Rader v. Werner Enters., Inc.

• Decision Date: 10 January 2012
• Docket Number: No. ED 95905.,ED 95905.
• Citation: 360 S.W.3d 285
• Parties: Timothy C. RADER, Respondent, v. WERNER ENTERPRISES, INC., and St. Paul Travelers Insurance Company, Appellants,andTreasurer of Missouri as Custodian of Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

360 S.W.3d 285

Timothy C. RADER, Respondent,

v.WERNER ENTERPRISES, INC., and St. Paul Travelers Insurance Company, Appellants,andTreasurer of Missouri as Custodian of Second Injury Fund, Respondent.

No. ED 95905.

Missouri Court of Appeals, Eastern District, Division Five.

Jan. 10, 2012.Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 23, 2012.

Mary Anne Lindsey, St. Louis, MO, for appellant.

Stephen W. Thurmer, (Timothy C. Rader), St. Louis, MO, Carol L. Barnard, (Second Injury Fund), St. Louis, MO, for respondents.

PATRICIA L. COHEN, Judge.

Introduction

Werner Enterprises (Employer) appeals the final order of the Labor and Industrial Relations Commission (Commission) granting Timothy Rader (Claimant) weekly permanent total disability benefits and future medical costs as a result of the injury he sustained working for Employer on May 29, 2003. Employer claims the Commission erred in finding that: (1) the Commission had jurisdiction over Claimant's claim; (2) Claimant was an employee and not an owner-operator; (3) Claimant sustained a significant back injury on May 29, 2003; (4) Claimant was entitled to future medical care for his back condition; (5) Claimant was permanently and totally disabled solely as the result of the May 29, 2003 injury; and (6) Claimant's average weekly wage was $1,312.32. We affirm.

Factual and Procedural Background

Claimant, a resident of Texas, worked as a truck driver and trainer for Employer, a transportation and logistics company headquartered in Omaha, Nebraska. Prior to his employment with Employer, Claimant served in the U.S. Army from 1977 until 1986, during which time he sustained injuries to his knees and back. Claimant did not receive treatment for his knees or back from 1986 until his work-related injury in May 2003.

Claimant worked for Employer for approximately four years in the mid–1990s and returned to Employer's employ in August 2000. In February 2003, Claimant purchased a truck through a subsidiary of Employer, and Employer changed his job classification to owner-operator. On February 5, 2003, Claimant executed an “Owner–Operator Workers' Compensation Coverage Agreement” (Owner–Operator Coverage Agreement), which provided:

The Contractor hereby acknowledges that states (other than the State of Nebraska) in which the Contractor may or may not claim a residence, may have Workers' Compensation benefits that are substantially different from those offered in the State of Nebraska. However, the Contractor does waive jurisdiction of any said Workers' Compensation State (other than Nebraska) and does hereby fully and knowingly consent to the State of Nebraska's Workers' Compensation Laws.

On May 29, 2003, Claimant was unloading a truck at an Anheuser–Busch distribution center in the City of St. Louis when a partially empty beer keg rolled out of the truck and struck Claimant's head, knocking him to the ground. Claimant was unsure whether he lost consciousness. An ambulance transported Claimant to the emergency room at St. Louis University Hospital, where Claimant complained of pain in his head, neck, back, buttocks, and legs, as well as penile numbness. Doctors discharged Claimant the same day with directions to follow-up with either his primary care or workers' compensation physician.

During Claimant's 900–mile return drive to Texas, he suffered severe pain and an episode of fecal incontinence. On June 3, 2003, Claimant sought treatment at East Texas Medical Center in Athens, Texas for pain in his lower back and right leg and numbness in his left leg. Doctors performed an MRI, which revealed a large central herniation at L4–5 disc and a bulging disc. Based on the MRI results, doctors transferred Claimant by ambulance to a regional medical center in Tyler, Texas, where Claimant was seen by Dr. Hackbarth. Dr. Hackbarth ordered a myelogram and epidural steroid injections and prescribed pain medications. Claimant's diagnosis was lumbar disc protrusion and right lumbar radiculitis. The hospital discharged Claimant on June 6, 2003.

On June 16, 2003, Claimant returned to Dr. Hackbarth with complaints of back pain, back weakness, and numbness in his left leg and penis. On July 3, 2003, Dr. Hackbarth performed bilateral L2, L3, L4 and L5 medial branch neurotomies with radiofrequency. Claimant reported that the procedure relieved his pain for a day and a half.

On August 11, 2003, Dr. Hackbarth performed L3–4, L4–5, and L5–S1 discographies and concluded that Claimant had an L4–5 disc with partially concordant pain response, with slightly equivocal results. Claimant continued treatment with various pain medications and physical therapy. Claimant began seeing Dr. Lloyd for pain management in October 2003.

