Debra Highley v. Von Weise Gear
Decision date: April 15, 20082 pages
Summary
The Missouri Court of Appeals reversed the initial LIRC decision and remanded the case, directing the Commission to award permanent total disability benefits to employee Debra Highley for bilateral carpal tunnel syndrome combined with multiple pre-existing conditions. The Commission issued this final award granting permanent total disability compensation against the Second Injury Fund at a rate of $504.75 weekly, finding the employee unable to sustain work in the open labor market.
Caption
| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION | |
| FINAL AWARD ALLOWING COMPENSATION(Pursuant to the Mandate of the Missouri Court of Appeals, Eastern District) | |
| Injury No.: 03-138799 | |
| Employee: | Debra Highley |
| Employer: | Von Weise Gear (Settled) |
| Insurer: | Travelers Insurance (Settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| Date of Accident: | December 16, 2003 |
| Place and County of Accident: | Franklin County, Missouri |
On March 4, 2008, the Missouri Court of Appeals for the Eastern District issued an opinion reversing the July 19, 2007, Final Award of the Labor and Industrial Relations Commission (Commission) in the abovereferenced case. By mandate issued March 27, 2008, the Court remanded this matter to the Commission with directions to enter a new award finding employee is permanently and totally disabled and the Second Injury Fund is liable for the enhanced permanent and total disability in accordance with the Court’s opinion delivered March 4, 2008. Highley v. Von Weise Gear, ED90160, 2008 Mo.App. LEXIS 27 (Mo.App E.D. 2008).
Pursuant to the Court’s opinion and mandate, we issue this new award reversing the award and decision of the administrative law judge dated February 6, 2007.
Discussion
Dr. Margolis concluded that employee suffered from several pre-existing conditions, including bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, bilateral shoulder impingement, right ulnar nerve entrapment at the wrist, left medial epicondylitis, history of cervical strain/sprain, degenerative cervical disc disease, degenerative disease of the lumbar spine, and multiple sclerosis. According to Dr. Margolis, these pre-existing conditions combined with employee’s primary injury of bilateral carpal tunnel syndrome to create a greater overall disability. Dr. Margolis opined that employee was permanently and totally disabled based on employee’s disabilities.
James England, vocational expert, provided unimpeached and uncontradicted testimony. Mr. England opined that employee was unable to sustain work in the open labor market in any job. Mr. England opined that employee was not a good candidate for vocational rehabilitation and was likely to remain permanently and totally disabled from a vocational standpoint.
After considering the entire record, including the expert opinions of Dr. Margolis and Mr. England, we conclude that employee is permanently and totally disabled due to a combination of her pre-existing disabilities and December 16, 2003 work-related injury.
Section 287.200.1(4) RSMo, provides:
"the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to one hundred five percent of the state average weekly wage."
Employee introduced Exhibit SS, a pay stub reflecting one week of employee's wages from November 16, 2003 through November 21, 2003, as evidence of employee's average weekly earnings. Exhibit SS showed that employee worked 48 hours that week and earned $\ 14.56 per hour. Employee testified at hearing that she earned $\ 14.56 per hour, and testified that the number of hours listed on Exhibit SS accurately reflected the number of hours she worked for employer. Exhibit SS showed a weekly earnings of $\ 757.12. Pursuant to section 287.200.1(4), the applicable rate for permanent total disability benefits is $\ 504.75 ( $\$ 757.12 \times 66$ 2 / 3 % ).
Award
Pursuant to the Court's mandate, we award permanent total disability against the Second Injury Fund. The Second Injury Fund is liable for 52.5 weekly installments of the $\ 157.70, the differential between the permanent total disability rate ( $\ 504.75 ) and the permanent partial disability rate ( $\ 347.05 ). Thereafter, the Second Injury Fund shall pay to employee weekly payments of $\ 504.75 for her permanent total disability benefit for her lifetime or until modified by law.
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 15th day of April 2008.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary
Related Decisions
Cox v. Doe Run Company(2023)
January 17, 2023#19-108693
The Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Brian Cox, finding no compensable occupational disease or accident under Missouri law. The case involved disputed causation regarding whether Cox's carpal tunnel syndrome arose from his employment duties at the smelter or loading dock positions.
Otwell v. Chrysler, LLC(2022)
February 9, 2022#09-015610
The Missouri Court of Appeals reversed the Commission's December 2020 award and remanded for reconsideration of whether the employee achieved permanent total disability status when combining her primary bilateral carpal tunnel injury with preexisting disabilities, including newly admitted vocational expert testimony and complete medical evaluation evidence. The Commission reconsidered the case on remand, admitting previously excluded vocational expert testimony documenting the employee's preexisting psychiatric disabilities (depression, PTSD, anxiety disorder) and modified its award accordingly.
Lamy v. Stahl Specialty Company(2022)
January 21, 2022#17-105467
The Labor and Industrial Relations Commission affirmed the administrative law judge's decision denying compensation for a work-related occupational disease injury to the employee's left wrist, finding the claim was barred by a prior settlement for left shoulder disability. A dissenting opinion argued the prior settlement only covered the shoulder injury and that the employer's authorization of medical testing suggested the wrist injury was compensable, but the majority affirmed the denial.
Wolf v. Duckett Creek Sewer District(2021)
August 25, 2021#14-105395
The Commission affirmed the Administrative Law Judge's award allowing permanent total disability compensation to Clifford Wolf against the Second Injury Fund, finding his primary carpal tunnel syndrome injury combined with preexisting disabilities from a prior back injury and polio rendered him permanently and totally disabled. The employee settled his primary claim for $35,500 based on 22.5% permanent partial disability of the right wrist and 20% of the left wrist.
Young v. Linmark Machine Products, Inc.(2021)
June 7, 2021#03-051173
The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award of workers' compensation to Kevin G. Young for carpal tunnel injuries, finding the award supported by competent and substantial evidence. The Commission upheld the ALJ's evidentiary rulings excluding certain statements that were not provided to the employee's attorney within the statutory thirty-day period required by Missouri law.