Robert Taylor v. QuikTrip

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-142001

Employee: Robert Taylor

Employer: QuikTrip

Insurer: QuikTrip Corporation, Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence, read the briefs, heard oral argument, 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 6, 2009. The award and decision of Administrative Law Judge Emily S. Fowler, issued November 6, 2009, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 4^{\text {th }} \qquad$ day of November 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Robert Taylor

Injury No. 03-142001

Dependents: N/A

Employer: QuikTrip

Insurer: QuikTrip Corporation, Self-Insured

Additional Party: N/A

Hearing Date: September 21, 2009

Checked by: ESF/pd

1. Are any benefits awarded herein? Yes.
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: October 13, 2003.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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? 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: While in the course and scope of his employment, Employee was required to stand during entire shifts with constant turning and twisting of his ankle and rotate among tasks, causing cumulative trauma to his right ankle.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Amount of compensation payable: Employer shall pay to Employee permanent partial disability benefits of 15 percent permanent partial disability to the right lower extremity at the ankle equaling 23.25 weeks of compensation at a rate of 347.05, equating to 8,068.91, as well as 5 percent to the body as a whole equaling 20 weeks at 347.05, equating to 6,941.00, for a total of $15,009.91.

Further employer shall pay to Employee temporary total disability from October 13, 2003 to April 21, 2004 in the sum of 171.01 per week which is the difference between the full TTD rate of 411.13 and the amount Employee was paid by Employer through Employer’s short-term disability benefits, a rate of 240.12. (411.13 - $240.12 = $171.01) 22. Second Injury Fund liability: N/A 23. Future requirements awarded: Employer shall to provide to Employee all reasonable and necessary medical treatment to cure and relieve the effects of Employee’s injury to his right lower extremity, including all diagnostic testing, physical therapy and surgery as required. Further, Employer shall provide to Employee temporary total disability payments if Employee is rendered temporarily but totally disabled during such treatment.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Michael Knepper, Employee’s attorney, for necessary legal services rendered.

Employee: Robert Taylor

Injury No. 03-142001

Dependents: N/A

Employer: QuikTrip

Insurer: QuikTrip Corporation, Self-Insured

Additional Party: N/A

Hearing Date: September 21, 2009

Checked by: ESF/pd

On September 21, 2009, Employee and Employer/Insurer appeared for a final hearing. The Employee appeared in person and through his counsel, Michael Knepper. The Employer/ Insurer appeared through its attorney, Brian Fowler. The Division had jurisdiction to hear this case pursuant to Section 287.110 RSMo.

The parties stipulated to the following:

1) that the Employer were operating under and subject to Missouri's Workers' Compensation Law on October 13, 2003 and the Employer was fully insured through self-insurance;

2) that Robert Taylor was its Employee and was working subject to the law in Kansas City, Jackson County, Missouri;

3) that Employee's contract of employment was made in Missouri;

4) that Employee's claim was filed within the time allowed by law;

5) that Employee's average weekly wage was $\ 616.67, resulting in a compensation rate of $\ 411.13 for temporary total and $\ 347.05 for permanent partial disability compensation;

6) that the Employer has paid no temporary total disability compensation nor any medical care to date.

The parties request the Division to determine the following:

1) whether the Employee sustained an accident or occupational disease arising out of and in the course of his employment;

2) whether the Employee notified the Employer of the injuries as required by law;

3) whether the Employee is entitled to temporary total disability benefits from October 13, 2003 through April 21, 2004;

4) whether the Employer must reimburse Employee for medical expenses totaling $\ 21,415.45

5) whether the Employer must provide Employee with additional medical care;

6) whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability; and

7) whether the accident or occupational disease caused the disability of which the Employee complains.

Employee testified on his own behalf and presented the following exhibits, which were all admitted into evidence.

Claimant's Exhibit A - Medical Records of Dr. Larry Cordell, 8/29/83 - 4/16/91

Claimant's Exhibit B - Medical Records of Dr. Dan Geha, 3/25/04-4/6/04

Claimant's Exhibit C - Medical Records of Dr. Michael Hughes, 7/1/99-8/4/99

Claimant's Exhibit D - Medical Records of Medical Center of Independence, 2/25/04

