Bobby Knight v. FedEx Ground Package System, Incorporated

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-037031

**Employee:** Bobby Knight

**Employer:** FedEx Ground Package System, Incorporated

**Insurer:** Indemnity Insurance Company of North America

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 19, 2019. The award and decision of Administrative Law Judge Joseph P. Keaveny, issued November 19, 2019, 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 **21st** day of October 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

**Attest:**

**Secretary**

Injury No.: 15-037031

Employee: Bobby Knight

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

Although that employee is not permanently and totally disabled, I find that employee has a greater permanent and partial disability than awarded by the administrative law judge. Dr. Dwight Woiteshek persuasively opined that employee sustained a 20% permanent partial disability to the body as a whole, referable to the lumbar spine for employee's first injury and a 15% permanent partial disability to the body as a whole, referable to the lumbar spine for employee's second injury.

Accordingly, I would modify the administrative law judge's award allowing benefits and adopt the percentages as determined by Dr. Woiteshek. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Injury No.: 15-037031

Employee: Bobby Knight

Debendants: N/A

Employer: FedEx Ground Package System, Incorporated

Industrial Relations Of Missouri

Indemnity Insurance Company of North America c/o Broadspire

Hearing Date: September 10, 2019

Before the Division of Workers' Compensation Department of Labor and Industrial Relations Of Missouri

Jefferson City, Missouri

Hearing Date: September 10, 2019

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

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: May 27, 2015

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

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: Loading boxes onto a truck from a conveyor belt, employee injured his lumbar spine.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Lumbar spine

1. Nature and extent of any permanent disability: 4% body as a whole referable to the lumbar spine

1. Compensation paid to-date for temporary disability: Zero

1. Value necessary medical aid paid to date by employer/insurer? $8,030.11

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? Zero
2. Employee's average weekly wages: $\ 114.64
3. Weekly compensation rate: $\ 76.42 TTD/ $\ 202.00 PPD
4. Method wages computation: Stipulated

1. Amount of compensation payable:

4 % BAW referable to the lumbar spine

$\ 3,232.00

1. Second Injury Fund liability: N/A

TOTAL:

$\ 3,232.00

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: Mark A. Cordes

This case involves two separate Claims for Compensation alleged by Claimant. The first case is an injury to the lumbar spine, suffered on May 27, 2015, identified by Injury Number 15-037031. The second case is an injury to the cervical and lumbar spine, suffered on December 18, 2015, identified by Injury Number 15-102814. Claimant seeks permanent total disability in the second case. These cases may be referred to hereinafter as the first and second 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 September 10, 2019, the parties appeared for a hearing. Bobby Knight ("Employee") appeared in person. Employee was represented by Attorney Mark A. Cordes for the first claim and Attorney Jeffrey R. Swaney for the second claim. The Employer, FedEx Ground Package System, Incorporated, and its Insurer, Indemnity Insurance Company of North America c/o Broadspire, was represented by Attorney Rachael R. Brown.

1. The Employer was operating subject to the Missouri Workers' Compensation Law at all times, heretofore.
2. Claimant was employed at all times relevant herein.
3. The Employer received proper notice of the claims.
4. Claimant filed the claims within the time allowed by law.
5. The City of St. Louis is the proper venue.
6. Regarding, Injury Number 15-037031 the average weekly wage at the date of injury was 114.64 which is sufficient to qualify for rates of 76.42 for temporary total disability (TTD), and $202.00 for permanent partial disability (PPD).

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

7) Regarding Injury Number 15-102814 the average weekly wage at the date of injury was 93.95 which is sufficient to qualify for rates of; 62.64 for temporary total disability (TTD), and $215.20 for permanent partial disability (PPD).

8) Regarding Injury Number 15-037031, Employer paid $8,030.11 in medical expenses and zero in TTD benefits.

9) Regarding Injury Number 15-102814, Employer paid $2,054.15 in medical expenses and zero in TTD benefits.

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

1) Report of Dr. Dwight Woiteshek dated November 30, 2015.

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

1) Report of Dr. Dwight Woiteshek dated May 17, 2018.

2) Records of UAB Medicine Neurosurgery dated April 2, 2019.

3) Monroe County Hospital MRI dated October 18, 2018.

4) CFP Mtgy South Procedure Note dated February 25, 2019.

Employer introduced, and had admitted into evidence, the following Exhibits for both claims:

A) BarnesCare Midtown, Dr. Thomas B. Kibby from January 4, 2016 through January 12, 2016.

B) Orthopedic Sports Medicine & Spine Care Institute, Dr. Russell C. Cantrell from April 26, 2016 through May 13, 2016.

