Peter Wing v. Troostwood Garage & Body Shop

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-086714

Employee: Peter Wing

Employer: Troostwood Garage \& Body Shop

Insurer: Lumbermens Underwriting Alliance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated September 17, 2010.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued September 17, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 30^{\text {th }} \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Peter Wing

Injury Nos. 09-044196 \& 09-086714

Dependents: N/A

Employer: Troostwood Garage \& Body Shop

Insurer: Lumbermens Underwriting Alliance

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: June 24, 2010 \& August 9, 2010

Checked by: MSS/pd

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 10, 2009 \& July 1, 2009
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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 was attempting to align a transmission with an engine when the transmission fell and Claimant instinctively caught it causing injury to his lumbar back and lower extremities.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Peter Wing

1. Part(s) of body injured by accident or occupational disease: Body as a whole
2. Nature and extent of any permanent disability: To be determined
3. Compensation paid to date for temporary disability: None
4. Value necessary medical aid paid to date by employer/insurer? Unknown
5. Value necessary medical aid not furnished by employer/insurer? None
6. Employee's average weekly wages: $\ 672.20
7. Weekly compensation rate: $\ 448.16
8. Method wages computation: Paid by the day, Section 287.250.1(4)

1. Amount of compensation payable: None

Attorney's fee of 25 percent of sums recovered or to be recovered is due John Stanley, attorney for the Claimant.

Employee: Peter Wing

Injury Nos. 09-044196 \& 09-086714

Dependents: N/A

Employer: Troostwood Garage \& Body Shop

Insurer: Lumbermens Underwriting Alliance

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: June 24, 2010 \& August 9, 2010

Checked by: MSS/pd

On June 24, 2010, the Employee and the Employer appeared for Hardship Hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. Additional exhibits were admitted on August 9, 2010, completing the record. The Employee, Peter Wing, appeared in person and with counsel, John Stanley. The Employer appeared in person and with counsel, Bill Richerson. The Second Injury Fund is a party but did not appear at hearing. The primary issue the parties requested the Division to determine was whether or not Mr. Wing suffered an accident arising out of and in the course of employment and whether or not the accident(s) were the prevailing factor to necessitate additional medical treatment. I find that Mr. sustained a compensable accident on both June 10, 2009 and July 1, 2009 and he is entitled to medical treatment.

The parties stipulated that:

1. At all times relevant herein, Troostwood Garage \& Body was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by Lumbermens Underwriting c/o Cambridge Integrated Services;
2. At all times relevant herein, Claimant, Peter Wing was its employee working subject to the law in Kansas City, Jackson County, Missouri;
3. The Claimant, Peter Wing notified Troostwood Garage \& Body of each of his alleged injury and filed his claims within the time allowed by law; and
4. The average weekly wage for the Claimant was $\ 672.20; the compensation rate is $\ 448.16.

The parties requested the Division to determine:

1. Whether the Claimant sustained an accident or an occupational disease arising out of and in the course of his employment in Injuries No. 09-044196 and 09-086714.
2. Whether the injury was the prevailing factor in causing the resulting medical condition and disability.
3. Whether any injury was caused by the failure of the employee to use safety devices, as contemplated by Section 287.120.5.
4. Whether the Claimant is entitled to temporary total disability from August 3, 2009 to the present date.
5. Whether the Employer/Insurer is to provide medical treatment.

Claimant testified on his own behalf and presented the following exhibits:

