Phillip Cook v. Calmar - St. Gobain

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo (2003). ${ }^{1}$ We have reviewed the evidence and considered the whole record. We find that the award of the administrative law judge was not made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of Administrative Law Judge Paula A. McKeon, dated February 24, 2009.

A threshold issue in this matter is whether employee's claim is barred by the provisions of $\S 287.430$ RSMo. If it is, all other issues are moot.

Employee worked for employer from January 1994 through February 2006 as a toolmaker. The parties stipulated that on or about November 24, 2003, employee sustained an accidental injury arising out of and in the course of his employment. Employer accepted liability for the injury and provided medical treatment and temporary total disability benefits. On March 24, 2006, an administrative law judge of the Division of Workers' Compensation (Division) approved a Stipulation for Compromise Settlement entered into between employee and employer fully resolving employee's claimed entitlement to workers' compensation benefits from employer. On April 13, 2006, employee filed with the Division a document entitled Claim for Compensation on a Division-provided form designated as form WC-21 (03-04) Al. Employee checked the box stating "Second Injury Fund Only."

The Second Injury Fund answered the Claim for Compensation and raised the defense that employee's claim against the Second Injury Fund is time-barred because it was filed beyond the filing period set forth in § 287.430 RSMo.

The administrative law judge agreed and denied employee's claim. The administrative law judge found that employee did not file a claim for compensation against his employer. Consequently, the administrative law judge concluded that the period for

[^0]

[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri 2003 unless otherwise indicated.

filing a timely claim against the Second Injury Fund ended two years after the date of injury; i.e., November 24, 2005. We disagree.

On December 1, 2009, the Missouri Court of Appeals, Eastern District issued its decision in Grubbs v. Treasurer of Missouri, No. ED92457, addressing the very question before the Commission in this case. In Grubbs, the employee sustained an injury in the course of his employment on July 30, 2003, and subsequently entered into a Stipulation for Compromise Settlement with the employer on November 15, 2004. Id. at pg. 1-2. On September 29, 2005, the employee filed a claim for compensation against the Second Injury Fund only, and the Fund filed an answer arguing that the employee's claim was time-barred by $\S 287.430$ RSMo, because the employee did not file a claim against the Fund within two years after the injury or within one year after filing a claim against the employer. Id. at pg. 2. In rejecting the Fund's argument, the court stated as follows:

The phrase "claim for compensation" is not defined in Workers'

Compensation Law. Black's Law Dictionary defines a "claim" as a (sic)

" $[t]$ he aggregate of operative facts giving rise to a right enforceable by a court." Black's Law Dictionary 240 ( $7^{\text {th }}$ ed. 1999). A "claim" even in the barest of layman's language, includes not only a lawsuit but also a claim settled out of court ... [A]ccording to the plain and ordinary meaning of the words in Section 287.430, the Stipulation for Compromise Settlement in this case constitutes a claim for compensation.

Id. at pg. 5-6 (citations omitted).

The Grubbs court went on to find that because the employee's claim for compensation was filed within one year after the Stipulation for Compromise Settlement was entered between employee and employer, the employee's claim against the fund was not barred by the statute of limitations in § 287.430. Id. The court further explained the reasoning behind its decision as follows:

" ... Section 287.390 provides "[n]othing in this chapter shall be construed as preventing the parties to claims hereunder from entering into voluntary agreements in settlement thereof." Section 287.390 provides the ALJ can only approve settlements entered into between "parties to claims." If "claim" only referred to the "Form WC-21 Claim for Compensation," then an ALJ could only approve a settlement entered into between parties to a dispute for which a Form WC-21 had been filed ... Because settlements are encouraged under the law, we decline to find that a party must make a formal filing of a Form-WC-21 before a settlement may be approved by an ALJ."

Id. (citations omitted).

We find such reasoning to be sound and directly applicable to the facts of the case at hand. Therefore, in light of the holding in Grubbs, we conclude that the March 24, 2006,

submission of a Stipulation for Compromise Settlement in this case also served as the filing of a claim for compensation. The Second Injury Fund claim filed on April 13, 2006, was filed within one year of the filing of the claim for compensation, as required by § 287.430. Thus, employee's claim against the Second Injury Fund is not time-barred. We reverse the conclusion of the administrative law judge to the contrary.

Because we have found that employee's claim against the Second Injury Fund was timely filed, we proceed to address the merits of employee's claim.