C) Mobile Open MRI dated February 29, 2016.

D) Professional Imaging dated July 8, 2015.

E) BarnesCare WestPort from May 28, 2015 through June 15, 2015.

F) Franklin Primary Health Center Inc., from May 17, 2010 through August 1, 2017.

G) Tesson Ferry Spine & Orthopedic Center, Dr. R. Peter Mirkin dated October 5, 2015.

H) Concentra Medical Centers, Maryland Heights from June 23, 2015 through July 15, 2015.

I) Concentra Medical Centers, St. Louis from September 3, 2015 through September 18, 2015.

J) Concentra, Dr. Boris Khariton, from August 5, 2015 through September 18, 2015.

K) FedEx Ground Job Description.

1) In the first case, liability of the Employer for permanent partial disability.

2) In the second case, liability of the Employer for permanent total disability or, in the alternative, additional permanent partial disability.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

Employee was born October 5, 1965. He currently resides at 148 Jeanine Street Monroeville, Alabama. Employee is not currently employed. Employee was awarded Social Security disability on October 22, 2015. The award was backdated to before his employment with Employer. Employee was employed by Employer from May 2015 through January 2016, as a package handler. His position required him to load boxes onto trucks from a conveyor belt. The boxes weighed between 75 to 100 pounds. Employee worked as a package handler for three to five hours per day, five days per week.

Prior to working for Employer, Employee was a sheet metal mechanic. He moved to St. Louis in 2015. Employee testified that, when he moved to St. Louis, there was a wait list for sheet metal mechanics of 200 to 300 people. Employee stated that he has not worked since January of 2016. He has not applied for other jobs because he filed for disability.

Employee testified that he currently lives in Alabama and that his son drove him to St. Louis for the hearing. He stated that he is able to drive, but cannot drive long distances. Employee testified that when he was in his twenties, he was robbed and shot six times. He stated that he was shot in his head, neck, and chest, but had neither back pain nor neck pain following that incident.

The May 27, 2015 accident occurred three weeks after employee began working for employer. Employee testified that on May 27, 2015, he was loading boxes into a trailer at approximately 5:45 pm. He stated that the boxes were coming down the conveyor belt at a fast pace. He bent over to pick up a box that weighed approximately 50 pounds. When he lifted the box and straightened his back, he noticed pain in the center-right area of his lower back. He stated that he felt a "pop" and "snap" and experienced "sharp" and "throbbing" pain. Employee stated that following the incident, he told his supervisor what had happened and did not continue to work.

On his November 23, 2015 note, Dr. Woiteshek stated that employee was lifting a 100-pound box. Employee stated that the note was wrong and that employees are required to team lift anything over 75 pounds. Employee changed his testimony to state that anything over 50 pounds had to be team lifted, then, changed his testimony to anything over 75 pounds. Employee, then, changed his testimony to anything over 100 pounds had to be team lifted. Employee testified that he did not team lift the box that caused the injury, and as a result, there were no witnesses to the May 27, 2015 accident.

Employee stated that he experienced back pain only following the injury. Employee indicated that he first presented to BarnesCare and was later sent to Concentra, where he received an x-ray and pain medication. The BarnesCare records indicate that employee stated that no specific box caused the injury, but that it was the nature of the job. Employee stated the records at BarnesCare were incorrect. Employee was put on light duty and employer accommodated him. Employee indicated that he continued to experience pain and swelling in the right lower back.

WC-32-R1 (6-B1)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

Employee was assigned home exercises to perform as part of his physical therapy. He stated that he performed the exercises and that the physical therapy notes from September 3, 2015 and September 9, 2015 were incorrect when they noted that employee was non-compliant with the home exercises. Additionally, Employee stated that the therapy notes from September 16, 2015 were incorrect in noting that Employee told the therapist that he was not performing the exercises at home. Employee stated that the therapy notes from September 8, 2015 were incorrect in stating the employee was argumentative about the work conditioning. Employee further stated that he does not recall being argumentative, rather he told her that he could not do the work conditioning.

Employee testified that he received care from Dr. Mirkin, who diagnosed employee with a sprain. Employee further testified that he was not released from care by Dr. Mirkin but was put on light duty. Then employee changed his testimony, stating that he had no restrictions during the time he saw Dr. Mirkin. Employee, then, stated that Dr. Mirkin's records from July 15, 2015 were incorrect in stating that employee said that he did not believe that he could work full duty, he did not think he could ever return to work, and he may want to get a different type of job.

Employee, then, testified that he received treatment from Dr. Khariton, who provided trigger point injections and recommended physical therapy. Employee adamantly disagreed that Dr. Khariton provided injections.

