Kenneth Douglas v. Sharkey Transportation Inc.

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, considered the whole record, read the briefs of the parties and heard oral arguments, 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 3, 2008. The award and decision of Administrative Law Judge Ronald F. Harris, is attached and incorporated by this reference.

In his application for review filed with the Commission, the employee alleges inter alia, that the award issued was erroneous because the administrative law judge failed to consider whether or not employee contracted an occupational disease due to repetitive motion arising out of and in the course of his employment. Section 287.067 RSMo. Due to this alleged error employee requests the Commission to remand the matter to the administrative law judge for additional consideration.

The Commission finds that the administrative law judge correctly weighed and evaluated all issues presented and denies employee's request for remand.

The Commission notes the following claims for compensation were filed: the initial claim for compensation filed April 17, 2006, alleging the injury occurred due to a repetitive task; an amended claim for compensation filed August 10, 2006, alleging the injury occurred while performing a repetitive task; and an amended claim filed March 9, 2007, alleging that the injury occurred while employee was driving a tow motor, and while so doing ran into another tow motor jerking his neck.

The Commission further notes on pages 4 and 5 of the transcript the parties stipulated to the following issues: the employee alleges he sustained an injury by way of an accident arising out of and in the course of employment; and an issue to be resolved was whether there was an accident arising out of and in the course of employment. Other issues were also stipulated but there was no issue as to whether or not employee sustained an occupational disease arising out of and in the course of his employment due to repetitive motion.

Since the parties did not stipulate to any issue as to whether or not employee sustained an occupational disease arising out of and in the course of his employment due to repetitive motion, the administrative law

judge would have acted in excess of his powers pursuant to section 287.495 RSMo, by considering such issue in the award. The Commission and the administrative law judge are guided by the holding in Boyer v. National Express Co., Inc., 49 S.W.3d 700 (Mo.App. E.D. 2001), which states the following:

The Rules of the Department of Labor and Industrial Relations, in particular, 8 CSR 50-2.010(14), provide: "hearings before the division shall be simple, informal proceedings. The rules of evidence for civil cases in the state of Missouri shall apply. Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues." Therefore, the ALJ should confine the evidence during the hearing to the stated contested issues. Lawson v. Emerson Electric Company, 809 S.W.2d 121, 125 (Mo.App. S.D. 1991). Stipulations are controlling and conclusive, and the courts are bound to enforce them. Spacewalker, Inc. v. American Family, 954 S.W.2d 420, 424 (Mo.App. E.D. 1997). A stipulation should be interpreted in view of the result, which the parties were attempting to accomplish. Id. In Lawson, our colleagues in the Southern District concluded that the Commission acted in excess of its powers in making its award on grounds not in issue. Lawson v. Emerson Electric Company, 809 S.W.2d at 126.

Boyer, 49 S.W.3d at 705.

The administrative law judge and Commission are precluded from going beyond the issues stipulated for trial and to do so either would be acting without or in excess of its powers pursuant to section 287.495 RSMo, by making such an award.

Given at Jefferson City, State of Missouri, this 7th day of May 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Kenneth J. Douglas

Injury No. 06-007512

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

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 accident or onset of occupational disease: Alleged January 12, 2006
5. State location where accident occurred or occupational disease was contracted: Hannibal, Marion 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? See Award
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: Allegedly while driving a tow motor ran into another tow motor.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Allegedly left shoulder, back, BAW

- Nature and extent of any permanent disability: None

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? None
4. Employee's average weekly wages: $\ 440.31
5. Weekly compensation rate: $\$ 293.56 / \ 293.56
6. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: None

1. Future Requirements Awarded:

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

The above-referenced workers' compensation claim was heard by the undersigned Administrative Law Judge on July 30, 2008. Attorney Vicki Dempsey represented Kenneth Douglas ("Employee"). Attorney James Hansen represented Sharkey Transportation, Inc. d/b/a Shipper's Rental ("Employer") and Great West Casualty Company ("Insurer"). By agreement, the claim against the Second Injury Fund was left open. The parties entered into certain stipulations and agreements as to the contested issues and evidence to be presented at the hearing as set forth below.

