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 he was qualified to drive. While in Chicago, Claimant completed the necessary information, passed a physical and drug test, and successfully completed a road test administered by his employer, Mr. Boatright. Claimant began driving Boatright's trucks shortly thereafter, hauling freight between Chicago and Republic, Missouri. FFE, however, did not specify which one of Boatright's approved drivers was to perform the work.

Boatright did the hiring and firing of drivers. FFE did not exert control over the drivers outside of its terminals. There is no evidence that FFE had right to terminate the employment of any drivers working for Boatright. Hedgpeth explained that sometime after the accident FFE refused to allow Claimant to drive under FFE's interstate commerce authority due to a company policy violation. It did not require that Boatright fire Claimant.

FFE did not direct the routes the drivers took to deliver or pick up loads. Although FFE might have additional deliveries to be made in Chicago, this was within the agreement between FFE and Boatright. If Claimant encountered mechanical or other problems, he normally contacted Boatright. When traveling to Springfield from Chicago on the date of the accident, Claimant was in constant contact with Boatright rather than FFE.

FFE paid Boatright a settlement, which was reflected in an IRS Form 1099. No taxes were deducted from the settlement that FFE paid to Boatright. Boatright in turn paid his drivers. Boatright acknowledged that FFE had no control over the amount he paid his drivers. While Boatright could have paid his drivers directly, he opted to use a payroll service managed by the Trucker's Association. The Association issued the payroll checks and the W-2s at the end of the year under Boatright's name and tax identification number.

While Boatright asserted that he never had more than four drivers on the road at any one time, he actually had five employees on the payroll at the time of Claimant's work accident. Boatright's employees were Joseph Parr, Paul Coats, Robert Leslie, Jerry Fielder, and Ricardo P. Gerard. After Gerard had given notice, but before he actually quit, Jerry Fielder was hired and in the process of taking over the driving position full time (Ex. 21, p. 16). Boatright, himself, did not normally drive either of his tractors, but he could do so if necessary. Boatright testified in deposition, as follows:

A. I had one driver that Gerald, Gerard, had told me he was quitting and he gave me a date and I had hired Jerry Fielder to get him processed and ready for when Gerard quit for him to take his place.

Q. So was there a period of time in which there was five drivers, is that what you're telling me?

A. There were five during that period of time. To hire a driver it takes several weeks by the time you get him to Chicago, processed, drugged, everything done, so I couldn't wait until Gerard was ready to go. I had to go and get one ready. Then when Parr wrecked Field took Parr's place.

Q. The date of this accident is February the $16^{\text {th }}$ of 2008 . Does that sound right to you?

A. Uh-huh.

Q. On that date how many employees did you have?

A. I had five actual employees. One was just in training to take the place of the one that was quitting.

(Ex. 21, pp. 16-17).

On February 16, 2008, while working as an OTR driver for Boatright, Claimant was involved in a motor vehicle accident near Marshfield, in Webster County, Missouri. The accident occurred around 7:15 p.m. It was dark, rainy, and the roadway was wet. Claimant was operating a 2004 Freightliner tractor, owned by Boatright. The truck was pulling a 2006 Wabash trailer.

Restful sleep had eluded Claimant the evening of February 15, 2008, as he encountered a long delay in obtaining his load in Chicago. It is undisputed that when the accident occurred the next day, Claimant had fallen asleep while on his return trip from Chicago. His truck left the roadway to the right, coming to rest in a nearby ditch alongside Interstate 44. The single-vehicle accident resulted in only minor damage to the front of the tractor. The vehicle did not tip over. Immediately following the accident, the tractor and trailer were operable. Mr. Boatright said there was only a "little plastic piece" that was broken. He anticipated just having the truck pulled out of the ditch and checking the alignment. Unfortunately, the wrecker driver was inexperienced and pulled off the whole front of the truck, thus, necessitating that the truck be towed for repair. There was no damage to any other property.

