Avry Harris v. Penske Truck Leasing

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-110474

Employee: Avry Harris

Employer: Penske Truck Leasing

Insurer: Old Republic Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ 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 § 286.090 RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated November 18, 2014.

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 $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge John K. Ottenad, issued November 18, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of February 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Avry Harris

Department: N/A

Employer: Penske Truck Leasing

Additional Party: N/A

Insurer: Old Republic Insurance Company

C/O Gallagher Bassett Services, Inc.

Hearing Date: August 21, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

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 29, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant was employed as a clamp truck/forklift operator for Employer, when he developed neck and upper body complaints as a result of his excessive, repetitive driving while twisted to the right to look behind him as he was operating the machinery.
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: Body as a Whole-Neck and Upper Body
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Avry Harris

1. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
2. Employee's average weekly wages: $\ 445.57
3. Weekly compensation rate: $\ 297.05 for TTD/\$297.05 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

See body of the Award and future requirements section below

1. Second Injury Fund liability: N/A

1. Future requirements awarded: Continued and ongoing future medical care for Claimant's neck and upper body, including, but not limited to, medications, physical therapy, perhaps selective nerve root injections and possibly, as a last resort if the other treatment does not relieve his complaints, a neck surgery, to cure and relieve him of the effects of the injury, as explained in the body of the Award.

Each of said payments to begin immediately and to be payable and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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: Kerry I. O'Sullivan

Employee: Avry Harris

Departments: N/A

Employer: Penske Truck Leasing

Additional Party: N/A

Insurer: Old Republic Insurance Company

C/O Gallagher Bassett Services, Inc.

Hearing Date: August 21, 2014

Injury No.: 11-110474

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On August 21, 2014, the employee, Avry Harris, appeared in person and by his attorney, Ms. Kerry I. O’Sullivan, for a hearing for a Temporary or Partial Award on his claim against the employer, Penske Truck Leasing, and its insurer, Old Republic Insurance Company C/O Gallagher Bassett Services, Inc. The employer, Penske Truck Leasing, and its insurer, Old Republic Insurance Company C/O Gallagher Bassett Services, Inc., were represented at the hearing by their attorney, Mr. William Lemp. The Second Injury Fund is not a party to this case.

The parties agreed that this was being tried as a non-Section 203 temporary hearing. They further agreed that if I should find in favor of Employer on the need for medical treatment, then, instead of issuing a Temporary or Partial Award, I would issue a Final Award to bring full closure to this matter as a result of this hearing. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about June 29, 2011, Avry Harris (Claimant) allegedly sustained an occupational disease.

2) Claimant was an employee of Penske Truck Leasing (Employer).

3) Venue is proper in the City of St. Louis.

4) The Claim was filed within the time prescribed by the law.

5) At the relevant time, Claimant earned an average weekly wage of $\ 445.57, resulting in applicable rates of compensation of $\ 297.05 for total disability benefits and $\ 297.05 for permanent partial disability benefits.

6) Employer has not paid any benefits to date.

1) Did Claimant sustain an occupational disease?

2) Did the occupational disease arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints medically causally connected to his alleged occupational disease at work?

4) Did Claimant provide Employer with proper notice of the injury under the statute?

5) Is Employer liable for ongoing medical care?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this alleged occupational disease injury?

The following exhibits were admitted into evidence:

1. Certified medical treatment records of BJC North County Physicians
2. Independent medical report of Dr. Paul Matz dated May 14, 2014
3. Medical treatment records of Berland Imaging \& MRI
4. Independent medical report of Dr. Shawn Berkin dated January 21, 2013
5. Certified medical treatment records of Christian Hospital
6. Certified medical treatment records of the St. Louis County Department of Health
7. FMLA medical certification forms

A. Independent medical report of Dr. Russell Cantrell dated March 27, 2013

B. Deposition of Dr. Daniel Kitchens, with attachments, dated August 13, 2014

Note: Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on August 21, 2014.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the medical treatment records, the other records, and the testimony of Employer's witness, as well as my personal observations of Claimant and the other witness at hearing, I find:

1) Claimant is a 36-year-old, clamp truck/forklift operator, who worked for Penske Truck Leasing (Employer) for a little over four years, from May 2008 until August 2012. After he was terminated in August 2012, he applied for and received unemployment benefits for a period of time. Subsequently, he worked for a couple of other employers, until earlier this year, when he became employed by Alpla Plastic Company (through St. Louis Staffing) as a clamp truck/forklift driver. He currently is working for Alpla (through St. Louis Staffing) full time, 35-40 hours per week.

2) Claimant testified that he is pursuing a Claim here for neck and back complaints. He testified that his job as a clamp truck/forklift driver for Employer required him to sit, twisted to the right, looking over his right shoulder with his left hand on the steering wheel to drive. He estimated that he spent 85 % of each workday for Employer in this position driving the clamp truck/forklift. He testified that he worked 12-hour days, 7 days a week for the first $11 / 2$ years he was employed by Employer, and, then, he worked 8-12 hours per day for 5-6 days a week for the balance of his time there. He said that he was primarily on the forklift driving, but he would have to occasionally pick up items as well by hand, such as microwaves or cook tops. He estimated that the lifting component was approximately 15 % of his time working for Employer.

3) Claimant testified that sitting and driving while twisted to the right and looking back over his shoulder was uncomfortable within the first year he was doing it. He said that the problems got worse as time went on and he continued performing this activity. He testified that he told his supervisor, Cory, about his problems in September 2010, and, then, later on he told a team leader, Matt Harris, about the neck and back problems he was having as well. He said that he has never received any injections, physical therapy or other medical treatment from Employer for his complaints.

4) Claimant testified that the problems became worse in 2011, so he signed up for FMLA. His Medical Certification for FMLA (Exhibit 7) dated June 29, 2011 from Dr. Misir, indicates that as a result of chronic sinus pain and infection and chronic back pain, Claimant will need to miss work approximately four times a month for one to two days per treatment between June 29, 2011 and December 29, 2011.

5) Medical treatment records from Dr. Naresh Misir at BJC North County Physicians (Exhibit 1) document an initial complaint of back pain by his kidneys, and chest and rib pain on July 22, 2009. However the records also reveal treatment in 2009 for urolithiasis (stones) that could account for the back/flank pain. Beginning on March 9, 2012, Claimant complained of moderate-to-severe right neck pain with radiation to the right arm that began one year prior to the visit. In follow-up visits in August

2012, Claimant continued to complain of severe neck pain aggravated by twisting, with radiation into the bilateral upper arms, and he was diagnosed with worsening cervicalgia. A cervical MRI taken on August 15, 2012 showed a minor broad-based disc bulge at C4-5 without foraminal encroachment or nerve root compression. By August 27, 2012, Claimant was still reporting worsening neck pain and radiation into both arms with weakness, pain and tingling.

6) The medical treatment records from Christian Hospital (Exh