Joseph Parr v. Bobby Boatright / Frozen Food Express (a/k/a FFE Transportation Services, Inc.)

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-124297

Employee: Joseph Parr

Employer: 1) Bobby Boatright;

2) Frozen Food Express

a/k/a FFE Transportation Services, Inc.

Insurer: 1) Employer is Uninsured;

2) Transportation Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

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 June 5, 2017, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued June 5, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 5^{\text {th }} \qquad$ day of October 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Joseph Parr

1. Nature and extent of any permanent disability: None.
2. Compensation paid to date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer: None.
4. Value necessary medical aid not furnished by employer/insurer: None.
5. Employee's average weekly wages: $\ 600.
6. Weekly compensation rate: $\ 400 for TTD \& PTD / \$389.04 for PPD.
7. Method wages computation: By agreement.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: Dismissed.
3. Future requirements awarded: None.

This Award is subject to review and modification as provided by law.

Employee: Joseph Parr

Injury No. 08-124297

Dependents: N/A

Employer: 1) Bobby Boatright;

2) Frozen Food Express a/k/a

FFE Transportation Services, Inc.

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Treasurer of Missouri, as Custodian

of the Second Injury Fund (Dismissed)

Insurer: 1) Employer is uninsured

2) Transportation Insurance

Hearing Date: March 22, 2017

Checked by: VRM/va

The undersigned Administrative Law Judge conducted a final hearing on March 22, 2017. Joseph Parr (Claimant) appeared in person and with his attorney of record, Randy Alberhasky. Alleged Employer Bobby Boatright (Boatright) appeared in person and with his attorney, William Powell. Alleged Employer Frozen Food Express a/k/a FFE Transportation, Inc. (FFE), appeared by Attorney Robin Bullock. Transportation Insurance - the insurer for FFE - and that insurer's third party administrator CNA Claim Plus, Inc. - appeared by Attorney James Hess. Assistant Attorney General Skyler Burks appeared on behalf of the Treasurer of Missouri, as Custodian of the Second Injury Fund.

At the outset of the hearing, Claimant voluntarily moved to dismiss the Second Injury Fund. The motion was granted and Assistant Attorney General was excused. The case proceeded to hearing with the remaining parties who stipulated to the following facts and issues:

1. On February 16, 2008, Claimant was involved in a vehicular accident that occurred in Webster County, Missouri.
2. Venue and jurisdiction are proper in Springfield, Missouri.
3. The alleged employers received proper notice per pursuant to Chapter 287 RSMo.
4. The claim was filed timely.
5. The average weekly wage on the date of injury was $\ 600, yielding a temporary total disability/permanent total disability rate of $\ 400, and a permanent partial disability rate of $\ 389.04.
6. No benefits have been paid under the Missouri Workers' Compensation Law.

1. Was Claimant an employee of FFE, Bobby Boatright, or both?
2. Did Bobby Boatright have enough employees to be subject to the Workers' Compensation Act?
3. Did Claimant sustain injuries by an accident that arose out of and in the course of employment?
4. Was the work accident the prevailing factor in causing the alleged injuries?
5. What is the nature and extent of any permanent disability?
6. Is Claimant due temporary total disability for the period of February 16 to September 30, 2008?
7. What, if any, past medical bills are due to be paid or reimbursed?
8. Is Claimant entitled to future medical treatment?
9. Is Bobby Boatright entitled to a credit for premiums paid?
10. Evidentiary issue: Are the medical records identified as Claimant's Exhibit 6 admissible?

