William Haynes v. Hillis Dodge

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 15-040034

**Employee:** William Haynes

**Employer:** Hillis Dodge

**Insurer:** Employers Preferred Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard oral argument, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether employee was an employee of employer and working under the Workers' Compensation Act; (2) whether employee sustained an accident arising out of and in the course of employment as opposed to an idiopathic event that is not covered by the Workers' Compensation Law; (3) employee's average weekly wage and appropriate temporary total disability and permanent partial disability rates; (4) whether employee's injury was medically causally related to the accident or occupational disease; (5) whether employee is entitled to past medical expenses in the amount of $45,896.42; (6) whether employee is entitled to future medical care to cure and relieve the effects of the injury; (7) whether employee is entitled to temporary total disability benefits from April 22, 2015 through the date of maximum medical improvement; (8) when is the date of maximum medical improvement; and (9) what is the nature and extent of any permanent partial disability and disfigurement.

The administrative law judge determined as follows: (1) employee was an employee of employer and working under the Workers' Compensation Act; (2) employee sustained a work-related accident on April 22, 2015, that arose out of and in the course of his employment; (3) employee's average weekly wage was 225.00, the temporary total disability rate is 40.00 and the permanent partial disability rate is $150.00; (4) the accident was the prevailing factor in causing a facial laceration, a nasal and right orbital floor fracture, a concussion, and an L3 compression fracture; (5) employer is liable for past medical expenses in the amount of $45,196.42; (6) employer is liable for future medical care that is reasonably required to cure and relieve employee from the effects of the injury; (7) employer is not liable for temporary total disability benefits; (8) the date of maximum medical improvement is May 2, 2016; and (9) employee has sustained a 15% permanent partial disability of the body as a whole at the level of the lumbar spine, a 17.5% permanent partial disability of the body as a whole attributable to head injuries (post-concussive disorder, orbital fracture and right nasal fracture); and 10 weeks disfigurement for scarring on the right side of employee's nose and abrasions to employee's left arm. The administrative law judge ordered employer to pay employee a

TI16711188

Injury No.: 15-040034

Employee: William Haynes

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total of 140 weeks of compensation at a rate of 150.00 per week for total of 21,000.00.

Employee filed an application for review asking 1) that employee's left foot and ankle injuries be deemed compensable; 2) that temporary total disability benefits be awarded from April 22, 2015 through May 2, 2016; 3) that employer pay for future medical for employee's dental bridgework; and 4) that the Commission change the permanent partial disability ratings to 40% permanent partial disability referable to the head, 25% permanent partial disability referable to the lumbar spine, and 50% permanent partial disability referable to the left ankle.

Employer filed an application for review challenging the findings: 1) that employee is an employee of employer; 2) that the accident arose out of and in the course of employment; 3) that employee's average weekly wage was $225.00; 4) that employer is liable for prior medical expenses; 5) that employer is liable for future medical care; 6) that the maximum medical improvement date was May 2, 2016; and (7) the permanent partial disability ratings.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of the employee's average weekly wage and the permanent partial disability rate.

**Discussion**

**Average Weekly Wage**

Section 287.190.5(2), RSMo, provides, "For all injuries occurring on or after September 28, 1981, the weekly compensation shall in no event be less than forty dollars per week."

In six numbered subdivisions, Section 287.250.1, RSMo, provides formulas for calculating "an injured employee's average weekly earnings which will serve as the basis for compensation provided for in [chapter 287]." Section 287.250.2, RSMo, provides instruction of other payment to include in determining one's average weekly wage, such as fringe benefits or forms of lodging. Section 287.250.3, RSMo, provides instructions for calculating the average weekly wage for part-time employees. Section 287.250.4, RSMo, provides a way to fairly and justly determine one's average weekly wage in the case that the other formulas do not apply.

Sections 287.250.1-.4, RSMo, provide:

1. Except as otherwise provided for in this chapter, the method of computing an injured employee's average weekly earnings which will serve as the basis for compensation provided for in this chapter shall be as follows:

(1) If the wages are fixed by the week, the amount so fixed shall be the average weekly wage;

Injury No.: 15-040034

Employee: William Haynes

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(2) If the wages are fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by twelve and divided by fifty-two;

(3) If the wages are fixed by the year, the average weekly wage shall be the yearly wage fixed divided by fifty-two;

(4) If the wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be computed by dividing by thirteen the wages earned while actually employed by the employer in each of the last thirteen calendar weeks immediately preceding the week in which the employee was injured or if actually employed by the employer for less than thirteen weeks, by the number of calendar weeks, or any portion of a week, during which the employee was actually employed by the employer. For purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week. If the employee commenced employment on a day other than the beginning of a calendar week, such calendar week and the wages earned during such week shall be excluded in computing the average weekly wage pursuant to this subdivision;

(5) If the employee has been employed less than two calendar weeks immediately preceding the injury, the employee's weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment at the time of the injury, except if the employer has agreed to a certain hourly wage, then the hourly wage agreed upon multiplied by the number of weekly hours scheduled shall be the employee's average weekly wage;

(6) If the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer;

(7) In computing the average weekly wage pursuant to subdivisions (1) to (6) of this subsection, an employee shall be considered to have been actually employed for only those weeks in which labor is actually performed by the employee for the employer and wages are actually paid by the employer as compensation for such labor.

1. For purposes of this section, the term "gross wages" includes, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging or similar advance received from the employer, except if such benefits continue to be provided during the period of the disability, then the value of such benefits shall not be considered in calculating the average weekly wage of the employee. The term "wages", as used in this section, includes the value of any gratuities received in the course of employment from persons other than the

Injury No.: 15-040034

Employee: William Haynes

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employer to the extent that such gratuities are reported for income tax purposes. "Wages", as used in this section, does not include fringe benefits such as retirement, pension, health and welfare, life insurance, training, Social Security or other employee or dependent benefit plan furnished by the employer for the benefit of the employee. Any wages paid to helpers or any money paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of his employment shall not be included in wages.

1. If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

1. If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage.

In determining which formula to apply, you start with the first formula and then descend in numerical order until a formula is found that "applies to the particular facts of the case." *Adamson v. DTC Calhoun Trucking, Inc.*, 212 S.W.3d 207, 213, 215 (Mo. App. S.D. 2007) (internal quotations and citations omitted).

The provisions of Section 287.250.1, RSMo, do not readily apply in this matter as employee's wages were not computed by the week, month, year, or by "the day, hour, or by the output of the employee." The work to drive a truck to an auction was not a daily position, even for employer's other employees who handled local auction trips. Each trip was paid at $45.00, regardless of how much time it took to perform the work. Therefore employee's hourly wage cannot be ascertained and neither can an hourly wage be ascertained by using the compensation paid to other employees. Similarly, the provisions of Section 287.250.3, RSMo, do not apply.

The provisions of Section 287.250.2, RSMo, also do not apply as there were no other gratuities, fringe benefits, or the provision of board, rent, housing, or lodging.

Because the Commission cannot fairly or justly determine employee's average weekly wage based on the formulas provided in the provisions of Section 287.250.1-.3, RSMo, it is the opinion of the Commission based on what we so deem as exceptional facts that employee should receive the statutory minimum for weekly compensation of $40.00.

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Incidentally, employee's award of 140 weeks of compensation is charged to the rate of 40.00 per week, amounting to a total of 5,600.00.

We modify the award of the administrative law judge as to the issue of average weekly wage and impose the statutory minimum compensation of $40.00 per week.

