Wyatt Davenport v. LTI Trucking Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-075326

**Employee:** Wyatt Davenport

**Employer:** LTI Trucking Services, Inc.

**Insurer:** Great West Casualty Company

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 February 8, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued February 8, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **19th** day of July 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Wyatt Davenport

Injury No.: 15-075326

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: LTI Trucking Services, Inc.

Additional Party: N/A

Insurer: Great West Casualty Company

Hearing Date: January 11, 2018

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: October 5, 2015 (Alleged)
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, Missouri (Alleged)
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? No
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: The employee, a truck driver, testified that he was exposed to dangerous fumes for five months while driving the employer's trucks.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Lungs, stomach, body as a whole (Alleged)
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: 1,013.06
3. Weekly compensation rate: 675.38/$464.58
4. Method wages computation: By agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

The claimant did not file a claim against the Second Injury Fund

None

**TOTAL:**

None

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

This workers' compensation case raises several issues arising out of an alleged work-related injury in which the claimant, a truck driver, testified that he was exposed to dangerous fumes for five months while driving the employer's trucks causing injury to his lungs, stomach, and body as a whole. The issues for determination are: (1) Accident or occupational disease arising out of and in the course of employment, (2) Medical causation, (3) Liability for Past Medical Expenses, (4) Future medical care, (5) Temporary disability, and (6) Permanent disability. The evidence compels an award for the defense, because the claimant did not offer sufficient evidence to prove his case.

At the hearing, the claimant testified in person. The claimant also offered the following exhibits:

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

The employer submitted the following exhibits:

Exhibit A: Travis M. Sifers, M.D. medical record dated May 8, 2017

Exhibit B: Great West Casualty Company's Loss Draft Register regarding medical payments made on claim totaling $2,000.63

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occurrence was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

SUMMARY OF FACTS

This 51-year-old claimant, a truck driver, alleged in his claim for compensation that he suffered multiple injuries as a result of inhaling sulfuric acid that was leaked from a cracked truck battery. The claimant began working for this employer in March 2015 as an over-the-road truck driver. Initially, he drove truck number 7024 for a couple of weeks, until an exhaust leak required repairs. The claimant, subsequently, drove truck number 6714, and he testified that he experienced a headache and burning sensation in his nose after a few days. He took the truck to a shop to have it inspected for an exhaust leak, but the mechanic found no problems. The claimant continued to drive the truck, and over the course of the next five months, he continued to experience episodes of light-headedness and headaches. He also developed stomach problems, migraines, and insomnia, and his health generally declined. The claimant testified there was an incident in Edwardsville, Kansas two or three weeks after he began driving truck number 6714, when he turned on the defrosters and the whole truck flooded with fumes. He had the truck inspected at a freight line dealership in Kansas City, but the mechanic found no problems. The claimant had the truck inspected on eight or nine different occasions by different mechanics, and the employer also had the truck inspected on three or four occasions, but those inspections revealed no deficiencies.

On or about October 1, 2015, the claimant called his manager from Memphis, Tennessee to advise that he believed fumes were entering the cab from under his feet. He became lightheaded and pulled over to call a manager at the employer, who advised him to have the truck inspected at a shop in Tennessee, which he did. However, when no problems were found with the truck, the claimant finished his route and returned to the truck yard in Madison County, Illinois, to be inspected again. The claimant drove the truck from Memphis to Palmyra, Pennsylvania, and then back to the truck yard in Illinois, where he arrived on October 5, 2015. The shop manager had the vehicle inspected twice on that date, revealing that one of the truck's batteries was cracked. See Exhibit 3. The repair order did not indicate whether the cracked battery contained sulfuric acid or whether the crack in the battery caused a sulfuric acid leak. See Exhibit 3.

Revised Form 31 (3/97)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

This employer terminated the claimant from his employment on October 16, 2015, or shortly thereafter. See Exhibit 7. Following his termination, he testified that he applied for and received unemployment benefits.

On October 5, 2015, the claimant went to Gateway Regional Medical Center with complaints of malaise and fatigue and gave a history of toxic exposure. See Exhibit 4. The claimant alleged, in a written EEOC complaint, that he was told he needed to have his stomach examined for damage due to sulfuric acid inhalation. See Exhibit 6.

On October 12, 2015, the claimant returned to Gateway Regional Medical Center, was diagnosed with chest pain, and was advised to take a baby aspirin daily. See Exhibit 5.

