David Shields v. Schneider National Carriers, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-036354**

**Employee:** David M. Shields

**Employer:** Schneider National Carriers, Inc. (settled)

**Insurer:** Old Republic Insurance Company (settled)

**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 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 January 21, 2021, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen W. Fisher, issued January 21, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 9th ______ day of July 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the 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 award of the administrative law judge should be reversed.

The administrative law judge erred in finding that employee was permanently and totally disabled (PTD) due to his May 3, 2013 primary occupational disease (2013 OD) alone. I believe that employee is permanent partial disabled (PPD) from the 2013 OD, and is PTD only when combining his 2013 OD with his pre-existing disabilities. Therefore, I would find the Second Injury Fund liable for employee's PTD benefits under § 287.220.2, RSMo.

Dr. P. Brent Koprivica opined that employee's 2013 OD alone made him PTD, but also suggested the possibility that employee was "[PTD] based on the synergism of combining the pre-existing industrial disabilities . . . based on the occupational hearing impairment and tinnitus, the impairment and result disability from obstructive sleep apnea and his lumbar disability"1 arising with the 2013 OD claim.

Furthermore, vocational expert Mr. Terry Cordray opined that "the combination of [employee's] preexisting conditions and current limitations that would preclude [employee's] current vocational capacities." ${ }^{2}$

A part of employee's 2013 OD was caused by his previous work-related lifting, but employee was not exposed to any of those duties during his time with employer/insurer, and I do not believe that employer/insurer should be held liable for that unrelated progressive disease and disability. Therefore, I do not believe that employer/insurer should be held liable for the age-based, genetic-based, and other non-work-related factors that contributed to his 2013 OD and made the whole-body-vibration exposure disability synergistically enhanced and more severe.

The evidence established that employee was PTD due to his 2013 OD combining with his pre-existing tinnitus, hearing loss and sleep apnea.

For these reasons, I would find employer/insurer to be liable for employee's PPD, and the Second Injury Fund to be liable for employee's PTD benefits under § 287.220.2. Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1} See Transcript at 1488.

{ }^{2}$ See Transcript at 1528.

Employee: David M. Shields

Dependents: N/A

Employer: Schneider National Carriers, Inc.

Insurer: Helmsman Management Services

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Injury No. 13-036354

Before the DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Hearing Date: September 15, 2020

Checked by:

1. Are any benefits awarded herein? No.
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: 05/03/2013
5. State location where accident occurred or occupational disease was contracted: In or about Canton, Madison County, Mississippi, and other locations while Employee was operating a semi-truck over the road in the service of Employer.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did 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.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee performed over-the-road trucking activities for Employer subjecting him to whole-body-vibration exposure, which was the prevailing factor causing Employee to contract occupational disease in his lumbar spine.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Body as a whole referable to the lumbar spine.
14. Nature and extent of any permanent disability: None ordered. (EMPLOYEE SETTLED WITH EMPLOYER/INSURER POST-FINAL HEARING).
15. Compensation paid to-date for temporary disability: $0.00
16. Value necessary medical aid paid to date by employer/insurer? $0.00
17. Value necessary medical aid not furnished by employer/insurer: None.

Page: 1

1. Employee's average weekly wages: 931.03

1. Weekly compensation rate: 620.96 for Permanent Total Disability (PTD)/Temporary Total Disability (TTD) benefits and $433.58 for Permanent Partial Disability (PPD) benefits.

1. Method wages computation: By agreement of the parties.

COMPENSATION PAYABLE

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

Page: 2

Employee: David M. Shields

Dependents: Not Applicable

Employer: Schneider National Carriers, Inc.

Insurer: Helmsman Management Services

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

Hearing Date: September 15, 2020

Injury No. 13-036354

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

INTRODUCTION

The undersigned Administrative Law Judge convened the Final Hearing on September

15, 2020. One claim was brought forward, 13-036354, with an occupational disease date of May

3, 2013. David Shields (Claimant) appeared in person and with his attorney, William Peterson.

Attorney Kip Kubin appeared on behalf of Schneider National Carriers, Inc., (Employer) and Old

Republic Insurance Company (Insurer). Assistant Attorney General Michael Bang appeared on

behalf the Treasurer of Missouri as Custodian of the Second Injury Fund. The parties reached the

following stipulations and narrowed the issues, as follows:

STIPULATIONS

The parties stipulated to the following facts:

1. On May 3, 2013, Schneider National Carriers, Inc., (henceforth "Employer") was an

employer operating subject to the Missouri Workers' Compensation Law.

