Mark Hundley v. Con-Agg of MO, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 14-094684**

**Employee:** Mark A. Hundley

**Employer:** Con-Agg of MO, LLC

**Insurer:** Indemnity Ins. Co. of North America

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record¹, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 25, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Melodie A. Powell, issued September 25, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 31st day of March 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

CONCURRING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

¹ In his application for review, employee quoted the opinion of a Social Security Administrative Law Judge. We note that such opinion was not part of the record. To that extent, we do not take that opinion into consideration in our decision.

I have reviewed and considered all of the competent and substantial evidence on 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 believe the decision of the administrative law judge should be affirmed with a supplemental decision finding that an accident occurred, but agreeing that employee failed to establish that the accident was the prevailing factor causing employee's medical condition.

Pursuant to § 287.020.2, RSMo,

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

(Emphasis added).

I find employee's testimony credible and corroborated by other testimony that an accident occurred. Employee, his son, and his wife all testified regarding employee's altered mental condition since the alleged accident. Mr. Robert Wells' testimony at the hearing did not specifically deny that employee's helmet was cracked or that employee had a bloody nose, but merely that Mr. Wells did not remember, then Mr. Wells speculated that he would have noticed. Mr. Wells admitted that he did not perform a thorough inspection of the helmet, but that he noticed a broken fitting. Mr. Wells also acknowledged that a broken fitting on the helmet indicated more than normal wear and tear. From this testimony, I find that a traumatic event occurred that produced objective symptoms of an injury.

However, I agree that employee failed to meet his burden to establish that the accident was the prevailing factor causing employee's condition. Even employee's Dr. Syed Shah, who diagnosed employee with traumatic brain injury, could not clearly state that the accident was the prevailing factor causing employee's condition. He stated,

it's really hard to say, because we don't have any prior evaluation, including any neurological evaluation. We don't have any neuropsychological testing. So he - thing would be, he had memory exam, and he has cognitive issues; he has features of traumatic brain injury. Now, it's really hard to pinpoint whether the injury caused that or something happened even prior to that, because we don't have any records there.... So it's hard for me to say, but I will say if there was an injury, that can cause traumatic brain injury for sure and post concussion syndrome.

Transcript, p. 356.

Accordingly, I would affirm the result of the administrative law judge's award denying benefits as supplemented above.

Shalonn K. Curls

Shalonn K. Curls, Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of alleged accident or onset of alleged occupational disease: May 7, 2014
5. State location where alleged accident occurred or alleged occupational disease was contracted: Boone County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleges he hit his head on the roof of his truck cab when the truck went over a curb
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by alleged accident or occupational disease: Alleges injury to his head, neck, nose, vision, and body as a whole
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0.00

1. Amount of compensation awarded: None
2. Future requirements awarded: None
3. Second Injury Fund liability: None

On June 16, 2020, the undersigned administrative law judge conducted a final hearing in this matter in Columbia, Missouri. Employee, Mark A. Hundley, appeared personally and by counsel, Ron Netemeyer and Jill Harper. The Employer and Insurer appeared by counsel, Brent Neumeyer. The Second Injury appeared by counsel, Erika Eliason. Parties requested leave to file proposed awards/briefs, and same were received on July 17, 2020. The case was submitted on July 17, 2020.

The parties stipulated as follows:

1. That on/about May 7, 2014, Employee was in the employ of Con Agg of MO, LLC.
2. That both the Employee and Employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Act.
3. That Employer's liability was fully insured by Indemnity Insurance Company of North America c/o ESIS, Inc.
4. That a claim for compensation was timely filed.
5. That venue is proper in Boone County, Columbia, Missouri.
6. That no temporary total disability benefits have been paid.
7. That no medical aid has been provided.

1. Whether there was an accident on May 7, 2014, resulting in an injury which arose out of and in the course of employment.
2. Whether the alleged accident on May 7, 2014, was the prevailing factor in Employee's resulting medical condition and disability.
3. Whether Employer/Insurer is responsible for past medical benefits.
4. Whether Employer/Insurer is responsible for future medical benefits.
5. Whether Employer/Insurer is responsible for past temporary total disability benefits.
6. The nature and extent of any permanent disability.
7. Whether the Employee gave proper notice of the alleged accident of May 7, 2014.
8. Liability of the Second Injury Fund.

The following exhibits were offered and admitted into evidence:

1. Dr. Koch Clinic note $-5 / 8 / 14
2. Dr. Koch Work Release -5 / 8 / 14
3. Dr. Shoemaker Clinic Note -5 / 14 / 14
4. Dr. Shoemaker Clinic Note -5 / 16 / 14
5. Dr. Shoemaker Clinic Note -5 / 23 / 14
6. Dr. Koller Clinic note -6 / 9 / 14$
7. Head/Brain CT $-6 / 9 / 14
8. Dr. Shoemaker Letter -6 / 13 / 14
9. Dr. Shoemaker Clinic Note -6 / 13 / 14
10. Dr. Shoemaker Clinic Note 7 / 2 / 14$
11. Dr. Shoemaker Letter to Natalie / Ready Mix $-6 / 13 / 14
12. Dr. Shoemaker Clinic Note -11 / 17 / 14
13. Dr. Komes (UMHC) Clinic Note -4 / 21 / 16
14. Mason Eye: Dr. Shaon Clinic Note 3 / 7 / 17
15. Mason Eye: Dr. Shaon Clinic Note 6 / 6 / 17$
16. MRI of the Brain w/o contrast $12 / 21 / 17$
17. Dr. Shah / Wilhite Clinic Note $1 / 11 / 18
18. Dr. Shah Clinic Note 2 / 12 / 18
19. Dr. Hart Psychological Evaluation -3 / 25 / 18
20. Dr. Shah Clinic Note -1 / 3 / 20
21. Dr. Shoemaker Letter to attorney Jill Harper 5 / 24 / 18$
22. Dr. Shoemaker Deposition
23. Dr. Shah Deposition

A. Deposition transcript and reports of Dr. Todd Silverman (A-2 is the report of $11 / 26 / 18 and A-3 is the report of 4 / 9 / 19$ )

B. Report of Dr. David M. Peeples

C. Cooper County Memorial Hospital Records

I. Deposition transcript of Mark A. Hundley taken May 5, 2020.

All exhibits appear as received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned administrative law judge.

Mark A. Hundley (hereinafter "Employee") testified he attended high school through the $11^{\text {th }}$ grade and does not have a GED. He had vocational education in the form of trucking school and fire school. He described fire school as learning to be a firefighter and receiving training on treating injured people. Employee currently resides with his daughter and her family in New Franklin, Missouri. He has lived there with them since before the alleged accident.

Employee was a volunteer firefighter at the New Franklin Fire Department, during the same time as he was employed by Con Agg. He resigned a year after his alleged work injury, as he was having problems with his train of thought and did not believe he could focus enough to work as a firefighter. Prior to the alleged work accident, Employee worked in the trucking industry and owned his own trucking company for about seven years. He testified his company did general trucking. Employee handled the paperwork involved in running the business and in closing the business down.

Employee was working for Con-Agg of Missouri, LLC (hereinafter "Employer") in 2014. On May 7, 2014, he was delivering concrete to an elementary school. He had been driving the same concrete truck for about a week or two. The seat in the truck was "wobbly", and a seatbelt had been moved and bolted to the side of the seat instead of the floor. Employee testified that this was not anything abnormal. Employee wore a "helmet" when driving at the job site. He testified it was a white h