Employee is entitled to, and employer is hereby ordered to pay, permanent partial disability benefits, including ten weeks of disfigurement, in the amount of $5,600.00.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued May 31, 2019, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **21st** day of February 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**BORETH ROSENBERG**

**COMPREHENSIVE**

**ROBERT W. CORNEJO, Chairman**

**COMPREHENSIVE**

**ROBERT W. CORNEJO, Member**

Attest:

**Shalonn K. Curls, Member**

Secretary

Mark R. Kornblum and Alexandra D. LaBarge, attorneys for the employer- | |

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? April 22, 2015.
5. State location where accident occurred or occupational disease contracted: Butler County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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? Yes.

Employee: William Haynes

Injury No. 15-040034

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Claimant was injured when he lost control of a truck he was driving for the employer and crashed into a concrete embankment. He injured his face, head, left arm and low back.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Face, head, low back and left arm.

1. Nature and extent of any permanent disability: 15% permanent partial disability of the body as a whole at level of the lumbar spine (60 weeks); 17.5% permanent partial disability of body as a whole attributable to post-concussive disorder, orbital fracture and right nasal fracture (70 weeks); 10 weeks disfigurement.

1. Compensation paid to date for temporary total disability: 0.00

1. Value necessary medical aid paid to date by the employer-insurer: 0.00

1. Value necessary medical aid not furnished by the employer-insurer: 46,196.42

1. Employee's average weekly wage: 225.00

1. Weekly compensation rate: 40.00 for temporary total disability and 150.00 for permanent partial disability.

1. Method wages computation: 287.250.4 RSMo

1. Amount of compensation payable: $67,196.42

1. Second Injury Fund liability: Not applicable.

1. Future requirements awarded: See Award.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Michael Moroni. By stipulation of the parties, Attorney Michael Moroni shall satisfy the lien asserted by Attorney Jeff Koch in the sum of $1,864.25 to be paid out of his attorney fee.

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Employee: William Haynes

Injury No. 15-040034

On February 28, 2019, the claimant, William Haynes, appeared in person and with his attorney, Michael Moroni for a hearing for a final award. The employer-insurer was represented at the hearing by their attorneys, Mark Kornblum and Alexandra LaBarge. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Employers Preferred Insurance Company.
2. On or about April 22, 2015 the employee sustained an accident.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The employer-insurer paid 0.00 in medical aid.
6. The employer-insurer paid 0.00 in temporary disability benefits.
7. The employee had no claim for mileage.
8. That attorney Jeff Koch is entitled to payment for a lien for attorney's fees in the amount of $1,864.25 out of any Award.

1. Whether on or about the date of the alleged accident, the employee¹ was an employee of Hillis Dodge and was working under the Workers' Compensation Act.
2. Whether the accident on or about April 22, 2015 arose out of and in the course of employment and specifically whether the alleged employee sustained an idiopathic event that would be covered under the Workers' Compensation Law.
3. What is the Average Weekly Wage and TTD/PPD rate?
4. Whether alleged employee's injury was medically causally related to the accident.
5. Whether the employer-insurer is liable for previously incurred medical aid in the amount of $45,896.42. There are disputes as to authorization, reasonableness, necessity and causal relationship.
6. Whether alleged employee is entitled to additional or future medical aid.
7. Whether alleged employee is entitled to temporary total disability benefits from April 22, 2015 through the date of maximum medical improvement.
8. What is the date alleged employee reached maximum medical improvement?
9. What is the nature and extent of any permanent partial disability and disfigurement?

¹ Because William Haynes' status as an employee versus an independent contract is in dispute, Mr. Haynes will be referred to as "Claimant" throughout the Findings of Fact and Rulings of Law.

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The following exhibits were offered and admitted into evidence without objection:

Employee Exhibits:

1. Accident Report, $4 / 22 / 15$
2. Driver Charges \& Driver Trip Sheet
3. Poplar Bluff Regional Medical Center, 4/22-4/23/15
4. Poplar Bluff Regional Medical Center, 5/4/15
5. Black River Medical Center CT Scan \& Bill, 4/28/16
6. Black River Medical Center MRI, 6/4/15
7. Capital Records- Dr. Piland, 5/2/16
8. Medical Bills
9. Photographs
10. CV- Dr. Cohen
11. Report of Dr. Cohen, $1 / 26 / 17
12. Supplemental Report of Dr. Cohen, 6 / 11 / 18
13. Dr. Piland- Updated Records from 1 / 12 / 16$ to present

Employer-Insurer Exhibits:

A. Maintenance Records

B. Dr. Choudhary Report, 2/18/19

C. Amended Answer, filed 2/28/19

D. Dr. Cantrell's IME report and CV

Employee Witnesses:

1. Officer James Henry
2. Cynthia Haynes, Claimant's wife
3. William Haynes, Claimant

Employer Witness:

1. Matt Hillis, Employer

Judicial notice was taken Division of Workers' Compensation file.

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

**Injury No. 15-040034**

William Haynes was born on September 25, 1935 and was 83 years old at the time of Trial. His job history consisted of working at a shoe factory for a long time until they shut down and then he was a truck driver for approximately 28 years. He retired approximately five to six years ago. After he retired, he needed to make money to pay for his wife's medications, so he took some jobs delivering cars to auctions for local automobile dealerships. He was usually paid per trip.

He submitted an application to drive for Hillis Dodge (hereafter "Employer") and they called him. The only requirement for the job was a valid driver's license. He was hired to drive a vehicle owned by Employer to auction in St. Louis. Claimant was to be paid $45.00 for the job. According to Matt Hillis, the General Manager, Employer sends vehicles to auction in St. Louis one to two times per year and to local auctions "once in a while." Employer does use its regular employees to transport vehicles as part of its business to local dealer trades and as part of its service to customers. However, they keep a list of five to ten drivers that are not regular employees and they hire individuals from this list to drive vehicles to auction in St. Louis. Claimant was not on this list yet as this was the first and only time he was hired to drive for Employer. The process for when regular employees transport vehicles to dealer trades is different than when a driver is hired to transport to auction. When a regular employee of the dealership transports vehicles to dealer trades, the employees are given a set route and a checklist for the vehicles they are picking up that identifies any issues with the vehicle. For individuals hired for the sole purpose of driving vehicles to auction, there is no checklist. The dealership does not provide a set route for hired drivers or any instructions on what to do in case of a breakdown. The dealership does not withhold taxes from the hired driver's paycheck and gives them a 1099 form. However, hired drivers and regular employees are paid at the same rate for transporting dealership vehicles. Mr. Hillis testified that if Claimant had been unable to drive to auction, and if he could not find another driver on the list, he would have had a current employee of the dealership perform the task. He would not have hired another employee to do it.

Claimant arrived at Hillis Dodge the morning of April 22, 2015 at approximately 9:00 a.m. He felt fine when he arrived, his heart was not racing, and he did not feel faint. Claimant was given a piece of paper and instructed to wait for some other drivers. He was assigned to drive a 2014 Ford F-150 white truck that was owned by Employer. The truck did not have anything marked on the side of the vehicle. Claimant did not wear any clothing identifying him as a Hillis Dodge employee. While Claimant was waiting, Employer put gas in the vehicles. Claimant did not have to pay for gas or be reimbursed for gas. He understood that four to five other vehicles were also being driven to auction by other drivers. He waited until approximately 10:00 a.m. He was told by one of the other drivers to get in line and follow the others. He was not specifically instructed to stay with the other drivers. Claimant was not given any other specific instructions, but understood that everyone was driving up in a caravan and that Employer was sending a van to bring everyone back at the end of the trip. Claimant got in the 2014 Ford F-150 truck, put it in gear, and attempted to turn to the right, but the steering wheel would not turn. He did not know what was wrong with it. Claimant testified on cross examination that both the steering wheel and brakes did not work. Claimant remembers driving through a fence, but does not remember anything further.