1. On May 3, 2013, Employer's liability for Missouri Workers' Compensation benefits was

self-insured and Helmsman Management Services was third-party administrator in

Employer's behalf.

1. On May 3,2013, David M. Shields (henceforth "Employee") was an employee of

Employer.

1. Employee has filed a Claim for Compensation dated May 30, 2013, with two subsequent

amended claims filed August 6, 2013, and July 9, 2015.

1. Employee notified Employer of his alleged work injury.
2. For purposes of this proceeding, Employee's average weekly wage of 931.03 was

sufficient to allow a compensation rate of 620.69 for Permanent Total Disability

(PTD)/Temporary Total Disability (TTD) benefits and $433.58 (maximum rate) for

Permanent Partial Disability (PPD) benefits.

1. Employer has not paid Employee any temporary total disability benefits.
2. Employer has not paid any medical benefits.

Page: 3

1. If a compensable injury is found, then Employee reached maximum medical improvement on December 2, 2014.

While multiple issues were presented for determination at the hearing, the sole issue for purposes of this award is the liability of the Second Injury Fund for Permanent Total Disability.

At the Final Hearing, Employer/Insurer disputed jurisdiction, medical causation, nature and extent of unpaid TTD benefits, unpaid medical expenses, liability for future medical treatment, and nature and extent of permanent disability.

Employer/Insurer argued there was no jurisdiction in Missouri over Employee's claim and also denied medical causation - at the time of the Final Hearing, Employer/Insurer had not paid out any benefits to Employee under Chapter 287. Nevertheless, after the Final Hearing was held but before any Award was entered, Employer/Insurer and Employee entered into a Stipulation for Compromise Settlement resolving their disputes in exchange for, in part, a lump sum payment of $\ 175,000.00. I signed the Stipulation for Compromise Settlement on October 29, 2020.

As it were, I find Chapter 287 does apply to Mr. Shields' case pursuant to $\S 287.110$, RSMo. The evidence established Missouri to be the state where Mr. Shields' contract of employment was made. I found Mr. Shields' testimony that Missouri was the state where he was hired by Employer to be particularly persuasive and convincing given all the circumstances. During cross-examination, counsel for Employer/Insurer created some momentary uncertainty with some questions, but attorney questions are not evidence and when considering the full weight of the admitted evidence as must be done, it is clear that jurisdiction exists over Employee's claim.

Due to the settlement agreement that Employee entered into with Employer/Insurer after the Final Hearing, the issues regarding TTD benefits, unpaid past medical, and future medical treatment have been rendered moot.

Claimant's Exhibit 1

Springfield Neurological

Claimant's Exhibit 2

Wichita Clinic

Claimant's Exhibit 3

Preliminary hearing transcript

Claimant's Exhibit 4

Regional Eye Center

Claimant's Exhibit 5

Midwest Sleep Diagnostics

Claimant's Exhibit 6

Precision Pulmonary Diagnostics

Claimant's Exhibit 7

Manzer Family Medicine

Claimant's Exhibit 8

Dr. Manzer note

Claimant's Exhibit 9

Sacry Family Medicine

Claimant's Exhibit 10

Via Christi Clinic

Claimant's Exhibit 11

Ortho 4 States

Claimant's Exhibit 12

Industrial Physical Therapy

Claimant's Exhibit 13

Atlas Ergonomics

Claimant's Exhibit 14

Ortho 4 States

Claimant's Exhibit 15

.Ortho 4 States with Dr. Smith Report

Claimant's Exhibit 16

Via Christi Clinic Cervical MRI

Claimant's Exhibit 17

Rec'd from Employer-Insurer 6-23-13

Claimant's Exhibit 18

. Ortho 4 States

Claimant's Exhibit 19

. Ortho 4 States

Claimant's Exhibit 20

. Rec'd from O.C. through Cloud 2-25-19

Claimant's Exhibit 21

.CDL Medical Exam Report 12-26-12

Claimant's Exhibit 22

.Mercy McCune Brooks

Claimant's Exhibit 23

.Manzer Family Medicine

Claimant's Exhibit 24

. Ortho 4 States

Claimant's Exhibit 25

.Manzer Family Medicine

Claimant's Exhibit 26

.Industrial Physical Therapy

Claimant's Exhibit 27