Anto Anic v. Bussen Realty & Terminal Co.

findings in the award suggest the administrative law judge applied nonexistent legal principles, such as the following, which seems to conflate a standard of proof with a standard of judicial review:

> Evidence in support of the conclusions should be clear and convincing in order to meet the standard of competent and substantial.

*Award*, page 9.

This case does not turn on any such esoteric principle of law but rather on a question of whether the evidence presented is persuasive on the sole issue. The question, stated simply, is whether the opinions of employee's experts are credible on the issue of Second Injury Fund liability.

We have carefully weighed the opinions of each of the vocational and medical experts, and we write this supplemental opinion in order to make clear and explicit credibility findings.

The sole issue is the liability, if any, of the Second Injury Fund for permanent partial disability enhancement as a result of the combination of the April 8, 2005, primary injury with any preexisting permanent partial disability. Section 287.220.1 RSMo provides for permanent partial disability benefits to be paid from the Second Injury Fund when an employee who suffers from preexisting permanent partial disability that constitutes a hindrance or obstacle to employment sustains a later injury that also results in permanent partial disability, so long as both the preexisting and the primary permanent partial disability meet the thresholds of 12.5% for a body as a whole injury or 15% for a major extremity injury.

> The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

*Elliott v. Kan. City School Dist.*, 71 S.W.3d 652, 657 (Mo. App. 2002) (citations omitted).

Dr. Berkin opined that the injury to employee's right finger is a hindrance and obstacle to employment and that it's impossible for employee to do a sit-down job using his hands for any extended period of time. Dr. Berkin opined that employee should be restricted from forceful gripping, squeezing, pinching, twisting, pulling, or reaching with his right hand, and should avoid high-impact tools. Dr. Berkin opined that employee

sustained a permanent partial disability of 12.5 % of the right wrist as a result of the primary injury.

After carefully weighing all of the evidence, we agree with the administrative law judge that the primary injury caused employee to sustain a 10\% permanent partial disability of the hand at the 175 -week level, and that employee is not entitled to permanent partial disability benefits from the Second Injury Fund in this matter because the primary injury does not meet the statutory thresholds.

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

The award and decision of Administrative Law Judge John A. Tackes, issued July 9, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

$5 / 31 / 2011$ 8:01 AM

Employee: Anto Anic

Injury No.: 05-031550

Dependents: N/A

Employer: Bussen Realty \& Terminal Co. (Settled)

Additional Party: Second Injury Fund

Insurer: AIG Domestic Claims Inc. (Settled)

Hearing Date: April 5, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

1. Are any benefits awarded herein? No
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: April 8, 2005
5. State location where accident occurred or occupational disease was contracted: Saint Louis City
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 of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant hit his right hand with a hammer.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right hand and index finger.
14. Nature and extent of any permanent disability: 10 % PPD (right hand)
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Anto Anic Injury No.: 05-031550

1. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\ 433.48 (TTD / PTD); $\ 354.05 (PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

TOTAL:

$\ 0.00

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ray B. Marglous

Employee: Anto Anic

Injury No: 05-031550

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Bussen Realty \& Terminal Co. (Settled)

Additional Party: Second Injury Fund

Insurer: AIG Domestic Claims Inc. (Settled)

Hearing Date: April 5, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

A hearing in this Matter was held on April 5, 2010, in St. Louis, Missouri at the Division of Workers' Compensation before Administrative Law Judge John A. Tackes. Anto Anic, Claimant, appeared in person and testified. Robert Merlin represented Claimant. Kareitha Osborne represented the Second Injury Fund. J. Stephen Dolan, Certified Rehabilitation Counselor was present and testified on behalf of Claimant.

Prior to the hearing claims for two injury numbers (05-031550 \& 05-098958) were settled against the Employer/Insurer by compromise lump sum settlement. The Second Injury Fund was not a party to either of those settlement agreements. The employment relationship, insurance coverage under Workers' Compensation, notice, and timeliness of the claim are not at issue in this award.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

1. The date of injury for injury number 05-031550 is April 8, 2005.
2. Temporary Total Disability (TTD)/Permanent Total Disability (PTD) and Permanent Partial Disability (PPD) compensation rates for each both injury numbers is $\$ 433.48 / \ 354.05.

The sole issue is the liability of the Second Injury Fund for benefits.

Based on the competent and substantial evidence and my observations of Claimant at trial, I find:

1. Claimant is a Yugoslavian born Croat. He was born December 7, 1953 in what is now Bosnia. He attended a vocational high school to become a machine operator and machinist. As an ethnic minority, Claimant experienced discrimination and limitation of career and educational opportunity because of his religious and political views. While in Bosnia he was diagnosed with throat cancer. Claimant had some cancer treatment in Bosnia but his treatment was interrupted when war broke out.
2. In Bosnia, Claimant was employed as a miner for ten years where he received additional on the job training and drove diesel trucks. Claimant served 15 months in the army in a non combat role where he received additional machine and weapons training. His underground work at the mines affected his breathing and he was moved to a position above ground. Claimant continues to complain of breathing trouble when working with chemicals. Claimant left Bosnia in 1994 after the war and moved to Germany. In Germany he completed his cancer treatment before coming to the United States.
3. Claimant is literate in both Bosnian and Croatian. He is able to speak some German but spoke no English before he came to the United States. Since arriving in the United States, Claimant has learned a considerable amount of English. He testified at hearing without the assistance of a