Officer James Henry was dispatched to the scene of the accident on a service road behind the Hillis Dodge dealership. Officer Henry did not witness the accident. He observed that the

Employee: William F....,hes

Injury No. 15-040034

vehicle involved in the accident was a fairly new used white Ford pickup truck with low mileage. He observed minor dents and scrapes on the body of the truck and that the undercarriage on the front end was damaged due to the impact with the road. He observed the steering wheel was "bent forward from the impact on the driver side of the vehicle." He observed that Claimant was unconscious in the vehicle with minor cuts to his face. He observed Claimant was not wearing a seatbelt. Officer Henry testified that he did not prepare the police report but was present on the scene. The Missouri Uniform Crash Report (See Employee Exhibit 1) was prepared by Officer Prenger and it described the accident as follows:

V1 parked at Larry Hillis Dodge.

D1 backs up V1 facing V1 south bound in rear of Larry Hillis by wash bay.

D1 drives V1 through fence located on rear of property.

D1 continued south bound striking service road curb and came to a stop.

D1 was transported to Poplar Bluff Regional Medical Center by EMS.

The report identified probable contributing circumstances to the accident as "unknown." Mr. Hillis testified that the employer performed an oil change, filter change, and a 23 point inspection on the truck on March 25, 2015. As part of the inspection, Employer checked the brakes, hoses, fluids, joints underneath, and any part that needs lubrication. The vehicle had 6561 miles on it at the time of inspection. He testified that no problems were identified and the vehicle passed inspection. There is an invoice dated March 25, 2015 showing a lube, oil and filter change was performed as well as a 23 point inspection. (See Employer-Insurer Ex. A) Mr. Hillis personally drove the vehicle between the time of inspection and the accident on April 22, 2015 and did not notice any problems. After the April 22, 2015 accident an insurance claim was submitted and another inspection was completed by the insurance company to evaluate damage to the vehicle. It is unclear whether the mechanics, computer or steering of the vehicle was inspected. Mr. Hillis personally saw the vehicle himself and only observed body damage. The only claim submitted to the insurance company was for body damage.

Claimant was admitted to Poplar Bluff Regional Medical Center by ambulance. Claimant reported to the emergency room that he believed there was an "issue with the vehicle." He reported he "was unable to get it stopped and apparently went through a ditch and hit a concrete embankment." He reportedly lost consciousness after he hit the concrete embankment. The initial assessment included "Syncope", "History of atrial fibrillation" and "Hypertension." He underwent a CT of the lumbar spine that showed an acute compression fracture at L3 and an age indeterminate compression fracture at L2. A CT of the head showed a right scalp hematoma, orbital floor fracture, mild diffuse brain parenchymal volume loss and possible evidence of chronic microvascular ischemic disease. He underwent a surgical repair of the complete laceration of the upper eyelid and nose of approximately 7 cm in diameter. He underwent a neurology consult with Dr. Shahid Choudhary. Claimant denied a prior history of loss of consciousness. Under "Impression", Dr. Choudhary noted "Syncope. Mr. Haynes had syncopal episode; however, he states that he passed out after he had the accident, although it is not clear."

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Employee: William Haynes

Injury No. 15-040034

Dr. Choudhary also diagnosed cerebral concussion with no focal neurological deficit and facial injuries. He scheduled Claimant for an EEG that was normal.

Claimant saw Dr. Jahan Zeb for a cardiology consult for "new onset atrial fibrillation." In describing the accident, Claimant reported to Dr. Zeb that "he does not believe he passed out or had a seizure." Dr. Zeb noted that Claimant was diagnosed with atrial fibrillation in 2013 and refused anticoagulation. Dr. Zeb noted "He had a motor vehicle accident today, which is questionable as to whether or not he might have had a syncopal episode prior." Dr. Zeb's diagnosis was "atrial fibrillation with a probable syncopal episode prior to his accident." Claimant denied having any syncopal or presyncopal episodes.

On April 23, 2015 claimant underwent a Duplex ultrasound of the bilateral carotids that showed "Systolic velocity elevations seen at the bilateral internal carotid arteries of the neck suggestive of 50-69% stenosis by systolic velocity criteria" and ante grade flow of the bilateral vertebral arteries of the neck. He underwent a CT of the chest that showed an acute compression fracture at L3 and an age indeterminate compression fracture at L2. He underwent an Electroencephalogram that was reportedly normal.

Claimant followed up with Dr. Piland on May 11, 2015 with continued complaints of lower back pain. His assessment was chronic obstructive pulmonary disease, low back pain and hoarseness.

Claimant underwent an MRI of the lumbar spine on June 4, 2015 that showed a "recent wedge compression fracture of L3 consistent with previously noted injury" and an "old wedge compression fracture of L2 with small area of bone bruising posterior/inferior corner of L2." On June 16, 2015 Claimant followed up with Dr. Piland for his back injury. It was noted that he could not keep his upcoming appointment to see Dr. Joel Ray due to lack of transportation, but that he could see Dr. Brandon Scott. It is unknown if this appointment took place. He also requested referral to an ENT doctor due to complaints of hoarseness since his April 22, 2015 accident. He reported the airbag or something hit him in the throat. On August 19, 2015, Claimant reported no new acute problems. He reported losing weight which helped his back pain. It was noted that his MRI showed acute compression fractures of L3 and an old L2 compression fracture. Claimant saw Dr. Piland on September 3, 2015. Claimant wanted to know if the wreck could be the reason he was having memory loss. He was noted to have intermittent headache, both short and long-term memory loss, and confusion. His assessment was chronic obstructive pulmonary disease, low back pain, L2 wedge compression fracture, post-concussion syndrome and atrial fibrillation. It was noted that Claimant was not interested in taking Coumadin "or a new a/c". He was prescribed Tramadol. On January 12, 2016 Claimant was seen by Dr. Piland to monitor his A-Fib, COPD, lipid and back therapy. His assessment was chronic obstructive pulmonary disease, L2 wedge compression fracture and atrial fibrillation. It was noted that he had not been taking Ultram for back pain because it did not help much. He was prescribed Tramadol. Claimant was noted to have declined anticoagulation after being informed of the importance of the same.

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Employee: William Haynes

Injury No. 15-040034

On April 20, 2016 Claimant saw Dr. Piland with complaints of memory issues and headaches since his motor vehicle accident that was worsening. Claimant's wife also reported Claimant has episodes when he cannot talk correctly. Claimant reported increased hoarseness in the past three months. The assessment was hoarseness, chronic obstructive pulmonary disease, low back pain and post-concussion syndrome. On April 21, 2016, Claimant was referred to Dr. Georgolious, an ENT, for complaints of hoarseness. It is unknown if this appointment took place.

Claimant underwent an MRI of the brain on April 28, 2016 for complaints of headache, left arm weakness and post-concussion syndrome. The MRI showed no intracranial mass, hemorrhage or acute cerebral infarct, mild diffuse cerebral volume loss, mild to moderate chronic ischemic small vessel disease, small chronic right cerebellar infarct, and bilateral mastoid disease. On May 2, 2016 Dr. Piland's office notified Claimant by phone that his MRI showed an old cerebellar stroke, but no evidence of a new stroke, tumor, hemorrhage, etc.

There is a gap in treatment from May 3, 2016 to March 8, 2017. Claimant was next seen by Dr. Piland on March 9, 2017 for hip pain with continued low back pain. Claimant was noted to be taking Tramadol. On July 24, 2017, it was noted Claimant complained it was "getting very difficult to remember things and having times of confusion." He was still taking Tramadol for low back pain. Claimant was seen on September 13, 2017 for a COPD exacerbation. He was continuing to use Tramadol for low back pain. Claimant continued to receive treatment for COPD and low back pain through February of 2019. He also continued to complain of memory deficits. On January 10, 2019 he was noted to complain of pain in the left foot where he previously had a fracture. He was noted to have bad circulation in the foot.

