Terry Humphrey v. Ruan Logistics Corporation

Given at Jefferson City, State of Missouri, this $\qquad 5th \qquad$ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

I have reviewed the evidence, read the briefs of the parties, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to affirm the administrative law judge's award with minor modifications. I do not believe that employer is liable for employee's temporary total disability, past medical expenses, and 12.5 % permanent partial disability due to employee's September 6, 2012 primary work injury.

The administrative law judge should not have discredited the findings of Mr. Frank Stevens, and fail to consider the relevant investigative findings with the testimony of Ms. Rosie Garcia and Ms. Ruffett Yokley. The administrative law judge based his credibility determination of Mr. Stevens on the fact that he had no idea what kind of trailer employee was hooking up to at the time of the accident, he relied on old measurements, he did not record the inspections he performed at a truck stop, and that the safety mirror on employee's truck was adjustable. However, when viewing the measurements and specifications Mr. Stevens had pertaining to employee's truck, his opinion that the accident could not have occurred the way employee describes is credible. Ms. Yokley testified that it did not seem possible for employee to walk around the truck and hit the mirror with his head unless he was leaning into the truck while he was walking, given that she was able to walk right under the safety mirror and she is about the same height as employee. Furthermore, Ms. Yokley testified that at the time of her inspection of the truck employee was driving, the safety mirror was in line with the fender of the truck and was not extending outwards over the fender. Ms. Yokley also discredited Mr. Stevens' findings by noting he did not know what kind of trailer employee was hooking up to at the time of the accident. However, employee has not wavered in testimony that he was on the passenger side of the truck, and walked around the front of the truck towards the driver's side when he alleged striking his head on the driver's side front fender mirror.

I also believe that the administrative law judge erred by finding Mr. Stevens' testimony to be not credible due to the safety mirror being adjustable. Mr. Stevens testified that the only way the mirror would protrude outward from the vehicle to the point to allow for an individual walking around the truck to make contact with the mirror would be if that semi-truck was hauling a wide load. However, Mr. Stevens testified that employee was not hauling any wide loads, and Ms. Yokley also testified the Neosho facility did not haul wide loads and absent hauling wide loads, there was no reason for the safety mirror to not adhere to Interstate Commerce Commission regulations and extend beyond being flush with the outside edge of the fender. Ms. Yokley also testified the mirror was more into the truck and did not stand out such that she did not see how employee could walk around the semi-truck and hit the mirror without leaning into the truck. Further, Ms. Yokley examined employee's actual semi-truck with the hair still in the mirror at the time she made these findings.

I believe that employee was not a credible witness. During the time that employee worked for TransForce as a truck driver, he completed a driver physical qualification form on February 7, 2014. Employee did not mention anything about hitting his head on

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the mirror of the truck or any issues that stem from it. Employee also marked "no" on the question as to past history of head/brain injuries, disorders or illnesses. However, in noting medications on the form, he referenced being on an antibiotic for a sinus infection prescribed by Dr. Timothy Gabbert. Employee passed the United States Department of Transportation physical for commercial driving and continued driving.

I believe that Mr. Stevens is credible. He is an expert in traffic crash reconstruction and claims investigation and his testimony was not contradicted. In fact, his testimony employee could not have made contact with the driver's fender mirror behind his left ear while walking from the passenger side, around the front, toward the driver's door unless he contorted his body awkwardly is supported not only by his investigation and experience, but also by the testimony of Ms. Garcia and Ms. Yokley. Additionally, employee presented no evidence to contradict this opinion other than his own testimony.

I also believe that the administrative law judge erred by failing to rely on the objective medical evidence, and by choosing to rely upon employee's subjective complaints and testimony, and the opinion of Dr. Brent Koprivica. Dr. James S. Appelbaum is board certified in neurology, with qualifications in clinical neurophysiology and sleep medicine. He has been in practice as a general neurologist for 27 years. While he is a general neurologist, he testified that he analyzes and assesses primarily issues related to concussions, migraines, epilepsy, stroke and pinched nerves. After reviewing all medical records, United States Department of Transportation certifications and employee's deposition, Dr. Appelbaum opined in his addendum report of July 19, 2016, that employee did not have post-concussion syndrome as a result of the alleged injury on September 6, 2012, and found no ( 0 % ) permanent partial disability. Dr. Appelbaum noted that it was not until employee began to report striking his head on the mirror and memory loss that the medical providers went down the road of a post-concussion syndrome diagnosis. Dr. Appelbaum opined that employee suffered from a very mild concussion, did not believe employee's subjective complaints were related to his head injury. Dr. Appelbaum noted employee's lack of objective findings to correlate to his subjective complaints gave rise to his finding of no permanent partial disability.

