Gerald Wedel v. Bigfoot on the Strip, LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 18-031902**

**Employee:** Gerald Wedel

**Employer:** Bigfoot on the Strip, LLC

**Insurer:** T.H.E. Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 22, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kevin A. Elmer, issued December 22, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **3rd** day of June.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Gerald Wedel

Injury No. 18-031902

Dependents: N/A

Employer: Bigfoot on the Strip, LLC

Insurer: T.H.E. Insurance Company

Additional Party: N/A

Hearing Date: November 5, 2020

Checked by: KAE

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: April 5, 2018
5. State location where accident occurred or occupational disease was contracted: Taney 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? No
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: In the Claim for Compensation the Employee alleges that rough driving threw him against the side of the truck resulting in a cut elbow and two fractured bones in the foot.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left foot.
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? None
18. Employee's average weekly wages: Undetermined

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gerald Wedel

1. Weekly compensation rate: Undetermined
2. Method wages computation: N/A

1. Amount of compensation payable: $\ 0.00

TOTAL: $\ 0.00

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gerald Wedel

Employee: Gerald Wedel

Injury No. 18-031902

Dependents: N/A

Employer: Bigfoot on the Strip, LLC

Insurer: T.H.E. Insurance Company

Additional Party: N/A

Hearing Date: November 5, 2020

Checked by: KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on November 5, 2020, in Springfield, Missouri. Gerald Wedel ("Employee") is not represented by counsel, and did not appear in person. Bigfoot on the Strip, LLC ("Employer") and T.H.E. Insurance Company ("Insurer") appeared by and through Attorney Jade Koller regarding the work injury of $4 / 5 / 18$.

The hearing was scheduled to begin at 1:00 PM, however, the start of the matter was delayed until 1:30 PM due to the employee not appearing at the set time. At the beginning of the Hearing on the record the undersigned called the Employee at the phone number contained in the Division's records. Mr. Wedel answered the call and acknowledged his identity over the open speaker of the phone. The conversation was heard and recorded by the court reporter. The claimant admitted on the record via telephone to receiving notice of the hearing, and that he was aware that he was required to be physically present for the hearing. The claimant further admitted on the record that there was no hardship or legitimate reason for him not appearing for the Hearing.

The claimant was informed that the Hearing would proceed, and the claimant did not object, stating that he did not believe the Division had jurisdiction over him. Mr. Wedel was informed that the purpose of the Hearing was to make a final award in the case and that the parties were required to appear and present evidence in support of their case. Claimant alleged that the Affidavits of Truth he had previously filed with the Division contained the evidence and statements sufficient to prove his case. After further discussion about the insufficiency of such filings Mr. Wedel abruptly ended the call when the line went silent.

The Hearing proceeded without the claimant being present. Furthermore, the referenced Affidavits of Truth were not submitted within the Missouri statutory requirements and Missouri Supreme Court Rules of Evidence. Thus, no weight has been given to the improperly submitted documents.

The pro se claimant was seeking unknown benefits attributable to an alleged work injury which occurred on April 5, 2018 to the left ankle. The employer denied compensability and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gerald Wedel

Injury No. 18-031902

asserted that the claimant was not injured at work. The employer further asserted that the claimant abandoned his position at the employer.

At the hearing the Employee failed to appear and submit any evidence in support of his claim.

Employer and Insurer presented three witnesses at the hearing of this case: Employer representative Emma Hamilton, co-employee Leland Krebbs, and co-employee Jack Lowe. Employer and Insurer offered for admission the following exhibits:

- Exhibit A. .............................. Certified Medical records of Mercty Clinic Branson

- Exhibit B. ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gerald Wedel

Injury No. 18-031902

Leland Krebbs testified at the Hearing as a witness to the alleged accident. Mr. Krebbs' testimony was consistent with his written statement dated May 1, 2018, which was admitted into evidence as Exhibit F.

Mr. Krebbs testified that on April 5, 2018, he was training Claimant and they were conducting a tour. Mr. Krebbs was driving a modified truck for the usual tour. The maximum speed of the truck during the tour is three miles per hour. Mr. Krebbs testified that there was no accident or occurrence on the trip that was out of the ordinary.

Mr. Krebbs further testified that the claimant was limping sometime during the week of April 1-7, 2018. When Mr. Krebbs inquired with the claimant as to what occurred to cause the limp, it was his understanding that the claimant hurt his foot at home by hitting it on a door jamb. Mr. Krebbs testified that the claimant explicitly stated to him that this was the cause of the injury, and that it occurred at home.

Jack Lowe testified at the hearing as a witness to the alleged accident. Mr. Lowe's testimony was consistent with his written statement, which was admitted into evidence as Exhibit G.

Mr. Lowe testified that he was being trained by Mr. Krebbs, along with the claimant, during the first weeks in April 2018 timeframe. On April 5, 2018, Mr. Lowe was performing narration in the front of the excursion vehicle, while the claimant rode with the patrons in the back of the vehicle. Mr. Lowe testified that a patron fell into the aisle during the trip, but the patron was not injured. He testified that the claimant did not fall during the drive, and in fact drove the truck without a problem for the next tour that same day. Mr. Lowe also testified that the claimant never advised him of a work injury, or that his foot or ankle was hurt.

Certified medical records from Mercy Clinic in Branson, Missouri, were introduced as Exhibit A. The records indicate that the claimant presented to Mercy Clinic on April 11, 2018, complaining of left ankle pain. The records indicate that the method of the injury was a fall two weeks prior at home while on the toilet. The subjective history provided by the claimant was that he went to the bathroom in the middle of the night and fell asleep while sitting on the toilet. When he stood up, his legs were numb, but he walked to the bedroom thinking he could make it. He indicated that he fell and thought he rolled his ankle.

The weight of the testimony and medical evidence does not support an Award directing the employer/insurer to provide any benefits to the claimant regarding the April 5, 2018, alleged work injury. Further, the evidence on the record supports the employer's denial of payment of all benefits. No evidence was presented to support the finding of a compensable work injury.

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gerald Wedel

The claimant indicated to witnesses, as well as medical providers, that the injury to the left foot occurred while he was at home. There is no evidence to support that a work injury occurred. The injury clearly did not arise out of, nor did it occur during, the course and scope of employment. Therefore, the claim for injury is not compensable.

Furthermore, the evidence supports that the claimant abandoned his position at the employer without any notice to the employer. No evidence of work restrictions were presented to the employer. Therefore, any claim for TTD is denied.

Accordingly, the claim for permanent partial disability benefits and TTD benefits as it relates to the employer/insurer for the April 5, 2018, injury is denied. This order is final.

I certify that on 12-22-20

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 __________________________

Made by:

Kevin A. Elmer

Administrative Law Judge

Division of Workers' Compensation