Gloria Stiers v. Production Products, Mfg.

We summarize our understanding of the Second Injury Fund's legal reasoning: "Injury" as defined in § 287.020.3 RSMo excludes occupational diseases. A repetitive motion injury is an occupational disease by virtue of § 287.067 RSMo. Thus, a repetitive motion injury is not an "injury." A repetitive motion injury can never be a compensable "injury" that can trigger Second Injury Fund liability under § 287.220.1.

We summarize the Second Injury Fund's argument as applied to the facts of this claim: Employee's bilateral overuse syndrome is a repetitive motion injury. Employee's bilateral overuse syndrome is an occupational disease. Employee's bilateral overuse syndrome is not an injury. Employee's bilateral overuse syndrome is not a "subsequent compensable injury." Employee has failed to prove she suffered a subsequent compensable injury, 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

Employee: Gloria G. Stiers

Injury No. 08-095300

Dependents:

Before the

Employer: Production Products, Mfg.

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer:

Jefferson City, Missouri

Hearing Date: May 25, 2011/June 20, 2011

Checked by: DLZ

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 23, 2008
5. State location where accident occurred or occupational disease was contracted: Callaway 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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant had repetitive injury to both upper extremities
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: Bilateral hands, wrists, and arms
14. Nature and extent of any permanent disability: 32 % of the right arm at the 210 -week level; 30 % of the left arm at the 210 -week level
15. Compensation paid to-date for temporary disability: $\ 13,758.21
16. Value necessary medical aid paid to date by employer/insurer? $\ 35,121.14

Employee: Gloria G. Stiers Injury No. 08-095300

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 303.50
3. Weekly compensation rate: $\ 202.33
4. Method wages computation: Stipulation

1. Amount of compensation payable: All issues previously settled with Employer
2. Second Injury Fund liability: Yes X No Open

Permanent total disability benefits from Second Injury Fund:

$\ 202.33 per week beginning August 11, 2012, for the remainder of Claimant's lifetime.

TOTAL: \$202.33 PER WEEK BEGINNING AUGUST 11, 2012, FOR THE REMAINDER OF CLAIMANT'S LIFETIME

1. Future requirements awarded: None

Said payments to begin August 11, 2012 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: Christine Kiefer/VanCamp Law Firm

Employee: Gloria G. Stiers

Employee: Gloria Stiers

Employer: Production Products, Mfg.

Additional Party: Second Injury Fund

Insurer:

Injury No: 08-095300

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $25^{\text {th }}$ day of May, 2011, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by her attorney, Christine Kiefer. The Employer, having previously settled and compromised all issues, does not appear. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appears by Assistant Attorney General David Zugelter. The record was ordered to remain open until 5:00 p.m., June 20, 2011, for the receipt of legal briefs or memorandums.

The parties entered into a stipulation as to certain facts which are not at issue in this claim, as follows, to wit: On or about October 23, 2008, Production Produ