To summarize, I find Mr. Stevens, Ms. Garcia and Ms. Yokley to be credible. I do not find employee to be a credible witness. Dr. Appelbaum was more credible and persuasive than Dr. Koprivica. Furthermore, I believe that the administrative law judge's award should be reversed in its entirety. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

AWARD

Employee: Terry D. Humphrey

Injury No. 12-078153

Dependents: N/A

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Re

Department of

Department of Labor and Industrial

Ad

Additional Party: N/A

Relations of Missouri

Jefferson City, Missouri

Insurer: Indemnity Insurance Company of North America,

Helmsman Management Services

Insurer: Indemnity Insurance Company of North America,

Helmsman Management Services

Hearing Date: November 7, 2019

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: September 6, 2012

1. State location where accident occurred or occupational disease was contracted:

Newton County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or

occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment?

Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease

contracted: While walking around truck Employee struck his head on the side-view

mirror.

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry Humphrey

Injury No. 12-078153

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Head

1. Nature and extent of any permanent disability: 12.5 percent of body as a whole

1. Compensation paid to-date for temporary disability: None paid

1. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? 7,597.88

1. Employee's average weekly wages: 1,000

1. Weekly compensation rate: $666.67/$433.58

1. Method wages computation: Statutory

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: 6,711.65 (4,028.25 to be paid directly to Freeman Health System to satisfy MFD and $2,683.40 to be paid directly to Employee)

weeks of temporary total disability (or temporary partial disability) 13 weeks (13 x $666.67 = $8,666.71)

weeks of permanent partial disability from Employer 12.5 percent of body as a whole (50 weeks x $433.58 = $21,679.00)

weeks of disfigurement from Employer N/A

1. Second Injury Fund liability: N/A

TOTAL:

1. Future requirements awarded: N/A

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Matthew B. Webster

Revised Form 31 (3/97)

Page 2

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on November 7, 2019. The record was left open for thirty days prior to the record being completed and submitted to the undersigned. The parties were afforded the opportunity to submit proposed awards.

The employee appeared personally and through his attorney Matthew B. Webster, Esq. The employer and insurer appeared through their attorney, Shari Lockhart, Esq.

The parties stipulated to the following:

1. On or about September 6, 2012, Ruan Logistics Corporation was an employer operating under and subject to Missouri Workers' Compensation Law, and during this time was self-insured.
2. On the alleged injury date of September 6, 2012, Terry Humphrey was an employee of the employer, and was working under and subject to Missouri Workers' Compensation Law.
3. The employee notified the employer of his alleged accident as required by Section 287.420, RSMo.
4. The above-referenced employment occurred in Newton County, Missouri. The parties agree to venue lying in Newton County, Missouri. Venue is proper.
5. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

1. At the time of the alleged accident of September 6, 2012, the employee's average weekly wage was 1000.00, which is sufficient to allow a compensation rate of 666.67 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $433.58 for permanent partial disability compensation.

1. The employer/insurer had paid zero dollars in temporary total disability compensation.

1. The employer/insurer had provided employee no medical treatment.

The parties further agreed that should the undersigned Administrative Law Judge find that on September 6, 2012, the employee sustained an accident and that the accident caused the injuries and disabilities for which benefits are now being sought, they would make the following additional stipulations:

1. The accident occurring on September 6, 2012, arose out of and in the course and scope of his employment with the employer.

1. The employee is entitled to unpaid temporary total disability compensation for a period of 13 weeks in the amount of 8,666.71.

1. The employer is responsible for an additional 7,597.88 for medical bills related to medical treatment the employee sought for injuries he received in the accident of September 6, 2012. Of the 7,597.88, 4,028.25 is to be paid to Freeman Health System to satisfy the Medical Fee Dispute filed by Freeman.

The issues to be resolved by hearing include:

1. Whether the employee sustained an accident on or about September 6, 2012,

1. Whether the alleged accident caused the injuries and disabilities for which benefits are now being sought,

1. Whether the employee sustained any permanent disability as a consequence of the alleged accident of September 6, 2012; and if so, what is the nature and extent of the disability.

EVIDENCE PRESENTED

The employee testified at hearing in support of his claim. Also, the employee offered for admission the following exhibits:

1. Notice of Intent to Rely on Dr. Koprivica's reports.

1. Dr. Koprivica's curriculum vitae

Revised Form 31 (3/97)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

1. Dr. Koprivica's March 15, 2013, report

1. Dr. Koprivica's May 10, 2013, addendum

1. Dr. Koprivica's March 2, 2105, addendum

1. Claim for Compensation

1. Dr. Theresa McBride's medical records

1. Family Medical Center of Neosho records

1. Freeman Neosho Hospital records

1. Golden Valley Memorial records

1. MRI and MRA reports

1. Itemized medical bills

1. Deposition of Dr. Koprivica

1. Deposition of William Eldon Walton

1. Deposition of Erin Maureen Turnis

The exhibits were received and admitted into evidence.