The Highway Patrol arrived on the scene of the accident within 15 minutes. No ambulance was called to the scene. Claimant declined medical attention when asked by both the investigating Missouri highway patrol trooper, and Boatright. Claimant was not bleeding. In the accident report, the investigating highway patrol trooper noted Claimant had no apparent injuries. Claimant admits that he did not hit his head on anything and did not lose consciousness. He did not think he was hurt at the time. From all accounts that day, it looked like an unfortunate, but minor, accident.

About three weeks after the work accident, on March 6, 2008, Claimant was seen at St. John's Hospital Emergency Department for complaints of left flank pain and right arm pain following a work-related motor vehicle collision. Thereafter, Claimant contacted Boatright, who had paid premiums to FFE for an occupational policy with Zurich Insurance. Zurich authorized Claimant to seek treatment at Cox Occupational Medicine, where he saw Dr. Cary Bisbey. Dr. Bisbey ordered an MRI. He diagnosed a herniated nucleus pulposus at C6-7 and referred Claimant to Dr. Robert Strang, a neurosurgeon.

On March 27, 2008, Dr. Robert Strang evaluated Claimant. Claimant had reported a semi-truck accident

in which he fell asleep and ran off the road but did not rollover or strike any objects. Claimant had low back pain that had resolved, but subsequently developed aching in his upper thoracic spine along the left paraspinous muscles and pain complaints in the right posterolateral upper arm ending at the elbow. Claimant denied that he had any motor deficits or paresthesias. Dr. Strang interpreted the cervical MRI as showing straightening or the normal cervical lordosis and kyphotic angulation at C6-C7. He believed there is also a broad-based disc protrusion with some degree of osteophyte disease. Dr. Strang wrote:

Prior to the accident Mr. Parr denies having neck and arm pain. Some of the MRI findings do seem chronic but there definitely appears to be an acute component and moreover he only became symptomatic following the accident. Therefore I feel that the current symptoms are related to his accident in February of this year.

(Exhibits 4 and 5).

Dr. Strang recommended a decompression surgery and fusion. Claimant sought a second opinion. Based on that opinion, he opted for conservative care. Claimant returned to his home in Illinois to obtain physical therapy, which he completed in September 2008.

After performing some research on the internet, Claimant became convinced he had suffered a traumatic brain injury (TBI). On October 6, 2008, Claimant presented to Community Health and Emergency Services Clinic with complaints of dizziness and concerns about a brain injury. A CT brain scan performed October 19, 2008, was unremarkable. It revealed mild cerebral atrophy, but no evidence of acute intracranial hemorrhage, acute infarction, or skull fracture. No physician has diagnosed a TBI related to the work accident. Thereafter, Claimant made several trips to medical facilities with a variety of complaints pertaining to diabetes, blurred vision, sleep apnea, and mental health issues, none of which have been shown to have any relation to the work accident.

As of the hearing date, Claimant was taking only medication for the control of his diabetes. Claimant currently complains of headaches, back and neck pain since the accident. He believes he is limited in his ability to stand and walk. He has not returned to work and is dependent upon Social Security disability. Most days he is inactive and lies down from time to time. He does not believe himself to be capable of driving a truck or working. No expert has rendered an opinion that Claimant is unable to work due to the work accident in 2008.

As noted above, Dr. Strang merely indicated in the medical records that Claimant had symptoms "related" to the 2008 accident, while also identifying chronic conditions on the MRI. He did not render an opinion using the prevailing factor standard.

