Dennis Schenk v. J. B. Hunt Transport, Inc.

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 09-076735

Employee: Dennis F. Schenk

Employer: J. B. Hunt Transport, Inc.

Insurer: New Hampshire Insurance, Inc.

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion.

We offer this supplemental opinion to modify an incomplete finding in the administrative law judge's award. We modify the last sentence of the first paragraph on page 10 of the award to read:

It was Mr. Lalk's testimony that if Mr. Schenk's only medical condition was his left shoulder condition (from the primary injury), that Mr. Schenk "could probably find some work doing basic housekeeping in large buildings such as this."

In all other respects, we affirm and adopt the award of the administrative law judge.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The August 14, 2013, award and decision of Administrative Law Judge Gary L. Robbins is attached hereto and incorporated herein by this reference.

Given at Jefferson City, State of Missouri, this 23rd day of December 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

Employee: | Dennis F. Schenk | Injury No. 09-076735 |

Employer: J.B. Hunt Transport, Incorporated

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance, Incorporated

Appearances: Michael J. Payne, attorney for the employee.

Mark Kornblum, attorney for the employer-insurer.

Kevin Nelson, attorney for Second Injury Fund.

Hearing Date: May 16, 2013

Checked by: GLR/rlf

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? September 24, 2009.
5. State location where accident occurred or occupational disease contracted: Lincoln, Illinois.
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.

On May 16, 2013, the employee, Dennis F. Schenk, appeared in person and with his attorney, Michael J. Payne for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Mark Kornblum. Assistant Attorney General Kevin Nelson represented the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. J.B. Hunt Transport, Incorporated was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by New Hampshire Insurance, Incorporated.
2. On September 24, 2009, Dennis F. Schenk was an employee of J.B. Hunt Transport, Incorporated and was working under the Workers' Compensation Act.
3. On September 24, 2009, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 978.90, resulting in a compensation rate of $\ 652.60 for temporary total disability benefits and $\ 422.97 for permanent partial disability benefits.
7. The employee's injury was medically causally related to the accident or occupational disease.
8. The employer-insurer paid $\ 44,458.33 in medical aid.
9. The employer-insurer paid $\ 39,156.00 in temporary disability benefits.
10. The employee has no claim for previously incurred medical bills.
11. The employee has no claim for mileage.
12. The employee has no claim for future medical care.
13. The employee had no claim for any temporary disability benefits.
14. The parties agree that the medical bill of $\ 430.00 to Signature Health Services will be paid by the employer-insurer.
15. The parties agree that the employee reached maximum medical improvement as of November 18, 2010.

1. Permanent Partial Disability as to the Employer-Insurer.
2. Permanent Total Disability as to the Employer-Insurer.
3. Liability of the Second Injury Fund for Permanent Partial or Permanent Total disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

A. Second Amended Claim for Compensation.

B. Medical records from Tesson Heights Orthopedics.

C. Medical records from Premier Care - South Division.

D. Medical records from St. Anthony's Medical Center - May 25, 2010.

E. Medical records from St. Anthony's Medical Center - December 14, 2010.

F. Medical bills from Tesson Heights Orthopedics.

G. Medical bills from St. Anthony's Medical Center.

H. Medical records from Tesson Heights Orthopaedic \& Arthroscopic Associate, P.C.

I. Medical records from Ballas Radiology Group, Inc. - November 13, 2000.

J. Medical records from St. Alexius Hospital - June 1, 2001.

K. Medical records from St. Alexius Hospital - October 24, 2001.

L. Medical records from St. John's Mercy Medical Center - July 29, 2005.

M. Medical records from St. Anthony's Medical center - September 2, 2005.

N. Medical records of Thomas K. Lee, M.D. and Tesson Heights Orthopaedic \& Arthroscopic Associate, P.C. - August 9, 2005.

O. Independent medical evaluation of David T. Volarich, D.O.

P. Deposition of David T. Volarich, D.O.

Q. Vocational Rehabilitation Evaluation of Timothy G. Lalk.

R. Deposition of Timothy G. Lalk.

S. Functional Capacity Evaluation Report - October 28, 2010.

T. Stipulation for Compromise Settlement

U. Independent Medical Report of Mark D. Miller, M.D.-Offer of Proof.

Employer-Insurer Exhibits

1. Deposition and medical records of Lawrence A. Kriegshauser, M.D.

The Second Injury Fund did not offer any exhibits.

The employee, Dennis F. Schenk was the only witness to personally testify at trial. All other evidence was presented in the form of written records, medical records or deposition testimony.

The employee was 55 years old at the time of the hearing. He was born on January 30, 1958 and presently resides in Byrnes Mill, Missouri. Mr. Schenk was not employed at the time of the hearing. He was last employed on September 24, 2009, working for J. B. Hunt Transport,

Incorporated/J. B. Hunt. He was a truck driver and drove an 18-wheel truck. This was local travel, primarily. His travels were taken to the Chicago area, Wisconsin, Indiana, Iowa, Arkansas and Tennessee. He began his employment with J. B. Hunt in December 2005. He testified that he worked 60 to 70 hours per week. After working 70 hours, he would receive a 34-hour break, per Federal Law. He worked as a subcontractor for Anheuser Busch, transporting shipments of beer. While he did drive the truck, he did not load or unload the truck. He did "strap" the load.

Mr. Schenk testified that on September 24, 2009, he was employed by J. B. Hunt. He was driving from Chicago, Illinois to the St. Louis, Missouri area. His truck had a faulty wiper blade. Mr. Schenk exited the highway to attempt to repair the blade. He was able to repair the blade, as he stood on the front, driver's side tire to repair the blade. However, he lost his footing and fell to the ground, landing on his left side, primarily the left shoulder. He testified his left arm sustained the impact of the fall. Immediately afterwards, he had difficulty breathing but was able to get up. He phoned his employer and reported the injury. The dispatcher asked him if he needed an ambulance, and Mr. Schenk indicated he did not. Although he was in pain, he was able to transport his truck back to the yard in St. Louis.

The trip from Lincoln, Illinois (the site of the accident) to St. Louis was 121 miles. The employee spoke with his dispatcher and was told to seek medical treatment with his primary physician. He went to an Urgent Care in Fenton, Missouri the next day, September 25, 2009. He was told to take Ibuprofen. When his condition did not improve, he was seen by an orthopedist, Dr. Fagan, on September 30, 2009. At that point, he could not lift his left arm. An MRI was recommended and was carried out on October 1, 2009. Following that, his employer advised him not to return to Dr. Fagan, but instead to see another orthopedist, Dr. Kriegshauser. Dr. Fagan had been prescribing Vicodin for pain. Dr. Kriegshauser informed the employee that he had a massive left rotator cuff tear. Mr. Schenk testified that his breathing did improve after about one to one-and-a-half months. No light duty was provided by the employer and Mr. Schenk continued to take Vicodin for pain.

On November 4, 2009, Mr. Schenk underwent arthroscopic left shoulder surgery by Dr. Kriegshauser. This consisted of an arthroscopic limited synovectomy, an open acromioplasty of the left shoulder and open repair of a large left rotator cuff tear and open excision of the left distal clavicle.

The employee testified that this was not a rotator cuff tear, but he did undergo a right distal clavicle resection. The operative report from St. Anthony's Medical Center confirms an endoscopic right shoulder acromioplasty and debridement of the labrum with open distal clavicle