On March 13, 2017, over a year after his alleged exposure, Dr. Gary Salzman, a pulmonologist, examined the claimant and reported that the claimant's symptoms had resolved as of December 2016, after he was no longer exposed, although they came back periodically. See Exhibit 1. Dr. Salzman noted that pulmonary function tests and a chest CT showed no significant pathology. See Exhibit 1. Dr. Salzman diagnosed mild COPD, but he opined this was due to the fact that the claimant smokes a half pack of cigarettes per day. See Exhibit 1. Otherwise, Dr. Salzman opined that the claimant's exercise tolerance and physical examination were normal. See Exhibit 1.

On May 8, 2017, Dr. Travis Sifers, a primary care physician, examined the claimant for complaints of upper GI symptoms, H. pylori, COPD, and "pulmonary and neurologic illnesses," all of which the claimant attributed to exposure to sulfuric acid. See Exhibit A. The doctor diagnosed H. pylori duodenitis. See Exhibit A. However, Dr. Sifers was unable to find any evidence that a car battery leak can cause significant sulfuric acid toxicity to drivers, and he opined that the claimant's gastritis was better explained by his helicobacter pylori, which he opined was unrelated to toxic exposure. See Exhibit A.

On September 11, 2017, the claimant went to the Pulmonary Clinic with complaints of shortness of air with wheezing without coughing and a "vague constellation of symptoms." See Exhibit 2. The claimant reported no further episodes of hemoptysis. See Exhibit 2. The report noted that the claimant continued to smoke a half pack of cigarettes per day but "is quite frustrated today, as he feels no one believes him." See Exhibit 2. On October 3, 2017, the claimant tested positive for helicobacter pylori AG, but the test results did not address causation. See Exhibit 9.

On October 11, 2017, the claimant went to the Truman Medical Center Emergency Room with complaints of chest pain and a headache. See Exhibit 8. He reported that his symptoms began after exposure to sulfuric acid two years earlier in October 2015. See Exhibit 8. His prior medical history was noted to include tobacco misuse disorder, emphysema, and H. pylori ulcers. See Exhibit 8. The claimant did not submit the doctor's diagnosis and treatment recommendations, if any, with the Exhibit. See Exhibit 8.

Revised Form 31 (3/97)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

The claimant testified that he believes his complaints are not due to pre-existing conditions because he passed all of his DOT physicals prior to working for this employer, and he denied any prior complaints. He also testified that he has been smoking cigarettes since he was 16 or 17 years old and currently smokes a half pack per day. However, he opined that his smoking is not "heavy enough" to cause his COPD.

**COMPENSABILITY**

The claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of the employment, and the accident resulted in the alleged injuries. *Choate v. Lily Tulip, Inc.,* 809 S.W.2d 102, 105 (Mo.App. 1991).

"An injury is deemed to arise out of and in the course of the employment only if the accident is the prevailing factor in causing the injury and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment." Section 287.020.3(2), RSMo Supp. 2011. The Courts, the Commission, and Administrative Law Judges "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflict." Section 287.800, RSMo Supp. 2011.

"The claimant in a workers' compensation case has the burden to prove all essential elements of a claim, including a causal connection between the injury and the job." *Royal v. Advantica Rest. Group, Inc.,* 194 S.W.3d 371, 376 (Mo.App. W.D. 2006) (citations and quotations omitted). "Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission." *Id.* (citing *Bloss v. Plastic Enters.,* 32 S.W.3d 666, 671 (Mo.App. W.D. 2000)). Under the statute, "[a]n injury by accident is compensable only if the accident 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. § 287.020.2. On the other hand, "[a]n injury is not compensable because work was a triggering or precipitating factor." *Id.* Awards for injuries "triggered" or "precipitated" by work are nonetheless proper if the employee shows the work is the prevailing factor in the cause of the injury. Thus, in determining whether a given injury is compensable, a work-related accident can be both a triggering event and the prevailing factor."

"[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." *Elliott v. Kansas City, Mo.,* Sch. Dist., 71 S.W.3d 652, 658 (Mo.App. W.D. 2002). Accordingly, where expert medical testimony is presented, "logic and common sense," or an ALJ's personal views of what is "unnatural," cannot provide a sufficient basis to decide the causation question, at least where the ALJ fails to account for the relevant medical testimony. Cf. *Wright v. Sports Associated, Inc.,* 887 S.W.2d 596, 600 (Mo. banc 1994) ("The commission may not substitute an administrative law

Revised Form 31 (3/97)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

judge's opinion on the question of medical causation of a herniated disc for the uncontradicted testimony of a qualified medical expert."). Van Winkle v. Lewellens Professional Cleaning, Inc., 358 S.W.3d 889, 897, 898 (Mo.App. W.D. 2008).

