David Connors v. FedEx Freight, Inc.

Fund's argument that the administrative law judge meant to apply a 2.5 % load factor, and we are not persuaded by employee's argument that we should disturb this finding, which was well within the discretion and expertise of the administrative law judge.

Accordingly, we hereby correct the apparent clerical or typographical errors as follows. On page 6 of the award, we delete the following sentences set forth in the sixth paragraph: "Applying an augmentation factor of 2.5 % to the 2007 left knee injury in combination with the preexisting right knee disability is appropriate given the bilateral nature of the injuries. Therefore, there is a total of 5.65 weeks of preexisting disability." On page 7 of the award, we delete the following sentence in the first paragraph: "Further, Employee's testimony that the combination of his primary injury and preexisting disabilities rendered it difficult for him to lift, carry, push, pull, squat, stoop, kneel, crawl, and perform the other physical requirements of the job is consistent with a 15 percent enhancement factor."

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued September 24, 2013, is attached and incorporated by this reference.

The Commission approves and affirms as fair and reasonable the administrative law judge's allowance of a 25 % lien in favor of employee's attorney on compensation awarded herein.

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

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of June 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: David Connors

Injury No. 07-135302

1. Nature and extent of any permanent disability: 15 percent permanent partial disability to the left knee.
2. Compensation paid to date for temporary disability: $\ 6,502.77.
3. Value necessary medical aid paid to date by employer/insurer? $\ 24,833.66.
4. Value necessary medical aid not furnished by employer/insurer? N/A.
5. Employee's average weekly wages: $\ 797.53.
6. Weekly compensation rate: $\$ 531.69 / \ 389.04.
7. Method wages computation: By stipulation.

1. Amount of compensation payable: Employee previously settled his claim with the Employer for 15 percent permanent partial disability to the left lower extremity at the 160 week level.
2. Second Injury Liability: Permanent partial disability benefits from the Second Injury Fund of 5.65 weeks @ $\ 389.04 per week, a total of $\ 2,198.08.
3. Future requirements awarded: N/A

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 Christopher Smith, Employee's attorney, for necessary legal services rendered.

Employee: David Connors

Injury No. 07-135302

Dependents: N/A

Employer: FedEx Freight, Inc. (settled)

Insurer: Self (settled)

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

Hearing Date: August 6, 2013

Checked by:

On August 6, 2013 the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, David Connors, appeared in person and with counsel, Christopher Smith. The Second Injury Fund appeared through Assistant Attorney General, Maureen Shine. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee has previously been settled.

The parties stipulated to the following:

1) that the Employer, FedEx Freight, Inc., was an employer operating under and subject to the provisions of Missouri Workers' Compensation Law on December 142007 and was fully self-insured;

2) that David Connors was its employee and working subject to the law in Liberty, Clay County, Missouri;

3) that Employee sustained an accident or occupational disease arising out of and in the course and scope of his employment;

4) that Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;

5) that Employee's average weekly wage was $\ 797.53, resulting in a compensation rate of $\ 531.69 for temporary total disability and $\ 389.04 for permanent partial disability compensation;

6) that the Employer has paid temporary total disability compensation in the amount of $\ 6,502.77 and medical care costing $\ 24,833.66;

7) that the Employer and Employee settled the primary claim for 15 percent permanent partial disability to the left knee.

The issues to be resolved by this hearing are as follows:

1) whether the Employee's prior disability was a hindrance or obstacle to his ability to maintain employment or to be reemployed should he have become unemployed; and

2) whether the Second Injury Fund is liable to the Employee for any disability compensation.

The Employee, David Connors, appeared in person and offered the following exhibits, and with the sole exception of Exhibit V, all were admitted into evidence without objection:

Claimant's Exhibit A - Stipulation for Compromise Settlement, Injury No. 07-135302, approved $9 / 16 / 10$

Claimant's Exhibit B - Stipulation for Compromise Settlement, Injury No. 08-120575, approved $9 / 16 / 10

Claimant's Exhibit \boldsymbol{C}$ - Transcript of the deposition of Michael J. Poppa, D.O. taken 9/27/12, with deposition exhibits 1,2 and 3

Claimant's Exhibit $\boldsymbol{D}$ - Transcript of the deposition of Allan D. Schmidt, Ph.D., taken 11/20/12, with deposition exhibits 1 and 2

Claimant's Exhibit $\boldsymbol{E} - Transcript of the deposition of Mary W. Titterington, MS, CCFC, taken 9 / 25 / 12, with deposition exhibits 1 and 2

Claimant's Exhibit \boldsymbol{F}$ - Transcript of the deposition of Claimant David Connors, taken 9/18/12

Claimant's Exhibit G - Medical records, Advanced Cardiovascular Specialists

Claimant's Exhibit $\boldsymbol{H}$ - Medical records, DiPoto Counseling Group

Claimant's Exhibit I - Medical records, Gary Go, M.D., rating report of 2/9/09

Claimant's Exhibit J - Medical records, KU MedWest Occupational Health

Claimant's Exhibit $\boldsymbol{K} - Medical records, KU MedWest Therapy

Claimant's Exhibit \boldsymbol{L} - Medical records, Zafar Mahmood, M.D.

Claimant's Exhibit \boldsymbol{M}$ - Medical records, Northland Bone \& Joint

Claimant's Exhibit $\boldsymbol{N} - Medical records, Rockhill Orthopaedics

Claimant's Exhibit \boldsymbol{O} - Medical records, Sharon Scott, M.D.

Claimant's Exhibit \boldsymbol{P} - Medical records, St. Luke's Imaging Center

Claimant's Exhibit \boldsymbol{Q} - Medical records, Surgicenter of Kansas City

Claimant's Exhibit \boldsymbol{R}$ - Medical records, Mid American Foot \& Ankle

Claimant's Exhibit $\boldsymbol{S}$ - Medical records, MidAmerica Neuroscience Institute

Claimant's Exhibit T - Medical records, Neurosurgery of Kansas City

Claimant's Exhibit $\boldsymbol{U}$ - Medical records, North Kansas City Hospital

Claimant's Exhibit V - Medical records, report of Douglas M. Rope, M.D., dated 2/23/10 (not admitted)

Claimant's Exhibit $\boldsymbol{