Danny Sanders v. Rollet Brothers Trucking Company

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We would additionally point out that by virtue of the mandate of § 287.800.1 RSMo, we must strictly construe the terms of § 287.020.3(2). Strictly construing those terms, we find no requirement that an employee be "on the clock" or receiving remuneration at the time a work injury occurs. Rather, an employee need only demonstrate that the accident was the prevailing factor causing the injury, and that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed in normal nonemployment life. We defer to the administrative law judge's findings of fact, and we agree that they demonstrate that, without question, employee's injury arose out of and in the course of his employment.

We wish to remind the parties that $\S 287.510$ RSMo provides, as follows:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Consistent with the foregoing provisions, if the compensation ordered herein is not promptly paid to employee, it is our intention, in the event we are asked to render a final award in this matter, to double any and all amounts ordered and unpaid.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued September 22, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made.

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

Given at Jefferson City, State of Missouri, this $\qquad 27^{\text {th }}$ day of January 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: July 22, 2015 Checked by: LCK/kg

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? October 1, 2013.
5. State location where accident occurred or occupational disease contracted: Perry 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.

1. Was Employer insured by above insurer? Yes.
2. Describe work Employee was doing and how accident happened or occupational disease contracted: The employee lifted a box and injured his low back.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: Low back and body as a whole.
5. Compensation paid to date for temporary total disability: N/A
6. Value necessary medical aid paid to date by the employer-insurer? 557.25
7. Value necessary medical aid not furnished by the employer-insurer? 209.09
8. Employee's average weekly wage: 644.82
9. Weekly compensation rate: 429.90
10. Method wages computation: By agreement.
11. Amount of compensation payable: Unpaid medical expenses-209.09

Medical Mileage-175.86

Temporary total disability-40,533.42

Total: 40,918.37

This award is only temporary and 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.

On July 22, 2015, the employee, Danny Q. Sanders, appeared in person and with his attorney, Sarah Elfrink, for a temporary or partial award. The employer-insurer was represented by their attorney, Kevin Johnson. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Rollet Bros. Trucking Co. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by National Interstate Insurance.
2. On October 1, 2013, Danny Sanders was an employee of Rollet Bros. Trucking Co. and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's alleged accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 644.82. The rate of compensation is $\ 429.90.
6. The employer-insurer paid $\ 557.25 in medical aid.
7. The employer-insurer paid no temporary disability benefits.

1. Accident
2. Medical Causation
3. Previously Incurred Medical Aid
4. Claim for Mileage
5. Claim for Additional Medical Aid
6. Temporary Total Disability

1. Report of Injury
2. Original and Amended Claims for Compensation
3. Medical and billing records from Occupational Medicine Center
4. Billing records from Healthcare Healthmart Pharmacy
5. Employer's Pay-Out Log of Medical Aid Paid
6. Mileage Reimbursement Summary
7. Deposition of the employee
8. Deposition of Dr. Hammond with CV, medical reports, and letters
9. Medical Records for 2011 injury from Dr. Marsh, Mid America Rehab, and Dr. Doll
10. June 24, 2013 Mid America Rehab WorkSTEPS Post Employment/Fit for Duty Report

A. Deposition of Dr. Cantrell with CV, records, report, and letter

B. Occupational Medicine Center medical records

C. Perry County Memorial Hospital medical records

D. August 11, 2011 MRI Report from Cape Imaging

E. Medical Records of Dr. Marsh

Judicial Notice of the Contents of the Division's files of the employee was taken.

Danny Sanders, the employee

The employee filed his proposed award on August 13, 2015. The employer-insurer filed their proposed award on August 24, 2015.

The employee testified that he is 62 years old and has been married for 32 years. He had several prior injuries. In 1979 while working on cable he fell approximately 90 feet. He had extensive surgeries on his feet and ankles. Due to the injury he made a career change and went into truck driving. In 1993 he was working at Gilster-Mary Lee and had an on-the-job hernia. During the surgery, Dr. Pontillas sewed up a nerve which caused a lot of complications. He was not able to work for a long time and had trouble walking. He was on social security disability for about two years, but he wanted to work for a living. Another doctor performed two additional surgeries where a nerve was cut to deaden the pain. Due to an infection, his left testicle had to be removed. After those additional surgeries, he returned to work. He started having heart problems in the late 1990s or early 2000. He was first diagnosed with heart problems when he was in Tupelo, Mississippi. He had stents and then a double bypass. The employee moved back to Missouri, and Dr. Talbert became his heart doctor.

The employee testified that on August 1, 2011, while working at Buchheit, he had a back injury from loading shingles. He felt a pop and had really sharp pains in his back that caused him to fall to his knees on the parking lot.

The employee went to Perry County Memorial Hospital emergency room on August 1, 2011, due to low back pain from lifting shingles at work. X-rays showed posterior facet degenerative changes bilaterally at L5. The employee saw Dr. Marsh on August 3, 2011. On examination, the employee had tenderness with palpation in the middle lumbar region. There was decreased sensitivity in the left quadriceps and hamstring and laterally along the left leg to the knee. Dr. Marsh assessed low back pain with radiation of pain into the left buttock and down

**Injury No. 13-077155**

To the left knee, X-rays showed posterior facet degenerative changes bilaterally at L5. Dr. Marsh prescribed Percocet and a Medrol Dosepak. The employee was to contin