Eventually, Claimant was referred to Dr. Esses for treatment of back pain. On November 24, 2003, Dr. Esses performed discectomies at L4–5 and L5–S1. On May 19, 2004, Dr. Esses performed hemilaminotomy, decompression, and discectomy at L4–5. Claimant reported that this procedure relieved the pain in his back and legs until August 2004, when the pain suddenly recurred without either specific incident or trauma.

On January 21, 2005, Claimant underwent a laminectomy and decompression with lumbar fusion at L4–5 and L5–S1. In March 2005, Claimant began seeing Dr. Lloyd almost monthly for management of medication for his lumbar pain. Due to Claimant's continuing high level of pain, Dr. Lloyd inserted a dual-lead spinal cord stimulator on February 2, 2006. Dr. Lloyd later removed the spinal cord stimulator because it did not relieve Claimant's symptoms.

Claimant filed a claim for workers' compensation benefits on May 25, 2005. On June 20, 2005, Employer filed its first answer to Claimant's claim for compensation on a Form 22, which instructs the answering party to “describe below each statement or allegation in the claim for compensation that is being disputed, the reason why it is being disputed and the facts in regard thereto ....” and “list all affirmative defenses.” In its answer, Employer declared: “Employer and Insurer dispute Missouri jurisdiction based on an ‘employee employment agreement’, between employee and employer that Nebraska Law shall govern as to both interpretation and performance.”

The Administrative Law Judge (ALJ) for the Division of Workers' Compensation held a hearing on December 2 and 17, 2009. Prior to the hearing, the ALJ asked Claimant's counsel to state the issues in the case. Claimant's counsel asserted that one issue, among others, was “whether Missouri or Nebraska law applies in this matter.” Counsel for Employer agreed with Claimant's framing of the issues. In his opening statement at the Division hearing, counsel for the Employer argued in support of its contention that the Commission lacked jurisdiction, as follows:

This man, by his log, was in Missouri one or two times in the 13 two week [sic] prior to his injury, and therefore, does not in our opinion, have facts that would allow it to be said that his principle place of employment within 13 weeks before May 29, 03, was in the State of Missouri. The only nexus possibly to Missouri jurisdiction is accident only.

Employer's counsel continued, contending that Nebraska and not Missouri law should apply because: “he took his DOT physical in Nebraska. He agreed to be bound by the laws of the State of Nebraska to the exclusion of the laws of any other state. So, that we feel that Missouri has no jurisdiction here, and the matter should go back to Nebraska....”

During the hearing, Claimant testified that he had not worked since his injury on May 29, 2003. Claimant acknowledged that he sustained back and knee injuries while he was in the Army, but stated that these injuries never impeded his ability to work. Claimant testified that, as a result of the May 2003 injury, he continued to suffer extreme pain in his back and legs, his daily activities were severely limited, and he had not worked since the accident. Claimant spent most of his time laying in bed or sitting in a massage chair. He was taking numerous pain medications and continued to see Dr. Lloyd for pain management.

Employer introduced into evidence the Owner–Operator Coverage Agreement signed by Claimant, and Claimant testified that he “knew [he] would be covered under the Nebraska Workers' Compensation law, and not the laws of any other state.” Employer also presented the deposition testimony of Daniel Fridrich, senior counsel of workers' compensation for Werner Management, Inc. Mr. Fridrich reviewed the Owner–Operator Program, which included the Owner–Operator Coverage Agreement, and described it as “a document evidencing that [Claimant] has elected to bring himself within the coverage of the Nebraska Workers' Compensation Act.”

Claimant and Employer presented the deposition testimony of numerous experts. At Claimant's request, Dr. Volarich examined Claimant on August 28, 2008. Dr. Volarich concluded that the May 2003 accident was the substantial contributing and prevailing factor in causing Claimant's current lumbar syndrome secondary to disc herniations at L4–5 and L5–S1, persistent lumbar radicular syndrome, and failed back syndrome. Dr. Volarich based his conclusions on the medical history provided to him by Claimant, which did not include Claimant's Army and VA records, or any other reference to the back injury Claimant suffered in the 1980s. Dr. Volarich later reviewed Claimant's Army and VA records and concluded that the lumbosacral strain Claimant suffered in the Army and Claimant's preexisting degenerative disc disease and spondylosis did not alter his opinion that the May 2003 injury caused Claimant's disability.

At the request of Employer, Dr. Irvine examined Claimant on August 27, 2008. Dr. Irvine expressed the opinion that, prior to May 29, 2003, Claimant had pre-existing, chronic conditions in both knees and stenosis, spondylosis, and degenerative disc disease in his lumbar spine. According to Dr....