Claimant is no longer working. Both his back and his left foot hurt. He has pain and difficulty walking because of his left foot. He has trouble remembering things sometimes. Sometimes he is confused and cannot understand his wife. Since the accident, he cannot smell. He has headaches. Before the accident, he could perform chores such as painting, plumbing, mowing the lawn, and repairs. He can no longer perform these activities because he cannot bend over without falling. Sitting or walking too long makes his back hurt. Claimant takes Tramadol and Tylenol for pain control.

Claimant has a scar on the right side of his nose from stitches. He testified that he also sustained abrasions to his left arm during the accident and a white scar was observed on the top of his arm that extended approximately six inches. He had a small scar on the back of his arm. Photographs taken after the accident showed Claimant had extensive bruising about the face, neck and left arm. He testified that he broke a tooth during the accident and "busted the whole frame of the top of his teeth."

Treatment Prior to the April 22, 2015 Accident

Claimant saw Dr. Piland on March 27, 2014 with complaints of left wrist pain after a fall from a ladder a couple of weeks prior. Dr. Piland ordered x-rays of the left wrist that subsequently confirmed a fracture. Dr. Piland recommended referral to an orthopedist, but claimant declined. On April 1, 2014, Claimant presented to Dr. Piland with complaints of left

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Employee: William Haynes

Injury No. 15-040034

wrist pain. His medications were listed as aspirin, Naprosyn, and Tramadol. On August 18, 2014 Claimant with seen by Dr. Piland with complaints of "hoarseness x 1 month." His diagnosis was sinusitis. Claimant was seen by Nurse Practitioner Piland on October 24, 2014 to discuss his cardiac status. He denied chest pain, dyspnea or dizziness. Specifically, Claimant wanted to discuss his stress test results from July 16, 2013 that showed atrial fibrillation. It was noted that Claimant refused to take any blood thinner except for aspirin. Claimant's recollection was that he was told that if aspirin took care of the problem he did not need to take prescription medications. Nurse Practitioner Piland noted "Long discussion regarding risk factors of not treating this type of rhythm." Claimant does not recall discussing risk factors associated with not taking medication. The assessment was chronic atrial flutter and irregular palpitations. Claimant was seen on October 27, 2014 for "palpitations and atrial flutter and refused any blood thinner." Claimant reported his breathing treatments cause gagging/choking. Dr. Piland's assessment was chronic obstructive pulmonary disease.

Claimant testified that approximately one year before the accident, he fell off a ladder on his patio at home and broke his foot. Claimant's testimony failed to specify whether it was his right or left foot, but Dr. Piland's record dated January 10, 2019 reports a history of left foot fracture. Claimant testified his foot pain resolved prior to the April 22, 2015 accident. 2

Both Claimant and his wife, Cynthia Haynes denied that Claimant had any incidents of "passing out" or "blacking out" before the accident on April 22, 2015.

IME of Raymond F. Cohen, D.O, C.I.M.E.

Claimant was evaluated by Dr. Cohen on January 26, 2017 for purposes of an Independent Medical Evaluation at the request of his attorney. Dr. Cohen took a history from Claimant and in describing the accident, claimant reported that "the steering quit working on him" and "the brakes did not work."

Claimant reported the following problems to Dr. Cohen,

Since this accident occurred, he can no longer do activities, such as paint his house. He cannot do his planting as much as he could before. He can no longer get up ladders. Grocery shopping causes extreme pain in his low back and hips. It is difficult for him to do any walking, other than short distances. He cannot get up into a truck that he has to step into it. Vacuuming, cooking, and cleaning are activities that he helps his wife with, as she has a cardiac problem. This causes him a lot of low back pain after doing this.

2 Dr. Piland's record dated March 27, 2014 references a 2014 accident involving a left wrist injury after falling off a ladder that was later diagnosed as a fracture. This record does not make any reference to a left foot injury or fracture. However, Claimant testified at Trial to a left foot injury as a result of falling off a ladder and the history of a left foot fracture was later documented by Dr. Piland on January 10, 2019. It is unknown whether there were two separate accidents involving ladders, if Claimant sought treatment for a left foot fracture at a different medical provider, or if Claimant simply misspoke. There are no medical records in evidence documenting treatment of the prior left foot fracture to help clarify this discrepancy.

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Employee: William Haynes

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Bending over to put on his shoes, socks, and pants also increase the low back pain. He states he no longer gets on the ground, as he could not get back up. He states that mowing his lawn causes severe low back pain. It is difficult for him to push in the clutch with his left ankle due to the severe pain. He is also having daily headaches, but they are not as severe as the ones notes above. He describes the low back pain as a throbbing pain. When sitting for a prolonged period, it is difficult for him to get up because of the low back. At times, he has difficulty walking and will stumble because of the left ankle pain and stiffness.

Dr. Cohen opined that the following diagnoses were a direct result of the accident: severe facial laceration, right nasal fracture, right orbital floor fracture, mild traumatic brain injury with post-concussion vascular headaches, loss of smell hyposmia, L3 compression fracture, chronic lumbar strain/sprain and severe left ankle injury with near complete fusion. He further opined that "the prevailing factor in causing his symptoms, the need for medical care and treatment, as well as the resulting disability is the injury at work on 4/22/2015." Dr. Cohen recommended further evaluation including a cookie swallow to evaluate persistent problems with choking, evaluation by a gastroenterologist, a formal ENT evaluation for complaints of hoarseness, that he continue current medications for low back pain, and see a neurologist or headache specialist for severe posttraumatic headaches. Assuming no further treatment he assigned ratings of 40% permanent partial disability at the level of the head, 25% of the whole person (lumbar spine) and 50% of the left ankle. Dr. Cohen stated that "Although he has a history of atrial fibrillation I did not see in the hospitalization records after the MVA any diagnostic findings of atrial fibrillation. Even if there were, his history was no warning of any symptoms prior to the accident, which is nearly always present in syncope. He had an immediate loss of consciousness [sic]. The emergency personnel noted confusion when they initially saw him."

Dr. Cohen issued a supplemental report dated June 11, 2018. He reviewed additional medical records including a 10/24/14 EKG that showed atrial flutter, and a 4/22/15 EKG that showed atrial fibrillation with a rapid ventricular response and nonspecific ST and T wave abnormality, as well as the IME done by Dr. Cantrell. Dr. Cohen stated that his medical opinions remain the same. He stated that "Certainly there are cardiac arrhythmias that can cause syncope, but atrial fibrillation is not one of the more common ones to cause syncope." He further opined that "the loss of consciousness that he sustained was a direct result of the head injury rather than any cardiac event or any other event other than the motor vehicle accident at work on 4/22/15."

IME report of Russell Cantrell, M.D.

Claimant was evaluated by Dr. Cantrell on September 12, 2017 for purposes of an Independent Medical Evaluation at the request of Employer-Insurer. Dr. Cantrell opined that the accident caused a facial laceration, a nasal and right orbital floor fracture, a concussion, and acute L3 compression fracture. He could not clearly relate Claimant's left foot fracture to the accident. He opined within a reasonable degree of medical certainty that the accident "was most likely

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Employee: William Haynes

Injury No. 15-040034

caused by a syncopal episode that in turn was most likely caused by a heart rhythm abnormality. In support of his opinion, he relied upon Claimant's documented history of untreated chronic atrial fibrillation and the absence of records showing there was a simultaneous malfunctioning of the steering wheel and brakes at the time of accident. He opined that claimant sustained 5% permanent partial disability to the person as a whole due to his concussion, 7% permanent partial disability due to his L3 compression fracture and ongoing back complaints and 5% of the person as a whole due to his orbital and nasal fractures. Dr. Cantrell identified additional disability unrelated to the accident including 10% of the person as a whole attributing to diffuse atherosclerotic disease that Dr. Cantrell opined was the prevailing factor in causing many of Claimant's current complaints, including those related to memory and garbled speech, 8% person as a whole attributable to pre-existing L2 compression deformity and multi-level degenerative changes, and 10% of the person as a whole attributable to pre-existing chronic atrial fibrillation.

