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 duties in the middle of 2014. The employee's workload increased from 3-4 loads per day to 6-10 per day. The employee also began working 6-7 days a week compared to 5 days previously. A load consists of employee loading 9 vehicles onto a transport trailer. During loading, each vehicle is driven onto the trailer which consists of two decks, an upper and lower deck. The employee has to secure each vehicle to the trailer using

chains and requires significant kneeling and squatting. After loading each vehicle on the top and bottom deck, the employee has to climb down the side of the trailer to get the next vehicle. When unloading, the employee has to climb up the decks to get to the vehicles. It also requires significant kneeling and squatting to unchain each vehicle. The employee then drives each vehicle off the trailer and has to climb up the decks to get the next vehicle until all vehicles are unloaded. An additional 3-4 loads per day would cause the employee to climb, kneel, and squat twenty-seven (27) - thirty-six (36) times more each day to load and the same increase to unload. The extra one (1) or two (2) working days per week would increase the total climbs/descents and kneels and squats by 104-144 times per week. This change in job duties created a significant increased workload including more climbing and tying down cars. The employee testified his increased workload was "at least double." He further testified his left knee pain and symptoms increasingly got worse due to the increase in his job duties.

From his release from care on January 21, 2011 until his change in job duties in the middle of 2014, the employee testified he experienced brief swelling and discomfort in his left knee, but he was always able to do his very physical job at full duty. After the change in the employee's job duties resulting in a significant increase in job duties including, climbing, squatting, kneeling, etc. and increased days of work, the employee testified his left knee became severely worse. Before the change in job duties, he described his symptoms as puffiness and his pain as 2-3 on a scale of 1 to 10 . After the significant change in job duties, he described his symptoms as constant swelling and his pain as an 8 on a scale of 1 to 10 . Kneeling, climbing, and walking all increased his pain and symptoms starting in mid-2014 and continued worsening through the rest of the year.

The employee's pain and swelling was so severe it became difficult for the employee to continue working. The employee had vacation planned in December of 2014, and thought this would help alleviate his pain and symptoms because he could rest his left knee. The vacation time off did not result in the benefits the employee had hoped for as the pain and symptoms in his left knee worsened upon returning to his increased workload after vacation. In February of 2015, the employee reached the point of such severe and disabling symptoms where he could no longer physically perform his job.

The employee testified that in February 2015, contemporaneous to his symptoms reaching the point where he could no longer physically perform his job duties, he reported to terminal manager Christian Liljequist that his left knee pain had worsened over the past few months. The employee further testified that he told Mr. Liljequist that he believed the worsening of his left knee symptoms were due to his increased job duties and hours. The employee asked Mr. Liljequist if he could go back and see a doctor at Concentra. Ultimately, the employer told Mr. Clawson that they would not allow him to be seen at Concentra or by any other physician. In short, Mr. Clawson's claim for additional workers' compensation benefits was denied.

A claim for compensation was filed with the Missouri Division of Workers Compensation on February 17, 2015. On March 25, 2015 at the request of his attorney, the employee was evaluated by orthopedic doctor, Dr. Prem Parmar. The employee presented to Dr. Parmar and told the doctor about the December 7, 2010 accident and further told Dr. Parmar that

**Injury No: 10-114126**

since then he had experienced intermittent pain and swelling in his left knee, but since December of 2014 the pain and swelling was constant in his left knee.

Dr. Mark Rasmussen evaluated the employee on October 23, 2015. Dr. Rasmussen opined the MRI from 2010 showed no definite evidence of a lateral meniscal tear. (Employee Exhibit I). Dr. Rasmussen opined, "I think the change of his job to doing deliveries throughout town mean that he is doing a lot more stopping, climbing up and off the trailers could lead to increased pain and swelling in his knee." (Employee Exhibit I). Dr. Rasmussen recommended a repeat MRI. (Employee Exhibit I).

An MRI of the left knee dated February 15, 2016 showed a new free edge tearing of the body of the lateral meniscus. (Employee Exhibit H).

On March 31, 2016, after reviewing the February 15, 2016 MRI, Dr. Parmar authored an addendum to his first report. Dr. Parmar noted the February 15, 2016, MRI revealed a lateral meniscal tear. (Employee Exhibit B). Dr. Parmar further stated that it was his understanding from the records the employee had been doing different activities at work that increased the symptomology of the employee's left knee. (Employee Exhibit B). Dr. Parmar specifically opined, "I would state that the prevailing factor for the increase in his symptoms is his ongoing job activities and hopefully he would benefit from a left knee arthroscopy as recommended by myself and the other orthopedic surgeon." (Employee Exhibit B).

