Aleck Fineman v. Stan Koch & Sons

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-078932

Employee: Aleck Fineman

Employer: Stan Koch \& Sons

Insurer: American Interstate Insurance Co.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 29, 2014, and awards no compensation in the above-captioned case.

We deny employer's request for an award of attorney's fees under § 287.560. We will only exercise our discretion to award to any party the costs of a proceeding where the issue is clear and the offense egregious. ${ }^{1}$ We do not find employee's prosecution of this claim to be egregious.

The award and decision of Administrative Law Judge Vicky Ruth, issued May 29, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $30^{\text {th }}$ day of September 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{1}$ Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

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 October 18, 2013.
5. State location where accident occurred or occupational disease was contracted: N/A.
6. Was above employee in the employ of above employer at the time of the alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? N/A.
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: Claimant worked for the employer as an over the road truck driver. He is uncertain how the injury occurred, but believes it may have happened when he was pulling the fifth wheel or while he was raising or lowering the landing gear of the trailer.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: alleged left arm.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: $\ 871.63.
2. Weekly compensation rate: $\ 581.08 TTD/\$446.85 PPD.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: None.
2. Future medical awarded: None.

Employee: Aleck Fineman

Injury No. 13-078932

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

Employer: Stan Koch \& Sons

Additional Party: N/A

Insurer: American Interstate Insurance Co.

Hearing Date: February 27, 2014

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VR/cs

On February 27, 2014, Aleck Fineman (the claimant), Stan Koch \& Sons (the employer), and American Interstate Insurance Company (the insurer) appeared in Jefferson City, Missouri, for a temporary award hearing. Claimant was represented by attorney William Nacy. The employer/insurer was represented by attorney Ross Bridges. Blair Henry observed on behalf of the employer/insurer. Claimant testified in person at the hearing and by deposition. The parties submitted briefs on or about March 27, 2014, and the record closed at that time.

The parties stipulated to the following:

1. On or about October 18, 2013, Aleck Fineman (the claimant) was an employee of Stan Koch \& Sons (the employer). Claimant alleges that on that date, he sustained an injury by accident to his left arm.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by American Interstate Insurance Company.
4. The Missouri Division of Workers' Compensation has jurisdiction and, by agreement of the parties, venue in Cole County is proper.
5. Notice is not an issue in this proceeding.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's average weekly wage was $\ 871.63, yielding a weekly compensation rate of $\ 581.08 for temporary total disability benefits and $\ 446.85 for permanent partial disability benefits.

The parties agreed that the following issues were to be resolved in this proceeding:

1. Accident or occupational disease arising out of and in the course of employment.
2. Medical causation.
3. Need for medical treatment.
4. Whether a final award should be issued if compensability is denied.
5. Unpaid temporary total disability benefits.
6. Additional/future temporary total disability benefits.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit 1 Medical records from Callaway Physicians.

On behalf of the employer/insurer, the following exhibits were admitted into the record:

Exhibit A Deposition of Claimant, Aleck Fineman.

Exhibit B Audio CD.

Exhibit C Medical records from Mercy Emergency Department, Ardmore, Oklahoma.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence. All depositions were admitted subject to any objections contained therein. Unless noted otherwise, the objections are overruled.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant was born on September 30, 1971. On the date of the hearing, he was 42 years old.
2. Claimant began working for Stan Koch and Sons (the employer) on March 23, 2013, as a commercial truck driver. At the time of the alleged injury, Claimant lived in Fulton, Missouri, where he still resides.
3. Claimant testified that as a commercial truck driver, his duties were to pick up loads for trailers, attach them to his truck or tractor, drive them to a destination, and drop them off. He testified that he does not always unhook the trailer once he reaches his destination. Claimant further testified that he never loads or unloads a trailer, but simply attaches it to his vehicle and drives it to a destination. Claimant testified that he never drives more than eleven hours a day without taking a ten-hour break. While he is on the road, he generally sleeps in his truck and is not expected to stay in a motel. Nonetheless, he testified that he does have the ability to sleep in a motel if he chooses. Claimant testified

that during his breaks, while he is not driving, he is not performing duties for the employer. He has the right to choose where he goes and what he does during his tenhour breaks. Claimant further testified that once he drops off his load and he is returning to his home he is not paid for the trip back to his home.

1. Claimant testified at trial, as well as in his deposition, that the duties of hooking and unhooking a trailer required a few steps, including the following: attaching the air lines from the back of the cab to the trailer, adjusting the tandems on the fifth wheel of the trailer, and raising and lowering the landing gear. At trial he testified that he performed these steps every time he picked up a load and, if he was required to unhook the trailer, he would perform these same steps as well. Claimant further testified that he did not always have to unhook the trailer. He stated that attaching and detaching a trailer took anywhere from five to thirty minutes and that he commonly used his left arm (his nondominant arm) to perform these tasks. When asked if he also uses his left arm when he's not at work, Claimant testified in the affirmative.
2. Claimant testified that the amount of loads and distances he traveled varied from week to week. He stated the trips could be anywhere from 20 to 2,000 miles. He indicated that once the trailer was attached it stayed attached until he delivered his load, which might be a couple of days. He did not know how many times he had hooked or unhooked a trailer.
3. With regard to how he may have injured his arm, Claimant provided testimony at trial, at his deposition, and in his recorded statement. In all three situations his testimony has been that on October 18, 2013, he began to feel pain in his left arm. He stated that on October 18 he was hooking up a trailer in Mendota Heights, Minnesota, for a delivery to Ardmore, Oklahoma. After hooking up his trailer in Minnesota he set off for his destination. At trial and in his deposition Claimant testified that he began to feel pain in his arm approximately thirty minutes after leaving. ${ }^{1}$ At his deposition Claimant testified that he believes he hurt his arm either while pulling the fifth wheel or raising and lowering the landing gear. ${ }^{2}$ At trial he testified he does not recall what it was that caused the pain, but that he felt symptoms while driving down the road thirty minutes after hooking up his trailer.
4. In the recorded statement he made to an adjuster, however, Claimant stated as follows: "I have no clue if it was something that I did that hurt the arm or if it was something that happened over time or what was the instigating incident that started the pain." ${ }^{3} He also stated "I can't think of a specific incident that started it." { }^{4}$ Toward the end of the recorded statement, when asked if there was anything further he would like to add, Claimant stated as follows: "I can't think of anything that I did to myself that could have done this." ${ }^{5}$ With regard to when he first felt pain, Claimant testified that on Friday

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[^0]: ${ }^{1} Exh. A, p. 28, and trial testimony.

{ }^{2} Exh. A, p. 27.

{ }^{3}$ Exh. B; unfortunately, the employer/insurer elected not to transcribe this recorded statement to a written form. Thus, Exhibit B is simply the audio recording.

${ }^{4} Exh. B.

{ }^{5} \mathrm{Id}$.

morning, October 18, 2013, he noticed his left arm was aching when he woke up that morning. ${ }^{6}$

1. In his deposition, Claimant testified that after picking up the load in Minnesota on October 18, 2013, he drove his load to Ardmore, Oklahoma. He testified the load was due on October 21, but he delivered it on October 20 early in the morning. After dropping off his load, he bobtailed, or drove without a trailer, to the employer's drop yard in Ardmore, Oklahoma, which was about three and one half miles away. He stated that once he got to the drop yard in Ardmore, Oklahoma, he did not discuss the pain he was having with anyone. ${ }^{7} Instead, he remained at the drop yard in his