Bobby Knight v. FedEx Ground Package System, Incorporated

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-102814

**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.: 15-102814

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

Employee: Bobby Knight

N/A

Injury No.: 15-102814

Dependents:

Employer: FedEx Ground Package System,

Incorporated

Divisions of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Additional Party N/A

Insurer: Indemnity Insurance Company of

North America c/o Broadspire

Jefferson City, Missouri

Hearing Date: September 10, 2019

Checked by: JPK

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: December 18, 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:

Employee stepped back and fell backward onto some pallets, injuring 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? $2,054.15

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? Zero
2. Employee's average weekly wages: $\ 93.95
3. Weekly compensation rate: $\ 62.64 TTD/ $\ 215.20 PPD
4. Method wages computation: Stipulated

1. Amount of compensation payable:

4 % BAW referable to the lumbar spine

1. Second Injury Fund liability: N/A

TOTAL:

$\ 3,443.20

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: Jeffrey R. Swaney

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.: 15-102814

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, 2018.

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.

WV-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-102814

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 followi