On February 17, 2016, Russell C. Cantrell, M.D., examined Claimant. While Dr. Cantrell agreed it was reasonable for Claimant to have sought a medical evaluation for his symptoms on March 6, 2008, the results of the objective testing did not correlate with Claimant's symptoms. Dr. Cantrell found nothing in his physical evaluation of Claimant that related to the truck accident in February 2008, other than a neck strain that had resolved. He noted some minor limitations in Claimant's cervical range of motion that were typical for someone who was 62 years of age, or with underlying degenerative changes on radiographic studies. He disagreed with the surgical recommendation of Dr. Strang. He also found no evidence of a TBI. Dr. Cantrell testified, in part, as follows:

Q. Had an MRI been done at that time or was scheduled?

A. Yes, an MRI scan was done on March 8 of '08 and that showed evidence of a central and left paracentral disc protrusion that was flattening the left aspect of the thecal sac and effacing and exiting left nerve root at that level. And resulting in some left sided neuroforaminal narrowing. So in other words, there were findings that were abnormal findings, but they were on the side opposite of the side of his symptoms, and then there was some degenerative disc, I'm sorry, degenerative spurring as the C5-6 level as well [emphasis added].

A. The neuroforaminal narrowing was at the, in relation to that disc protrusion, was actually on the left side, whereas his symptoms were on the right arm.

Q. This joint spurring, was that something that would have been related to the injury?

A. No, those when they talk about, when the report here they talk about uncovertebral joint spurring, we're talking a joint spur, those spurs are typically years in the making, so there would be no reason to believe that an accident that occurred a month earlier would be a cause of any bone spurs that are present there, that's simply a degenerative finding.

(FFE Ex. A, pp. 16-17).

Dr. Cantrell continued:

A. ....So if you look at the anatomy of the spine, be it cervical, thoracic or lumbar, there are nerve roots that exit from the spinal cord into individual neuroforamen and if there's a disc that's protruding to the right, then it would depending on the level and distribution of symptoms would predictably cause symptoms in the right arm but not the left, and vice versa. So it would have a disc protrusion that's left sided in location, you wouldn't expect that to cause right sided symptoms.

Q. And in this case, you think it was highly appropriate then that he [Claimant] not have this surgery, this cervical decompression and fusion?

A. I agree, yes.

(FFE Ex. A., pp. 27-28).

I accept Dr. Cantrell's opinions in the case as credible and persuasive.

Claimant identified no bills relating to his medical treatment. It is not known which bills were paid by the occupational accident insurance policy written by Zurich Insurance. It is not known whether any bills were written off. The premiums for the occupational policy had been deducted from Boatright's settlement payments from FFE. Any benefits would have been paid to Boatright or directly to Claimant rather than to FFE.

Claimant bears the burden on all essential elements of his claim to a reasonable probability. § 287.808 RSMo $^{4}$; Bond v. Site Line Surveying, 322 S.W.3d 165, 170 (Mo. App. W.D. 2010); Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). An administrative law judge must construe strictly the provisions of the Workers' Compensation Law and weigh the evidence in an impartial manner. §§ 287.800 - 808 RSMo. Under the strict construction analysis, courts are required to "effectuate legislative intent as reflected in the plain and ordinary language of the statute". Harrah v. Tour St. Louis, 415 S.W.3d 779, 782 (Mo. App. E.D. 2013).

Claimant's Exhibit 6 consists of certified medical treatment records. Boatright contests the admission of Claimant's Exhibit 6, arguing that the failure to provide the exhibit, at least seven days in advance of hearing, violates the requirements of $\S 287.210 .3$ and .7 RSMo. The statutory provisions read, in applicable part, as follows:

1. The testimony of any physician who treated or examined the injured employee shall be admissible in evidence...but only if the medical report of the physician has been made available to all parties....Immediately upon receipt of notice from the division... setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange ... for an exchange of all medical reports ... at least seven days before the date set for the hearing ... If any party fails or refuses to furnish the opposing party with the medical report of the treating or examining physician at least seven days before such physician's ... personal testimony at the hearing...upon the objection of the party who was not provided with the medical report, the physician shall not be permitted to testify at that hearing.

1. The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers. The party offering the report must make the physician available for cross-examination testimony by deposition not later than seven days before the matter is set for hearing....Upon request of any party, the party offering a complete medical report in evidence must also make available copies of X rays or other diagnostic studies obtained by or relied upon by the physician. Within ten days after receipt of such notice a party shall dispute whether a report meets the requirements of a complete medical report by providing written objections to the offering party stating the grounds for the dispute, and at the request of any party, the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof. If no objections are filed the report is admissible, and any objections thereto are deemed waived. Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent.

