Gary Emmons v. Cassens Transport

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-105379

Employee: Gary Emmons

Employer: Cassens Transport

Insurer: Self-Insured

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 January 23, 2015. The award and decision of Administrative Law Judge John K. Ottenad, issued January 23, 2015, is attached and incorporated by this reference.

The Commission further approves and affirms 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.

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Gary Emmons

Departments: N/A

Employer: Cassens Transport

Additional Party: N/A

Insurer: Self-Insured C/O Broadspire Services, Inc.

Hearing Dates: October 16, 2014 \& October 23, 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: December 3, 2009
5. State location where accident occurred or occupational disease was contracted: Salina, Kansas
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 worked as a car hauler for Employer and twisted his right knee, when he missed the last step on the ramp and fell, as he was unloading minivans from his transport vehicle.
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: Right Knee
14. Nature and extent of any permanent disability: 5 % of the Right Knee
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 233.64

Employee: Gary Emmons Injury No.: 09-105379

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,266.48
3. Weekly compensation rate: $\ 807.48 for TTD/ $\ 422.97 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

8 weeks of permanent partial disability

$\ 3,383.76

1. Second Injury Fund liability: N/A

TOTAL: $\ 3,383.76

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

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: Mark A. Cordes.

Employee: Gary Emmons

Dependents: N/A

Employer: Cassens Transport

Additional Party: N/A

Insurer: Self-Insured C/O Broadspire Services, Inc.

Injury No.: 09-105379

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On October 16, 2014, the employee, Gary Emmons, appeared in person and by his attorney, Mr. Mark A. Cordes, for a hearing for a final award on his claim against the employer, Cassens Transport, which is duly self-insured under the statute C/O Broadspire Services, Inc. The employer, Cassens Transport, which is duly self-insured under the statute C/O Broadspire Services, Inc., was represented at the hearing by its attorney, Mr. L. David Green. The Second Injury Fund is not a party to this case.

Following the conclusion of the hearing, Employer filed a motion to reopen the record and introduce additional evidence in the form of a patient information form from Claimant's December 10, 2009 visit to Sullivan Open MRI (Exhibit L). Employer's motion was heard on October 23, 2014 and the motion hearing was made a part of the record of these proceedings. Although Employer argued that this documentation amounted to "newly discovered" evidence, Claimant objected to its admission, noting that there was nothing that prevented Employer from having collected this documentation at the same time they obtained the MRI report, which is already in evidence in Exhibit A, and, thus, there was no good reason why it was not introduced at hearing with all of the other evidence. Claimant further noted that allowing its admission after the hearing had concluded would necessitate reopening the testimony to allow Claimant to come back to the stand and testify regarding the document, which had not been introduced or otherwise discussed at the hearing in this matter.

Having found no good reason why the documentation/evidence could not have been obtained prior to trial and offered into evidence along with the rest of the medical records in this case, I denied Employer's motion to reopen the record and introduce Exhibit L into evidence. Employer made an offer of proof regarding Exhibit L, at the time of the motion hearing, that also is a part of this record for the purpose of appeal to any reviewing body/court.

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 December 3, 2009, Gary Emmons (Claimant) allegedly sustained an accidental injury.

2) Claimant was an employee of Cassens Transport (Employer).

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

4) Employer received proper notice.

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

6) At the relevant time, Claimant earned an average weekly wage of $\ 1,266.48, resulting in applicable rates of compensation of $\ 807.48 for total disability benefits and $\ 422.97 for permanent partial disability (PPD) benefits.

7) Employer paid medical benefits totaling $\ 233.64.

1) Did Claimant sustain an accident?

2) Did the accident arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged accident at work for Employer on December 3, 2009?

4) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

The following exhibits were admitted into evidence:

1. Independent medical report of Dr. Dwight Woiteshek dated September 11, 2011
2. Curriculum vitae of Dr. Dwight Woiteshek
3. Medical treatment records of Concentra Medical Centers (KS)
4. Medical treatment records of Dr. Dean Lusardi

A. Certified medical treatment records of Patients First Internal Medicine (Dr. Jamie Borgmann)

B. Certified medical treatment records of Concentra Medical Centers (MO)

C. Deposition of Dr. Michael Milne, with attachments, dated June 3, 2013

D. Cross-examination deposition of Dr. Dwight Woiteshek, with attachments, dated September 12, 2012

E. Driver Log Summary Screens from November 2009 to November 2010 and from September 2013 to October 2014

F. Driver's Daily Log for December 3, 2009 and December 5-13, 2009

G. Select records from Claimant's personnel file with Employer

H. Claimant's DOT medical examination reports from Concentra Medical Centers (KS) dated March 16, 2010, March 8, 2012 and February 27, 2013

I. Claims for Compensation in Injury Numbers 04-093276 and 04-134849

J. Calendar for December 2009

K. Driver's Load Detail Reports from September 2009 through September 2014

L. Not admitted into evidence-Offer of proof made by Employer

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 October 16, 2014.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence in this matter, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 60-year-old car hauler, who has worked for Cassens Transport (Employer) for 19 years delivering new vehicles to car dealerships. Claimant explained that, as a car hauler, he is responsible for loading vehicles, strapping them down, driving to various dealerships in a 600-mile radius, unstrapping the cars and unloading them at the dealerships. He testified that his job duties include setting up ramps and driving the new vehicles on and off the car transport vehicle. Claimant noted that he works out of Kansas City now, but he was employed out of Fenton, when there was a car plant there. He said that he works on average, 50-60 hours per week, up to a maximum of 70 hours per week.

2) Claimant admitted to having a prior right knee injury in 1972 from playing football. He had surgery to the right knee, but testified that he had no problems with the knee and no limitations at work leading up to December 3, 2009 on account of the prior right knee injury.

3) Claimant also admitted having prior claims for left elbow epicondylitis, which was surgically treated, and perhaps a shoulder injury. Further, he broke his right thumb, last October. He denied having any prior or subsequent injuries to his right knee with Employer, except for the injury on December 3, 2009.

4) Claimant testified that on December 3, 2009, he was working in Salina, Kansas unloading minivans at a car dealership. He said that he was coming down ramp \#4 on the transport vehicle, missed the last step, and fell approximately 2 feet and twisted his right knee. He described pain and a burning sensation in the right knee. He noted that he eventually had some swelling in the knee. He said that he continued working that day and finished his duties.

5) Claimant's Driver's Daily Log (Exhibit F) confirms that he was in Salina, Kansas at 1:00 p.m. on December 3, 2009. Records from his personnel file (Exhibit G) confirm that he was then on vacation the next week from December 7-11, 2009.

6) Claimant admitted that he did not report the injury that day. He said that he went back to the terminal in Kansas City, Kansas, and, then, went home to Union, Missouri because he already had a prescheduled physical examination on Monday with his primary care physician, Dr. Borgmann. Claimant testified that he told Dr. Borgmann about his right knee and had an X-ray and MRI taken of the knee.

7) Medical treatment records from Dr. Jamie Borgmann at Patients First Internal Medicine (Exhibit A) confirm Claimant was examined by Dr. Borgmann on Monday, December 7, 2009. Claimant reported a complaint of right knee pain. The medical records contain the following history: "HX of operation at age 18 for torn cartilage. Has started having