Second Case

On December 18, 2015, employee was working light duty, taking small packages off the conveyor belt. Unbeknownst to him, a co-worker placed pallets behind him. Employee indicated that he stepped back and fell backward onto the pallets. Employee stated that his back hit the pallet and that his neck hung off the back of the pallet, but that his head did not hit the floor. Employee later testified that both his back and neck hit the pallet. Employee acknowledged that during his deposition he testified that only his back hit the pallet and that his neck went behind the pallet.

Employee testified that he felt a sharp pain in his neck and could not move his legs. Employee indicated that he returned to work on January 4, 2016. Employee later stated that he experienced pain, only in his low back, until January 2016, at which time he began to have pain in his neck. Employee acknowledged that during his deposition testimony, he stated that he experienced neck and back pain following the injury and was unable to twist.

Employee stated that following the incident, he treated with Dr. Kibby at BarnesCare. Dr. Kibby performed an x-ray, MRI, and recommended physical therapy. Employee stated that Dr. Kibby referred him to Dr. Cantrell. Employee stated that he only saw Dr. Cantrell one time, and that he simply performed an evaluation.

Employee testified that after he moved from St. Louis, Missouri to Monroeville, Alabama, he did not receive any further treatment in St. Louis. He stated that he received additional treatment in Alabama at Franklin Primary Health Center, where he received

WC-32-R1 (5-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

medication and an injection. In addition, employee stated that he sought treatment at UAB Neurosurgery to have surgery on his neck, but the doctors indicated that his neck and back did not require surgery. Employee stated that he also treated at Monroe County Hospital, where he received an MRI.

Employee stated that currently, he cannot sit up as a result of his low back symptoms, which worsened after the second injury. Employee stated that he experiences back pain 24 hours a day, 7 days a week. He has to lay down every day for four to five hours to cope with the pain. Additionally, employee stated that his neck "sticks" and "pops" when he turns it causing radiating pain. He indicated that the pain is present when he moves or walks, but that it feels better when he is laying down.

Employee testified that he sought treatment for his neck in 2007 and had an MRI in 2008 following a work injury. Employee confirmed that the injury stemmed from an incident where he was going up a ladder and another individual was coming down and stepped on him. Employee stated that he received a settlement of approximately $30,000 for the prior work related neck injury. Additionally, employee stated that he saw Dr. White, a neurosurgeon, in 2007 and 2008. Employee indicated that Dr. White also treated him for carpal tunnel syndrome and referred him to Dr. Zalzal for surgery. Employee testified that Dr. Zalzal performed surgery on both wrists.

Employee testified that he experienced neck pain prior to May 2015. Additionally, he stated that he had tingling in his arms in 2010, as well as tingling in his neck and arms in 2011. Employee confirmed that he reported constant neck pain in June 2010, and had pain radiating into his arms. Employee admitted that he told doctors at BarnesCare and Concentra, as well as Dr. Mirkin and Dr. Woiteshek, that he did not have any prior back pain. Employee, then, testified that the September 2, 2011 records from Franklin Primary Care, stating that he had back pain, were incorrect. Additionally, employee testified that the records from Franklin Primary Care stating that he had trouble sleeping in May 2010, were incorrect. However, employee indicated that he complained of insomnia at Franklin Primary Care in 2011. Claimant stated that in 2010, he took Darvocet, Neurontin, and diazapam for pain in his neck and as a sleep aid, Lortab for neck-related issues, and Valium. Claimant could not recall whether he took Valium in 2011.

Employee stated that he has not had any prior right leg injuries. He, then, stated that he had hip pain that began in February 2019 and that he underwent an MRI showing avascular necrosis and labral tears. Employee indicated that, as a result of the treatment of his hips, his right, but not his left, hip hurts and affects his ability to walk. Further, employee stated that the symptoms in his hip have affected his ability to bend, move, and perform household chores.

Employee indicated that he took Lortab in 2010, as prescribed by Dr. Mitchem, and was prescribed Lortab, again, following his hip replacement. In addition, employee indicated that his primary care physician prescribed him Norco following his hip replacement. Other than the hip replacement, employee indicated that he has not had any injuries since December 2015. Employee stated that he has not gone on any vacation since December 2015. He advised that he cannot perform chores around the house any longer.

WV-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

**Dwight I. Woiteshek, M.D.**

Claimant (first case) offered the report of Dr. Dwight Woiteshek dated November 30, 2015 (Exhibit 1). Dr. Woiteshek evaluated employee on November 23, 2015. During the medical evaluation, he personally obtained a medical history, performed a physical examination, and examined medical records.