[^0]

[^0]: ${ }^{4}$ Unless otherwise note, all statutory references are to the provisions in effect on the date of Claimant's accident on February 16, 2008.

Boatright cites Weinbauer v. Grey Eagle Distributors, 661 S.W.2d 652 (Mo. App. E.D. 1983), in which the employer sought to introduce certified medical records that had not been provided to the employee at least seven days in advance of hearing. The Court of Appeals acknowledged that the medical records, by themselves, did not constitute a "complete medical report" as referenced in § 287.210 RSMo 1969 [a predecessor to the current statute]. Still, the Court affirmed the records' exclusion because they "were the equivalent to the testimony of Dr. Alonso-Yague" and § 287.210 RSMo, " 'requires all medical opinions to be disclosed seven days prior to hearing, including those of examining or treating physicians.' " 661 S.W.2d at 655, quoting Johnson v. Park N Shop, 446 S.W.2d 182, 187 (Mo. App. E.D. 1969). The Court noted that the purpose of a compensation hearing was to be "a quiet search for the truth and records...can not be made the subject of a game of hide and seek." 661 S.W.2d at 656, quoting Springett v. St. Louis Independent Packing Co., 431 S.W.2d 698, 706 (Mo. App. E.D. 1968).

The Court's holding in Weinbaurer is inapplicable to the instant proceeding. First, as noted at the outset of these Rulings of Law, § 287.800 RSMo, now mandates that all provisions of the Missouri Workers' Compensation Law be construed strictly. That was not the case when Weinbaurer was decided. Prior to 2005, provisions of the Missouri Workers' Compensation Law was to "be liberally construed with a view to the public welfare...." § 287.800 RSMo 2000. Using strict construction, § 287.210.3 and .7 RSMo, pertain to a physician's testimony following the exchange of a complete medical report as that term is defined in § 287.210.5 RSMo, and not mere treatment records.

Second, Claimant had shared the certified medical records with other defense counsel. The certified medical records simply did not get mailed to Boatright, a fact that Claimant's counsel realized for the first time at the hearing. This omission does not appear to have the nefarious purpose of attempting to hide the truth or cause surprise.

Third, there has been no suggestion that Claimant's submission of the treatment records was intended as a substitution of a doctor's opinion, as it was in Weinbaurer. Rather, Claimant's Exhibit 6 simply contains certified treatment records of Family Medicine of McLeansboro. These records memorialize the MRI of the brain on April 28, 2011, and document Claimant's short-term memory loss and diabetes. The 12 pages of treatment records were not offered as a substitute for an expert's testimony.

Boatright also relies on Burchfield v. Renard Paper Company, Inc., 405 S.W.3d 589 (Mo. App. E.D. 2013), which, likewise, does not aid him. The Court of Appeals recognized in that case that a claimant's failure to comply with $\S 287.210$ RSMo, by itself does not keep all medical records from being admitted. Rather, it "subjects medical records to the foundational requirements for the introduction of the documentary evidence as business records, as well as objections such as relevancy...." 405 S.W.3d at 592. In Burchfield, the records were not certified. In this case, the records have been certified.

Boatright does not address the one statutory provision in the Missouri Workers' Compensation Law which specifically speaks to the admission of the medical treatment records related in a workers' compensation case. Section 287.140.7 RSMo, states:

1. Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the division or the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of the records shall be admissible in evidence in any such proceedings [Emphasis added].