The employee testified his symptoms became worse after his increased job duties. Specifically, the employee testified kneeling, squatting, and climbing became impossible. The employee testified his change in job duties resulting in an increased workload caused his significantly increased symptoms and his diminished ability to function. The employee testified he has not worked in any capacity since February 10, 2015.

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.**

Section 287.067.3 provides:

An injury due to repetitive motion is recognized as an occupational disease for the purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. . . .

The employee testified that on December 7, 2010 while unloading cars, he slipped on a ramp and twisted his left knee. An MRI of the left knee was done on December 13, 2010.

**Injury No: 10-114126**

MRI did not show a tear. (Employee Exhibit G). The employee was released to return to work full duty on January 21, 2011 with a final diagnosis of left knee sprain/strain. (Employee Exhibit F). The employee worked the rest of 2011, all of 2012 and 2013, full duty without receiving any medical treatment for his left knee.

The employee had a change in job duties in the middle of 2014. This change in job duties created an increased workload including more climbing and tying down cars. The employee testified his increased workload was "at least double." He further testified his left knee pain and symptoms increasingly got worse due to the increase in his job duties. After the change in job duties, he described his symptoms as swelling and his pain as an 8 on a scale of 1 to 10. Kneeling, climbing, and walking all increased his pain and symptoms.

The employee's testimony is confirmed by the account he gave to Dr. Mark Rasmussen who evaluated the employee on October 23, 2015. Dr. Rasmussen opined, "I think the change of his job to doing deliveries throughout town mean that he is doing a lot more stopping, climbing up and off the trailers could lead too increased pain and swelling in his knee." (Employee Exhibit I). Dr. Rasmussen recommended a repeat MRI. (Employee Exhibit I).

On March 20, 2015 the employee saw Dr. Parmar. On March 25, 2015, Dr. Parmar wrote:

> "My impression is that patient has a work related injury to his left knee from December 7, 2010 which is the prevailing factor to his current issues with recurrent pain and swelling in his left knee. My working diagnosis is he has a probable left knee posterolateral meniscus tear. I do not believe an MRI is warranted. I believe because he is symptomatic he would benefit from knee arthroscopy. Again, it is my impression the prevailing factor of the patient's current issues is from his work related injury of December 7, 2010 to his left knee" (emphasis added).

On February 15, 2016, An MRI of the left knee showed a new free edge tearing of the body of the lateral meniscus. (Employee Exhibit H). The December 13, 2010 MRI showed no tear whatsoever. The Court finds significant the fact that a tear was not identified before the employee's increased workload. This is objective evidence of a worsened condition and structural change.

On March 31, 2016 after reviewing the February 15, 2016 MRI, Dr. Parmar authored an addendum report noting the February 15, 2016 MRI revealed a lateral meniscal tear. (Employee Exhibit B). Dr. Parmar opined that the prevailing factor for the increase in the employee's symptoms is his ongoing job activities. (Employee Exhibit B).

Considering the evidence of a new tear, the employee's uncontroverted testimony about his significant increase in work duties and hours starting in mid-2014 that directly correlates to employee's significant worsening of left knee pain and swelling, the Court finds the prevailing factor giving rise to the employee's injury and need for medical treatment is his injury due to

repetitive motion of squatting, climbing, walking, and other work activities as a car hauler. No other conclusion is plausible. The employee did not have a tear in his left knee after his specific injury of December 7, 2010. The employee now has a documented tear in his left knee after undergoing an increased workload. The uncontroverted testimony is the employee worked three-and-a-half years of full duty with no treatment after his initial release. The Court finds the addendum report of Dr. Parmar to be credible.

Thus, the Court finds that the prevailing factor causing both the resulting medical condition and disability to the employee's left knee is his ongoing job activities. Therefore, the employee has proven that he suffered an injury due to repetitive motion, that the general public is not exposed to, continuing through February 10, 2015 in accordance with Missouri Workers' Compensation Law.

Furthermore, a claim for compensation was filed by the employee with the Missouri Division of Workers Compensation on February 17, 2015, well within the statute of limitations given that this is an injury due to repetitive motion.

The employee testified in February 2015 when employee's condition did reach the point where he was disabled from working, he reported to terminal manager Christian Liljequist that his left knee pain had worsened over the preceding few months. The employee requested medical treatment, which was denied. The employee specifically told Mr. Liljequist that his increased job duties had made his left knee symptoms worse.

Mr. Liljequist was present in the courtroom for the entirety of the employee's testimony. However, Mr. Liljequist was not called to give any contrary testimony on the issue. Therefore, the Court concludes that based on employee's uncontroverted testimony, he gave his employer timely and proper notice of his repetitive motion injury claim. It is further undisputed the employee specifically requested medical treatment and was denied by the employer.

Pursuant to R.S.Mo. 287.127.1.(2) the Court finds the employee did give the required notice to the employer, and the employer's notice defense is without merit.