Medical Bills

Claimant incurred the following medical charges as a result of the accident of April 22, 2015:

RULINGS OF LAW:

Issue 1: Whether on or about the date of the alleged accident, the employee was an employee of Hillis Dodge and was working under the Workers' Compensation Act.

Section 287.020.1, RSMo provides, in pertinent part:

> The word "employee" as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations.

In contrast, an independent contractor has been judicially defined as "one who, exercising an independent employment contracts to do a piece of work according to his own methods,

[^3]: Page 1 of Employee Exhibit 8 includes a summary of Employee's medical bills and reflects total charges in the amount of $45,896.42. However, the exhibit contains an error in that the total amount of charges for Butler County EMS is listed as $1145.00 whereas the actual bill (see page 7 of Employee Exhibit 8) shows the total amount charged was $1445.00.

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[^3]: Page 11

**Injury No. 15-040034**

without being subject to the control of his employer, except as to the result of his work." *Miller v. Hirshback*, 714 S.W.2d 652, 656 (Mo. Ct. App. S.D. 2000), superseded by statute on other grounds in *Booth v. Trailiner Corp.*, 21 S.W.3d 869 (Mo. App. S.D. 2000). A claimant establishes an employer-employee relationship if the claimant worked in the service of the alleged employer and the employer controlled those services. *Gaston v. J.H. Ware Tucking Inc.*, 849 S.W.2d 70, 72 (Mo. App. W.D. 1993). "The pivotal question in determining the existence of an employer-employee relationship is whether the employer had the right to control the means and the manner of the service as distinguished from controlling the ultimate results of the service." *Chouteau v. Netco Constr.*, 132 S.W.3d 328, 332 (Mo. App. 2004) citing *DiMaggio v. Johnston Audio/D & M Sound*, 19 S.W.3d 185, 188 (Mo. App. W.D. 2000). "[I]f the employer has the right to direct the details of how the job is to be performed or the manner in which the work is to be done, then the status of the one doing the work is that of an employee. And this is true though the employer does not exercise that right." *Vaseleou v. St. Louis Reality & Securities Co.*, 130 S.W.2d 538 (Mo. 1939). Here, it is not readily apparent whether the employer had the right to direct the details of the work to be done. Therefore, the following legal analysis is appropriate.

The Court in *Chouteau* identified the following nine factors to consider in evaluating whether the employer had the right to control alleged employee's work performance:

1. whether the work is part of the regular business of the employer;
2. whether the employment is a distinct occupation requiring special skills;
3. whether the alleged employee may hire assistants;
4. whether the work is usually done under supervision;
5. whether the alleged employee must supply his own tools, equipment supplies, and materials;
6. the existence of a contract for a specific piece of work at a fixed price;
7. the length of time the person is employed;
8. the method of payment, whether by time or by the job; and
9. the extent to which the alleged employee may control the details of his work; except as to final results.

The Courts have held that no particular factor is dispositive of the issue, but that each factor must be considered in making the determination of whether an employer-employee relationship exists. See *Seaton v. Cabool Lease, Inc.*, 7 S.W.2d 501, 505 (Mo. App. 2000, citing *Watkins v. By-State Development Agency*, 924 S.W.2d 18, 21 (Mo. App. 1996). After considering each of the above factors, I find as follows:

**Factor 1.** Employer is in the business of both selling and servicing automobiles. Matt Hillis testified that transporting vehicles is a regular part of Employer's business and that Employer transports automobiles to local auctions "every once in a while" and to the St. Louis auction approximately twice per year. The dealership also transports vehicles to local dealer trades and pays their regular employees to perform this task using the same compensation scale.

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Employee: William Haynes

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they pay "independent contractors" to transport vehicles to auction. The purpose of taking an automobile to auction is to sell the vehicle. I find that transporting vehicles to auction for the purpose of sale is part of the regular business of Employer. This factor weighs in favor of an employer-employee relationship.

**Factor 2.** Claimant was hired to drive Employer's vehicle to auction. No special skills were required to perform this job. Claimant only needed to present a valid driver's license. This factor points toward an employer-employee relationship.

**Factor 3.** There is no evidence of any agreement or discussion between Employer and Claimant regarding whether Claimant could hire an assistant. As a practical matter, Claimant's rate of $45.00 for the trip would make it cost prohibitive for him to hire an assistant. This factor does not weigh in favor of either an independent contractor or employer-employee relationship.

**Factor 4.** Testimony established that when regular employees of the dealership are asked to transport vehicles they are given a checklist that includes a specific route to follow. However, there is no evidence that the regular employees were supervised while delivering vehicles. There is no evidence that the dealership supervised the drivers they hired from the driver list to transport their vehicles to auction. This factor weighs in favor of an independent contractor relationship.

**Factor 5.** Claimant was not required to supply his own tools, equipment supplies or material. Claimant drove a vehicle owned by Employer and Employer provided the fuel for the vehicle. Employer provided a van to be driven by another hired driver to the auction to transport all the drivers back to Employer at the end of the job. This factor weighs in favor of an employer-employee relationship.

**Factor 6.** Claimant and Employer had an oral contract that Claimant would transport Employer's vehicle to auction on April 22, 2015 for a flat fee of $45.00 that was based on the miles to be driven by Claimant that day. However, Matt Hillis testified that regular employees are paid at the same fee schedule as independent contractors to transport vehicles to dealer trades. Also, the evidence was that Employer set the rate per their own fee schedule. Claimant did not set or negotiate the rate. Claimant was not certain how his pay rate was determined. This factor does not weigh in favor of either an independent contractor or employer-employee relationship.

**Factor 7.** Claimant was hired for the time necessary to drive Employer's vehicle to the St. Louis auction. This factor weighs in favor of an independent contractor relationship.

**Factor 8.** Claimant did not receive payment because he was injured prior to completion of the job. However, had the job been completed, taxes would not have been withheld from his paycheck and he would have been given a 1099 form. This factor weighs in favor of an independent contractor relationship.

**Factor 9.** I find that Claimant was not given any specific instructions on how to perform the details of his work including the manner in which he drove (speed, number of breaks, route to

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Employee: William Haynes

Injury No. 15-040034

be taken, etc.) and what to do in case the vehicle broke down. Considering that Employer owned the vehicle a reasonable inference can be drawn that Claimant would be expected to notify Employer in the event of a breakdown and ask for instructions on what to do with the vehicle. His $45.00 fee would not reasonably be expected to cover such expenses. I find that Employer exercised some control over the work in that Claimant was instructed to wait for the other drivers, and there was an understanding on the part of Claimant that the drivers were to travel to the auction in a caravan. The evidence is unclear whether the caravan was organized by Employer or by the hired drivers. The fact that Employer hired four to five individuals to drive its four to five vehicles as opposed to hiring one individual to coordinate and arrange for the the delivery of the vehicles for them is also suggestive of an element of control and more indicative of an employer-employee relationship. I further find that Employer arranged for the drivers to be transported back to the dealership in a dealer-owned van once the vehicles were delivered to auction. There is no evidence that the Claimant was required to accept this transportation, but as a practical matter, it would have been cost prohibitive for Claimant to reject this transportation considering his flat fee payment of $45.00. While it is apparent that Employer exercised minimal control, the job did not require Employer to exercise extensive control. The task was simple—to drive a vehicle from point A to B and a van would bring Claimant (and the four to five other hired drivers) back. I find that this factor does not weigh heavily in favor of either an independent contractor or employee relationship.

