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Daniel Deluca v. YRC, Inc. / Yellow Roadway Corporation

Decision date: July 24, 2019Injury #13-10235613 pages

Summary

The Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to claimant Daniel Deluca for an alleged occupational disease to his low back occurring on October 13, 2013. The judge found that although the injury arose out of and in the course of employment, it was ultimately not compensable under Missouri law, and no benefits were awarded.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
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Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-102356

**Employee:** Daniel Deluca

**Employer:** YRC, Inc. (settled)

Yellow Roadway Corporation (settled)

**Insurer:** Old Republic Insurance Company (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 December 19, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued December 19, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **24th** day of July 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

AWARD

Employee: Daniel Deluca

Injury No.: 13-102356

Dependents: N/A

Employer: YRC, Inc. (settled)

Yellow Roadway Corporation (settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Second Injury Fund

Insurer: Old Republic Ins. Company c/o

Gallagher Bassett Services (settled)

Hearing Date: October 18, 2018

Checked by: LBS

FINDINGS OF FACT AND RULINGS OF LAW

  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: Alleged October 13, 2013
  5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
  6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  7. Did employer receive proper notice? Yes
  8. Did accident or occupational disease arise out of and in the course of the employment? Yes
  9. Was claim for compensation filed within time required by Law? Not against the Second Injury Fund
  10. Was employer insured by above insurer? Yes
  11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant allegedly sustained an occupational disease to his low back on or about October 13, 2013.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: BAW referable to the low back
  14. Nature and extent of any permanent disability: 17.5 % of the body as a whole (low back)
  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: In dispute
  3. Weekly compensation rate: In dispute
  4. Method wages computation: In dispute

COMPENSATION PAYABLE

  1. Amount of compensation payable

Employer previously settled.

  1. Second Injury Fund liability:

NONE

Issued by DIVISION OF WORKERS' COMPENSATION

injury # 13-102356

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Daniel Deluca Injury No.: 13-102356

Dependents: N/A Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Employer: YRC, Inc. (settled) Department of Labor and Industrial

Yellow Roadway Corporation (settled) Relations of Missouri

Additional Party: Second Injury Fund Jefferson City, Missouri

Insurer: Old Republic Ins. Company c/o

Gallagher Bassett Services (settled)

Hearing Date: October 18, 2018

An evidentiary hearing was held in the above-referenced matter on October 18, 2018. Daniel Deluca ("Claimant") appeared in person and was represented by counsel, Mr. James Sievers. The Second Injury Fund ("Fund") was represented by counsel, Assistant Attorney General Da-Niel Cunningham. Claimant previously settled his claim against YRC Inc./Yellow Roadway Corporation ("Employer") and its insurer, Old Republic Insurance Company c/o Gallagher Bassett Services ("Insurer").

STIPULATIONS

The parties stipulated to the following facts:

  1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
  2. Claimant sustained an occupational disease as a result of repetitive lifting and driving up to October 13, 2013;
  3. Employer was provided proper notice of Claimant's injury;
  4. Employer/Insurer did not pay any Temporary Total Disability ("TTD") benefits;
  5. Employer/Insurer did not pay any medical benefits;
  6. Venue for the Hearing in this matter is proper at the St. Louis office of the Missouri Division of Workers' Compensation.

ISSUES

The issues to be resolved at this Hearing are:

  1. Does the Statute of Limitations bar Claimant's claim against the Second Injury Fund?
  2. Is Claimant's medical conditions and disability medically casually related to the alleged repetitive trauma?

Revised Form 31 (3/97)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

  1. What date did Claimant reach maximum medical improvement ("MMI")?
  2. What are Claimant's average weekly wage, TTD rate, and permanent partial disability ("PPD") rates?
  3. What is the nature and extent of the Second Injury Fund's liability?

EXHIBITS

Claimant offered and admitted into evidence, the following Exhibits:

Exhibit 1: Deposition of Dr. David Volarich

Exhibit 2: Deposition of Dr. Adam Sky

Exhibit 3: Deposition of Ms. Delores Gonzalez

Exhibit 4: Stipulation for Compromise Settlement for Injury # 13-102356

Exhibit 5: Stipulation for Compromise Settlement for Injury # 05-080360

Exhibit 6: Operative report of Dr. Thomas Forget dated November 21, 2013

Exhibit 7: Operative reports of Dr. Anthony Sudekum dated May 3, 2006, and May 17, 2006

Exhibit 8: Medical records of Dr. Artan Markollari

Exhibit 9: Medical records of Dr. Robert Hagan

The Second Injury Fund offered and admitted into evidence, the following Exhibits:

Exhibit I: Claim for Compensation filed on March 27, 2014

Exhibit II: Amended Claim for Compensation filed on May 9, 2017

Exhibit III: Second Injury Fund's Answer to the Amended Claim for Compensation filed on or about May 19, 2017

Exhibit IV: Letter from the Second Injury Fund dated September 5, 2018

Note: Some of the records submitted at the Hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on October 18, 2018.

