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Kelly v. Lay6/16/2005
Background
Mr. Joe Kelly was fifty-eight years old at the time of the trial. He had completed three years of college and had obtained an associate degree from a junior college. He had worked for Frito Lay for twenty-one years before his work-related injury on December 1, 2000.
Prior to December 1, 2000, Mr. Kelly had sustained a prior work-related injury to his back. At times, he experienced low-grade pain due to this injury. He was careful not to pull, exert, or move in ways that would aggravate his back condition. He was able to perform all of his job responsibilities at Frito Lay with no restrictions.
On December 1, 2000, Mr. Kelly was employed as a route salesman for Frito Lay. He was in the warehouse, pulling orders for his route using a float, a piece of hauling equipment with a flat bed, four to six wheels, and a handle. The wheels of the float had accumulated debris, dust, and dirt from the warehouse floor and had not been cleaned properly, which made pulling of the float difficult. While pulling the float, Mr. Kelly felt a stretching and pulling in his back. The next day, he was unable to work due to pain.
Mr. Kelly was treated conservatively by Dr. William Harold Knight and Dr. Michael J. Sorensen. While receiving medical treatment, Mr. Kelly was placed on light duty. When he returned to regular duty work with no restrictions, he found it was very painful to bend and to pick up and load the boxes, which contained the products he distributed on his sales route. He asked his supervisor to provide him with a helper to pick up and load the boxes. Mr. Kelly's supervisor told him that if he could not perform the job without help, he would have to go home. Mr. Kelly was unable to perform his job responsibilities without help, and, therefore, he left the premises. He has not returned to work for Frito Lay since that discussion with his supervisor. He testified that the pain in his back, which radiates into his right leg, prevents him from fulfilling his job responsibilities at Frito Lay.
Mr. Kelly's activities have been limited since the injury on December 1, 2000. He must sit with his back erect. He stretches from time to time and often does not sit for long periods of time. He must support himself at the basin when he brushes his teeth or shaves. He is able to cut his yard with a self-propelled lawnmower. He can only walk for thirty minutes at a time and cannot run. Periodically, he has problems sleeping.
Mr. Kelly has been a minister for approximately eighteen years and has served one church for the last fifteen years. The church did not pay Mr. Kelly a salary until he retired from Frito Lay. The church now pays Mr. Kelly a love offering of approximately $15,000 per year.
Prior to his retirement with Frito Lay, Mr. Kelly purchased a dump truck and earned money hauling materials such as asphalt for contractors. The dump truck is a 3-axle truck with a tarp that rolls back and forth by pushing a button. The dump bed of the truck has a swinging gate that opens and shuts by pushing a button. Mr. Kelly drove the truck when he first bought it. After he retired from Frito Lay, he hired a driver because the jarring and bouncing of the truck aggravated his back condition and caused additional pain. Mr. Kelly grosses approximately $15,000 per year from his dump truck business. His expenses, which include a driver's salary, fuel, maintenance, licenses, and insurance, almost equal the gross income.
Dr. Knight and Dr. Sorensen, his treating physicians, opined that he had sustained a lumbosacral strain with no permanent anatomic impairment. Both doctors returned him to work with no restrictions.
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