I find that three out of nine factors weigh in favor of an employer-employee relationship, three out of nine factors weight in favor of an independent contractor relationship and three out of nine factors do not weigh in favor of either conclusion.

In *Busby v. D.C. Cyle, Ltd.*, 292 S.W.3d 546, 550 (Mo. App. 2009) the Court considered some additional factors including the extent of control, actual exercise of control, and the right to discharge. The extent of Employer's control and actual exercise of control are fully addressed above. The employer's "right" to control remains unclear based on the evidence on the record. I find these factors to be inconclusive. As far as the right to discharge is concerned, I find that Claimant had an oral contract to drive the dealership's vehicle to auction in St. Louis. I find that because the contract was specific as to duration, Claimant would not be considered an employee at will. This factor leans slightly in favor of an independent contractor relationship.

Relative Nature of Work Test

> "[W]hen the evidence does not clearly demonstrate the employer's actual or right to control, the 'relative nature of the work test' determines employment status for purposes of workers' compensation." *Ceradsky v. Mid-Am. Dairymen, Inc.*, 583 S.W.2d 193, 199 (Mo. App. W.D. 1979). The Relative Nature of the Work test applies the following factors:

>

> > The character of the claimant's work or business-how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on-and its relation to the employer's business, that is, how much it is continuous or intermittent, and whether the duration is sufficient to

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Employee: William Haynes

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amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

*Id.* I find that Claimant drove an F-150 truck that did not require any special skill other than having a valid drivers' license. Further, I find driving vehicles to auction for local dealerships falls short of reaching the status of an "enterprise" for which he would be expected to carry his own accident burden—especially at a delivery rate of $45.00. Claimant testified to driving for only one other dealership on two occasions prior to accepting the job at Employer. On the other hand, taking vehicles to auctions and dealer trades is an essential part of Employer's business. Although Employer only transports vehicles to St. Louis auction approximately twice per year, they also participate in local auctions, and their regular employees routinely drove Employer's vehicles to local dealer trades. Mr. Hillis admitted that if he could not find someone from their driver's list to drive a vehicle to auction, he would have had one of his regular employees perform the task. "Thus, that the work activity is of a kind necessary in the operation of the business so that if not done by the claimant would be done by a direct employee of the business, essentially establishes the renderer of the service an Employee within the purposes of the compensation law." *Ceradsky v. Mid-America Dairymen, Inc.*, 583 S.W.2d 193, 198 (Mo. App. W.D. 1979).

Considering the evidence as a whole, I find that for purposes of the Workers' Compensation Law, Claimant was an employee of Hillis Dodge.

*Issue 2: Whether the accident on or about April 22, 2015 arose out of and in the course of employment and specifically whether the alleged employee sustained an idiopathic event that would be covered under the Workers' Compensation Law.*

The parties stipulate that Claimant sustained an accident on April 22, 2015. However, the parties dispute whether Claimant sustained a compensable injury as a result of that accident. Section 287.020.3 provides that:

(2) An injury shall be deemed to arise out of and in the course of employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) 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 in normal nonemployment life.

(3) An injury directly or indirectly from idiopathic causes is not compensable.

"The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." Section 287.808 RSMo. "Any claim that an injury is non-compensable because it had an idiopathic cause is in the nature of an affirmative defense." *Con Agra Foods, Inc. v. Phillips*, 527 S.W.3d 74 (Ct. App. W.D. 2017). Medical causation that is not a matter of common knowledge or

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Employee: William Haynes

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experience must be established by scientific or medical evidence showing the relationship between the complained-of medical condition and the asserted cause of the condition. See *Bond v. Site Line Surveying*, 322 S.W.3d 165, 170 (Mo.App.2010).

Both Dr. Cohen and Dr. Cantrell agree that the accident was the prevailing factor in causing a facial laceration, a right orbital and nasal fracture, a concussion, and an acute L3 compression fracture. I find that Claimant met his burden of proof that the accident was the prevailing factor in causing these injuries as required by section 287.020.3(2)(a). Regarding the second factor required by Section 287.020.3(2)(b), I further find that Claimant was driving an unfamiliar vehicle owned by Employer and this created a hazard or risk that Claimant was not exposed to in his normal non-employment life. I find Claimant credibly testified that he tried to turn right, but the vehicle would not turn. Claimant admits he does not know why the vehicle did not turn. I find that Claimant met his burden of proof that he sustained an injury by accident that arose out of and in the course of employment.

Because Claimant met his burden in establishing that he sustained an injury arising out of and in the course of his employment, I now address Employer-Insurer's affirmative defense under Section 287.020.3(3) that Claimant sustained an idiopathic injury. Specifically, Employer-Insurer argues that Claimant suffered a syncopal event that caused the accident. It is Employer's-Insurer's burden to prove that it is more likely to be true than not true Claimant's injury was idiopathic. Section 287.808 RSMo; *Gleason v. Treasurer of State of Missouri-Custodian of the Second Injury Fund*, 455 S.W.3d 494 (W.D. 2015). "An idiopathic condition is one that is 'peculiar to the individual: innate.'" *Alexander v. D.L. Sitton Motor Lines*, 851 S.W.2d 525, 527 (Mo. Banc 1993). "Evidentiary support is required to successfully claim an event is entirely idiopathic, 'i.e., the event results from some cause personal to the individual, such as a physical defect or disease.'" *Taylor v. Contract Freighters, Inc.*, 315 S.W.3d 379, 381 (Mo. S.D. 2010) citing *Huffmaster v. Am. Rec Prods.*, 180 S.W.3d 525, 529 (Mo. App. E.D. 2006). While it is undisputed that Claimant had an untreated medical condition of atrial fibrillation, I find Employer-Insurer failed to meet its burden of proof that this medical condition resulted in a syncopal episode that caused the accident. Claimant consistently reported to emergency room personnel, Dr. Choudhary, Dr. Zeb, Dr. Cohen, Dr. Cantrell and to this Court that he did not pass out or experience a seizure before the accident. I find Claimant's testimony credible. I also find persuasive that there is no evidence that Claimant had a history of syncopal episodes associated with his atrial fibrillation prior to the April 22, 2015 accident or reports of syncopal episodes subsequent to the accident. While both Dr. Zeb and Dr. Choudhary speculated in their records that Claimant may have suffered a syncopal event before the accident, both acknowledged Claimant denied a syncopal event. Neither Dr. Zeb nor Dr. Choudhary testified or offered explanation in their records for why they suspected a syncopal event apart from the fact that Claimant has a history of atrial fibrillation.

