James Auxier v. HP Distribution LLP

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-061058

Employee: James W. Auxier

Employer: HP Distribution LLP

Insurer: Farmers Insurance Exchange

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 6, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued April 6, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: James W. Auxier Injury No.: 09-061058

Employer: HP Distribution LLP

Insurer: Farmers Insurance Exchange

Hearing Date: December 10, 2009 Checked by: RBM

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: March 16, 2009.
5. State location where accident occurred or occupational disease was contracted: Dallas, Texas.
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 alleges he fell from the back of a trailer.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Alleged: Head, legs, arms, abdomen, torso, ears (both), left knee, body as a whole.

1. Nature and extent of any permanent disability: Not determined.
2. Compensation paid to-date for temporary disability: $\ 21,704.60.
3. Value necessary medical aid paid to date by employer/insurer? $\ 32,912.00.
4. Value necessary medical aid not furnished by employer/insurer? Not determined.
5. Employee's average weekly wages: $\ 991.28.
6. Weekly compensation rate: $\ 660.85 for temporary total disability and $\ 404.66 for permanent partial disability.
7. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: None. Employee's claim is denied and dismissed for lack of jurisdiction under the Missouri Workers' Compensation Law.

Employee: James W. Auxier

Injury No.: 09-061058

Employer: HP Distribution LLP

Insurer: Farmers Insurance Exchange

Hearing Date: December 10, 2009

Checked by: RBM

A non-Section 287.203 temporary hearing was held in this case on Employee's claim against Employer on December 10, 2009 in Gladstone, Missouri. Employee, James W. Auxier, appeared in person and by his attorney, Benjamin S. Creedy. Employer, HP Distribution LLP, and Insurer, Farmers Insurance Exchange, appeared by their attorney, Bren R. Abbott. The Second Injury Fund is not a party to this case. Benjamin S. Creedy deferred any request for attorney's fees relating to Employee's request for additional temporary total disability benefits that is the subject of this hearing.

It was agreed that the record would be left open to permit Employer's attorney to submit records showing the amounts paid for temporary total disability and medical aid, and the average weekly wage. Records showing amounts paid for temporary total disability and medical aid, were received by the Administrative Law Judge on January 6, 2010 via fax, and on January 8, 2010 via mail with a January 7, 2010 letter from Bren Abbott. A copy of the January 7, 2010 letter is shown to have been copied to Employee's attorney, Benjamin S. Creedy. The records showing amounts paid for temporary total disability and medical aid and the January 7, 2010 letter from Bren Abbot received on January 8, 2010 (which are more legible than those received on January 6, 2010) have been marked by the Court Reporter, Employer's Exhibit 1 with the date January 8, 2010. Employer's Exhibit 1 has been admitted in evidence.

At the time of the hearing, the parties stipulated to the following:

1. On or about March 16, 2009, James W. Auxier ("Claimant") was an employee of HP Distribution LLP ("Employer").
2. On or about March 16, 2009, Employer was fully insured by Farmers Insurance Exchange ("Insurer").

1. On or about March 16, 2009, Claimant sustained an injury by accident in Dallas, Texas, arising out of and in the course of his employment.
2. Employer had notice of Claimant's injury.
3. Claimant's Claim for Compensation was filed within the time allowed by law.
4. If Missouri has jurisdiction in this workers' compensation case, the rate of compensation for permanent partial disability is $\ 404.66 per week.

The parties agreed that there were disputes on the following issues:

1. Whether on or about March 16, 2009, Claimant was working under the provisions of the Missouri Workers' Compensation Law, and if Missouri has jurisdiction in this case, Employer/Insurer's liability for past and future temporary total disability benefits.
2. Average weekly wage and temporary total disability rate.

Claimant testified in person. Barbara Auxier and Walter Michael Copp were also called to testify by Claimant's attorney. In addition, Claimant offered the following exhibits which were admitted in evidence:

Exhibit A—telephone records

Exhibit B—Business card of Copp Transportation

Employer called Valerie Eggert to testify. Employer's Exhibit 1, a printout showing medical and temporary disability benefits paid, has been admitted in evidence.

On March 25, 2010, the Administrative Law Judge received a letter dated March 25, 2010 from Employee's attorney, Benjamin Creedy, advising that the parties reached an agreement that Employee's average weekly wage is $\ 991.28 per week. A copy of the letter is shown to have been faxed to Employer's attorney, Bren Abbot. The March 25, 2010 letter from Benjamin Creedy has been marked by the Court Reporter, Court's Exhibit 1 with the date March 25, 2010, and has been admitted in evidence.