Employee worked as a toolmaker for 25 years. On November 24, 2003, employee sustained a right shoulder injury at work while lifting a mold from a rack. Employee has a significant history of injuries and health problems predating the work injury of November 24, 2003. Dr. Stuckmeyer evaluated employee and offered his opinions regarding permanent disability stemming from both the pre-existing conditions and the November 24, 2003, work injury. Dr. Stuckmeyer is a board-certified orthopedic surgeon based in Lee's Summit, Missouri. Below, we have set forth a summary of employee's conditions of ill as evaluated by Dr. Stuckmeyer, along with Dr. Stuckmeyer's disability ratings for each:

Dr. Stuckmeyer opined that the most significant health concerns pre-dating the November 24, 2003, injury were concerns relating to employee's cardiovascular system. Employee has a history of each of the following: coronary artery disease, hypertension, and ischemic cardiomyopathy. Employee underwent bypass graft surgery in 1982 with subsequent recurrence of coronary artery occlusions requiring multiple stints. Employee had bypass surgery in 2009. Employee takes medication for hypertension. Dr. Stuckmeyer opined that employee shows signs of congestive heart failure. Employee suffers shortness of breath on exertion and has likely experienced periods of angina. Dr. Stuckmeyer rated employee's disability as 25% permanent partial disability of the body as a whole attributable to employee's preexisting cardiovascular conditions.

Employee underwent a lumbar laminectomy in 1982. Employee continued to experience lower back pain with radicular symptoms to his left lower extremity. In 2001, employee experienced left leg pain that led him to seek treatment. Diagnostic studies revealed disc degeneration and a disc bulge. In 2002, employee underwent a series of epidural injections to relieve his low back pain. Employee's symptoms failed to subside in response to epidural injections. Employee has difficulty with prolonged standing, walking, lifting, bending, and sitting. He also experiences periods of numbness and tingling in his left lower extremity. Dr. Stuckmeyer rated employee's disability as 25% permanent partial disability of the body as a whole for his preexisting low back condition.

Employee has degenerative changes of his cervical spine dating back to 1995.

Employee received cervical epidural injections in an effort to relieve chronic neck pain and radiculopathy. Employee continues to have daily neck pain but no longer experiences radicular symptoms in his upper extremities. Dr. Stuckmeyer assigned no permanent partial disability to employee's neck condition.

In 1996, foot and heel pain prompted employee to seek treatment. Employee was diagnosed with bilateral plantar fascitis. Employee initially treated conservatively with steroid injections and orthotics but ultimately underwent bilateral plantar fascial releases on October 4, 1996. Following that surgery, employee continued to experience persistent symptoms of pain and dysfunction in the plantar fascial region as well as in the midtarsal region. On June 2, 1997, orthotics were recommended. Employee continues to experience bilateral heel pain. Dr. Stuckmeyer rated employee's disability as 15 % permanent partial disability at the level of the ankle bilaterally for his preexisting foot problems.

Employee has experienced chronic problems with his left shoulder. In 2000, employee underwent a left rotator cuff repair. Following that surgery, employee had difficulty working overhead. Employee continues to have difficulty pushing, pulling, lifting, and reaching. Dr. Stuckmeyer rated employee's disability as 15\% permanent partial disability at the level of the shoulder for his preexisting left shoulder condition.

Employee has long-standing right shoulder problems. As early as 1991, employee sought treatment for symptoms of pain and dysfunction in his right shoulder. On November 15, 1991, employee underwent right shoulder arthroscopy, debridement of the right labrum, and arthroscopic acromioplasty. On May 1, 1999, an MRI scan revealed hypertrophic changes of the AC joint with associated compression of the supraspinatus tendon consistent with an intrasubstance tear or degenerative changes. There was also high signal intensity in the distal clavicle consistent with bone marrow edema. On June 11, 1999, employee underwent right rotator cuff repair with acromioplasty and resection of distal clavicle. Dr. Stuckmeyer rated employee's disability as 15 % permanent partial disability at the level of the shoulder for his preexisting right shoulder condition.

On November 24, 2003, employee sustained the right shoulder injury that resulted in employee's filing the claim presently before this Commission when he was lifting a mold from a rack at work. Diagnostic studies were consistent with a full-thickness tear of the anterior aspect of the distal supraspinatus tendon. There was a moderate amount of fluid in the shoulder joint and periarticular bursa with mild bicipital tenosynovitis. Initially, employee was treated conservatively with exercise and injections of Depo Medrol. However, further diagnostic testing revealed that employee had a full-thickness rotator cuff tear along the anterolateral margin of the supraspinatus with thickening of

the lateral margin of the subscapularis tendon. On April 26, 2005, employee underwent a surgical revision of the right rotator cuff repair with acromioplasty and a porcine xenograft augmentation of the rotator cuff tear. Dr. Frevert returned employee to regular duty status on August 26, 2005, and released employee from his care on October 7, 2005. We find employee reached maximum medical improvement on August 26, 2005.

After employee reached maximum medical improvement following treatment of his primary right shoulder injury, he attempted to return to work but was unsuccessful in performing his former duties. Employee found that it was a real struggle, from a physical standpoint, to come in every day and do his job. Currently, employee has difficulty working overhead. He also has difficulty pushing, pulling, lifting, and reaching. As time passes, e