Timothy Gant v. US Foodservice, Inc.

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-144332

Employee: Timothy J. Gant, deceased

Dependents: Lenora Gant, Amelia Gant, Lindsey Gant

Employer: US Foodservice, Inc.

Insurer: Ace American Insurance Company

Date of Accident: December 3, 2003

Place and County of Accident: Lee's Summit, 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 22, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Carl Mueller, issued April 22, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 26th day of November 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Timothy J. Gant (dec)

Injury No: 03-144332

Dependents: Lenora Gant, Amelia Gant

Employer: US Foodservice, Inc.

Additional Party: N/A

Insurer: Ace American Insurance, Administered by GAB Robins, Inc.

Hearing Dates: February 20, 2008 and January 29, 2008

Briefs Filed: March 3, 2008

Checked by: RCM/rm

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: December 3, 2003
5. State location where accident occurred or occupational disease was contracted: Lee's Summit, 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: Employee slipped on ice while making a delivery and fell on his right shoulder.
12. Did accident or occupational disease cause death? No

Date of death? December 18, 2003

1. Part(s) of body injured by accident or occupational disease: Neck, Right Shoulder
2. Nature and extent of any permanent disability: None
3. Compensation paid to-date for temporary disability: None
4. Value necessary medical aid paid to date by employer/insurer? Less than $\ 500.00
5. Value necessary medical aid not furnished by employer/insurer? $\ 17,961.04

On January 29, 2008, the dependents of employee Timothy J. Gant (“Mr. Gant”) and the employer US Foodservice, Inc. appeared for a final hearing. The parties returned on February 20, 2008 to introduce an additional document to the record and to close the record. The Division had jurisdiction to hear this case pursuant to §287.110. Mr. Gant’s dependents, Mrs. Lenora Gant, Amelia A. Gant, and Lindsey S. Gant, appeared in person and with counsel, Jerry Kenter, Brianne Niemann, and John Chick. The employer appeared through counsel Joan Klosterman and Bruce Levine and corporate representative Peri Paulton. The Second Injury Fund was not a party to the case. The primary issue the parties requested the Division to determine was whether the accident Mr. Gant sustained on December 3, 2003 caused or was a substantial factor in causing his death on December 18, 2003. For the reasons noted below, I find that Mr. Gant’s death was caused by a congenital condition, a ruptured saccular aneurysm, and not by the accident of December 3, 2003.

The parties stipulated that:

- On December 3, 2003 (“the accident date”), US Foodservice, Inc. (“US Foodservice”) was an employer operating subject to Missouri’s Workers’ Compensation law with its liability fully insured by Ace American Insurance, Co. and administered by GAB Robins, Inc.;

- Mr. Gant was its employee working subject to the Law in Lee’s Summit, Jackson County, Missouri;

- Mr. Gant sustained an accident arising out of and in the course of employment on December 3, 2003;

- Mr. Gant notified US Foodservice of his accident as required by law, and his dependents filed a Claim for Compensation within the time allowed by law;

- US Foodservice provided Mr. Gant with medical care in the form of one visit to Occupational Health Services costing less than $\ 500.00; and

- That Mr. Gant's average weekly wage results in a compensation rate of $\ 570.00 per week.

The parties requested the Division to determine:

- Whether Mr. Gant's accident on December 3, 2003 caused his death on December 18, 2003?

- Whether Mr. Gant's dependents are entitled to $\ 570.00 in weekly death benefits beginning December 18, 2003?

- Whether US Foodservice must reimburse the dependents for burial benefits totaling \$5,000.00?

- Whether US Foodservice must reimburse the dependents for medical expenses totaling \$17,961.04? And,

- Whether Lenora Gant and Timothy J. Gant were married?