1. The Missouri Division of Workers' Compensation has jurisdiction over this case;
2. Venue is proper in Marion County;
3. The claim for compensation was filed within the time prescribed by law;
4. Both the Employee and the Employer were operating under the provisions of the Missouri Workers' Compensation laws at all relevant times;
5. The Employee's average weekly wage was $\ 440.31;
6. The compensation rate for both TTD and PPD is $\ 293.56;
7. The Employee was off work for surgery from May 8, 2006 to June 16, 2006 or approximately 5.3 weeks;
8. The Employer was insured by Great West Casualty Company at all relevant times; and
9. The Employer/Insurer has paid no medical or TTD benefits to date.

The parties requested the Division to determine the following issues:

1. Whether proper notice was given to the Employer;
2. Whether Employee sustained an accident arising out of and in the course of employment;
3. If sustained, whether the alleged accident was the prevailing factor and the cause of the injuries and disability alleged;
4. Whether Employer/Insurer shall be ordered to pay Employee's medical bills in the amount of $\ 57,979.07;
5. Whether Employee is entitled to 5.3 weeks of temporary total disability (TTD) benefits; and

- Nature and extent of Employee' permanent partial disability, if any.

Additionally, a child support lien has been submitted on this claim and was noted prior to commencement of the hearing.

The evidence consisted of the testimony of the Employee; a medical report and deposition testimony of Dr. Jerome F. Levy; testimony of Miles Murphy, Employer's general manager; a medical report and deposition of Dr. David Lange; medical records, medical bills and records from Employee's personnel file.

Any exhibits containing markings, highlighting, etc. were submitted in that manner. The undersigned has made no markings of any kind on any of the evidence. Any objections not specifically addressed in this award are overruled. Only evidence necessary to support this award will be summarized below.

Employee worked as a forklift/tow motor operator for the Employer from April 2005 until his resignation February 20, 2006. He worked the three to eleven shift at first, and later switched to days. His duties involved loading and unloading boxes of product with the use of a "tow motor". Approximately half of his time on the tow motor was spent backing up the equipment which required turning his body to look over his right shoulder and only use his left arm to steer the tow motor. The equipment was described as having a bucket seat with a roll bar and cage only two or three inches above his head.

Employee alleges he was involved in two accidents while operating the tow motor. The first occurred on July 12, 2005 when he hit a pole in the warehouse that resulted in damaging the concrete pole and bending the tow motor. He hit his head on the cage of the tow motor, putting a knot on his scalp. He did not seek medical attention. The accident was reported and the employer suspended the employee for two days because of the accident. (Employer/Insurer's Exhibit E).

A second accident allegedly occurred on or about January 12, 2006. This time Employee claimed he ran into another tow motor driven by a co-worker. Again he claimed that he banged his head on the cage. He did not seek medical attention on that date and no damage was done to either tow motor. Employee did not report

the incident to the Employer.

On or about January 27, 2006 Employee reported pain in his left shoulder to his supervisor Jim Marshall who instructed him to report the injury to general manager Miles Murphy. Employee wasn't sure what was causing the pain, but using his left arm to steer the tow motor caused his shoulder to hurt. Employee did not mention to either Mr. Marshall or Mr. Murphy anything about a tow motor incident on January 12, 2006, or approximately some two weeks earlier. That same day there was an incident in the employer's parking lot when Employee engaged in a heated exchange of words with a truck driver. Employee was reprimanded for his actions and given a three day suspension.

Although no report of injury was filed by the Employer regarding an alleged accident on January 12, 2006, the Employer did report this alleged accident to their insurance carrier, Great West Casualty Company, as evidenced by a denial of compensation letter sent to Employee dated April 3, 2006. (Employee Exhibit M).

The records reflect, and Employee testified that he sought treatment on his own at the Hannibal Clinic with Dr. Melissa Rendlen on or about January 31, 2006. The doctor prescribed