Andrew Wiltse v. Mary Engelbreit Co.

Enployee: Andrew Wiltse

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He has failed to establish employment. Because he has failed to establish a compensable injury, the claim is dismissed for lack of subject matter jurisdiction because [employee] has failed to establish a compensable primary injury falling under the Worker’s Compensation Laws. No compensable injury equals no jurisdiction. I once again find no compensable injury and once again deny the claim on the basis of a lack of subject matter jurisdiction.

Second Award p. 4.

Upon receiving this Second Award, employee again filed a timely Application for Review to the Commission. Therefore, the primary issue currently before the Commission is the nature and extent of any Second Injury Fund liability.

Findings of Fact

Employee began working as a laborer/carpenter in the early 1990s. He began working for employer in about 1994. Employee did general carpentry and construction work for employer.

Employee testified that, as part of this job with employer, he was required to carry heavy, awkward objects up three flights of a spiraling staircase.

In the latter part of 1998, employee began developing soreness in both of his elbows over the lateral epicondyle. Employee sought medical treatment for his elbows from Dr. Jesse Susi in April of 1999. The medical records of Dr. Susi indicate that employee experienced pain when grabbing objects and that his work in construction irritated his elbows. Employee denied any acute trauma to his elbows.

Employee treated with Dr. Susi for about 9 months. Dr. Susi prescribed stretching exercises, tennis elbow straps, cortisone injections and physical therapy for employee’s elbows. Employee was not instructed to discontinue working while he received treatment for his elbows.

Employee later treated with Dr. Glen Johnson who referred him to Dr. James Emanuel. Dr. Emanuel noted that employee had been working in heavy, repetitive-type work for a number of years and developed pain in both of his elbows. Dr. Emanuel went on to state that employee continued to work and had been treated with cortisone shots in both elbows, 4-5 times each, with little improvement.

In June of 1999, employee was laid off by employer. Employee was still under the aforementioned treatment for his elbows at the time he was laid off. Following his layoff, employee did sporadic light-duty handyman work for several employees that worked for employer. The employees that hired him to do these odd jobs knew his condition and did not “push” him. If there were heavier issues on these jobs, employee had a subcontractor help him with the heavy lifting.

**Injury No.: 99-180805**

After months of conservative treatment, employee's condition was eventually deemed to be chronic and "recalcitrant to medications, therapy and injections." Employee had left and right epicondyle surgical releases, performed by Dr. Emanuel, on July 6, 2001, and November 21, 2001, respectively. The surgeries did not relieve his pain and subsequent conservative treatment did not help either. The epicondylitis recurred. Dr. Emmanuel found that employee reached maximum medical improvement on October 14, 2002, and rated both elbows at 50% permanent partial disability and recommended a 3-5 pound lifting restriction for each arm.

Up until January of 2003, employer had accepted all liability with regard to employee's elbows. However, in January of 2003, employee and employer reached an impasse on whether additional medical treatment was necessary and the level of permanent disability. Therefore, employee hired an attorney and formally filed his Claim for Compensation shortly thereafter on January 30, 2003.

Employer eventually agreed to authorize additional treatment and on March 19, 2003, Dr. Boyer performed a left radial tunnel release, debridement of the lateral epicondyle and a left anconeus flap. On October 1, 2003, Dr. Boyer performed a right lateral epicondyle debridement, right radial tunnel release and anconeus flap. On April 5, 2004, Dr. Boyer released employee from treatment with multiple permanent restrictions including no carrying greater than 7½ pounds.

Employee settled his claim against employer on December 2, 2004, for the aforementioned permanent partial disability ratings.

Employee testified that he is currently limited in his daily activities. He can only do limited amounts of dishes, laundry, or anything continuous.

Prior to employee's epicondylitis, he had carpal tunnel syndrome and severe recurrent depression. Although employee began experiencing pain in his elbows in 1991, his bilateral carpal tunnel syndrome was not diagnosed until several years later and he did not have decompression of his right and left carpal tunnel until April 14, 1998, and April 28, 1998, respectively. Employee was working for employer at the time of this treatment, but he did not file a Workers' Compensation Claim for Compensation with regard to the same.

As for employee's depression, he was referred to Dr. John Canale, by psychologist, Mary Cardez. Employee had been experiencing symptoms of depression for years prior to his employment with employer but had not sought treatment. Employee had a history of depression in his family and had suffered various forms of abuse as a boy. Employee was hospitalized twice for severe depression and thoughts of suicide, in October of 2002, and July of 2003.

Employee's psychiatric expert, Dr. Adam Sky, testified that employee's prior psychological issues rendered him 40% permanently partially disabled of the body as a whole. Dr. Sky further opined that employee's prior psychological disabilities combine with his physical injuries to render him permanently and totally disabled.

Employee's vocational expert, James England, testified that considering employee's combination of physical and psychiatric problems, employee was not a candidate for vocational rehabilitation. Mr. England opined that absent significant improvement in his overall functioning, employee is likely to remain totally disabled from a vocational standpoint.

First of all, because the administrative law judge, in his Second Award, again dismissed employee's claim for lack of subject matter jurisdiction, we must again address this issue. In light of the fact that the administrative law judge essentially reiterated his same determination in his Second Award that he did in his original order of dismissal, we reiterate our conclusions reached on the issue in our order dated December 30, 2008, as follows:

The administrative law judge erred in concluding he does not have subject matter jurisdiction in this matter. "Subject matter jurisdiction," means, "[j]urisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things." BLACK'S LAW DICTIONARY 870 (8th ed. 2004). "Subject matter jurisdiction is a tribunal's statutory authority to hear a particular kind of claim." Sexton v. Jenkins \& Assocs., 152 S.W.3d 270, 273 (Mo. 2004). The sole issue for determination in this matter is the liability of the Second Injury Fund under § 287.220 RSMo (1999). ${ }^{1}$ The Division of Workers' Compensation and this Commission have statutory authority to decide Second Injury Fund claims. In fact, the authority is primary and exclusive.

The administrative law judge erred in concluding that, "[t]here is no primary claim upon which contingent Second Injury Fund liability may be founded," in that his conclusion is contrary to existing case law. Second Injury Fund liability must be founded upon a compensable injury but $\S 287.220 .1$ contains no language making a claim against an employer a prerequisite to recovery from the Second Injury Fund. "'The employee's claims against the employer and against the Second Injury Fund are separate proceedings,' as the liability of the employer is a distinct issue from the liability of the Second Injury Fund." Tiller v. 166 Auto Auction, 65 S.W.3d 1, 5 (Mo. App. 2001), citing Strange v. SCI Bus. Prod., 17 S.W.3d 171, 173-74 (Mo. App. 2000). This rule applies even when the claimant simply chooses not to pursue his claim against employer.

A mere cursory reading of $\S 287.220 .1$ makes it clear that an employee/claimant must establish that he or she sustained a compensable injury and that the injury caused the requisite level of permanent partial disability as part of his or her claim against the Fund. But nothing in the statutory language requires that the employer still be a party to the action in order

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[^0]: ${ }^{1}$ All statutory referenced are to the Revised Statutes of Missouri 1999, unless otherwise specified.

for the Commission to make factual findings regarding whether the claimed injury is compensable and the degree of any permanent disability resulting therefrom for which the employer would be liable.

The Fund has not directed us to any legal authority supporting its position, and we find no compelling reason why an employee/claimant should be precluded from pursuing his claim against the Fund simply because he or she elected not to continue pursuing compensation from his or her employer. "Pursuant to section 287.220, the employer is liable only for the percentage of disability for employee's last injury without any pr