The employer/insurer presented two witnesses at hearing. In addition, the employer/insurer offered for admission the following exhibits:

A. Deposition of Terry Humphrey

B. Intent to Rely on Dr. Applebaum

C. Curriculum vitae of Dr. Applebaum

D. Dr. Applebaum report of September 18, 2013

E. Dr. Applebaum supplemental report of July 19, 2016

F. Deposition of Dr. Applebaum

G. Coventbridge investigation report

H. Curriculum vitae of Frank Stevens

Revised Form 31 (3/97)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

I. Deposition of Frank Stevens

J. Sutton Trucking health statement form

K. Medical examination report of April 2, 2013

L. Transforce statement of driver physical qualifications

M. Medical examination report of September 8, 2014

N. Medical examination card of September 8, 2014

O. Hogan Transport preemployment functional exam

P. Medical examiner's certificate of April 20, 2015

Q. Transforce statement of driver physical qualifications

R. Photograph taken by Mr. Humphrey of hair in mirror

The exhibits were received and admitted into evidence.

DISCUSSION

Background and Employment

The employee, Terry Humphrey, is fifty-five years of age, having been born on June 17, 1964. Mr. Humphrey resides in Clinton, Missouri.

Mr. Humphrey graduated from high school. Since graduating, he has held various jobs in the fields of heavy equipment operation, cattle farming, and truck driving.

In roughly 2010 Mr. Humphrey obtained employment with the employer, Ruan Logistics Corporation. He was employed as a truck driver, hauling and shuttling railroad containers. He described the job as fast paced, often involving rushing about to get it done.

Prior Medical Conditions

Prior to injuring himself on September 6, 2012, Mr. Humphrey had never had an injury to his head that had required medical attention. Additionally, he had not had an injury to his head that had resulted in any permanent issues, limitations, or disability.

Revised from 31 (3/97)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

Accident

On September 6, 2012, while engaged in employment and performing his work duties with Ruan Logistics Corporation, Mr. Humphrey was dropping and hooking a trailer when he sustained an injury to his head. He had completed cranking up the trailer, utilizing the crank on the passenger side of the trailer, and was hustling back to the driver's side of the tractor when he struck his head on the safety mirror on the front left fender of the tractor.

Mr. Humphrey described the safety mirror in detail at hearing. The mirror, itself adjustable, is mounted to the tractor on the left front fender above the wheel well. It is attached to the tractor by a tripod bracket that is also adjustable. The mirror is held into a metal frame by a rubber gasket. Mr. Humphrey described the gasket as a split piece gasket that was dry rotted. The gasket extended out past the metal frame somewhat.

At the time of the incident, the tractor and trailer were parked on a gravel lot. Mr. Humphrey testified that there was a slight slope on the left side of where the truck was parked, which resulted in him walking on a section of ground slightly higher than the ground on which the tractor was parked.

When he struck his head, Mr. Humphrey saw a white flash and felt heavy pain. The next thing he knew he was pulling himself up using the tractor tire. He went on to complete the remainder of the day's job duties and did not initially seek medical attention. He instead continued to try to work.

Medical Treatment

Mr. Humphrey first sought medical attention for his head on September 12, 2012, at the Freeman Hospital emergency department. At the time of his visit to the Freeman emergency department, Mr. Humphrey was experiencing pain and swelling above and behind his left ear. He indicated he could not even focus due to the pain he was experiencing. Additionally, he was dealing with dizziness and ringing in his ears. At that time he had no memory of hitting his head on the mirror on September 6, 2012. He thought he may have an infection. He was taken off work by the doctor at that time and did notify the employer of that fact. However, Mr. Humphrey does not believe he told the employer during this conversation about hitting his head on the mirror due to the fact that he could not remember the event.

On September 18, 2012, Mr. Humphrey was seen by Rick Metsker, a nurse practitioner, in Neosho, Missouri. At that time he still did not have any memory of hitting his head on the mirror on September 6, 2012.

After seeing the nurse practitioner, Mr. Humphrey was released to return to work and did return to his employment with Ruan Logistics Corporation. Sometime after returning to work he noticed hair in the left/driver's side safety mirror. Upon seeing the hair stuck in the mirror, Mr. Humphrey recalled striking his head on the mirror. Seeing the hair brought back the memory of striking his head. He photographed the mirror with the hair on the day he first noticed it.