FINDINGS OF FACT

Based upon the relevant testimony of Claimant at Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Revised Form 31 (3/97)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Live Testimony

Claimant worked for the Employer as a pickup and delivery driver for 15 years. Claimant would handle freight and perform heavy lifting. In the morning he would deliver freight, in the afternoon he would pick up freight. When Claimant moved freight, it would weigh anywhere from five to hundreds of pounds. He did not have an assistant. Claimant was never a manager or a supervisor. Claimant never worked with a computer in his job.

Claimant primarily drove a GMC Brigadier, which was a manual truck without air-ride seats. Claimant also occasionally drove Volvo trucks. Claimant testified that all of the trucks were "raggedy."

On October 13, 2013, Claimant had a weekly paycheck of 1,300 and made 65,000 a year. He made that amount from 2010 through 2013. Claimant, typically, worked 40-50 hours a week.

Claimant did not complete high school; he did obtain his GED. Claimant did not receive any education or training after receiving his GED.

Prior to October 13, 2013, Claimant testified he had back pain for a long time. Eventually, he reported his pain to Jim Vicorelli, the Terminal Manager. Mr. Vicorelli told Claimant to go to his primary care doctor ("PCP"). Claimant did go to his PCP, who did not treat him but referred him to Dr. Forget. Dr. Forget performed two back surgeries; one on November 21, 2013, and one in December of 2014. Following the surgeries, Claimant continued to have chronic constant pain in his back that radiated down both legs into his feet. The doctor released Claimant from treatment for his back on February 16, 2015.

Claimant believes his back injury was caused by getting in and out of the truck, bouncing in the truck, not having power steering, pulling on "raggedy" trailer doors, and handling freight over many years.

Claimant was diagnosed with diabetes in 2009. He has neuropathy in both feet that manifested with numbness, tingling, and burning. His feet would swell in the truck, and it would hurt to wear shoes.

In 2005, Claimant had bilateral carpal and cubital tunnel surgery. He returned to work with no restrictions. The carpal and cubital tunnel syndromes made it hard to steer, shift, and handle freight.

In 2010, Claimant's PCP diagnosed him with depression. He was given medication, but it did not alleviate his symptoms. He was drinking too much and sleeping a lot. After his back surgeries, his symptoms worsened. As a result, his PCP gave him additional medications to treat his depression.

Claimant currently takes medication for his depression and diabetes. After he was released from treatment, Claimant has not taken any prescription medication for his back, carpal tunnel syndrome, or cubital tunnel syndrome. Claimant does take over-the-counter Tylenol PM.

Revised Form 31 (3/97)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Claimant did not return to work for Employer following his back surgeries. He has constant pain in his feet, hands, and back. On a typical day, he tries to walk and move around. He does not use a computer.

Claimant believes he cannot perform any work, other than manual labor, because he does not have any education or training past 11th grade.

On cross-examination, Claimant testified that he went to his PCP for his back complaints on his own. He also treated with Dr. Forget on his own. Employer did not send Claimant to either doctor, and his Employer did not pay for the treatment he received.

When Dr. Forget released Claimant, he did not give Claimant any restrictions. On May 19, 2014, Dr. Hagan first diagnosed Claimant with peripheral neuropathy. On January 26, 2015, Claimant was examined to determine if he had RSD in his lower extremities.

None of Claimant's treating doctors told him his work was the cause of his back complaints. None of Claimant's treating doctors put any restrictions on his ability to work. Claimant testified that Dr. Forget suggested Claimant not go back to driving a truck.

Claimant's diabetes was diagnosed during a routine DOT examination in 2005. Claimant had not had any symptoms before that time. Later, Claimant began to experience dizziness and was placed on diabetes medication. Claimant does not wear special shoes or socks due to his diabetic neuropathy. Claimant does not eat a special diet to maintain healthy blood sugar levels; he just "watches what he eats" and does not drink too much alcohol. Claimant testified he could still work with his diabetes, but the numbness in his hands made it difficult to use the clutch in the truck.

Claimant was "somewhat satisfied" with the carpal and cubital tunnel surgeries. However, the numbness and tingling in his hands did return. Claimant never went back to the surgeon to tell him his symptoms had returned. Claimant was released without restrictions following his c

Full decision text continues in the plain-text archive copy.

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