Claimant's Exhibit A -- Deposition of Dr. Glenn Amundson with exhibits

Claimant's Exhibit B -- Deposition of Donald Wood with exhibits

Claimant's Exhibit C -- Deposition of Ryan Roof with exhibits

Claimant's Exhibit D - Deposition of Shaun Campbell

Claimant's Exhibit E - Deposition of Bradford Wood

Claimant's Exhibit F - Deposition of Annette Braam with exhibits

Claimant's Exhibit G - Dr. Truett Swain's Curriculum Vitae

Claimant's Exhibit H - Dr. Truett Swain's report of 9/8/09

Claimant's Exhibit I - Dr. Christine Moore's report

Claimant's Exhibit J - Dr. Simon's report

Claimant's Exhibit K - Dr. Koprivica's report

Claimant's Exhibit L - Dr. Ebelke's rpeort

Claimant's Exhibit M - Dr. Hanson's report

Claimant's Exhibit N - Mercy Hospital records

Claimant's Exhibit $\boldsymbol{O} - Dr. Temple's records

Claimant's Exhibit \boldsymbol{P} - Providence Medical Center records

Claimant's Exhibit \boldsymbol{Q} - Diagnostic Imaging Center records

Claimant's Exhibit \boldsymbol{R}$ - Dr. Holliday's records

Claimant's Exhibit S - Dr. Charochak's records

Claimant's Exhibit T - Dr. Bernhardt's records

Claimant's Exhibit $\boldsymbol{U}$ - St. Joseph Medical Center records

Claimant's Exhibit V - Business \& Industrial Health Group records

Claimant's Exhibit W - Dr. Carroll's records

Claimant's Exhibit $\boldsymbol{X}$ - Research Belton Hospital records

Claimant's Exhibit Y - Dr. Pazell's records

Claimant's Exhibit Z - KU Medical Center records

Claimant's Exhibit AA - Wage Statement

Claimant's Exhibit BB - Claim Form - 6/10/09 injury

Claimant's Exhibit CC - Claim Form - 7/1/09 injury

Claimant's Exhibit DD - Claim Form - 6/10/09 injury - amended

Claimant's Exhibit EE - Troostwood Safety \& Health Program

Claimant's Exhibit FF - Picture 1

Claimant's Exhibit GG - Picture 2

Claimant's Exhibit HH - Picture 3

The Employer/Insurer presented the live testimony of Ryan Roof, Shaun Campbell and Brad Wood. In addition, the Employer/Insurer presented the following exhibits, all of which were admitted except Exhibit 15 which was objected to and sustained. There was also an objection by the Claimant to Exhibits 1 through 7 and the Court, after taking the matter under advisement, overruled the Claimant's objection and allowed Exhibit 1-7.

Employer/Insurer's Exhibit 1 - Interrogatory Questions and Answers of Claimant, Cause \#99-CV-216066

Employer/Insurer's Exhibit 2 - Transcript of Compromise Settlement, Injury No. 89-062473

Employer/Insurer's Exhibit 3 - Stipulation for Compromise Settlement, Injury No. 84-103891

Employer/Insurer's Exhibit 4 - Settlement Hearing Transcript dated 8/19/02

Employer/Insurer's Exhibit 5 -- Stipulation for Compromise Settlement, Injury No. 99-180944

Employer/Insurer's Exhibit 6 - Stipulation for Compromise Settlement, Injury No. 00-162507

Employer/Insurer's Exhibit 7 - Summary of Claimant's Prior Settlements

Employer/Insurer's Exhibit 8 - Photo of jack stand and blocks

Employer/Insurer's Exhibit 9 - Photo of jack stand, blocks and safety strap

Employer/Insurer's Exhibit 10 - Photo of transmission

Employer/Insurer's Exhibit 11 - Photo of transmission

Employer/Insurer's Exhibit 12 - Photo of rear of vehicle showing transmission

Employer/Insurer's Exhibit 13 - Troostwood Garage \& Body Shop Employee Handbook

Employer/Insurer's Exhibit 14 - Workplace Safety Policy reminder

Employer/Insurer's Exhibit 15 - Ex Parte Order of Protection against Claimant

Employer/Insurer's Exhibit 16 - Photo of wheel of jack stand

Employer/Insurer's Exhibit 17 - Photo of base of jack stand

Employer/Insurer's Exhibit 18 - Photo of transmission

Employer/Insurer's Exhibit 19 - Photo of bottom of transmission

Employer/Insurer's Exhibit 20 - Photo of table of jack stand depicting dimensions on width

Employer/Insurer's Exhibit 21 - Photo of table of jack stand depicting length with arms extended

Employer/Insurer's Exhibit 22 - Statement of Ryan Roof, dated 8/17/09

Employer/Insurer's Exhibit 23 - Deposition of Dr. Jeffrey MacMillan (with exhibits), dated 12/11/09 \& 1/18/10 (Volumes I \& II)

Employer/Insurer's Exhibit 24 - Deposition of Claimant, dated 9/23/09

Based on the above exhibits and testimony of the witnesses, the Court makes the following findings.

Peter Wing. The Claimant, Peter Wing (Wing or Claimant), testified that he is 50 years old and resides in Cass County, Missouri. He stated that he was employed by the Employer, Troostwood Garage and Body Shop (Troostwood) beginning in 2006 until his termination. He was terminated as a result of Dr. Moore ordering him off work on August 3, 2009. (Exhibit I, page 14) He worked as a mechanic. He testified that he never applied for the job, but had been contacted by Brad Wood, the co-owner of Troostwood and offered a job. He worked on a 40\% commission basis. Mr. Wing testified at length concerning the circumstances surrounding the injury of June 10, 2009 and the aggravating injury of July 1, 2009. He also testified at length as to his prior medical condition and previous injuries over the past 30 or so years. His credibility and character was fiercely challenged by the Employer's witnesses, however I find his testimony to be credible.

Accident(s). Wing was attempting to align a transmission to a Porsche Boxster when the accident of June 10, 2010 occurred. The transmission was extremely heavy and was supported on a "jack". The transmission was not tied down or secured to the jack. Wing testified that because of the condition of the floor, the jack did not roll smoothly along the floor causing the transmission to slide off of the jack. As a matter of reflexes and in order to prevent the transmission from being damaged he "caught" it as it slid off the jack - the force of which caused sudden and sharp