Employer-Insurer relies on the opinion of Dr. Cantrell who opines the accident was "most likely caused by a syncopal episode and that in turn was most likely caused by a heart rhythm abnormality." He bases his opinion on the fact that Claimant has an untreated history of chronic atrial fibrillation and on the absence of documentation that the brakes and steering wheel malfunctioned. Dr. Cohen stated in his report that atrial fibrillation is not a common

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Employee: William Haynes

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cause of syncope. While Employer-Insurer argued that Claimant had been advised of the risks associated with failing to take medication for atrial fibrillation, no evidence was offered at Hearing regarding the nature of those risks or the likelihood of having a syncopal episode because of atrial fibrillation. In the absence of evidence that Claimant had a history of syncopal episodes as a result of atrial fibrillation either before or after the accident, and considering that his history to the emergency personnel immediately after the accident was that he believed there was an "issue with the vehicle", that he "was unable to get it stopped and apparently went through a ditch and hit a concrete embankment," and lost consciousness after he hit the concrete embankment, I find Dr. Cantrell's opinion unpersuasive. Further, I find that Dr. Cantrell's reliance on the lack of documentation of a mechanical malfunction to be misplaced. While Employer-Insurer offered evidence at trial that the vehicle passed a 23 point inspection shortly before the accident, the testimony was vague as to the extent of that inspection and whether it included inspection and/or testing of the power steering. Although testimony was offered that Mr. Hillis observed the vehicle after the accident and did not notice any problems with the steering, his testimony was vague as to the extent of his personal inspection. Further, there was no evidence that he had the qualifications or knowledge required to inspect the power steering of the vehicle for defects. Mr. Hillis testified that Employer only filed an insurance claim for body damage, but this testimony was also vague as to whether a qualified mechanic tested the power steering and/or brakes after the accident. It is unclear whether Employer had any communication with Claimant after the accident such that they were on notice that there may be an issue with the steering and/or brakes. I find the opinion of Dr. Cohen more persuasive and credible than the opinion of Dr. Cantrell on the issue of whether Claimant suffered a syncopal episode. I find Claimant lost consciousness due to a head injury sustained at the time of accident. Employer-Insurer did not meet its burden of proof that it is more likely true than not true that Claimant suffered from a syncopal episode that caused his accident.

I find that the evidence is insufficient to conclude that Claimant sustained an idiopathic event. I find Claimant's testimony credible that he did not experience a syncopal episode preceding the accident. I find that Claimant met his burden of proof that he sustained an injury by accident that arose out of and in the course of employment.

Issue 3: What is the Average Weekly Wage and TTD/PPD rate?

Section 287.250 RSMo sets forth the methods of computing an injured employee's average weekly earnings. I find that Section 287.250(1)-(7) does not apply to the fact pattern of this case because Claimant's wages were not fixed by the week, the month, the day, the hour or by the output of Claimant. The agreement was that Claimant would be paid by the trip. The testimony at trial confirmed that regular employees of the dealership sometimes made similar trips and were paid at the same rate, but none of the regular employees exclusively made these trips as their job, therefore there are no similarly situated employees on which to calculate an average weekly wage.

Section 287.250.4 RSMo provides that if the "average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or

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**Injury No. 15-040034**

The commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage." It is undisputed that Claimant would have been paid a flat fee of $45.00 for driving the vehicle to auction. After consideration of the exceptional facts presented, I find Claimant was a part-time employee. Claimant testified that he could have worked every day, but the evidence was that he had only driven similar jobs a few times. I find that the minimum wage rate of $40.00 for temporary total disability, in accordance with Section 287.170.1(5), is appropriate. I find Claimant's average weekly wage for purposes of calculating a permanent partial disability rate is 225.00 (45.00 per day x 5 days a week = 225.00) producing a permanent partial disability rate of 150.00.

Dr. Cohen and Dr. Cantrell agree, and I therefore find, that the accident was the prevailing factor in causing a facial laceration, nasal and right orbital floor fracture, a concussion, and an L3 compression fracture.

I find that Claimant did not meet his burden of proof that the accident was the prevailing factor in causing his alleged left ankle injury. Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. *Kelley v. Banta & Stude Constr. Co. Inc.*, 1 S.W.3d 43, 48 (Mo. App. 1999); *Webber v. Chrysler Corp.*, 826 S.W.2d 51, 54 (Mo. App. 1992); *Hutchinson v. Tri-State Motor Transit Co.*, 721 S.W.2d 158, 162 (Mo. App. 1986). Although Dr. Cohen causally relates Claimant's left ankle injury to the accident, I do not find this opinion credible for the following reasons:

1. There is no mention of left ankle complaints in the emergency room records immediately following the accident.
2. The first mention of any left ankle complaints in the treatment records is not until January 10, 2019.
3. At that time, it was noted that Claimant had a previous fracture to his left foot.
4. Claimant testified at trial that he fell off a ladder at home approximately one year prior to the accident and fractured his foot.
5. Dr. Cohen's report does not acknowledge a history of left foot fracture prior to the accident, therefore it is unclear whether he took that history into consideration in formulating his causation opinion. Because there is no documentation of left foot complaints in close temporal proximity to the accident and because it is unknown whether Dr. Cohen had knowledge of the prior left foot fracture in formulating his opinion, I do not find Dr. Cohen's opinions with regard to the cause of the left ankle condition credible.

Claimant also alleges that the accident caused a broken tooth and "busted the whole frame of the top of his teeth." There is no reference to this injury in the treatment records offered into evidence at trial. Dr. Cohen mentions the injury in his report under the current complaints section when he reports, "He relates he lost one of his upper teeth and had a broken plate on the lowers." Dr. Cohen does not address the dental injury in his causation opinions or recommendations for further treatment. It is unclear from Claimant's testimony whether he's

*Dr. Piland's record dated January 10, 2019 is subsequent to Dr. Cohen's reports dated January 26, 2017 and June 11, 2018, therefore Dr. Cohen did not have an opportunity to review said record in formulating his causation opinion.*

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**Injury No. 15-040034**

alleging damage to dentures or a bridge or some other type of dental device. At trial, it was unclear whether Claimant had any teeth as his speech was garbled and difficult to understand. Unfortunately, much of his testimony regarding his dental injury was unintelligible due to his garbled speech—presumably because of missing teeth. No prior dental records are offered into evidence therefore the pre-existing condition and current condition of his teeth and/or dental work is unknown. Claimant argues in his brief that his dental injury is within the lay understanding and therefore medical evidence is not necessary. *Irving v. Missouri State Treasurer*, 35 S.W.3d 441, 445 (Mo. App. W.D. 2000). "The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 51 (Mo.App.2007) (quoting *Reiner v. Treas. of State of Mo.*, 837 S.W.2d 363, 367 (Mo.App.1992)). While this Court agrees a dental injury can fall within the realm of lay understanding and is sympathetic to Claimant's need for dental work, I find Claimant's testimony in this case, without some corroborating medical or dental records, was insufficient to meet his burden of proof on the issue of medical causation.

Claimant is claiming previously incurred medical bills in the amount of $45,896.42; however, a careful review of the bills submitted into evidence reveals the actual total of bills is $46,196.42. The employer is disputing those medical bills with regard to the issue of authorization, reasonableness, necessity, and causal relationship.

With regard to authorization, Section 287.140 RSMo gives the employer the right to select the treating physician. The employer waives that right by failing or neglecting to provide necessary medical aid. See *Banks v. Springfield Park Care Center*, 981 S.W.2d 161 (Mo. App. 1998). In *Wiedower v. ACF Industries*, 657 S.W.2d 71 (Mo. App. 1983), medical bills were awarded to the employee when the employer had notice of the injury but chose to treat the injury as non-compensable and did not offer medical services. The employer will be liable for medical expenses incurred by the employee when the employer has unsuccessfully denied compensability of the claim. Denial of compensability is tantamount to a denial of liability for medical treatment. An Award can be entered for medical expenses of an employee through the selection of his own medical treatment. *Beatty v. Chandeysson Elec. Co.*, 190 S.W.2d 648 (Mo. App. 1945).

Employer was aware of Claimant's injury and knew he was transported to the hospital. The employer did not offer medical treatment. The employer denied the compensability of the case. Based upon the case law and a review of the evidence, I find that the employer waived its

Even if it was determined Claimant met his burden on proof that the accident was the prevailing factor in causing his dental injury, there is insufficient evidence on the record to make a determination regarding the extent of permanent partial disability and/or whether Claimant is entitled to future medical care.

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right to select the treating physician by denying the compensability of the case and by failing or neglecting to provide necessary medical aid. The alleged defense of authorization is not valid.