The above statute is restricted to records of persons "furnishing the employee with medical aid" as opposed to other types of business records. It plainly states, without any qualification, that certified treatment records are admissible in a division hearing. Exhibit 6 contains precisely the type of records contemplated in § 287.140.7 RSMo. Boatright's objection at the hearing was restricted to Claimant's failure to provide Boatright with records seven days in advance of hearing, as discussed in § 287.210 RSMo. He did not object to the records' relevance or authenticity. Admission of these records aids in the "quiet search for the truth," Weinbaurer, 661 S.W.2d at 656, rather than detracts from such endeavor. Because there is no "seven day" notice requirement in § 287.140.7 RSMo, as there is in § 287.210 RSMo (relating to complete medical reports), or in $\S 490.692$ RSMo (the general business records provision), the record is admitted and shall be considered. ${ }^{5}$

Claimant seeks to hold both Boatright and FFE liable. Boatright and FFE point to each other. In determining an employment relationship, Courts look at several factors. These include: (1) the extent of control, (2) the actual exercise of control, (3) the duration of the relationship, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is in the regular business of the employer, and (8) the employment contract. Nunn v. C.C. Mid West, 151 S.W.3d 388, 400 (Mo. App. W.D. 2009). No one factor is dispositive. Id.

The extent of any control that could be or was exercised by FFE was set forth in contract. While FFE could ask Claimant to retrieve freight within the City of Chicago, that was solely due to a pre-arrangement that fell within the contract between FFE and Boatright. Claimant attempted to show control by FFE as it related to the Chicago terminal by testifying that he had to wait for the dock workers at the terminal to load or unload the trailer. It should be no surprise that an entity that operates a terminal will exercise control over its terminal. FFE, however, did not exert control over the drivers.

It is undisputed that Bobby Boatright, not FFE, hired Claimant. FFE merely approved the drivers that Boatright hired to drive under FFE's interstate commerce authority due to the regulations of Federal Motor Carrier Safety Administration. After the accident, FFE did not "fire" Claimant. Although FFE no longer allowed Claimant to drive FFE's loads, that did not terminate any employment relationship between Boatright and his driver. Boatright could have continued his relationship with Claimant.

The agreement between FFE and Boatright clearly stated that Boatright was to furnish drivers at Contractor's expense (Ex. 1, § 2.06, p. 4). This language is unambiguous that the drivers were Boatright's drivers and he was responsible for their employment and compensation. Thus, FFE did not pay Claimant anything. FFE paid Boatright who in turn paid Claimant. Payroll checks bore Boatright's name and tax identification number. FFE did not control the amount Claimant was paid or when or how. It is undisputed that Boatright paid $\ 600 to Claimant based on the agreement Boatright had reached with that driver.

[^0]

[^0]: ${ }^{5}$ The undersigned Administrative Law Judge is aware that the general business records provision set forth in 490.692 RSMo, also contains a seven-day notice requirement for the admission of certified business records. But in this case, the documents in issue squarely fall within the more specific statute of $\S 287.140 .7$ RSMo, pertaining to the admission of medical treatment records in a workers' compensation proceeding, and the workers' compensation statute requires only that the treatment records be certified. "When the same subject matter is addressed in general terms in one statute and in specific terms in another, the more specific controls over the more general." Lane v. Lensmeyer, 158 S.W.3d 218, 225 (Mo. banc 2005).

FFE made no suggestion as to routes Claimant was to take. FFE had no responsibility for the expenses incurred on the road should a truck break down. It was Boatright who bore those expenses. And at the end of the day, when the accident occurred, Claimant notified Boatright who owned the truck. In short, it was Boatright's obligation to direct the operation of the equipment and determine the method, manner, and means of performing his contractual obligations of the agreement which were clearly spelled out in the Independent Contractor Agreement. Boatright was the employer and not FFE.

Boatright contends that even if he was Claimant's employer, he was not an employer as defined under the Missouri Workers' Compensation Law because he did not employ five or more employees. Section 287.030 RSMo, reads in applicable part as follows:

1. The word "employer" as used in this chapter shall be construed to mean:

(1) Every person ... using the service of another for pay;

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for purposes of this chapter....

This statutory provision does not specify what period of time an employer must have five or more employees to be deemed an employer under the Law. Boatright argues that at any given time he had no more than four drivers operating his trucks. He had two trucks, with two drivers per truck traveling between Dallas, Texas, and Republic, Missouri, and between Republic Missouri, and Chicago, Illinois. Thus, he contends he is not subject to the Missouri Workers' Compensation Law.

