderson born September 15, 1996. She also testified that Mr. Anderson was in the United States military before beginning work for Veracity Research Company (hereafter VRC), the employer in the present action. Mrs. Anderson testified that her husband had irregular hours while working VRC and would leave at different times in the morning but normally would arrive home, when working in town, between 5 and 6 p.m. During the period of time surrounding the date of this accident, July 19, 2003, the Anderson's were living in Wichita, Kansas with Travis' grandmother. During the summer Mrs. Anderson testified that she would stay with her family in the State of Missouri. Mrs. Anderson candidly admitted that she had no knowledge regarding her husband's job duties for VRC and that he was very secretive about his job. In fact, on cross examination, Mrs. Anderson testified that her husband would become somewhat defensive if she asked any questions about the specifics of the work that he was performing.

Mrs. Anderson testified that during the week preceding Mr. Anderson's trip to Kansas City and ultimate death in an auto accident that she was staying with family in the State of Missouri and accordingly was not at home in Wichita when Mr. Anderson left for Kansas City. The last conversation Mrs. Anderson had with her husband was on Wednesday, July 16, 2003 while he was traveling from Wichita to Kansas City. Mr. Anderson indicated that he was going to be working in the Blue Springs or Independence, Missouri area. The substance of their conversation was general marital talk about the weather and their daughters.

On cross-examination Mrs. Anderson reiterated that her husband was indeed very secretive about the work that he was performing. In fact, while Mrs. Anderson testified on direct examination that her husband applied for a job as a Kansas State Trooper before going to work for VRC, she did not even learn of this until going through some of his documents after his death. Mrs. Anderson admitted that her husband never discussed his hours of work for VRC and even when he was working in town, if he was going to be out late he would never tell her what he was going to do or where he would be.

This being said, Mr. Anderson did try to contact his wife when he was out on the road. Mrs. Anderson testified that she is a stay at home mom and accordingly was available to receive Mr. Anderson's calls throughout the day. Mrs. Anderson testified that Mr. Anderson never called her after 5:00 p.m. while engaged in surveillance. Mrs. Anderson testified that she knew no details regarding the work that Mr. Anderson would be performing in the Kansas City area. In fact, Mrs. Anderson testified that other than the fact that she knew he was going to be doing his job with VRC and that he would be in the Blue Springs, Missouri area, she knew absolutely nothing else about what he was going to be doing or what his plans were while in the Kansas City metropolitan area. She also indicated that she never called her husband while he was in the Kansas City area. The only conversation she had with him was as he was traveling to the Kansas City area on Wednesday, July 16. Mrs. Anderson admitted that she had absolutely no personal knowledge as to what Travis was doing or where he was going at the time of his death and that she has not heard this information from any other source. In short, Mrs. Anderson only knew that Mr. Anderson had come to the Kansas City area on business but had no information regarding the details of his activities or hours of his work once he arrived.

On redirect examination Mrs. Anderson did indicate that occasionally Mr. Anderson would receive a call from VRC asking him to go out on business during evening hours. Under re-cross she admitted that this only happened a couple of times but that any time it happened he would take his camera and laptop with him.

The next witness called on behalf