Stephen Green v. Ameristar Casino

We summarize our understanding of the Second Injury Fund's argument and legal reasoning as applied to the facts of this claim: "Injury" as defined in § 287.020.3 RSMo excludes occupational diseases. Employee's carpal/cubital tunnel syndrome is an occupational disease. Thus, employee's carpal/cubital tunnel syndrome is not an "injury." Employee's carpal/cubital tunnel syndrome is not a "subsequent compensable injury" under § 287.220.1, so the Second Injury Fund is not implicated in this matter.

The Second Injury Fund argument fails. The Second Injury Fund fails to give effect to the complete definition of injury in § 287.020.3. The complete definition includes occupational diseases within the definition of "injury" where specifically provided in Chapter 287.

Section 287.020.3(5) RSMo states:

The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

(Emphasis Added).

Chapter 287 specifically provides for injuries by occupational disease and specifically says those injuries are compensable.

Section 287.067 RSMo states, in relevant part:

1. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
2. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
3. With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with the immediate prior employer was the prevailing factor in

causing the injury, the prior employer shall be liable for such occupational disease.

(Emphasis added).

The above sections specifically refer to a condition of ill caused by occupational disease as an "injury." That is, the legislature specifically provided that the term "injury" includes occupational disease and that injuries by occupational disease are compensable.

Based upon the foregoing, we construe the term "injury" as it appears in the phrase "subsequent compensable injury" in § 287.220.1 to include occupational diseases.

We note what appears to be a clerical error in the administrative law judge's award: on page 3, in the first paragraph, last sentence, the administrative law judge states: "The evidence compels an award for the defense." We correct the foregoing to read as follows: "The evidence compels an award for the employee."

We affirm and adopt the award of the administrative law judge as supplemented herein. We approve and affirm 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.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 13, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: October 15, 2007
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
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: The claimant, a food service worker, developed carpal tunnel syndrome in his right wrist and cubital tunnel syndrome in his right elbow.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right elbow and wrist
14. Nature and extent of any permanent disability: 17.5 % Permanent partial disability to the right wrist and 22 % permanent partial disability to the right elbow
15. Compensation paid to-date for temporary disability: $\ 192.27
16. Value necessary medical aid paid to date by employer/insurer: $\ 10,965.74

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 430.79
3. Weekly compensation rate: $\ 287.16
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: Yes

29.85 weeks of permanent partial disability from Second Injury Fund

$\ 8,571.73

TOTAL:

$\ 8,571.73

1. Future requirements awarded: None

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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael C. Goldberg, Esq.

Employee: Stephen L. Green

Injury No.: 07-129027

Dependents: N/A

Employer: Ameristar Casino (Settled)

Additional Party: Second Injury Fund

Insurer: Hartford Fire Insurance Company (Settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a food service worker, suffers from carpal tunnel syndrome in his right wrist and cubital tunnel syndrome in his right elbow. The sole issue for determination is Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of David T. Volarich, D.O., Dr. Volarich's curriculum vitae and medical reports, two workers' compensation settlements, and medical records from Paul Sheehan, M.D., Terrence L. Piper, M.D., Anthony E. Sudekum, M.D, and David M. Brown, M.D. The defense offered no evidence beyond cross examination of the claimant's witnesses.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

On October 15, 2007, the claimant developed an occupational disease arising out of his work activities as a sous chef. Dr. Ollinger diagnosed right carpal tunnel syndrome