Jimmy Fields v. Southwest Airlines

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 11-064748**

**Employee:** Jimmy Fields

**Employer:** Southwest Airlines (settled)

**Insurer:** Indemnity Insurance Company of North America (settled)

**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 § 287.480 RSMo. We have reviewed the evidence, read the briefs, (including supplemental briefs filed in December, 2019) 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 25, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued February 25, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **22nd** day of September, 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

**Reid K. Forrester, Member**

**S. Kiki Curls**

Shalonn K. Curls, Member

Attest:

**Secretary**

Employee: Jimmy Fields

Jimmy No.: 11-064748

Dependents: N/A

Employer: Southwest Airlines (settled)

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Additional Party Treasurer as Custodian of the Second

Injury Fund

Insurer: Indemnity Insurance Company of

North America (settled)

Jefferson City, Missouri

Hearing Date: December 6, 2018

Checked by: JPK

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: 8/17/2011

1. State location where accident occurred or occupational disease was contracted: St. Louis

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee hurt his left lower back lifting luggage.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Left low back

1. Nature and extent of any permanent disability: 3.5% body as a whole referable to low back

1. Compensation paid to-date for temporary disability: $982.23

1. Value necessary medical aid paid to date by employer/insurer? $8,144.07

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,031.29
3. Weekly compensation rate: $\ 687.53 TTD/ $\ 425.19 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

TOTAL:

None

1. Future requirements awarded:

N/A

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Robert D. Arb

This case involves five separate Claims for Compensation alleged by employee, the first four of which are injuries to the lower back. The first injury is an accident injury to the lower back, suffered by employee, identified by Injury Number 11-064748, on 8/17/2011. The second injury is an accident injury to the lower back, suffered by employee, identified by Injury Number 12-040765, on 5/17/2012. The third is an accident injury to the lower back, suffered by employee, identified by Injury Number 12-048145, on 6/29/2012. The fourth injury is an accident injury to the lower back, suffered by employee, identified by Injury Number 12-088323. The fifth injury is an occupational disease, for loss of hearing, suffered by employee, identified by Injury Number 12-107133. Claimant seeks permanent total disability in the fourth and/or fifth case. These cases may be referred to hereinafter as the first, second, third, fourth, and fifth cases, respectively and chronologically.

The testimony and exhibits in this record constitute the evidence in each Claim. Separate awards are issued on each Claim.

On 12/6/2018, the parties appeared for a hearing. Jimmy Fields ("Employee") appeared in person and with Attorney Robert D. Arb. Assistant Attorney General Rachael Houser represented the Second Injury Fund ("SIF"). The Employer, Southwest Airlines, and its Insurer, Indemnity Insurance Company of North America, previously settled with claimant and did not participate in the hearing.

1) The Employer was operating subject to Missouri's Workers' Compensation Law at all times, heretofore. 2) Claimant was employed at all times relevant herein. 3) The Employer received proper notice of each Claim. 4) Claimant filed the Claim within the proper time allowed by law. 5) The City of St. Louis is the proper venue.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-064748

6) In the first case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 687.53 for temporary total disability (TTD), and 425.19 for permanent partial disability (PPD).

7) In the second case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 737.08 for TTD and 425.19 for PPD.

8) In the third case, the average weekly wage at the date of the injury was sufficient to qualify for a rate of $425.19 for PPD.

9) In the fourth case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 692.53 for TTD and 425.19 for PPD.

10) In the fifth case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 692.53 for TTD and 433.58 for PPD.

11) In the first case, Employer paid 8,144.07 in medical expenses and 982.23 in TTD.

12) In the second case, Employer paid 27,645.81 in medical expenses and 14,611.76 in TTD.

13) In the third case, Employer paid zero in medical expenses and zero in TTD.

14) In the fourth case, Employer paid zero in medical expenses and zero in TTD.

15) In the fifth case, Employer paid zero in medical expenses and zero in TTD.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Dr. Robert Margolis's curriculum vitae

2) Dr. Robert Margolis's report dated June 16, 2015

3) Indexed medical records

4) Vincent Stock's curriculum vitae

5) Vincent Stock's report of vocational rehabilitation evaluation dated August 10, 2015

6) Vincent Stock's report of psychological evaluation dated April 17, 2018

7) Dr. Sheldon Davis' hearing evaluation report of October 23, 2014

8) Dr. Anthony Mikulec's hearing evaluation report of September 9, 2016

9) Certified copy of Division records of Workers' Compensation Claim for Injury No. 09-019206

10) Certified copy of Division records of Workers' Compensation Claims for Injury Nos. 10-110287, 11-064748, 12-040765, 12-048145, 12-088323 and 12-107133

11) Deposition of Dr. Robert Margolis of October 20, 2016

12) Deposition of Vincent Stock of June 20, 2018

13) Description of injury for each Injury Number

14) Note regarding 6/28/11 counseling visit with psychologist Mike Diller

15) Employer's wage statement

SIF introduced, and had admitted into evidence, the following Exhibit

I) Orthopedic Sports Medicine & Spine Care Institute report dated February 3, 2015

WC-32-R1 (6-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-064748

ISSUES

1) In the first case, liability of the Second Injury Fund for permanent partial disability.

2) In the second case, liability of the Second Injury Fund for permanent partial disability.

3) In the third case, liability of the Second Injury Fund for permanent partial disability.

4) In the fourth case, liability of the Second Injury Fund for permanent partial disability or permanent total disability.

5) In the fifth case, liability of the Second Injury Fund for permanent partial disability or permanent total disability.

FINDINGS OF FACT

Employee was born on 9/27/1950. He is married and has one child and two grandchildren. In 1969, employee graduated from Kennett Missouri High School. He has trouble reading. In 1974, he was diagnosed with severe dyslexia and struggled in high school. He took special education classes for six to eight years. His wife handles the family finances, as he cannot use a personal computer, type, or spell.

From June 1969, to early 1970, employee worked at Sterling Aluminum operating a lathe machine. He underwent basic training for the National Guard from March through July of 1970. From 1970 to 1979, he worked on the assembly line and as a machine operator for Emerson Electric in Kennett, Missouri. During this time he was diagnosed with bilateral carpal tunnel syndrome. He underwent surgery on his left wrist, but never underwent surgery on the right wrist. In 1980, Employee attended a six-month bricklaying course, but found little work as a bricklayer in or around Kennett, Missouri. Employee testified that he then went to work for UARCO in Kennett, Missouri for 14 years in the warehouse and eventually operated a printing press. He testified that he did not have any supervisory responsibilities at Emerson or UARCO and did not have to do much paperwork. The equipment that employee operated at Emerson and UARCO were not computerized. He left UARCO and obtained a job at Southwest Airlines in 1995, when he learned that UARCO was beginning to reduce its operations.

Employee is currently unemployed. He started working at Southwest Airlines in 1995 and worked there until 11/9/2012. He was hired as a ramp agent. His duties consisted of handling baggage and freight up to 100 pounds each. He did not use a computer at work and did not supervise other workers.

Employee worked at the T-Point of the baggage line while at Southwest Airlines because that job required little reading. This job involved a lot of pushing, pulling, twisting, bending, and lifting. A conveyer belt came down from the ticket counter to the T-Point, when baggage jammed on the conveyor belt, he would shut off the belt, crawl up the belt and rearrange baggage to break the jam. Employee testified that he would personally handle 150 to 200 pieces of luggage, or freight, per plane, nine planes per day. On occasion, he would have to climb inside the planes. There was not enough height to stand, so he would be bent over, or kneeling, when handling the baggage.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-064748

Employee's pre-existing injuries and conditions include:

1) Right