With regard to the issue of reasonableness and necessity, it was Dr. Cohen's credible opinion that the need for medical care and treatment was a result of the accident on April 22, 2015. The medical records offered into evidence support a finding that the treatment was necessary as a result of the accident. Employer-Insurer offered no evidence to meet their burden of proof that the bills were not reasonable or necessary.

Regarding the issue of causal relationship, I previously determined Claimant met his burden of proof that the accident was the prevailing factor in causing facial laceration, nasal and right orbital floor fracture, a concussion, and an L3 compression fracture. Claimant's testimony, Dr. Cohen's opinions, and the medical records in evidence support a finding that the charges set forth in Exhibit 8 were for treatment reasonably required to cure and relieve Claimant from his injuries. Based upon a review of all the evidence, I find that the medical treatment was reasonable and necessary to cure the claimant of the effects of the injury, and that the medical bills are reasonable. I find the employer is responsible for and is directed to pay Claimant the sum of $46,196.42 for the previously incurred medical bills in Employee's Exhibit 8.

Issue 6: Whether alleged employee is entitled to additional or future medical aid.

The claimant has the burden of proving not only that he sustained an accident, which arose out of and in the course of his employment, but also that there is a medical causal relationship between his accident and the injuries and the medical treatment for which he is seeking compensation. *Griggs v A. B. Chance Company*, 503 S.W.2d 697 (Mo.App.1973). The standard of proof for entitlement to an allowance for future medical aid cannot be met simply by offering testimony that it is "possible" that the claimant will need future medical treatment. *Modlin v Sunmark, Inc.*, 699 S.W.2d 5, 7 (Mo.App.1995). The cases establish, however, that it is not necessary for the claimant to present "conclusive evidence" of the need for future medical treatment. *Sifferman v Sears Roebuck and Company*, 906 S.W.2d 823, 838 (Mo.App.1995). To the contrary, numerous cases have made it clear that in order to meet their burden, claimants are required to show by a "reasonable probability" that they will need future medical treatment. *Dean v St. Lukes Hospital*, 936 S.W.2d 601 (Mo.App.1997). In addition, employees must establish through competent medical evidence that the medical care requested, "flows from the accident" before Employer-Insurer is responsible. *Landers v Chrysler Corporation*, 963 S.W.2d 275, (Mo.App.1997).

Claimant testified and the medical records confirm that he continues to take Tramadol for his low back pain. Dr. Cohen opined that he should continue taking his current medications for low back pain. Dr. Cohen further opined he should see a neurologist or headache specialist for his posttraumatic headaches. I find that Claimant met his burden of proof that he requires future medical aid to cure and relieve the effects of his L3 compression fracture and his posttraumatic headaches.

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Employee: William Haynes

Injury No. 15-040034

Regarding Dr. Cohen's recommendation for a cookie swallow, evaluation by a gastroenterologist and an ENT evaluation, I find that Dr. Cohen did not address whether Claimant's complaints of hoarseness and choking are causally related to the accident, therefore I find that Claimant did not meet his burden of proof that the need for this treatment flows from the accident.

Employer is directed to provide Claimant with all of the medical care that is reasonable and necessary to cure and relieve him from the effects of his work-related injuries, specifically his concussion/posttraumatic headaches and lumbar pain, pursuant to Section 287.140 RSMo.

**Issue 7:** Whether alleged employee is entitled to temporary total disability benefits from April 22, 2015 through the date of maximum medical improvement;

**Issue 8:** What is the date alleged employee reached maximum medical improvement?

Issues 7 and 8 will be addressed together.

Maximum medical improvement is defined as "the point at which the injured employee's medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty." 287.020.12 RSMo. There are no medical opinions on the record establishing the date Claimant reached maximum medical improvement. I find Claimant reached maximum medical improvement on May 2, 2016. On this date Dr. Piland's office notified claimant by phone of his MRI results and the records in evidence indicate that Claimant sought no further treatment until March 8, 2017. Claimant received no further evaluation or treatment other than ongoing pain medications after May 2, 2016, and there is no evidence that his condition improved after this date. I find that Claimant reached maximum medical improvement on May 2, 2016.

Total disability benefits are intended to cover healing periods and are payable until the employee is able to return to work or until the employee has reached the point where further progress is not expected. *Brookman v Henry Transportation*, 924 S.W.2d 286 (Mo.App.1996). The burden of proving entitlement to temporary, total disability benefits is on the claimant. *Cooper v. Medical Center of Independence*, 955 S.W.2d 570, 575 (Mo.App.1997). Claimant has not returned to work since the accident. Claimant was 83 years old at the time of the Hearing and was retired from his regular employment at the time of accident. The treating and evaluating doctors were silent as to Claimant's ability to return to work following the accident. Claimant testified that he is unable to work now, but he is not claiming permanent and total disability benefits and there is no evidence on the record to support that Claimant is permanently and totally disabled. Claimant did not offer any testimony as to when he was physically able to return to work. I find Claimant failed to meet his burden of proof regarding his entitlement to temporary total disability benefits.

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Employee: William Haynes

Injury No. 15-040034

**Issue 9: What is the nature and extent of any permanent partial disability and disfigurement?**

Based on a review of the evidence, I find that as a direct result of the accident, Claimant has sustained a 15% permanent partial disability of the body as a whole at level of the lumbar spine (60 weeks) and a 17.5% permanent partial disability of body as a whole attributable to post-concussive disorder, orbital fracture and right nasal fracture (70 weeks). I further find that Claimant sustained a total of 10 weeks disfigurement for scarring observed on the right side of Claimant's nose and due to abrasions sustained to the left arm. Employer-Insurer is therefore ordered to pay to the Claimant 140 weeks of compensation at the rate of 150.00 per week for a total award of permanent partial disability of 21,000.00.

**CONCLUSION**

Claimant is an employee of Employer. The accident of April 22, 2015 arose out of and in the course of employment. Claimant's average weekly wage is 225.00. His temporary total disability rate is 40.00 and his permanent partial disability rate is $150.00. The accident was the prevailing factor in causing an L3 compression fracture, post-concussive disorder, orbital fracture and a right nasal fracture resulting in permanent partial disability of 15% of the body as a whole (lumbar spine) and 17.5% of the body as a whole (post concussive disorder, orbital fracture and right nasal fracture.) Claimant is entitled to 10 weeks disfigurement. Employer-Insurer is ordered to pay to the Claimant 140 weeks of compensation at the rate of 150.00 (21,000.00) and 46,196.42 for previously incurred medical bills for a total of 67,196.42. Employer-Insurer is directed to provide Claimant with all of the medical care that is reasonable and necessary to cure and relieve him from the effects of his work-related injuries, specifically his concussion/posttraumatic headaches and lumbar pain, pursuant to Section 287.140 RSMo.

**ATTORNEY'S FEE:**

Michael Moroni, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to Claimant. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein. By stipulation of the parties, Attorney Michael Moroni shall satisfy the lien asserted by Attorney Jeff Koch in the sum of $1,864.25 to be paid out of his attorney fee.

**INTEREST:**

Interest on all sums awarded hereunder shall be paid as provided by law.

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The original hearing was conducted by Administrative Law Judge Amy L. Young on February 28, 2019. The Award [including the findings of fact and rulings of law relating to the issues presented], has been written by Ms. Young based upon the evidence adduced at the hearing and in conformity with the statutory requirements of the Workers' Compensation Law. Due to a change in circumstance, while Ms. Young continues to be employed by the Division, she is unable to sign the Award as an Administrative Law Judge. The Division must proceed with the distribution of the written Award to the parties within the statutorily prescribed timelines, and therefore, I am signing this Award as the Chief Administrative Law Judge of the Cape Girardeau Adjudication Office.

I certify that on 5-31-19 I delivered 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 __________________________

Lawrence C. Kasten

Chief Administrative Law Judge

Division of Workers' Compensation