Dr. Woiteshek's examination of the lumbar spine revealed: "he has pain and tenderness to deep palpation in the lumbar spine area with muscle spasm and guarding. The straight leg raising test is positive on the right at 80 degrees and also positive on the left at 80 degrees. Hoover test is negative. Waddell's signs are absent. The Patrick sign is slightly positive. The spring test is slightly positive. The pelvic rock test is slightly positive. He has a negative Ober test, and also a negative Thomas test..." Dr. Woiteshek opined "there is no demonstrable weakness in the lower extremities."

Dr. Woiteshek's diagnosis regarding the work-related injury of May 27, 2015 was traumatic strain of the lumbar spine. He stated that the work-related injury on May 27, 2015 was the prevailing factor in the cause of the traumatic strain of the lumbar spine. He rated the injury as 20% permanent partial disability of the body as a whole rated at the lumbar spine due to the traumatic strain of the lumbar spine.

Claimant (second case) offered the report of Dr. Dwight Woiteshek dated May 17, 2018 (Exhibit 1). Dr. Woiteshek evaluated employee on May 11, 2018. During the medical evaluation, he personally obtained a medical history, performed a physical examination, and examined medical records. Dr. Woiteshek examined employee's cervical spine and lumbar spine.

Dr. Woiteshek's examination of the cervical spine revealed: "he has pain and tenderness to deep palpation in the cervical spine area with muscle spasm. Spurling's test is negative. Adson test is negative. The cervical spine distraction and compression tests are normal..."

Dr. Woiteshek's examination of the lumbar spine revealed: "he has pain and tenderness to deep palpation in the lumbar spine area with muscle spasm and guarding. The straight leg raising test is positive on the right at 80 degrees and also positive on the left at 80 degrees. Hoover test is negative. Waddell's signs are absent. The Patrick sign is slightly positive. The spring test is slightly positive. The pelvic rock test is slightly positive. He has a negative Ober test, and also a negative Thomas test..."

Dr. Woiteshek offered the following diagnoses:

Regarding the work-related injury of December 18, 2015;

1) Traumatic cervical strain.

2) Traumatic lumbar strain.

WG-32-R1 (6-01)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

Regarding pre-existing the work-related injury of December 18, 2015;

1) Degenerative disc disease of the lumbar spine seen on the MRI scan taken on July 8, 2015.

2) Prior traumatic strain of the lumbar spine (DOI: May 27, 2015).

3) Degenerative disc disease of the cervical spine with a right disc protrusion at C4-5 seen on the MRI scan taken on February 29, 2008.

He stated that the work-related injury on December 18, 2015 was the prevailing factor in the cause of the traumatic strain of the lumbar spine. He rated the injury as 15% permanent partial disability of the body as a whole rated at the cervical spine level due to the traumatic cervical strain. Also, he rated 15% permanent partial disability of the body as a whole rated at the lumbar spine due to the traumatic lumbar strain.

R. Peter Mirkin, M.D.

Employer and Insurer offered the report of Dr. R. Peter Mirkin, dated October 5, 2015 (Exhibit G). Dr. Mirkin reviewed a July 8, 2015 MRI scan report which revealed minimal degenerative changes. He also reviewed an MRI which is entirely normal, and he reviewed one note from Dr. Khariton dated September 18, 2015.

Dr. Mirkin's interview with employee revealed that employee had worked for employer for less than a month. Employee claimed he was injured in May when he was lifting a 100-pound box. He developed pain in his low back. Employee told Dr. Mirkin that he has been treated with therapy, medications, and injections. Employee told Dr. Mirkin that he did not think he could ever return to work.

Dr. Mirkin's impression was that this is a patient with a normal lumbar exam. He was not a surgical candidate. Dr. Mirkin recommended that employee return to full work without restrictions. He opined that employee's prognosis is quite poor due to his symptom magnification behavior, his perceived disability, and the fact that he worked for only a short time before he claims a career-ending injury. Dr. Mirkin thought that, at most, employee had a mild lumbar strain. He had nothing noted on his physical exam, his x-rays or his MRI scan.

Russell C. Cantrell, M.D.

Employer and Insurer offered the report of Dr. Russell C. Cantrell, dated April 26, 2016 (Exhibit B). Dr. Cantrell examined employee on April 26, 2016. His evaluation was compiled through employee's verbal history, physical examination, review of medical records, and review of x-ray studies. In addition, Dr. Cantrell reviewed the records of Dr. Peter Mirkin and the evaluation of Dr. Dwight Woiteshek.

At his examination, employee rated his pain level as 9 on a 10-point scale. He reported dizziness, rash, weight gain, shortness of breath, sleep apnea, numbness, weakness, and tingling in the arms and legs, headaches, and changes in hair growth.

