Kelly Kirkpatrick v. VPI Headwear/Venture Products

Decision date: March 8, 201218 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation to Kelly Kirkpatrick for cubital tunnel syndrome, finding it qualifies as a compensable occupational disease injury. The Second Injury Fund's argument that occupational diseases cannot trigger Second Injury Fund liability under Missouri law was rejected as inconsistent with the complete statutory definition of injury.

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FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)
Injury No.: 09-071622
Employee:	Kelly Kirkpatrick
Employer:	VPI Headwear/Venture Products (Settled)
Insurer:	Missouri Employers Mutual Insurance Co. (Settled)
Additional Party:	Treasurer of Missouri as Custodian of Second Injury Fund
This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, heard the parties’ arguments, reviewed the evidence and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion.We offer this supplemental opinion to address the primary argument raised in the brief of the Second Injury Fund.
Second Injury Fund Argument
The Second Injury Fund argues that employee’s cubital tunnel syndrome does not qualify as “a subsequent compensable injury” for purposes of triggering Second Injury Fund liability under § 287.220.1 RSMo, which provides, as follows:
…If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed,…receives a subsequent compensable injury resulting in additional permanent partial disability…so that the degree or percentage of disability,…caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined

Employee: Kelly Kirkpatrick

disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

(Emphasis added).

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

Discussion

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:

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.
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

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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.

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.

Conclusion

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 Maureen Tilley, issued July 29, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 8th day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

FINAL AWARD

Employee: Kelly Kirkpatrick Injury No.: 09-071622

Employer: VPI Headwear/Venture Products (Settled)

Insurer: Missouri Employers Mutual Insurance Co. (Settled)

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Hearing Date: June 8, 2011 Checked by: MT/rf

SUMMARY OF FINDINGS

Are any benefits awarded herein? Yes.
Was the injury or occupational disease compensable under Chapter 287? Yes.
Was there an accident or incident of occupational disease under the Law? Yes.
Date of accident or onset of occupational disease? September 2, 2009.
State location where accident occurred or occupational disease contracted: Oran, Scott County, Missouri.
Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
Did employer receive proper notice? Yes.
Did accident or occupational disease arise out of and in the course of the employment? Yes.
Was claim for compensation filed within time required by law? Yes.
Was employer insured by above insurer? Yes.
Describe work employee was doing and how accident happened or occupational disease contracted: Thee repetitively and forcefully used her left upper extremity causing the injury.
Did accident or occupational disease cause death? No.

Employee:	Kelly Kirkpatrick	Injury No. 09-071622
13.	Parts of body injured by accident or occupational disease:Left elbow (210 level).
14.	Nature and extent of any permanent disability: 17.5% of the left elbow.
15.	Compensation paid-to date for temporary total disability: $979.97
16.	Value necessary medical aid paid to date by employer-insurer: $7,526.10
17.	Value necessary medical aid not furnished by employer-insurer: $0.00
18.	Employee’s average weekly wage: $270.78
19.	Weekly compensation rate: $180.52 TTD/PPD
20.	Method wages computed: By agreement.
21.	Amount of compensation payable: See findings.
22.	Second Injury Fund liability: See findings .
23.	Future Requirements Awarded: None.
Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided bylaw.
The Compensation awarded to the Employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of thefollowing attorney for necessary legal services rendered to the Employee: D. Matthew Edwards.

FINDINGS OF FACT AND RULINGS OF LAW

On June 8, 2011, Kelly Kirkpatrick, the employee appeared in person and by her attorney, D. Matthew Edwards, for a final award hearing. The Employer/Insurer was not represented at the hearing having previously settled their liability. The Missouri State Treasurer as Custodian of the Second Injury Fund was represented at the Hearing by Assistant Attorney General Frank Rodman. The Court took administrative notice of all of the records contained within the files of the Division of Workers' Compensation. The record was closed on June 8, 2011 and the parties filed their briefs on the due date of July 12, 2011. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS:

Covered Employer - On or about September 2, 2009, VPI Headwear/Venture Products was operating under and subject to the provisions of the Missouri Workers' Compensation Act and their liability was fully insured by Missouri Employer's Mutual.
Covered Employee - On or about September 2, 2009, Kelly Kirkpatrick was an employee of VPI Headwear/Venture Products and was working under the Missouri Workers' Compensation Act.
Notice - Employer had notice of Employee's occupational disease.
Statute of Limitations - Employee's claim was filed within the time allowed by law.
Average Weekly Wage and Rate - The Employee's Average Weekly Wage is $\ 270.78 and her rate for TTD, PPD and PTD purposes is $\ 180.52.
Medical Causation - Employee's injury was medically causally related to the occupational disease.
Medical Aid Furnished - Employer/Insurer furnished \$7,526.10 in medical aid to Employee.
Temporary Disability Paid by Employer/Insurer - Employer/Insurer paid $\ 979.97 in temporary total disability benefits to Employee, which represents 5 3/7 weeks for the period of March 3, 2010 through April 9, 2010.
Previously Incurred Medical - There is no cl

occupational disease7,008 words

Workers' Compensation