Shawn Claspill v. Fed Ex Freight East, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-130147

Employee: Shawn Claspill

Employer: Fed Ex Freight East, Inc.

Insurer: Self-Insured

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 section 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 section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 18, 2010. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued August 18, 2010, 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 $\qquad 19 ^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Shawn Claspill

Injury No. 06-130147

Dependents: N/A

Employer: Fed Ex Freight East, Inc.

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

Insurer: Self-insured

Hearing Date: $\quad 5 / 17 / 10$

Checked by: MEH

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: $7 / 31 / 06$
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
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: CLAIMANT FELL FROM A FORKLIFT
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: BODY AS A WHOLE
14. Nature and extent of any permanent disability: 10 %
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? $\ 746.67

1. Value necessary medical aid not furnished by employer/insurer? NONE
2. Employee's average weekly wages: $\ 798.00
3. Weekly compensation rate: $\$ 532 / 376.55$
4. Method wages computation: BY AGGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: NONE

0 weeks of temporary total disability (or temporary partial disability)

40 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: NONE

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: NONE

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

JOHN NEWMAN

Employee: Shawn Claspill

Injury No. 05-136608

Dependents: N/A

Employer: Fed Ex Freight East, Inc.

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

Insurer: Self-insured

Hearing Date: 5/17/10

Checked by: MEH

The parties appeared before the undersigned administrative law judge on May 17, 2010, for a final hearing. For convenience, three claims were heard during this hearing: Injury No. 05136608, Injury No. 05-142649, and Injury No. 06-130147. The claimant appeared in person represented by John Newman. The employer and insurer appeared represented by Constance Warner. The Second Injury Fund appeared represented by Cara Harris. Memorandums of law were filed by June 14, 2010.

The parties stipulated to the following facts: On or about August 31, 2005, and July 31, 2006, Fed Ex Freight East, Inc., was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully self-insured. On the alleged injury dates of August 31, 2005, and July 31, 2006, Shawn Claspill was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The employment occurred in Greene County, Missouri. The claimant's claims for compensation were filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged accident or occupational disease the claimant's average weekly wage on both August 31, 2005, and July 31, 2006, was $\ 798.00, which is sufficient to allow a compensation rate of $\ 532.00 for temporary total disability compensation, and the maximum compensation rates for permanent partial disability on August 31, 2005, of $\ 365.08 for permanent partial disability compensation and on

July 31, 2006, $\ 376.55. No temporary disability benefits have been paid to the claimant. The employer and insurer have paid medical benefits in the amount of $\ 2,897.16 on Injury No. 05-136608, and $\ 746.67 on Injury No. 06-130147. The attorney fee being sought is 25 %. ISSUES (The same issues apply to all three claims):

1. Whether the claimant sustained an accident or occupational disease which arose out of the course and scope of employment.
2. Whether the claimant gave the employer proper notice.
3. Whether the accident or occupational disease caused the injuries and disabilities for which benefits are being claimed.
4. Whether the employer is obligated to pay past medical expenses.
5. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
6. Any temporary total benefits owed to the claimant.
7. The nature and extent of permanent disabilities, including permanent total disability.
8. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The claimant testified at the hearing. He is 43 years old. He completed the $11^{\text {th }}$ grade and has not obtained a GED. His work history includes; laundry service, cleaning a movie theater, warehouse, washing trucks and trailers, and as a truck mechanic. He went to work as a truck mechanic for the employer in 2002.

In addition to the work injuries alleged in this hearing, the claimant also developed carpal tunnel syndrome in both hands. He received bilateral carpal tunnel release surgeries and settled his claim with the employer. Claimant also has pre-existing conditions, for which he has had

surgery, for sleep apnea and a hernia. Claimant testified that he continues to have complaints with his hands of swelling, loss of motion, loss of strength, and dropping things since.

Claimant testified that he did not recall hurting his ankles and had no problem doing things prior to the alleged accident in August 2005. He further testified that he was very active prior to these alleged injuries and that these injuries have severely impacted his ability to function. Christopher Newton, a long-time friend of the claimant; Leslie Claspill, claimant's wife; and his two daughters, also testified to the change they have seen in the claimant. They all testified that prior to the alleged injuries the claimant was very active. They said he worked in his yard, had frequent barbeques at their home, coached his daughters in basketball, attended games and participated in many activities. They all consistently said that after the alleged injuries the claimant does not do any of these things, seldom leaves his house, and is difficult to get along with.

Claimant testified that in August 2005 he was walking to his car in the employer's parking lot when he stepped on a pebble and twisted his right foot. He says he heard it pop and others had to help him up. He says his ankle became swollen. He said he reported the injury to his boss, Tom Frizzell and he was sent to Concentra.

In his deposition, taken in August 2006, he testified that he did not know who was in charge or who he should have reported it to. He also testified in his deposition that he had not asked for medical treatment for his ankles.

Claimant said that about the time of his fall both of his feet started to fail. He said he then went to his own doctor, Dr. Kyle Smith. Dr. Smith referred him to Dr. Talley and Dr. Crites. He said he was sent to Concentra for other falls but does not recall details. Records from Concentra show he was treated in January 2006. Claimant said Concentra offered no treatment

and returned him to work. Records from Concentra show his symptoms had resolved with the use of the medications he was taking.

Claimant also testified that he had an accident in July 2006 when he fell off a forklift and struck his right hip and back. He said he was not sure if he was hurt at first and walked around for awhile. He said other workers were present and that his immediate boss, Bill Hite, was not there. He reported the injury the next week. Claimant was sent to Concentra. The claimant testified that he had a large bruise on his hip. According to the claimant, Concentra did not really look at it and sent him back to work. He said he continued to work and his back and hip continued to get worse. He described an incident when his left leg went numb one evening and his wife took him to the emergency room. He said they gave him muscle relaxers and sent him to his family doctor, Dr. Smith. An MRI was performed and claimant was referred to Dr. Mace. Claimant testified that Dr. Mace did not think he was a surgical candidate and gave him steroid injections. He testified in his deposition taken August 16, 2006, roughly $21 / 2$ weeks after the fall that he did not need any more medical treatment for the fall.

Claimant said he quit working and took FMLA in December 2006. He has not worked since then. He says he has not applied for jobs because he does not feel he could do them and he feels worthless. Currently he has complaints in his back, hands, hernia area in his stomach, and ankles. He said his ankles have throbbing pain, numbness, swelling, and pain to his toes. He has sharp pain in his back as well as numbness and tingling in both legs. His hands are weak and tingle. He said that he has a sharp pain in the lower left back with numbness and tingling which radiates down both legs. If he lies down for 1-2 hours it will subside. He cannot sleep on his stomach because his hernia is sore. At the time of the hearing he was taking medications including Percocet, Xanax, morphine, Ambien, Flonase, Flovent, albuterol, potassium, Lasix, Glucophage, Synthroid, Lamictal, bisoprol, and fish oil. He says that as a result of these

medications, he has to lie down, is edgy and he sweats. He says he has gained 40 pounds and has lost strength.

Claimant said that he spends his day between his chair and the ba