WV-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

On physical examination, employee demonstrated marked limitations in active range of motion of his cervical spine in all cardinal planes of movement, describing localized neck pain and complaints with all movements. He had a negative Spurling's sign. He had normal strength in both upper extremities and normal and symmetric reflexes in both upper extremities, with a negative Hoffmann's reflex in both hands.

On examination of his lumbar spine, he had an active range of motion that is markedly limited in all cardinal planes of movement, describing central and right-sided low back pain complaints at the lumbosacral junction at the end ranges of all movements. He reported tenderness to palpation in the right lower lumbar paraspinal musculature with both superficial and deep palpation, in the absence of any muscular spasm. He had a positive simulated axial loading test for reproduction of lumbar back pain complaints, and also describes a positive simultaneous pelvic and trunk rotation test. He had a straight leg raising test that is negative bilaterally for any radicular pain complaints, but positive bilaterally for low back pain, right greater than left. Patrick's test, however, caused reported radiating pain complaints to his right lower extremity, without similar symptoms on the left. Strength testing is noted to be normal and symmetric in both lower extremities, and reflex testing was normal and symmetric in both knees and ankles.

The x-rays revealed a reduction in cervical lordosis. They also revealed evidence of moderate degenerative disc disease at the C3-4 and C5-6 levels, as evidenced by anterior osteophytic spurring that is near bridging at the C3-4 level, as well as at C5-6. Additionally, noted on the x-rays, were metallic fragments, presumably retained bullet fragments, in the soft tissues of his anterior neck and his left anterior chest wall that were consistent with his verbal history of a remote robbing at gun and knifepoint.

When considering the ongoing nature of employee's pain complaints, in conjunction with a clinical examination that, in Dr. Cantrell's opinion, is not consistent with lumbosacral radiculopathy. It was Dr. Cantrell's opinion that employee's alleged work injury of December 18, 2015 is not the prevailing factor in the cause of his current and ongoing low back pain complaints radiating to his right lower extremity. It was Dr. Cantrell's opinion that employee has not sustained any permanent partial disability of the person as a whole in reference to his December 18, 2015 work injury. Also, Dr. Cantrell opined that employee's current complaints of cervical tenderness and moderate-to-marked limitations in range of motion of his cervical spine cannot be explained to his work injury of December 18, 2015 and that no permanent partial disability of the person as a whole has been sustained in relation to his cervical spine pain complaints referable to his December 18, 2015 work injury.

RULINGS OF LAW

Section 287.020 provides:

1. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

WV-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-037031

1. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

The claimant has the burden to prove all essential elements of the claim, including a causal connection between the injury and the job. *Royal v. Advantica Restaurant Group, Inc.*, 194 S.W.3d 371, 376 (Mo.App.W.D.2006).

"[T]he question of causation is one of medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." *Elliott v. Kansas City, Missouri School District*, 71 S.W.3d 652, 658 (Mo.App. W.D. 2002).

In both cases, the discrepancies, in the record, of employee's medical records and testimony at the hearing resulted confusion. Employee may be a poor historian but this confusion necessitates and a finding that his testimony is not credible.

In the first case, upon review of the medical records and the opinion expressed in each of the expert's reports, I find that employee has suffered a strain of the lumbar spine. Therefore, employee is awarded 4% permanent partial disability of the body as a whole or $3,232.00.

In the second case, upon review of the medical records and the opinions expressed in each of the expert's reports, I find that employee has suffered a strain of the lumbar spine. Employee's Claim for Compensation referable to the cervical spine is denied, as I find that this condition preexisted the December 18, 2015 accident. Therefore, employee is awarded 4% permanent partial disability of the body as a whole or $3,443.20.

Additionally, Claimant has failed to prove, and the records do not support, a finding of permanent total disability. There has been no medical or vocational evidence to indicate permanent total disability. Therefore, employee's claim for permanent total disability is denied.

CONCLUSION

In the first case, employee is awarded 4% permanent partial disability of the body as a whole referable to the lumbar spine or $3,232.00. In the second case, employee is awarded 4% permanent partial disability of the body as a whole referable to the lumbar spine or $3,443.20 and his claim for permanent total disability is denied.

WC-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

I certify that 11-19-19, I deliver a copy of the company award to the person in the case. A complete record of the award is made and date of service is not considered, and the executed award in any provision is the case.

By **M. P. Keaveny**

*Administrative Law Judge*

*Division of Workers' Compensation*


Made by: **Joseph P. Keaveny**

*Administrative Law Judge*

*Division of Workers' Compensation*