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 Exhib