The employer/insurer respondent has argued the employee's 2010 work injury is the "prevailing factor" of the employee's need for additional medical treatment including surgery and not the continued worsening of the employee's left knee. The "prevailing factor" is the standard used to determine whether an employee's injury and need for medical treatment is compensable, that once it has been determined that an employee has sustained a compensable work injury and is in need of medical treatment that an employee need only prove that the need for treatment and medication flow from the injury and that the fact that the medication or treatment required may also benefit a non-compensable or earlier injury is irrelevant. Tillotson v.

St. Joseph Medical Center, 347 S.W.3d 511, 519-20 (Mo.App.2011). The Tillotson case involved an employee who sustained a compensable workers compensation injury and was diagnosed with a torn meniscus. (Id. at 514. However, the authorized physician determined that due to pre-existing degenerative arthritis, that the employee would not obtain relief through an arthroscopy, but rather should have a total knee replacement. (Id.) The court concluded that as the employee had sustained a compensable workers compensation injury to her right knee, that although the prevailing factor in her need for a knee replacement was a pre-existing issue, not her work injury, that the employer was still liable for the employee's total knee replacement as once the employee proves a compensable injury, the standard regarding proving medical treatment is whether or not it is reasonably required to cure and relieve the effects of the injury, not that the injury itself be the prevailing factor in the need for the medical treatment. (Id. at 521).

Based on MRI now showing a tear, when one was not present in the 2010 MRI, the prevailing factor giving rise to the current need for treatment is the continuing motion injury through February 10, 2015. The Court finds the employee is in need of additional medical treatment to cure and relieve his left knee injury, and orders that the employer provides such treatment with a qualified orthopedic physician.

On February 10, 2015, the employee's left knee symptoms worsened to the point he was physically unable to perform his job. He requested additional medical treatment from his employer, but his request was denied. The employee has not returned to work since February 10, 2015. Due to the employer's refusal to provide authorized medical treatment employee had to seek medical care on his own. Dr. Parmar evaluated the employee on March 25, 2015 and placed the employee under work restrictions of no kneeling or squatting until after the knee arthroscopy, which were never accommodated by the employer. To date, the employee has not had the recommended medical treatment for his left knee condition and his work restrictions are not and never have been accommodated by this or any other employer. Further, the employee testified he was not capable of substantial, gainful employment due to his left knee condition and resultant disability. Thus, the employee is entitled to temporary total benefits beginning February 11, 2015 and continuing until the employee is released to work and/or placed at maximum medical improvement by his authorized treating physician.

As of May 6, 2016, the date of the hearing, such benefits have accrued in the amount of which $\ 55,356.26 are due and owing. This is the equivalent of 64.29 weeks of temporary total disability benefits owed at a rate of $\ 861.04 per week. The employer has already advanced $\ 4,400.00 in temporary total disability benefits making $\ 50,956.26 due and owing as of the date of the hearing. Benefits shall continue at a rate of $\ 861.04 until the employee is either released to work or placed at maximum medical improvement.

1. Whether the employee and his attorney are entitled to costs and fees pursuant to R.S.Mo. 287.560.

Section 287.560 states in relevant part:

"If the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them."

The employee testified that in February 2015 he reported to terminal manager Christian Liljequist that his left knee pain had worsened over the past few months. The employer told Mr. Clawson that they would not allow him to be seen at Concentra or by any other physician. In short, Mr. Clawson's claim for workers' compensation benefits was denied.

On March 20, 2015 the employee saw Dr. Parmar. On March 25, 2015, Dr. Parmar

wrote:

"My impression is that patient has a work related injury to his left knee from December 7, 2010 which is the prevailing factor to his current issues with recurrent pain and swelling in his left knee. "

The present case indicates that the employee had a complicated legal and medical history so much that even Dr. Parmar believed was related to the pre-existing condition. The Court finds this proceeding was defended upon reasonable grounds and therefore no award of costs and fees.

Based on the reasons above, the Court finds that the employee did sustain a compensable workers' compensation injury due to repetitive motion continuing through February 10, 2015 as a result of his significant increase in work duties and hours starting in mid-2014. This injury due to repetitive motion is the prevailing factor causing the employee's current medical condition and disability and, as such, the employer shall provide the employee with all the medical treatment deemed reasonably necessary to cure and relieve the effects of his work injury. Temporary total disability benefits are also awarded beginning February 11, 2015 and continuing until the employee is released to work or placed at maximum medical improvement by her authorized treating physician. As of May 6, 2016, the total amount of temporary total disability benefits owed is equal to $\ 50,956.26.

The compensation awarded to the employee 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 employee: Keith L. Mark

Made by: $\qquad$

Lawrence Rebman

Administrative Law Judge

Division of Workers' Compensation