Lenora Gant testified on behalf of all dependents. The dependents also presented testimony of Jim Bilski (a co-worker of Mr. Gant's), Norma Lee Speak (Lenora Gant's mother) and Dennis Speaks (Lenora Gant's father). The dependents presented the following exhibits, all of which were admitted into evidence:

A - Medical Records (Bates Numbered 1 through 214)

B - Medical Bills and Funeral Expenses (Bates Numbered 1 through 10)

C - Deposition, Martin A. Kanne, MD, March 11, 2005

D - Deposition, Russell Michael Fiorella, MD, January 8, 2008

E - Deposition, Thomas Gill, MD, February 27, 2006

Although the employer did not call any witnesses to appear at hearing, it presented the following exhibits; Exhibits 1 and 2 were admitted and Exhibit 3 was not admitted:

1 - Deposition, Steven Arkin, MD, January 24, 2008 2 - Deposition, Lenora Gant, December 10, 2004 3 - Work Schedule Sheet (Not admitted into evidence) Based on the above exhibits and the testimony, I make the following findings. Mr. Gant was a 40-year old male, working as a driver for US Foodservice when he died on December 18, 2003. He was married to Lenora Gant on October 20, 1990 and the Gants had two children together, Amelia, born on December 17, 1991 and Lindsey, born on July 30, 1993. The Gants lived in Lawson, Missouri. Mr. Gant delivered food for US Foodservice and began this employment in 1989. US Foodservice delivers food to various locations including restaurants and other entities that require regular delivery of food. Mr. Gant was a member of the Teamsters Union. His father-in-law, Dennis Speaks, also is a Teamster and was once a Secretary for the Teamsters Union and helped Mr. Gant gain employment with US Foodservice.

For most of his time with US Foodservice, Mr. Gant drove back and forth between Kansas City and St. Louis to pick up and deliver product. Mr. Gant requested and was switched to a local day-delivery route in 2003 due to personal stress he was under. One of the regular stops on his day-delivery route was the Langsford House, a home for delinquent boys that is located in Lee's Summit, Missouri and is a part of the Missouri Division of Youth Services.

Although the precise date is not clear and is actually somewhat confusing in the medical records, the parties stipulated Mr. Gant sustained an accident on December 3, 2003 while making a delivery to the Langsford House. He slipped on ice outside the home. He called his supervisor Jim Walls from the Langsford House and reported the accident. He did not request medical care at that time. (Exhibit H, Page 11:13-21). Mr. Gant also informed two Langsford House employees - Melissa Madden and Anna Hicks - about the accident.

There is some dispute as to whether anyone witnessed Mr. Gant's accident. Mrs. Gant testified her husband told her a woman saw him fall. Claimants presented no eyewitness to Mr. Gant's fall. Ms. Madden did not witness the accident and Mr. Gant did not indicate to her how he fell or what part of his body he hit in the fall. (Exhibit F, Pages 8 and 11). However, someone provided Mr. Gant's family physician, Doctor Martin Kanne, with information that an "Ann, who works in the kitchen at the Langsford House" witnessed the fall, although Mrs. Gant and her father, Dennis Speaks, both denied being the source of this information to Dr. Kanne. (Exhibit A, Page 46). Anna Hicks, the only cook at the Langsford House on December 3, 2003, appeared by deposition and testified that she "did not see him fall." (Exhibit G, Pages 4:1-8 and 10:14-25). Claimant's counsel suggested at hearing that the "Ann" who was reported to have worked in the kitchen at the Langsford House (and who is referred to in Exhibit A, Page 46) and Anna Hicks who testified in Exhibit G are, in fact, two different people. However, there is absolutely no credible evidence to support this proposition which I wholly reject.

The first time Mr. Gant sought any medical treatment following the accident was on December 9, 2003. He reported to the emergency Room at Liberty Hospital and these records thus contain the first memorialized

and reliable statement from Mr. Gant as to the accident and the parts of his body injured in it. Mr. Gant complained of "pain [in the] back of head/neck," informed the staff at Liberty Hospital that he "fell last Wednesday on [his right] shoulder," and that "he felt a pop in his neck." (Exhibit A, Page 89). In its records, Liberty Hospital diagrammed Mr. Gant's complaints of pain in the back of his neck. (Exhibit A, Pages 88 and 85). Mr. Gant also informed Liberty Hospital that he had similar symptoms previously, "had old muscle relaxers for neck pain" and that he also had a "cold for several days." (Exhibit A, Page 85). They diagnosed Mr. Gant with a cervical neck strain and referred him to the workers' compensation system. (Exhibit A, Page 83).

Before requesting authorized treatment, Mr. Gant sought care on December 9, 2003 at McMullen Chiropractic Center in Liberty, Missouri, where he had been a patient since March 11, 1993. (Exhibit A, Page 212). The Center recorded Mr. Gant voicing complaints of neck pain, migraine headache, increased neck pain, and increased muscle spasm. He returned the next day complaining of neck pain but without a he