Although Boatright contends that he had no more than four drivers on the date of the accident, the records reveals otherwise. Boatright actually had employed five men for a short period of time. As Boatright admitted, that short period of time coincides with the date of the accident on February 16, 2008. Giving the statute a strict interpretation, as mandated by $\S 287.800$ RSMo, Boatright had the requisite number of drivers to be considered an Employer under the Missouri Workers' Compensation Law on the date of Claimant's work accident.

Although Boatright had an occupational policy through Zurich, he did not have a workers' compensation policy required by Missouri Workers' Compensation Law. There, also, is no evidence that Boatright was an authorized self-insured employer. Consequently, both Boatright and Claimant attempt to shift the liability to FFE arguing that Claimant was a statutory employee of FFE.

The party asserting the existence of statutory employment bears the burden of proof on that issue. Martinez v. Nationwide Paper, 211 S.W.3d 111, 115 (Mo. App. S.D. 2006). One is a statutory employee if (1) the work is performed pursuant to contract, (2) the injury occurs on or about the premises of the alleged statutory employer, and (3) the work is in the usual course of the alleged statutory employer's business. Id. Assuming arguendo that Claimant could establish these three factors, there are other statutory provisions that preclude holding FFE as an employer (statutory or otherwise) in this case.

Section 287.020.1 RSMo, provides in applicable part:

The word "employee" shall not include an individual who is the owner, as defined in subsection (42) of section 301.010, and operator of a motor vehicle which is leased or contracted with a driver to a for-hire motor carrier operating within a commercial zone as defined in section 390.020 or 390.041, or operating under a certificate issued by the Missouri department of transportation or by the United States Department of Transportation, or any of its subagencies [Italic emphasis added].

§ 287.020.1 RSMo. In Parsons v. Steelman Transportation, 335 S.W.3d 6, 15-16 (Mo. App. S.D. 2011), the Missouri Court of Appeals, Southern District, identified four criteria which must be proven to demonstrate that this statutory exemption applied to the injured worker:

Accordingly, this definition contains four requirements to prove one is outside of the designation of being considered an employee under the Act: 1) the person must be an owner of a motor vehicle; 2) the person must be an operator of a motor vehicle; 3) the motor vehicle must be "leased or contracted with a driver to a for-hire motor carrier;" and 4) the for-hire motor carrier must have been "operating within a commercial zone" or "under a certificate issued by [MO DOT] or by U.S. DOT, or any of its subagencies."

Section 301.010(42) defines "owner":

(42) "Owner", any person, firm, corporation or association, who holds the legal title to a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this law;

The undisputed evidence is that Boatright leased his trucks and drivers to FFE. Boatright owned the truck Claimant was operating at the time of the accident. Claimant had no ownership interest. As such, Claimant is not excluded as an employee by reason of § 287.020.1 RSMo. Such facts, however, do not end the discussion. There also is an exemption in § 287.041 RSMo, for the for-hire motor carrier, such as FFE, which reads:

Notwithstanding any provision of sections 287.030 and 287.040, for purposes of this law, in no event shall a for-hire motor carrier operating within a commercial zone as defined in section 360.041 or section 390.020 or operating under a certificate issued by the Missouri department of transportation or by the United States Department of Transportation, or its subagencies, be determined to be the employer of a lessor, as defined at 49 C.F.R. section 376.2(f), or of a driver receiving remuneration from a lessor, as defined at 49 C.F.R. section 376.2(f), provided, however, the term "for-hire motor carrier" shall in no event include an organization described in Section 501(c)(3) of the Internal Revenue Code or any governmental entity [Emphasis added].