Revised Form 31 (3/97)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

As soon as he was able to recall striking his head on the mirror, Mr. Humphrey spoke to his employer. He, to the best of his recollection, spoke to Dominque, who instructed him to speak to Ruffiett Yokley. He told Ms. Yokley about striking his head on the mirror and about the fact that he was continuing to have severe headaches, dizziness, ringing in his left ear, and memory loss. Ms. Yokley indicated that he could not drive with those symptoms and that he needed to see his physician.

Mr. Humphrey then sought treatment with his primary care physician, Dr. Gabbert. He was initially seen on October 3, 2012, and was prescribed medication, referred to Dr. Ali, and taken off of work. Dr. Gabbert referred Mr. Humphrey to Dr. Ali to address the ongoing issues with memory loss. Dr. Ali saw Mr. Humphrey and recommended an MRI of the brain, MRA of his cerebral vessels, and a VNG study.

After completing the recommended testing, Mr. Humphrey was set up for repositioning therapy by Dr. Ali. He completed the scheduled therapy, which did improve his dizziness.

Dr. Ali released Mr. Humphrey from his care in January 2013 and indicated he should avoid sudden or extreme head and neck movements as well as race car driving. Mr. Humphrey received no further medical treatment for his head injury following his release by Dr. Ali.

Independent Medical Examinations

On June 5, 2014, Dr. Preston Brent Koprivica, a physician board certified in occupational medicine, testified by deposition on behalf of Mr. Humphrey. Dr. Koprivica performed an independent medical evaluation of Mr. Humphrey on March 15, 2013. At the time of this examination Dr. Koprivica took a history from Mr. Humphrey, reviewed various medical records, and performed a physical examination.

At the time of the evaluation Mr. Humphrey presented with a number of ongoing complaints relative to his head injury. He continued to have short-term memory problems, which were described as mild but persistent. He would forget information that he should not when he was given it shortly before. Mr. Humphrey also continued to complain of ongoing dizziness, which occurred about twice a week. He continued to deal with ringing in his ears that was impacting his hearing. He had a persistent headache, as well as ongoing fatigue issues.

In light of the examination and evaluation, Dr. Koprivica opined that Mr. Humphrey's accident on September 6, 2012, which occurred while working for the employer, Ruan Logistics Corporation, was the prevailing factor to Mr. Humphrey developing a closed head injury and post-concussion syndrome, leading to the development of ongoing short-term memory problems. Additionally, the accident was the prevailing factor to cause the problems with headache, which Dr. Koprivica felt had a musculoskeletal contribution separate from the traumatic brain injury, as well as ongoing tinnitus.

Dr. Koprivica opined that Mr. Humphrey had reached maximum medical improvement but had sustained a permanent disability as a result of the injuries he received in the accident of September 6, 2012. He assigned a 20 percent permanent partial disability to the body as a whole.

Revised Form 31 (3/97)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

On February 28, 2018, Dr. James Appelbaum, a physician board certified in neurology, clinical neurophysiology, and sleep medicine, testified by deposition on behalf of the employer and insured. Dr. Appelbaum performed an independent medical examination of Mr. Humphrey on September 18, 2013. At the time of the evaluation, Dr. Appelbaum took a history, reviewed various medical records, and performed a physical examination of Mr. Humphrey.

At the time of Dr. Appelbaum's evaluation, Mr. Humphrey continued to have occasional headaches, brief episodes of mild dizziness, tingling in his hands, fatigue, and occasional ringing in the ears.

Dr. Appelbaum diagnosed Mr. Humphrey with post-concussion syndrome and noted a documented head injury. He explained in his testimony by saying "... he hit his head on the mirror. I mean, I don't think he's making that up. So that's the head injury that I'm referencing." He went on to say, "I'm sure he hit it. I will stipulate that he hit his head on the mirror."

Dr. Appelbaum's report from 2013 indicated that the post-concussion syndrome is a result of the September 6, 2012, incident. He found no evidence of any intervening factor or other explanation for the symptoms. He testified that the symptoms Mr. Humphrey presented with when he evaluated him, as well as the symptoms he had presented to the treating physicians, were symptoms of post-concussion syndrome. In 2016, after reviewing additional records, Dr. Appelbaum altered his opinion and indicated that he did not believe Mr. Humphrey had post-concussion syndrome as a result of his September 6, 2012, accident. He testified how the September 18, 2012, record from Mr. Metsker that discussed Mr. Humphrey having a barber nick his scalp behind his left ear and develop a knot from that and did not really mention anything about the work injury clouded the waters of what the cause of this concussion symptoms were.

Ultimately, Dr. Appelbaum did not find any permanent partial disability to have resulted from Mr. Humphrey's post-concussion syndrome.

