Joseph Scott v. FedEx Freight East, Inc.

Employee: Joseph H. Scott

Injury No. 03-042483

Dependents: N/A

Employer: FedEx Freight East, Inc.

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: March 19, 2007

Checked by: JK/kh

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? May 8, 2003
5. State location where accident occurred or occupational disease contracted: Scott 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? Yes
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? Self Insured
11. Describe work employee was doing and how accident happened or occupational disease contracted: The employee alleged that he injured his lumbar spine and is permanently and totally disabled as a result of an accident and injury that occurred when the employee was attempting to lift the tongue of a dolly to attach a trailer to his truck.
12. Did accident or occupational disease cause death? No

Based on the evidence submitted, I find as follows:

Joseph H. Scott ("employee") alleged that he injured his low back on May 8, 2003 while he was attempting to lift a dolly that was used to connect FedEx trailers to his truck.

At the time of his accident, the employer was not aware of the employee's significant history of prior back problems, and authorized the employee to receive treatment that resulted in surgery being performed by Dr. Kevin Vaught, who is a neurosurgeon in Cape Girardeau, Missouri. After taking the employee's deposition, the employer discovered more information about the employee's prior back problems and denied the employee's claim.

The employee's prior back problems are documented in the medical records and reports of Dr. Robert E. Gardner, the physicians at Regional Primary Care and Dr. Katherine Adams and Dr. Deborah D. Price at Cape Girardeau Physician Associates (employee's exhibits D, I and J; and Employer's exhibits 13 and 14). These records confirm that the employee complained of low back pain, pain in both lower extremities with numbness in his feet on a regular basis from May 18, 1998 through November 18, 2002 (approximately 6 months prior to his May 8, 2003 accident).

The first entry indicating the employee had low back leg pain occurred on May 18, 1998. The employee went to Dr. Voszler at Regional Primary Care complaining of low back pain with pain down his left leg for 1 week. The employee denied any injury.

The records of Dr. Voszler indicate that $21 / 2$ months later, on August 5, 1998, the employee reported that he had fallen out of the truck and was experiencing low back and right leg pain. The employee complained of constant paresthesia in the right foot. The employee's treatment for back and leg pain by Dr. Voszler continued through September 1998 (Employee's exibit D).

On February 14, 2000, the employee reported a new work related injury to his "left arm, neck and back" (emphasis added) that occurred when he was pulling on trailer connections. An MRI of the cervical spine revealed a disc protrusion at C5-6, and the employee was referred to Dr. Robert E. Gardner at Neurologic Associates of Cape Girardeau. (Employee's exhibit D).

Although the employee's initial treatment with Dr. Gardner focused on his cervical herniated disc, by September 14, 2001, the records of Dr. Gardner confirm the employee was having significant low back and leg complaints. Dr. Gardner's hand written notes from September 14, 2001 indicate the employee complained of low back and left leg pain for 4 to 5 months. The employee said his legs were getting weak and may give out. He also reported tingling on the toes of his left foot. An MRI performed at Cape Imaging on September 14, 2001 confirmed the employee had a central disc herniation at L5 S1 "which may be impinging on the nerve root bilaterally". The report also indicated that the employee had "diffuse degenerative changes". These degenerative changes were confirmed in a myelogram that was done on October 8, 2001 (Employee's exhibit D).

Dr. Gardner's records indicate the employee continued to have low back complaints and leg pain in 2002. On April 12, 2002 the hand written record notes increasing low back and right leg pain. On November 2, 2002 the employee reported increasing leg weakness. As a result of these ongoing complaints, Dr. Gardner ordered another myelogram with a CT scan on November 18, 2002 that confirmed "ventral indentation of the thecal sac at L3-4 and L4-5". The post myelogram CT indicated the employee had diffuse annular bulges at L3-4, L4-5 and L5-S1 with moderate stenosis at L3-4 (Employee's exhibit D). This diagnostic study was completed less than 6 months prior to the employee's accident date of May 8, 2003.

One of the multiple entries in these records that demonstrates the severity and extent of the employee's back problems prior to his accident is set forth in a "New Patient Evaluation" taken by Dr. Katherine Adams of Cape Girardeau Physician Associates on September 4, 2001. Although the employee had many other health problems, the portion related to his low back included the following:

He