The following exhibits were offered by Claimant and admitted:

1. Good Samaritan, 118 pages certified September 30, 2010
2. Community Health \& Emergency Services, Inc., 37 pages
3. CoxHealth Martin Center, 12 pages certified October 13, 2010
4. CoxHealth, 68 pages certified October 13, 2010
5. Cox Occupational Medicine, 30 pages certified July 21, 2011
6. Family Medicine of McLeansboro, 12 pages certified July 24, $2012^{2}$
7. Harrison Community Health, 25 pages certified October 8, 2010
8. St. John's Health Center, 3 pages certified October 20, 2010
9. The Kitchen, 24 pages certified September 29, 2010
10. Dr. Sajjan Nemani, 5 pages certified October 20, $2010^{3}$

1. Springfield Neurological \& Spine Institute, 10 pages certified November 11, 2010

11-a. Dr. Strang's CV

1. Claim dated August 31, 2010
2. Answer - Second Injury Fund dated September 8, 2010
3. Answer - FFE dated March 9, 2011

[^0]

[^0]: ${ }^{1}$ Objections not addressed at the time of the hearing or in this Award now are overruled. Any marks appearing in an exhibit were present at the time the document was received into evidence and were not placed there by the Administrative Law Judge.

2 Claimant's Exhibit 6 consists of medical treatment records from the Family Medicine of McLeansboro, together with a Business Record Affidavit dated July 24, 2012. FFE acknowledged receipt of the records prior to the hearing. Claimant's counsel conceded that he failed to provide these records to Boatright in advance of the hearing. The oversight was not realized until Exhibit 6 was offered into evidence. Boatright objected to the receipt of the treatment records, which objection was overruled, but the parties were invited to address the issue in their briefs. This issue is discussed further in the Rulings of Law.

1. Answer - Boatright dated April 5, 2011
2. Letter dated December 9, 2010, pursuant to § 287.210 RSMo
3. Letter dated February 16, 2011, pursuant to § 287.210 RSMo
4. Letter dated March 15, 2011, pursuant to § 287.210 RSMo
5. Letter dated August 14, 2012 - Disclosure of Additional Medical Records

1. David Hedgpeth
2. Bobby Boatright
3. Joseph Parr

The following exhibit was offered by Boatright and admitted:

A. Highway Patrol Report

The following exhibits were offered by FFE and admitted:

A. Deposition - Dr. Cantrell

B. Deposition - David Hedgpeth

Claimant Joseph Parr was born in Wyandotte, Michigan, on March 12, 1953. He received a diploma from Dahlgren High School in 1971 and attended the University of Illinois, obtaining a degree in engineering technology. He also obtained an associate's degree in pre-civil engineering from Rend Lake. He worked in several jobs with the United States government and taught school before switching careers in 2002, at which time he obtained a commercial driver's license (CDL). It was while driving as an over-the-road (OTR) truck driver that he was involved in an accident which is the subject of this workers' compensation case.

Bobby Boatright was a sole proprietor who owned two trucks that he leased, with drivers, to FFE to transport frozen or refrigerated food between Chicago and Dallas. In early 2007, Boatright met Claimant at a McDonald's restaurant in Missouri to discuss employment as an OTR driver. Boatright offered Claimant a dedicated route that left three times every two weeks from Republic, Missouri, to Chicago, Illinois. Claimant initially expressed apprehension about driving the Chicago route; however, after a twohour discussion, the two men agreed that Boatright would pay Claimant $\ 600 per week for his driving. They also agreed that Claimant would accompany Boatright to FFE's facility in Chicago to complete various testing and a physical.

As explained by David Hedgpeth, vice president of compliance and safety for FFE, his company is a motor carrier subject to federal law. In February 2008, it had approximately 2,500 drivers, including company drivers as well as independent contractors. The company's corporate officers are located in Texas, but it has facilities in other locations, also. Independent contractors and their employees working with FFE must complete a Contractor Driver Information Sheet, which demonstrates the driver's qualification to haul freight. As Hedgpeth explained, "It's required by the Federal Motor Carrier Safety Administration for carriers to receive and retain this type of information for commercial motor vehicle

drivers." (Ex. 20, p. 10). Thus, FFE must have drivers complete testing and provide information on their previous employment history, driving record, convictions, traffic offenses, and related information. "It's simply because the Federal Government requires that the motor carrier does the check on any driver that may be transporting freight under their authority." (Ex. 20, p. 14). Section 2.06 of the contract with FFE, Boatright agreed to supply drivers, at his own expense, who met the requirements imposed by FFE's liability insurance carrier and federal law.

Pursuant to the agreement between Claimant and Boatright, Claimant traveled to Chicago for the purpose of demonstrating that h