In this case, the claimant proved that truck number 6714 had a cracked battery on October 5, 2015. See Exhibit 3. However, the only evidence that the battery, in question, contained sulfuric acid or that the crack in the battery caused a sulfuric acid leak is the claimant's testimony. No toxicology test results were submitted into evidence. The claimant also opined that his exposure to the substance in the truck caused his COPD as opposed to his 35-year consumption of tobacco products. However, development of multiple complaints in different body parts from sulfuric acid exposure is the type of medical causation that is outside the realm of lay understanding and requires expert medical evidence according to the findings of the Missouri courts discussed above.

Dr. Sifers' May 8, 2017 report is the sole forensic medical report that addressed causation. In that report, Dr. Sifers reported that he researched the issue and found no evidence that "car battery leaks can cause significant sulfuric acid toxicity to drivers." See Exhibit A. No expert medical opinion concluded that the claimant's exposure to the conditions in the employer's truck was the primary factor causing his medical condition in relation to all other factors.

The claimant submitted the results of internet searches he performed regarding the negative health effects of sulfuric acid exposure. See Exhibits 14, 15, 16. However, anecdotal evidence obtained in an internet search is not a substitute for the objective, expert medical opinion of a doctor who has examined the claimant.

Based on the evidence submitted at the hearing, the claim is denied, because the evidence submitted did not establish that the claim is compensable under the Missouri Workers' Compensation Statute.

LIABILITY FOR PAST MEDICAL EXPENSES

The statutory duty for the employer is to provide such medical, surgical, chiropractic, and hospital treatment as may be reasonably required after the injury. Section 287.140.1, RSMo 1994.

The intent of the statute is obvious. An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those against his employer. However, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo.App. E.D. 1995).

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

The method of proving medical bills was set forth in *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105 (Mo. banc 1989). In that case, the Missouri Supreme Court ordered that unpaid medical bills incurred by the claimant be paid by the employer where the claimant testified that her visits to the hospital and various doctors were the product of her fall and that the bills she received were the result of those visits.

We believe that when such testimony accompanies the bills, which the employee identifies as being related to and are the product of her injury, and when the bills relate to the professional services rendered as shown by the medical records and evidence, a sufficient, factual basis exists for the Commission to award compensation. The employer, may, of course, challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question. *Id.* at 111, 112.

As stated in *Sickmiller v. Timberland Forest Products, Inc.*, 407 S.W.3d 109, 121 (Mo. App. S.D. 2013), "[S]ection 287.140.1 'does not require a finding that the workplace accident was the prevailing factor in causing the need for particular medical treatment.'" (quoting *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511, 517 (Mo. App. W.D. 2011)). "Where a claimant produces documentation detailing his past medical expenses and testifies to the relationship of such expenses to the compensable workplace injury, such evidence provides a sufficient factual basis for the Commission to award compensation." *Id.* (quoting *Treasurer of Missouri v. Hudgins*, 308 S.W.3d 789, 791 (Mo. App. W.D. 2010)).

In this case, the claimant did not submit any medical bills into evidence. Although he testified generally that he paid for all of his treatment himself, he did not present any evidence showing the amount charged for services or whether those charges were fair and reasonable and that they flowed from a compensable work-related injury. Therefore, the claim for past medical expenses is denied.

FUTURE MEDICAL CARE

Pursuant to Section 287.140.1, an employer is required to provide care "as may be reasonably required to cure and relieve from the effects of the injury." This includes allowance for the cost of future medical treatment. *Pennewell v. Hannibal Regional Hospital*, 390 S.W.3d 919, 926 (Mo. App. E.D. 2013) citing *Poole v. City of St. Louis*, 328 S.W.3d 277, 290-91 (Mo. App. E.D. 2010). An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work-related injury. *Id.* Future care to relieve [an employee's] pain should not be denied simply because he may have achieved [maximum medical improvement]. *Id.* Therefore, a finding that an employee has reached maximum medical improvement is not necessarily inconsistent with the employee's need for future medical treatment. *Id.*

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. *Tillotson v. St. Joseph Medical Ctr.*, 347 S.W.3d 511, 519 (Mo.App. W.D 2011). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. *Id.* The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. *Id.* Application of the prevailing factor test to determine whether medical treatment is required to treat a compensable injury is reversible error. *Id.* at 521.