Traffic Crash Investigator

In addition to the independent medical examinations, employer/insured obtained a report from Mr. Frank Stevens, a traffic crash investigator and claims investigator. On October 31, 2019, Mr. Stevens testified by deposition for the employer/insured. He indicated that "to our best estimate" Mr. Humphrey hit his head on "about a 2007, 2008 International 940001 tractor." To verify the dimensions of the tractor upon which Mr. Humphrey hit his head, Mr. Stevens "visited a number of truck stops, manufacturers, dealers, and inspected a couple of vehicles of similar make and model." He also reviewed various photographs of an exemplar vehicle taken years earlier by another investigator who subsequently passed away.

Mr. Stevens came to the opinion that Mr. Humphrey's statements and recollection of the events leading to the incident would not result in the position of injury as reported. In coming to this opinion, Mr. Stevens noted "the provided scenarios seem to rule out the possibilities of this incident occurring as described." He pointed to the positioning of the hair clumps on the mirror being located after the vehicle had been driven, the fact that the height of the mirror and the location of the injury do not align, the fact that, in his opinion, there would be no logical or

Revised Form 31 (3/97)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

physical process to have his head behind the ear make contact with the mirror in the position described and to the statement of Mr. Humphrey that he dollied the wheels from the right side of the trailer.

Rosie Garcia, lead dispatch control at Ruan Logistics Corporation, testified live at hearing. To her recollection, she and Mr. Humphrey had two to three conversations regarding the fact that he was having headaches. Mr. Humphrey inquired as to doctors who took their insurance. During these initial conversations, he did not mention hitting his head while working. When Mr. Humphrey returned back to work after being taken off work by the initial treating physician, Ms. Garcia recalled a conversation in which Terry indicated he had hit his head and showed her the hair caught in the driver's side safety mirror of his tractor. She indicated that the hair caught in the mirror was a couple of inches long. When shown a photograph of the hair in the mirror, Ms. Garcia admitted that the photograph represented what she had seen other than she recalled more hair being in the mirror than what was shown in the photograph.

After speaking with Mr. Humphrey, Ms. Garcia and Ruffiett Yokley attempted to recreate how Mr. Humphrey had hit his head on the mirror. In order for her to envision someone hitting his head on the mirror, Ms. Garcia indicated that the individual would have to have been walking very close to the tractor. She did not take any specific measurements at the time.

In addition to Ms. Garcia, Ruffiett Yokley, the dedicated transportation manager at Ruan Logistics Corporation, testified at hearing. Ms. Yokley had been made aware through dispatch that Mr. Humphrey was complaining of headaches. She was then made aware through dispatch that Mr. Humphrey was claiming he had hit his head while working. After being made aware of the incident, she filled out an employee injury report, which she submitted to corporate.

Ms. Yokley, along with Ms. Garcia, conducted an investigation of the incident in October 2012. She looked at the tractor and walked around it. She looked at the hair in the mirror. She described the hair as having the appearance of being cut as opposed to pulled out. She did not see any follicles on the hair. Additionally, Ms. Yokley felt the hair was too long to be Mr. Humphrey's, even though she admitted she did not see him on a daily basis.

When shown photographs of the hair caught in the mirror, Ms. Yokley indicated that they did not depict what she had seen during her investigation. The hair she had observed was straight across, as if it had been cut, as opposed to the jagged hair depicted in the photographs. Ms. Yokley indicated she took photographs during her investigation. However, the photographs admitted into evidence were not those she had taken. According to Ms. Yokley, the photographs she had taken showed much more hair and the hair was cut straight across.

At hearing, Mr. Humphrey testified about his ongoing problems and limitations resulting from his September 6, 2012, work accident. Memory loss is noted to be his biggest issue. He has difficulty remembering appointments and sometimes can't even remember his kids'

Revised Form 31 (3/97)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

birthdays. He continues to suffer with occasional headaches, as well as humming or ringing in his ear. As a result of the continued problems, he now has to be reminded of appointments and has to rely on his wife to help with paperwork, as well as various other aspects of his business. When he suffers from a severe headache, he simply shuts down the truck and rests over the steering wheel until it goes away. When the headache is not severe, he simply takes a pain reliever and pushes on.

Section 287.020.2 defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of injury caused by a specific event during a single work shift..."

The issue of whether Mr. Humphrey had an accident while working for the employer on September 6, 2012, must be decided by marshalling the facts as they have been presented and determining the credibility of the claim set forth by Mr. Humphrey. Having reviewed the exhibits and the various testimony from hearing, I find Mr. Humphrey to be a credible witness and therefore find that he did, in fact, sustain an accident on September 6, 2012, which arose out of and in the course and scope of his employment with the employer.