Claimant's Exhibit E - Medical Records of Dr. Raymond Rizzi, 10/16/02-4/21/04

Claimant's Exhibit F - Medical Records of St. Joseph Hospital, 7/28/99-3/25/04

Claimant's Exhibit G - Medical Records of St. Mary's Hospital, 10/4/90-3/30-04

Claimant's Exhibit H - Medical Records of V.A. Medical Center, 12/1/04-3/18/09

Claimant's Exhibit I - Deposition of Dr. Edward Prostic, 3/24/09

Claimant's Exhibit J - 60-Day Letter of P. Dr. Brent Koprivica

Claimant's Exhibit K - Medical Report of Dr. Koprivica, dated 6/1/05

Claimant's Exhibit L - Curriculum Vitae of Dr. Koprivica

Claimant's Exhibit M - Claim for Compensation, DOI: 9/30/02

Claimant's Exhibit N - Amended Claim for Compensation, DOI: 9/30/02

Claimant's Exhibit O - Claim for Compensation, DOI: 10/31/02

Claimant's Exhibit $\boldsymbol{P}$ - Answer to Claim for Compensation, DOI: 10/31/02

Claimant's Exhibit $\boldsymbol{Q}$ - Amended claim for Compensation, DOI: 10/31/02

Claimant's Exhibit $\boldsymbol{R}$ - Claim for Compensation, DOI: through 10/13/03

Claimant's Exhibit S - Amended Claim for Compensation, DOI: 10/13/03

Claimant's Exhibit T - Report of Injury, DOI: 10/13/03

Claimant's Exhibit U - (Not offered)

Claimant's Exhibit V - Incident Report, 9/30/02

Claimant's Exhibit W - Recorded Statement, 10/29/02

Claimant's Exhibit X - Report of Injury, 9/30/02

Claimant's Exhibit Y - Vocational Rehabilitation Records

Claimant's Exhibit Z - St. Mary's Medical Center Billing Statement

Claimant's Exhibit AA - Medical Center of Independence Billing DOS: 2/25/04

Claimant's Exhibit BB - Dr. Raymond Rizzi's off-work note

Claimant's Exhibit CC - Fax to Doug Schimiel

Claimant's Exhibit DD - QuikTrip Adjuster Letter dated 11/20/02

Claimant's Exhibit EE - Primax Recoveries Letter dated 12/12/03

Claimant's Exhibit FF - Coventry Recovery Letter

Claimant's Exhibit GG - Anesthesia Associates of K.C. Billing

Claimant's Exhibit HH - Jackson County Orthopedics Billing

Claimant's Exhibit II - Dr. Dan Geha's Billing

The Employer/Insurer offered no live testimony but offered the following exhibits which were admitted into evidence:

Employer/Insurer's Exhibit 1 - Deposition of Jeremy Donnelly, 11/28/06

Employer/Insurer's Exhibit 2 - Deposition of Kevin Bergman, 3/2/07

Employer/Insurer's Exhibit 3 - Medical Records of Dr. Yost

Employer/Insurer's Exhibit 4 - Claimant's Employment Application

Employer/Insurer's Exhibit 5 - Vocational Rehabilitation records, 10/12/00

Employer/Insurer's Exhibit 6 - (Not offered)

Employer/Insurer's Exhibit 7 - Claim for Compensation, DOI: 10/31/02

Employer/Insurer's Exhibit 8 - Dr. Raymond Rizzi's medical records

Employer/Insurer's Exhibit 9 - St. Mary's Hospital medical records, 11/19/02

Employer/Insurer's Exhibit 10 - Dr. Raymond Rizzi's report, 10/23/03

Employer/Insurer's Exhibit 11 - Dr. Dan Geha's report, 3/25/04

Employer/Insurer's Exhibit 12 - Claim for Compensation, DOI: 10/13/03

Employer/Insurer's Exhibit 13 - Claim for Compensation, DOI: 9/30/02

Employer/Insurer's Exhibit 14 - Short-term disability payments

Robert Taylor, hereinafter referred to as Employee, is a 49-year-old male who has worked for QuikTrip Corporation since November of 2001. His job duties during this time working for QuikTrip included Assistant Manager as well as an employee in what is referred as the ERP program. His alleged injuries occurred during the time period when he was in the ERP program. His typical day included emptying all the trash cans, both inside and out, picking up the lot and the grass area around the store. He would stock the shelves, coolers and the grocery aisles. He would face all product labels out so that everything looked good. He would go in the back room and get the cups and lids that were necessary and stack them. In order to get to the tall shelves, he would sometimes have to use a ladder to get cases of coffee off of them. He would clean the bathrooms and sweep and mop them. He would make the coffee. Then he would audit, which entailed checking the money in the register for the new shift. This he would all get done in approximately 30 to 45 minutes. Then he would check the coffee again and he would work the cash register. Other duties included cleaning the coffee aisle and power washing the parking lot.

Prior to his working for QuikTrip, Employee was involved in a serious motor vehicle accident in 1990. He had serious injuries to his right ankle which required plates and screws to stabilize his ankle.

Employee testified that on September 30, 2002 when he was working his