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

Insure