Mr. Humphrey testified that following the initial impact, he was unable to remember hitting his head on the safety mirror of the tractor he was operating. It was not until he saw the hair which had been caught in the mirror that he was able to recall some of the specifics of the incident. Even after seeing the hair, Mr. Humphrey was unable to recall all of the specifics of the incident. His testimony established the fact that he was moving from the passenger side of the trailer, having completed the task of cranking up the trailer. He was hustling back to the driver's side of the tractor when he struck his head on the safety mirror. However, he was unable to remember how exactly he hit his head. Mr. Humphrey testified in his deposition when asked how he thought he hit his head on the mirror that he couldn't begin to speculate. When asked how he struck the mirror towards the backside of his head, Mr. Humphrey indicated he may have been turning, that he just did not know. He hit so hard he could not remember anything but heavy pain and a white flash. The next thing he knew he was pulling himself up on the truck tire.

When viewed in the light of the entirety of the evidence, I find Mr. Humphrey's testimony regarding his accident to be credible. He initially presented with symptoms of a headache which, according to Ms. Garcia's testimony, he discussed with her. He did not mention the fact that he had struck his head in that he had no memory of the event at the time of the conversation with Ms. Garcia. Six days following the event, the pain reached a level that he could no longer stand it. He presented to the Freeman emergency department complaining of tenderness in his left lateral head, as well as swelling in the area. The clinical history noted edema and pain behind the left mastoid, as well as pain behind the left ear for several days. Mr. Humphrey testified that at the time of this visit at Freeman he did not remember hitting his head. He was in so much pain he thought it must be from an infection or something. As a result of this emergency department visit, Mr. Humphrey was taken off of work.

Revised Form 31 (3/97)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

He was then seen by the Family Medical Center of Carthage on September 18, 2012. He had not yet returned to work and continued to have no memory of the incident with the mirror.

Although the Family Medical Center record notes that two and one-half to three weeks before a barber had nicked his scalp, Mr. Humphrey did not recall telling this to the providers. In fact, he testified that prior to September 6, 2012, he had not had a haircut in quite some time. His hair was a couple of inches long at the time of the accident, a statement that was supported by the photographs presented at hearing showing the hair caught in the mirror of the tractor. Mr. Humphrey had been driving on September 6, 2012.

After the visit with the Family Medical Center, Mr. Humphrey returned to work. At that time, he noticed the hair caught in the driver's side safety mirror. Upon seeing the hair, Mr. Humphrey was able to recall the accident which occurred on September 6, 2012. He then notified Ms. Garcia as well as Ms. Yokley at the employer of the accident, a fact supported by both Ms. Garcia and Ms. Yokley's testimony.

According to the testimony and evidence presented, there is no dispute regarding the fact that hair was found caught in the driver's-side safety mirror of the tractor. Mr. Humphrey had been driving on September 6, 2012. The undisputed fact that hair was found caught in the mirror also supports the credibility of Mr. Humphrey's testimony regarding the accident.

The employer/insured retained the services of a traffic crash and claims investigator in an effort to dispute that the accident could have occurred as Mr. Humphrey indicated. However, I do not find the testimony and conclusions of Mr. Stevens to be credible or persuasive.

Mr. Stevens' report questioned Mr. Humphrey's history of the event be indicating "the landing gear crank on all semi-trailers are mounted on the left driver's side. This is standard throughout all manufacturers." However, he admitted that he had no idea what kind of trailer Mr. Humphrey was hooking to at the time of the accident and has no way to be certain that the landing gear crank was on the driver's side. He indicated in his testimony that the crank is on the driver's side on 99.9% of the trailers. Mr. Humphrey, however, testified that he was not hooking to a standard trailer, but instead was hauling containers with railroad cars which had the landing gear crank on the passenger's side.

In forming his opinions, Mr. Stevens relied on old measurements taken by a different investigator of an exemplar vehicle and not on measurements from the vehicle. Mr. Humphrey was operating at the time of the accident. Mr. Stevens testified that he verified the measurements, independently confirming their accuracy, from other exemplar vehicles and his own independent research. However, I do not find this statement credible.

Mr. Stevens indicated he inspected vehicles of the same make and model as the one Mr. Humphrey was operating on September 6, 2012. He testified that he conducted the inspections at truck stops around Orlando, Florida, in 2019 and was able to verify the height of the safety mirror within 1/2 inch of the exemplar vehicle. However, he did not record the location of the truck stops he visited. Nor did he record the date he conducted the inspections. In fact, he had no record of

Revised Form 21 (3/97)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

these inspections. He did not take any pictures of the vehicles or retain any notes from these independent verifications.

