Stephen Bray v. G & K Services

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 October 14, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued October 14, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 9th day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Employee: Stephen Bray

Injury No.: 99-181630

Dependents: $\quad \mathrm{N} / \mathrm{A}

Employer: \quad \mathrm{G} \& \mathrm{~K}$ Services

Additional Party: Second Injury Fund

Insurer: United States Fidelity \& Guarantee

C/O Gallagher Bassett

Hearing Dates: June 5, 6 and 13, 2008

(Record formally closed on July 3, 2008) Checked by: JKO

1. Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

- Date of accident or onset of occupational disease: (allegedly) July 1, 1999

- State location where accident occurred or occupational disease was contracted: St. Louis County

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? N/A
3. Did accident or occupational disease arise out of and in the course of the employment? No

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

On June 5, 2008, the employee, Stephen Bray (Claimant), appeared in person and by his attorney, Mr. Richard K. Dowd, for a hearing for a final award on his claim against the employer, G \& K Services, its insurer, United States Fidelity \& Guarantee C/O Gallagher Bassett, and the Second Injury Fund. The employer, G \& K Services (Employer), and its insurer, United States Fidelity \& Guarantee C/O Gallagher Bassett, were represented at the hearing by their attorney Ms. Kim M. Parks. The Second Injury Fund was represented at the hearing by Assistant Attorney General Kay Osborne.

Because of the extent of the evidence and testimony to be presented, the hearing was not able to be concluded on the original date we began (June 5, 2008). Therefore, the record of evidence was technically left open for a period of time not to exceed 30 days for the rest of the evidence and testimony to be presented. Additional testimony and evidence was received on subsequent hearing dates of June 6, 2008 and June 13, 2008. The record of evidence in this case then was formally closed on July 3, 2008 pursuant to our discussions on the first day of the hearing.

At the outset of the hearing, Claimant filed Voluntary Dismissal Memoranda for his two open companion claims with Injury Nos. 98-178852 and 99-182304. Pursuant to those filings, those two companion claims against Employer/Insurer and the Second Injury Fund were voluntarily dismissed. The only Claim proceeding to hearing, then, was Injury No. 99-181630, with a date of injury of July 1, 1999.

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 fact and rulings of law, are set forth below as follows:

- On or about July 1, 1999, Claimant has alleged an occupational disease.

- Claimant was an employee of Employer.

- Venue is proper in the City of St. Louis.

- The Claim was filed within the time prescribed by law.

- At the relevant time, Claimant earned an average weekly wage of $\ 788.46, resulting in applicable rates of compensation of $\ 525.64 for total disability benefits and $\ 303.01 for permanent partial disability (PPD) benefits.

- Employer has not paid any benefits to date.

- Did Claimant sustain an occupational disease?

- Did the occupational disease arise out of and in the course of employment?

- Are Claimant's injuries and continuing complaints medically causally connected to his alleged occupational disease at work on or about July 1, 1999?

- Is Employer responsible for the payment of past medical expenses in an amount to be determined?

- Is Employer liable for future medical care?

- Is Claimant entitled to the payment of TTD benefits for a period of time to be determined?

- What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

- What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A) G \& K Human Resources report by Ms. Sheri Stolp of February and March 2000

B) Deposition of Ms. Sheri Stolp dated April 23, 2004

C) Deposition of Dr. Eduardo Garcia-Ferrer, with attachments, dated March 29, 2007

D) Compilation of medical treatment records for Claimant

E) Records of Claimant's sales attempts including " 2 Week Hot List"

F) Professional Sales Weekly Management Calendar for the last two weeks Claimant worked for Employer

G) Vocational Rehabilitation Report of Mr. Timothy Lalk

H) G \& K Services, St. Louis Branch, employee list with employment dates

I) Central Region Quick Silver Tracking Report for the 3rd Quarter of 1999

J) Memo from Stan Schlotthauer dated November 12, 1998

K) G \& K Sales \& Service Exchange, Volume 5, Issue 3

L) Accounts Working List

M) G \& K Services Major Account Plan

N) G \& K Services Performance Review Forms from various customers in 1997 \& 1998

O) Active Patient Ledger for Claimant's charges from his treatment with Dr. Patricia Berne from December 26, 2000 through December 27, 2005

- Deposition of Dr. Elizabeth Pribor, with attachments, dated March 17, 2003

- Deposition of Dr. Wayne Stillings, with attachments, dated April 4, 2002

- Deposition of Ms. Andrea Platz dated April 11, 2002

- Deposition of Mr. Stanley Schlotthauer dated June 2, 2008

- Business records from G \& K Services, including various memos and Claimant's

earnings record

- Medical treatment records from Dr. Koustall

- Claimant's academic transcript from Southern Illinois University Edwardsville

- Medical report of Dr. Richard Wetzel dated September 23, 2002

- Records from the Social Security Administration, including the report

of Dr. Stephen Vincent

- G \& K Services Managers' Guide to Human Resources Policies and Procedures

Nothing submitted at the time of trial

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence.

2) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All

of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on June 5, 6 and 13, 2008.

3) Objections were raised by Employer and the Second Injury Fund at the time of Dr. Patricia Berne's live testimony at hearing regarding whether her opinion testimony would violate the Seven-Day Rule. I find Dr. Berne is not a "physician" pursuant to the Workers' Compensation Act, and so therefore, the objections are OVERRULED, and her testimony is admitted in its entirety.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational expert opinion and testimony, the medical records, the other business records, and the depositions and testimony of the other witnesses, as well as based on my personal observations of Claimant and the other witnesses at hearing, I find:

- Claimant is a 45-year-old, currently unemployed individual, who worked for G \& K Services (Employer) as a route manager and a salesman from 1996 until July 1, 1999. Claimant applied for and received short-term disability payments through G \& K Services (Exhibit D) for approximately 13 weeks and then long term disability payments for approximately 24 months after July 1, 1999.

- By way of relevant history that would have an impact on current psychiatric diagnoses, Claimant was raped at age 10 by an older brother of one of his friends. He testified that it had an impact on his life and it is mentioned in a number of the psychiatric treatment records and reports.

- Claimant testified that he attended the Academy of Greater St. Louis for high school in Southern Illinois, York College in Nebraska, Southern Illinois University Edwardsville, and Lipscomb College in Nashville. He graduated initially with a bachelor's degree in speech communications.

- After working in various jobs on a dairy farm, as a laborer, as a group home parent for boys in Nashville, and in commercial real estate leasing, Claimant joined the Army in 1988. He attended basic training in Alabama and Florida, and received further training to become a Combat Aviation Unit Coordinator. He was called up as a part of the mass m