The claimant did not present any medical evidence at the hearing that established a need for future medical treatment. Although he submitted an exhibit showing his current medications, this list did not include any information or a doctor's opinion that the claimant would require ongoing medication or future treatment flowing from the alleged occurrence. See Exhibit 13. Therefore, the claimant failed to sustain his burden to prove the need for future medical treatment, and the defense is not liable for the same.

TEMPORARY DISABILITY

Temporary total disability awards are designed to cover the employee's healing period, and they are owed until the claimant can find employment or the condition has reached the point of maximum medical progress. When further medical progress is not expected, a temporary award is not warranted. Any further benefits should be based on the employee's stabilized condition upon a finding of permanent partial or total disability. *Shaw v. Scott*, 49 S.W.3d 720, 728 (Mo.App. W.D. 2001). The Missouri Supreme Court ruled that if "additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to Section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries."

The plain language of section 287.149.1 does not mandate the commission arbitrarily rely on the maximum medical improvement date to deny TTD benefits, if the claimant is engaged in the rehabilitative process. Instead, whether a claimant is engaged in the rehabilitative process is the appropriate statutory guidepost to determine whether he or she is entitled to TTD benefits under the plain language of Section 287.149.1. It is plausible, and likely probable, that the maximum medical improvement date and the end of the rehabilitative process will coincide, thus, marking the end of the period when TTD benefits can be awarded. However, when the commission is presented with evidence, as here, that a claimant has reached maximum medical improvement yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore himself or herself to a condition of health or normal activity by a process of medical rehabilitation, the commission must make a factual determination as to whether the additional treatment was part of the rehabilitative process. If the commission determines the additional

Revised Form 31 (3/07)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wyatt Davenport

Injury No.: 15-075326

treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries. *Greer v. Sysco Food Servs.*, 475 S.W.3d 655, 668-69 (Mo. Banc 2015).

The court, thus, requires a detailed analysis of the claimant's medical treatment to determine whether the claimant is entitled to temporary total disability benefits. In this case, the claimant did not present any evidence to establish his entitlement to temporary disability benefits. None of the medical records stated that the claimant was to remain off work or provided work restrictions. In addition, the claimant testified that he applied for and received unemployment benefits after leaving the employment of this employer. Based on the evidence, the claim for temporary disability benefits is denied.

PERMANENT DISABILITY

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. *Sanders v. St. Clair Corp.*, 943 S.W.2d 12, 16 (Mo.App. S.D. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." *Tiller v. 166 Auto Auction*, 941 S.W.2d 863, 865 (Mo.App. S.D. 1997).

Workers' compensation awards for permanent partial disability are authorized pursuant to Section 287.190. "The reason for [an] award of permanent partial disability benefits is to compensate an injured party for lost earnings." *Rana v. Landstar TLC*, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001). The amount of compensation to be awarded for a PPD is determined pursuant to the "SCHEDULE OF LOSSES" found in Section 287.190.1. "Permanent partial disability" is defined in Section 287.190.6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." *Id.* A permanent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. *Id.* "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." *Id.* "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." *Id.* In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. *Id.*

In this case, the claimant did not offer any evidence that he sustained permanent disability as a result of the occurrence. In his May 8, 2017 report, Dr. Sifers was unable to find any evidence that a car battery leak can cause significant sulfuric acid toxicity to drivers, and he opined that the claimant's gastritis was much better explained by his H. pylori, which he also opined was unrelated to toxic exposure. See Exhibit A.

Revised Form 31 (3/97)

Page 10

TI3091-0967

Employee: Wyatt Davenport

Injury No.: 15-075326

On March 13, 2017, Dr. Salzman reported that the claimant's symptoms resolved by December 2016, after he was no longer exposed, although they came back periodically. See Exhibit 1. In addition, Dr. Salzman reported that pulmonary function tests and a chest CT revealed no significant pathology and the claimant's exercise tolerance and physical examination were normal. See Exhibit 1.

The claimant was diagnosed with H. pylori and COPD, but none of the medical records provided a medical causal connection between these conditions and the claimant's working conditions. See Exhibits 2 and 9. The claimant offered no other forensic medical opinion evidence. Based on the evidence in the record, the claim for permanent disability benefits is denied.

I certify that you have a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________


E. W. J. KOHNER

Administrative Law Judge

Division of Workers' Compensation

Revised Form 31 (3/97)

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