When asked about how he verified the measurements with his own independent research, Mr. Stevens indicated he visited the tractor manufacturer. However, he admitted that the manufacturer did not have the make, model, or year of tractor that Mr. Humphrey had been operating on September 6, 2012, available. He had to obtain the information from a spec sheet. However, he could not verify who he spoke to at the manufacturer or the date on which he visited the location. He merely recalls utilizing the computer of the individual at the front desk. He retained no notes from the encounter. He did admit that he was not able to obtain the measurements of the spot/safety mirrors but only the height of the fender.

Mr. Stevens admitted none of the measurements were taken from the vehicle. Mr. Humphrey was operating on September 6, 2012. He admitted the safety mirrors are adjustable from a three-point bracket and that he had no way of knowing the position of the mirror on the vehicle. Mr. Humphrey was operating.

Even lacking all of the relevant measurements and information, Mr. Stevens testified that the accident could not have occurred as Mr. Humphrey described due to the fact that his ear would have impacted the mirror prior to his head. Yet in his report one of the scenarios he noted which could have caused the incident was one in which Mr. Humphrey walked around the front of the tractor from dollying the trailer landing gear if after crossing in front of the tractor, he turned his head sharply to the right, hitting the mirror behind his ear. In fact, it is just this type of scenario which Mr. Humphrey indicated in his deposition testimony could have happened. Unfortunately, memory loss associated with the impact prevents his complete recollection of the events surrounding the impact.

When viewing the evidence as a whole, I find Mr. Humphrey's testimony credible and the testimony of Mr. Stevens not credible.

Causation:

Having found that Mr. Humphrey sustained an accident while working for the employer on September 6, 2012, a determination must be made as to whether the accident caused the injuries and disabilities for which benefits are now being sought.

Mr. Humphrey's symptoms have been consistent throughout the records and his testimony. Within six days of the accident, Mr. Humphrey was noted to have ringing in his ears, pain in his ear, and tenderness to the left lateral head, as well as swelling to that area. Dr. Gabbert's records indicate Mr. Humphrey continued to complain of pain and soreness to the left side of his head, swelling around his left ear, soreness to palpation, and short-term memory loss. Dr. Ali noted ongoing headaches, dizziness, and memory impairment. When being evaluated by Dr. Koprivica, Mr. Humphrey noted ongoing short-term memory loss, dizzy spells, humming in his ear, as well as ongoing headaches. He presented to Dr. Appelbaum with symptoms that included occasional headaches, episodes of dizziness, occasional ringing in the ears, and memory problems.

Revised Form 31 (1/97)

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

Dr. Gabbert, one of Mr. Humphrey's treating physicians, diagnosed a contusion to the side of the head, trigeminal neuralgia, and short-term memory loss. He referred Mr. Humphrey to Dr. Ali, a neurologist, for an evaluation on the memory loss. Dr. Ali, as Mr. Humphrey's treating physician, found him to be status post head injury in the left temporal area with some tinnitus, headaches, dizziness, and memory problems. Dr. Ali noted possible post-concussion syndrome. He treated Mr. Humphrey for post-traumatic problems by way of repositioning therapy. Even Dr. Appelbaum, who saw Mr. Humphrey for an independent medical exam at the request of the employer, admitted that the symptoms he presented with to the treating physicians were symptoms of post-concussion syndrome.

In fact, Dr. Appelbaum's report from 2013 diagnosed Mr. Humphrey with post-concussion syndrome and noted a documented head injury. He indicated that the post-concussion syndrome is a result of the September 6, 2012, incident. He found no evidence of any intervening factor or other explanation for the symptoms. He did later alter his opinion regarding post-concussion syndrome. However, I do not find the basis of the alteration to be credible when considered in light of the evidence as a whole.

I do find the opinions of the treating physicians as to diagnosis, as well as Dr. Koprivica's opinion regarding diagnosis and causation, to be credible and persuasive. Dr. Koprivica opined that Mr. Humphrey's accident on September 6, 2012, which occurred while working for the employer, Ruan Logistics Corporation, was the prevailing factor to Mr. Humphrey developing a closed head injury and post-concussion syndrome, leading to the development of ongoing short-term memory problems. Additionally, the accident was the prevailing factor to cause the problems with headache, which Dr. Koprivica felt had a musculoskeletal contribution separate from the traumatic brain injury, as well as ongoing tinnitus.