The post-trial briefs of the attorneys have been considered.

Summary of the Evidence

James Auxier testified that he was injured on the job on March 9, 2009 in Texas while he was working as a driver for Employer. Claimant is an over-the-road driver. He had a regular route from Kansas to Ft. Worth, then from Ft. Worth to Oklahoma, and then returning to Kansas. Claimant worked for Copp Transportation before he worked for Employer.

Claimant testified that before he was hired by Employer, and while he was in Texas working for Copp Transportation, he received a phone call from Bill Hope, a dispatcher, who told him to report to Employer in Kansas City, Kansas. Mr. Hope told Claimant to take his tractor to Southwest Boulevard and take the Copp Transportation decals off his truck and to put Employer's decals on his truck. Claimant changed the decals. Claimant's personal vehicle was at Copp Transportation when he returned from Texas. Mike Copp took Claimant to get his personal vehicle. After he got his vehicle, he returned to his home in Missouri.

Claimant testified he went to Employer on a Friday and filled out paperwork at Employer. Claimant said that on Friday, Employer was not sure who it was going hire. He testified they told him they would let him know if he was hired. He said he took a drug test at North Kansas City, Missouri the same day that he changed his decals. He said he did not get the results of the drug test then.

Claimant testified that the next day, which was a Saturday, he received a phone call on his cell phone from Bill Hope. Bill Hope had been a dispatcher at Copp Transportation and had begun working as a dispatcher for Employer. Claimant testified that Bill Hope told him that his dispatch would be in the mailbox at Employer, and that it would tell him where to go. Claimant reported to work for Employer on Sunday and was given his route. His pay did not change after he was hired by Employer.

Claimant testified on cross-examination that Copp Transportation went out of business around the end of July. He said he got a call from Bill Hope to return to Employer. He met with Valerie Eggert at Employer and filled out an application then.

I find this testimony of Claimant to be credible except as noted later in this award. In particular, and as discussed later in this award, I do not believe Claimant's testimony that on the Friday he went to Employer and filled out his application, he was told they would let him know if he was hired. I do not find credible Claimant's testimony that he was hired when Bill Hope called him while Claimant was at home. I also do not find credible Claimant's testimony that he took a drug test at North Kansas City shortly before

being hired by Employer. Claimant produced no records of any such drug test at the hearing. I believe Valerie Eggert offered Claimant his job with Employer in Employer's office in Kansas City, Kansas, and that Claimant accepted the job offer while he was in Employer's office in Kansas City, Kansas.

Barbara Auxier testified that she is married to Claimant. She said Claimant's cell phone number is 816-718-9042. He has had that number for six years. Ms. Auxier identified Exhibit A, copies of her and her husband's cell phone bill for the period July 8, 2008 and August 28, 2008.

Ms. Auxier identified Exhibit B as a list of dispatching phone numbers, including Bill Hope's, of Copp Transportation.

Ms. Auxier testified that when Claimant first was injured, he received temporary disability benefits at a higher rate than he was currently receiving them. The checks were $\ 648.00 per week at first, but then changed to either $\ 524.00 or $\ 529.00 per week.

I find this testimony of Ms. Auxier to be credible.

Walter Michael Copp was called as a witness. Mr. Copp testified that his job title is Director of Transportation for Employer. He is a salesman and oversees dispatches. He is Claimant's supervisor.

Mr. Copp testified he owned Copp Transportation prior to July 31, 2008, and that he had owned that company for twenty-three years. Copp Transportation was an over-the-road trucking company. Claimant was an employee of Copp Transportation and was an over-the-road driver.

Mr. Copp testified that on July 31, 2008, he closed the doors of Copp Transportation. Copp Transportation had loans and the bank took all of Copp Transportation's assets at an asset sale. Mr. Copp testified Copp Transportation is in an involuntary bankruptcy case in Kansas.

Mr. Copp testified the employees of Copp Transportation were notified within one week before July 31, 2008 about the company's closing. There was a transition of customers from Copp Transportation to Employer. Employer did not buy any assets from Copp Transportation. Employer bought assets from Copp Transportation's lenders. Employer purchased all of Copp Transportation's equipment, including tractors and trailers.

Mr. Copp testified that employees were told about Employer's business. All who worked at Copp Transportation were given an o