Larry Clawson v. Cassens Transport Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-114126

Employee: Larry Clawson

Employer: Cassens Transport Company

Insurer: New Hampshire Insurance Company

This workers' compensation case is pending before the Labor and Industrial Relations Commission on employer/insurer's application for review of the administrative law judge's temporary or partial award. 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 $\S 286.090 RSMo { }^{1}$, we affirm the award and decision of the administrative law judge.

We deny employee's request that we double the temporary total disability benefits awarded in the administrative law judge's temporary award because the request is premature. We may not double the compensation ordered in a temporary award unless and until a final award is issued in accordance with the temporary award. ${ }^{2}$

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.

We attach the award and decision of Administrative Law Judge hereto and we incorporate its findings, conclusions, award and decision herein.

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of November 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2010 (as effective August 28, 2010), unless otherwise indicated.

${ }^{2}$ See § 287.510 RSMo ("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" (Emphasis added)")

Employee: Larry D. Clawson

Injury No.: 10-114126

Dependents: N/A

Employer: Cassens Transport Co.

Additional Party: N/A

Insurer: New Hampshire Insurance Co. c/o Broadspire Services Inc.

Hearing Date: May 6, 2016

Checked by: LGR/pd

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: Continuing through February 10, 2015
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of employment, slipped on a ramp and twisted his left knee unloading cars on December 7, 2010 with condition worsening every working day since due to repetitive climbing, walking, kneeling, squatting and getting in and out of vehicles.

Employee: Larry D. Clawson

Injury No.: 10-114126

Dependents: N/A

Employer: Cassens Transport Co.

Additional Party: N/A

Insurer: New Hampshire Insurance Co. c/o Broadspire Services Inc.

Hearing Date: May 6, 2016

Checked by: LGR/pd

This case comes for hearing before Administrative Law Judge Lawrence G. Rebman in Kansas City, Missouri, on May 6, 2016. The employee, Larry D. Clawson, was represented by his counsel, Keith L. Mark. The employer, Cassens Transport Co., was represented by its counsel, Brian J. Fowler. The employee alleges an injury due to repetitive motion continuing through February 10, 2015 while in the course and scope of his employment in Kansas City, Missouri. The employer is insured by New Hampshire Insurance Co. The claim was timely filed. There have been medical benefits paid in the amount of $\ 3,174.00. There have been temporary total disability benefits paid in the amount of $\ 4,425.00 (plus $\ 4,400.00 advance).

The parties stipulated to the following:

1. That both the employer and employee were operating under and subject to the provisions of the Missouri workers' compensation law on December 7, 2010 and continuing through February 10, 2015;
2. That employer's liability was fully insured by and through New Hampshire Insurance Company;
3. That Larry D. Clawson was its employee;
4. That employee was working subject to the law in Kansas City, Jackson County, Missouri;
5. That employee's average weekly wage was $\ 1,793.49 per week, which makes the temporary total disability rate $\ 861.04 and the permanent total disability rate $\ 451.02;
6. That employer has paid medical expenses in the amount of $\ 3,174.00 and has paid

The evidence at trial consisted of the testimony of the employee in person as well as the following exhibits offered by the employee:

Claimant's Exhibit A - Report of Dr. Prem Parmar dated March 25, 2015

Claimant's Exhibit B - Report of Dr. Prem Parmar dated March 31, 2016

Claimant's Exhibit C - Work Status Report of Dr. Prem Parmar dated October 16, 2015

Claimant's Exhibit D - CV of Dr. Parmar

Claimant's Exhibit E - Dr. Prem Parmar Billing

Claimant's Exhibit F - Concentra records

Claimant's Exhibit G - MRI of Left Knee dated December 13, 2010

Claimant's Exhibit H - MRI of Left Knee dated February 15, 2016

Claimant's Exhibit I - Report of Dr. Mark R. Rasmussen's dated October 25, 2015

Claimant's Exhibit J - Request for Attorney's fees and costs

The employer offered the following exhibits:

Employer/Insurer's Exhibit No. 1 -- Itemization of Medical Benefits Paid

Employer/Insurer's Exhibit No. 2 -- Claimant's 2015 Tax Returns

1. Whether or not the prevailing factor of the employee's injury is a continued worsening through February 10, 2015 due to the employee's increased work load.
2. Whether or not the employee provided timely notice of a repetitive motion injury.
3. Whether or not the employee is in need of additional medical care in order to cure and relieve the effects of his injuries.
4. Whether or not the employee is entitled to temporary total disability benefits beginning February 11, 2015, and continuing until the employee is released to work by an authorized treating physician.
5. Whether or not fees and costs are to be paid by the employer pursuant to R.S.Mo. 287.560 .

Larry Clawson (hereinafter known as "employee") began working for Cassens as a Union Teamster in 1999. The employee's position with the employer as a union car hauler required him to climb ladders, squat and kneel, walk up ramps, chain vehicles to the truck, etc. throughout his work day.

On December 7, 2010 while unloading cars, the employee slipped on a ramp and twisted his left knee. The employee testified prior to December 7, 2010 he had never had a prior injury to his left knee nor received any medical treatment for his left knee.

The employee reported the injury to terminal manager Alan Rathgaber. An accident report was filled out. The employer referred the employee to the company clinic Concentra on December 9, 2010. The employee was diagnosed with a knee strain and medication and physical therapy were prescribed. The employee was placed under temporary work restrictions, which were not accommodated by the employer. The employee testified the employer had no light duty position available. The employer paid temporary total disability benefits for the employee's initial time off work from December 8, 2010 through January 4, 2011.

An MRI of the left knee was ordered and done on December 13, 2010. The MRI was read as showing only a mild sprain and no tear (Employee Exhibit G). The employee testified the company doctor told him the MRI did not show a tear. The employee further testified that there was no recommendation for surgery made at any time in 2010 or 2011. The employee was released to return to work full duty on January 5, 2011.

The employee testified that upon returning to work his heavy repetitious job duties once again caused his left knee to swell and was painful. The employee was again sent to Concentra and placed on light duty. Temporary total disability benefits were again paid by the employer from January 17, 2011 through January 20, 2011. The employee received an injection in his left knee. The employee testified the injection helped with the pain. He was released by the company doctor to return to full duty work on January 21, 2011. The final diagnosis given by the doctor was a left knee sprain/strain. The employee testified that his understanding of the diagnosis and treatment at that time was that he had a knee strain, no tear was present, and there was no further treatment he could be given. The employee testified he was told by the company doctor that if he kept complaining and could not do his job, he would find himself unemployed.

The employee testified he returned to full duty work performing his job duties with the employer on January 21, 2011. He further testified he received no additional medical treatment in 2011. The employee worked all of 2012 and 2013 full duty without receiving any medical treatment for his left knee.

The employee had a change of job du