Dr. Koprivica's opinion was made having reviewed all of the medical records, Dr. Appelbaum's report, as well as Mr. Humphrey's deposition testimony. He noted that even if you do not have a loss of consciousness, you can still have a traumatic brain injury. He pointed out the fact that even in the early records when Mr. Humphrey did not yet remember striking his head, the area of the swelling and edema Mr. Humphrey was complaining of is the same area where he later described hitting his head. He explained how the closed injury Mr. Humphrey had results in short-term memory loss due to the shear type injury that occurs to the brain. With a direct blow to the side of the skull such as the one Mr. Humphrey had, there is some rotation to the head and neck that occurs and that is the shear injury which would produce short-term memory loss.

Having reviewed all of the evidence presented, I find the testimony and records to be consistent regarding the symptoms and limitations with which Mr. Humphrey presented. I find the evidence to support the fact that those symptoms and limitations are indicative of a closed-head injury and post-concussive syndrome. Therefore, I find that the accident caused the injuries and disabilities for which benefits are now being sought.

Revised Form 31 (3/97)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

Having found that Mr. Humphrey sustained an accident and that the accident caused the injuries and disabilities for which benefits are now being sought, and pursuant to the stipulations of the parties, I award Mr. Humphrey unpaid temporary total disability in the amount of $8,666.71. I order the employer/insurer to pay Mr. Humphrey $8,666.71 in unpaid temporary total disability.

Having found that Mr. Humphrey sustained an accident and that the accident caused the injuries and disabilities for which benefits are now being sought, and pursuant to the stipulations of the parties, I award $6,711.65 in past medical bills to be paid by the employer/insurer. Of the 6,711.65, 4028.25 is to be paid to Freeman Health System to satisfy the medical fee dispute currently on file in this matter. The remaining $2,683.40 I order the employer/insurer to pay to Mr. Humphrey for past medical bills.

Having found that Mr. Humphrey sustained an accident and that the accident caused the injuries and disabilities for which benefits are now being sought, a determination must be made as to the nature and extent of the disability sustained by Mr. Humphrey.

The symptoms and limitations Mr. Humphrey presented with have been consistent throughout the medical records and reports. In his initial emergency room visit, Mr. Humphrey was noted to have ringing in his ears, pain in his ear, and tenderness to the left lateral head. Dr. Gabbert's records indicate Mr. Humphrey continued to complain of pain and soreness to the left side of his head, swelling around his left ear, soreness to palpation, and short-term memory loss. Dr. Ali noted ongoing headaches, dizziness, and memory impairment. When being evaluated by Dr. Koprivica, Mr. Humphrey noted ongoing short-term memory loss, dizzy spells, humming in his ear, as well as ongoing headaches. He presented to Dr. Appelbaum with symptoms that included occasional headaches, episodes of dizziness, occasional ringing in the ears, and memory problems.

At hearing, Mr. Humphrey's testimony was consistent with the records and reports. I found his testimony to be credible and believable. He continues to suffer with significant memory loss, occasional headaches, as well as humming or ringing in his ears. He testified that he has difficulty remembering appointments and sometimes can't even remember his kids' birthdays. He now has to be reminded of appointments and has to rely on his wife to help with paperwork and various aspects of his business. When driving, he will have to pull over and shut down the truck to rest over his steering wheel until his headache goes away.

Dr. Koprivica diagnosed Mr. Humphrey with a closed head injury and post-concussion syndrome leading to the development of short-term memory problems. Additionally, he found Mr. Humphrey suffered from ongoing headaches that he felt had a musculoskeletal contribution separate from the traumatic brain injury. He also noted ongoing tinnitus. It was Dr. Koprivica's

Revised Form 31 (3/07)

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Terry D. Humphrey

Injury No. 12-078153

opinion that Mr. Humphrey had sustained a permanent disability as a result of injuries he received in the accident of September 6, 2012, in the amount of 20 percent permanent partial disability to the body as a whole.

With the consistent nature of the complaints and symptoms found, not only in the records and reports, but in Mr. Humphrey's testimony, I find Dr. Koprivica's opinion persuasive that Mr. Humphrey sustained a permanent and partial disability as a result of the injuries he received in the accident of September 6, 2012. However, I do not find the permanent and partial disability to rise to the level suggested by Dr. Koprivica. I am awarding Mr. Humphrey 12.5 percent permanent and partial disability to the body as a whole at the stipulated rate of $433.58, 12.5% or 50 weeks of disability, resulting in a payment of $21,679.00. I am ordering the employer/insurer to pay Mr. Humphrey $21,679.00 for permanent and partial disability.

The law firm of Morrison, Webster & Carlton is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein. Interest on all sums awarded hereunder shall be paid as provided by law.

Date: January 27, 2020

Made by:

Karen W. Fisher

Administrative Law Judge

Division of Workers' Compensation

I certify that on 3-2-20 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: __________________________

By: __________________________

Revised Form 11 (3/97)

Page 16