The testimony of David Hedgpeth, FFE's vice president of compliance and safety, as well as the documents appended to the depositions of Hedgpeth and Boatright, established that FFE was a for-hire motor carrier operating within a commercial zone. Boatright owned and leased his tractor to FFE with a driver. As noted previously, FFE had no control over the amount Boatright paid his drivers, including Claimant. Although Boatright used a payroll service, the payroll checks to Claimant and the other drivers were issued under Boatright's name and tax identification number. Thus, Claimant was a driver receiving

remuneration from a lessor, who in this case was Boatright. Pursuant to § 287.041, FFE was neither an employer of Boatright nor an employer of any of his drivers. This statutory provision precludes finding FFE as a statutory employer of Claimant.

Claimant must establish that the 2008 accident was the prevailing factor in causing the medical condition and the disability for which he seeks benefits. Gordon v. City of Ellisville, 268 S.W.3d 454, 459 (Mo. App. E.D. 2008). Medical causation, not within common knowledge or experience, must be established by expert medical evidence showing the relationship between the complained-of condition and the accident. Malam v. State, Department of Corrections, 492 S.W.3d 926, 929 (Mo. banc 2016). In the Malam case, the Supreme Court stated:

Section 287.020.3(1) provides that "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." A "prevailing factor" is "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Id.

The dispositive issue in this case is whether Mr. Malam proved by substantial and competent evidence that his workplace accident was the prevailing factor causing his subsequent hypertensive crisis. "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." [citation omitted]. Ascertaining whether Mr. Malam's workplace accident caused him to suffer a hypertensive crisis requires expert medical testimony.

Neither Dr. Strang nor any other physician stated that the accident was the primary or prevailing factor related to Claimant's symptoms. As explained by Dr. Cantrell, the MRI found a central and left paracentral disc protrusion impinging on the left nerve root at the C6-7 level. There was mild right-sided neuroforaminal narrowing related to degenerative joint disease. At the C5-6 level, there was bilateral neuroforaminal narrowing related to degenerative joint disease. Claimant's right upper extremity complaints were degenerative in nature and unrelated to the accident. Because objective MRI testing showed the abnormality was left-sided and Claimant's complaints were to his right, Dr. Cantrell opined Claimant had suffered a mere neck strain that had resolved. Dr. Cantrell found no disability from the accident of 2008. This was the only substantial and competent evidence on the issue of nature and extent of disability. I have accepted Dr. Cantrell's opinion as credible and persuasive.

In short, Claimant had a minor accident that arose out of and in the course of his employment with Boatright. The damage to the vehicle was minimal. Claimant did not hit his head or lose consciousness. He refused medical treatment on the date of the accident. He sought no treatment for three weeks. There is no evidence suggesting that the work accident was the prevailing factor in causing any medical condition of which Claimant now complains. There certainly is no expert or scientific evidence of a traumatic brain injury or brain trauma from the work accident.

Even if there is no evidence demonstrating an entitlement to permanent disability, Claimant seeks 32.2 weeks of temporary total disability. During this time period, Claimant was receiving physical therapy, Boatright had severed his employment, and Claimant contends he was unable to obtain alternative employment.

There is no expert opinion indicating that Claimant's need for physical therapy flowed from the work accident as opposed to unrelated conditions. Even if the physical therapy addressed a neck strain, there is no doctor's opinion or medical records substantiating that Claimant was unable to perform any work on the open labor market due to injuries from the truck accident in February 2008. Dr. Cantrell certainly did not state that Claimant was incapable of working due to a neck strain. Moreover, Claimant's complaints of disability appear to encompass much more than the neck strain from the work accident. The evidence is simply too deficient on which to award temporary total disability or permanent partial disability.

Section 287.140 RSMo, requires Employer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). Once a compensable case has been made, Claimant need only show that the medical treatment flows from the work injury. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011). Claimant identified no bills to reimburse for past medical treatment. Dr. Cantrell believed Claimant's only related condition - a strained neck - had resolved. He is not entitled to any future medical treatment.

As there is no award for temporary total disability, permanent partial disability, or past or future medical treatment, there is no basis for a credit.

Made by: $\qquad$

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation