Carla Rucker v. Ford Motor Company

Enployee: Carla Rucker

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For the following reasons, the Commission affirms the award of the administrative law judge as supplemented herein.

In her award, the administrative law judge made the following comments when discussing whether claimant sustained an injury by accident while in the course and scope of her employment:

The SIF questioned whether Claimant sustained an accident arising out of and in the course of her employment, and raised the issue of medical causation. Although the SIF raised these issues, they presented no evidence to substantiate their position.

The administrative law judge probably chose the foregoing language to identify the issues that the Second Injury Fund declined to stipulate. We agree, however, that these comments provoke a legitimate question as to whether the administrative law judge assigned the appropriate burden of proof.

Of course, it is employee's burden to prove all the essential elements of her claim under the Missouri Workers' Compensation Law. Lacy v. Fed. Mogul, 278 S.W.3d 691, 701 (Mo. App. 2009). The Second Injury Fund was entitled to challenge employee's proof as to each of the elements of her claim, including the issues of accident and medical causation. By declining to stipulate to these issues, the Second Injury Fund was not then required to put on evidence to validate its position. The Second Injury Fund, in fact, has no obligation whatsoever to present contrary or conflicting evidence with regard to employee's claim for permanent total disability benefits. Dunn v. Treasurer of Mo. As Custodian of Second Injury Fund, 272 S.W.3d 267, 275 (Mo. App. 2008). Rather, the burden to present evidence and establish the elements of her claim remained with employee at all times.

In reviewing this matter and evaluating the evidence presented by the parties, we are mindful of the appropriate burden of proof. We affirm the findings and conclusions of the administrative law judge on the issues of accident and medical causation because we are convinced that employee met her burden on these issues.

We agree with the administrative law judge in that we are convinced employee is permanently and totally disabled due to a combination of the last injury and her preexisting disabling conditions. This conclusion is amply supported by the testimony of both Dr. Volarich and the vocational expert Ms. Gonzalez. We find the opinions of both experts persuasive.

The Second Injury Fund argues, however, that employee's claim for permanent total disability must be denied because employee failed to establish the disability from the last injury considered in isolation. Citing Bock v. City of Columbia, 274 S.W.3d 555 (Mo.

**Injury No.:** 05-017526

**App. 2008), the Second Injury Fund argues that employee's claim must be denied because Dr. Volarich failed to apportion the degree of disability stemming from the last injury and that which was preexisting or attributable to other causes.**

**The last injury occurred on January 10, 2005, when a metal bracket fell on employee's left wrist. Employee had previously been diagnosed with bilateral carpal tunnel syndrome in 2002 and had sought treatment for left wrist and hand pain intermittently since 1995. Dr. Volarich assigned a 45% permanent partial disability of the left wrist due to the injury on January 10, 2005, attributed to employee's carpal tunnel syndrome that required open carpal tunnel release, as well as de Quervain's tenosynovitis that required left dorsal compartment decompression. Dr. Volarich noted that, prior to the incident on January 10, 2005, employee suffered from progressively worse symptoms related to left wrist carpal tunnel syndrome, but notably, Dr. Volarich did not include left wrist carpal tunnel syndrome in his catalogue of employee's disabling conditions preexisting January 10, 2005.**

**The Second Injury Fund characterizes Dr. Volarich's testimony as assigning one disability rating to two separate "accidents": one attributable to employee's repetitive work and the other to the falling bracket incident on January 10, 2005. The Second Injury Fund argues that one of these accidents must have occurred before the other, and therefore employee has failed to establish the disability resulting from the "last" accident where Dr. Volarich assigned only one disability rating.**

**We acknowledge employee's burden to establish the nature and extent of disability resulting from the last injury considered alone:**

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, ... the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...**

**We do not agree, however, with the Second Injury Fund's reading of Dr. Volarich's testimony regarding the January 10, 2005, claim. Dr. Volarich did not identify two "accidents." Rather, Dr. Volarich diagnosed two separate medical conditions stemming from the same event, namely, the bracket falling on employee's wrist on January 10, 2005. We read Dr. Volarich's opinion as indicating that two events occurred simultaneously when the bracket fell on employee's wrist: (1) employee's occupational disease of carpal tunnel syndrome was aggravated and became a compensable injury; and (2) employee sustained de Quervain's tenosynovitis when the bracket struck her left wrist at the radial styloid.**

We find no authority for the proposition-and the Second Injury Fund has directed us to none-that employee is precluded from recovery under $\S 287.220 .1$ simply because the last injury resulted in multiple medical conditions to the same body part. We note that part of the difficulty in this case derives from the counterintuitive notion of assigning a "date of injury" to an occupational disease that develops over time, but such is the nature of the workers' compensation law in Missouri: "[a]n occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." Garrone v. Treasurer of State, 157 S.W.3d 237 (Mo. App. 2004). The evidence of a dramatic increase in employee's left wrist symptoms and her eventual left wrist surgeries following the work injury of January 10, 2005, supports Dr. Volarich's position that, as a result of the accident on that date, employee's carpal tunnel syndrome became a compensable injury that harmed her earning ability and affected her ability to perform ordinary tasks. Thus, it was appropriate for Dr. Volarich to assign one disability rating to employee's left wrist condition, and employee was entitled to rely on Dr. Volarich's rating in proving the extent of disability resulting from the last compensable work injury.

Because we otherwise agree with the analysis, findings, and conclusions of the administrative law judge, we affirm the remainder of the award without supplementation.

We supplement the award of the administrative law judge with the foregoing findings, conclusions, and comments. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued April 23, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $\qquad$ 7th day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Carla Rucker

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Ford Motor Company (previously settled)

Additional Party: Second Injury Fund (SIF)

Insurer: Self

Hearing Date: February 3, 2010

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 10, 2005
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out