Kevin Hundelt v. R & F Tile and Marble Company, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 09-044470

Employee: Kevin Hundelt

Employer: $\quad R$ \& F Tile and Marble Company, Inc. (Settled)

Insurer: Nationwide Mutual Insurance Company (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 $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we reverse the award and decision of the administrative law judge.

The sole issue stipulated in dispute at the hearing before the administrative law judge was the liability of the Second Injury Fund. The administrative law judge found that the 2005 changes to the Missouri Workers' Compensation Law have the effect that the term "subsequent compensable injury" as contained in § 287.200.1 RSMo no longer includes injuries sustained by occupational disease, and denied employee's claim as a result.

Employee filed an Application for Review alleging the administrative law judge erred in concluding there is no Second Injury Fund liability when the primary injury relates to an occupational disease.

We reverse the award of the administrative law judge for the reasons set forth herein.

The parties stipulated the following. On January 1, 2009, employee sustained a compensable right shoulder injury by occupational disease. At the time of the last injury, employee suffered a 25 % preexisting permanent partial disability of the body as a whole referable to the low back, and a 17.5 % preexisting permanent partial disability of the left shoulder. The combination of the preexisting low back disability and the primary injury is best represented by a 10\% load factor, while the combination of the preexisting left shoulder disability and the primary injury is best represented by a 15 % load factor.

We find that the January 1, 2009, primary injury resulted in a 16\% permanent partial disability of employee's right shoulder.

Employee presented expert medical testimony from Dr. Shawn Berkin, who opined that employee's preexisting low back and left shoulder conditions constituted hindrances or obstacles to his employment or reemployment at the time of the primary injury.

Dr. Berkin's testimony is uncontested. We find credible Dr. Berkin's opinion that employee's preexisting low back and left shoulder conditions constituted hindrances or obstacles to his employment or reemployment at the time of the primary injury.

We understand the chief contention in this matter is a legal argument as to whether occupational diseases can result in "injuries" for purposes of the phrase "subsequent compensable injury" as it appears in § 287.220.1 RSMo, and that it is the position of the Second Injury Fund that they cannot. But we wish to note that the parties stipulated, at the outset of the hearing before the administrative law judge, that employee "sustained an injury by occupational disease." Transcript, page 1. As a result, there would appear to be an inherent contradiction between the parties' stipulations and the position advanced by the Second Injury Fund in this matter. Of course, the Second Injury Fund may have wished to stipulate that, as a matter of fact, employee sustained an "injury" by occupational disease, while disputing that, as a matter of law, employee did not sustain an "injury" by occupational disease. But this is by no means obvious from the generalized issue identified by the parties ("the liability of the Second Injury Fund"), and only becomes clear upon a reading of the award by the administrative law judge and the parties' briefs.

We are not permitted to address issues which the parties have not specifically identified as in dispute on the record at the hearing before the administrative law judge. Boyer v. Nat'l Express Co., 49 S.W.3d 700, 705 (Mo. App. 2001). Given the parties' briefs and arguments on appeal, we are convinced the apparent contradiction between the parties' stipulations and the Second Injury Fund's argument was inadvertent, and given the circumstances, we are confident that we understand the issue we are asked to resolve in this matter. Nevertheless, the importance of precisely stating the disputed issues on the record cannot be overstated.

The Second Injury Fund argues that employee's left shoulder injury by occupational disease does not qualify as "a subsequent compensable injury" for purposes of triggering Second Injury Fund liability under § 287.220.1 RSMo, which provides, in relevant part, 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 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. "Injury," as defined in § 287.020.3 RSMo, excludes occupational diseases. The primary injury in this matter is an injury by occupational disease of the left shoulder. Thus, the primary injury is not an "injury." A primary injury by occupational disease can never be a compensable "injury" that can trigger Second Injury Fund liability under § 287.220.1.

We conclude that 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, including one caused by repetitive motion, as an "injury." That is, the legislature specifically provided that the term "injury" includes occupational disease and that injuries by occupational disease, including injuries by repetitive motion, are compensable.

Based upon the foregoing, we construe the term "injury" as it appears in the phrase "subsequent compensable injury" in $\S 287.220 .1$ to include occupational diseases.

The parties' stipulations and the provisions of $\S 287.220 .1$ control our determination of the nature and extent of Second Injury Fund liability. That section requires employee to establish that, at the time of the primary injury, he suffered preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment. Where (as here), there is no contention that the employee is permanently and totally disabled, that section also requires that the preexisting permanent partial disabilities satisfy the applicable thresholds.

The parties have stipulated that employee suffered preexisting permanent partial disabling conditions of the low back and left shoulder that satisfy the applicable 50 -week body as a whole threshold. Dr. Berkin opined that these conditions constituted hindrances and obstacles to employment, and we have found Dr. Berkin credible. We conclude that employee's preexisting conditions were of sufficient seriousness to constitute hindrances or obstacles to employment for purposes of $\S 287.220 .1$. We conclude the Second Injury Fund is liable for permanent partial disability enhancement owing to the combinative effect of employee's preexisting conditions of ill and his disability resulting from the primary injury. We proceed to a calculation of the extent of Second Injury Fund liability.

The parties stipulated special loading factors to represent the combinative effect of each of employee's preexisting conditions with the primary injury. The extent of permanent partial disability resulting from the primary injury is 16 % of the right shoulder, or 37.12 weeks. The extent of permanent partial disability referable to the preexisting low back injury is 25 % of the body as a whole, or 100 weeks. When we multiply the sum ( 137.12 weeks) by the loading factor stipulated by the parties ( 10 % ), the result is 13.71 weeks of enhanced permane