Robert Keay v. Play Power, Inc.

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 08-120998

Employee: Robert Keay

Employer: Play Power, Inc. (Settled)

Insurer: Wausau Business 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 $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge with this supplemental opinion. The Commission adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with the supplemental opinion set forth below.

The parties asked the administrative law judge to resolve the issue of Second Injury Fund liability for permanent partial disability. The administrative law judge found the Second Injury Fund liable for 30.04 weeks of permanent partial disability benefits owing to the synergistic combination of employee's preexisting disabling conditions and the effects of the work injury. The Second Injury Fund filed an Application for Review with the Commission arguing that the award is erroneous because injury from an occupational disease does not amount to a compensable "injury" for purposes of § 287.220.1 RSMo, and because the administrative law judge included in the award certain preexisting conditions that do not meet the statutory thresholds. We are not persuaded by either argument, for the reasons set forth below.

The meaning of "subsequent compensable injury"

The Second Injury Fund argues that employee's primary bilateral elbow 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 bilateral elbows. 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 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.

The purpose of the Second Injury Fund is "to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury." Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund, 126 S.W.3d 386, 390 (Mo. 2004) (citation omitted). The Second Injury Fund statute encourages such employment by ensuring that an employer is only liable for the disability caused by the work injury. Any disability attributable to the combination of the work injury with preexisting disabilities is compensated, if at all, by the Second Injury Fund.

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**Employee: Robert Keay**

Before 1993, any preexisting disability that was a hindrance to employment or reemployment could open the door to possible Second Injury Fund liability. The Second Injury Fund statute was amended in 1993 to limit permanent partial disability awards against the Second Injury Fund to those cases where both the preexisting disabilities and the disabilities from the work injury are more than de minimis. The portion of § 287.220.1 defining what disabilities will trigger Second Injury Fund liability now states:

> 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial 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.

The thresholds found in the quoted provision serve to protect the Second Injury Fund from enhanced permanent partial disability claims of claimants with de minimis disabilities. And that is where the service, of the thresholds, ends. Section 287.220.1 goes on to say:

> 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...

(emphasis added).

**JURY NO. 08-120998**

June 2002

Under the plain language of the statute, once it is determined that the thresholds are met, all disabilities that exist at the time of the work injury should be considered in the calculation of Second Injury Fund liability.

The second threshold applies when a claimant has preexisting permanent partial disability of a single major extremity ("if a major extremity injury only"). In all other circumstances, the first threshold applies.

The legislature chose two different units of measurement to describe the thresholds: "fifty weeks of compensation" for preexisting disabilities of the body as a whole; and "fifteen percent permanent partial disability" for a preexisting disability to a major extremity only. We believe the legislature rested on different units of measurement to foster arithmetic simplicity.

Where a claimant has only a preexisting disability to a major extremity, the legislature made "a simple 15 % disability to a major extremity the threshold rather than attempt a more complex formula based on weeks of disability to various body parts at various levels." Motton v. Outsource Int'l, 77 S.W.3d 669, 675 (Mo. App. 2002).

But where there is more than one preexisting disability, the simplicity described above cannot be achieved. In that event, we need a method to combine the various disabilities to determine claimant's overall preexisting disability as of the moment of the primary injury. In order to combine the disabilities for comparison to the threshold, the disabilities must be converted to a common unit of measure. The legislature selected weeks of compensation as the common unit of measure.

In the instant case, employee had more than a single preexisting disabling condition so the first threshold applies. Using the ratings and findings from the administrative law judge, we observe that employee suffered from a total of 126.75 weeks of permanent partial disability at the time the last injury was sustained. We conclude employee has met the threshold.

For these reasons, the Second Injury Fund's argument is unavailing. Simply put, the thresholds have no bearing on calculating Second Injury Fund liability once that liability is triggered, and thus they provide no support for discounting certain conditions that, considered individually, do not amount to 15 % permanent partial disability of an extremity or 50 weeks of compensation.

The Commission supplements the award and decision of the administrative law judge with our additional analysis herein.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued January 23, 2012, is affirmed and is attached hereto and incorporated herein to the extent it is not inconsistent with this supplemental opinion.

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.

Given at Jefferson City, State of Missouri, this $\qquad 19th \qquad$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Robert Keay

Injury No. 08-120998

Dependents: N/A

Employer: Play Power Inc. (settled)

Additional Party: Second Injury Fund

Insurer: Wausau Business Insurance Co. (settled)

Appearances: Kenneth Seufert, attorney for employee.

Gregg Johnson, Assistant Attorney General for the Second Injury Fund.

Hearing Date: November 7, 2011

Checked by: LCK/rf

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? July 1, 2008.
5. State location where accident occurred or occupational disease contracted: St. Francois 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.

On November 7, 2011, the employee, Robert Keay appeared in person and with his attorney, Kenneth Seufert, for a hearing for a final award. The Second Injury Fund was represented at the hearing by Assistant Attorney General Gregg Johnson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issue that was in dispute. These undisputed facts and issue, together with the findings of fact and rulings of law, are set forth below as follows:

1. Play Power Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Wausau Business Insurance Co.
2. On July 1, 2008 Robert Keay was an employee of Play Power Inc. and was working under the Workers' Compensation Act.
3. On or about July 1, 2008 the employee sustained an occupational disease arising out of his employment.
4. The employer had notice of the employee's occupational disease.
5. The employee's claim was filed within the time allowed by law.
6. The rate of compensation for permanent partial is $\ 404.66 for per week.
7. The employee's injuries were medically causally related to the occupational disease.
8. The employer-insurer paid $\ 29,934.39 in medical aid.
9. The employer-insurer paid $\ 324.87 in temporary disability for $3 / 7$ of a week.

1. Liability of the Second Injury Fund for permanent partial disability.

A. Report of Dr. Berkin.

B. Medical records for the primary injury.

C. Medical records of the pre-existing injuries and conditions.

D. Stipulation for Compromise Settlement.

Judicial notice of the contents of the Division's files for the employee was taken.

The parties stipulated that the employee's statements to Dr. Berkin would be the same as if the employee had been sworn under oath and testified at the hearing. The parties agreed that in lieu of the employee's testimony that the Court would consider the employee's statements to Dr. Berkin as if he had testified at the hearing.

The employee told Dr. Berkin that in 1988 he injured his right foot when steel fell on it.

In August of 1988, the employee was admitted to Missouri Baptist Medical Center and was treated by Dr. Crandall for an avulsion of the right great toe and a fracture of the second toe in the proximal phalanx. The employee had cut his right great toe and second toe at work when a beam dropped down and cut off his shoe. Dr. Crandall performed a re-vascularization of the great toe and the second toe fracture was reduced and pinned by Dr. Sertl. Due to the loss of vascular supply, the right great toe was then amputated at the metatarsophalangeal joint. Dr. Sertl noted that the severe displaced fracture of the second toe was treated with an open reduction and internal fixation; and that the severe injury to the large toe resulted in eventual amputation. In August of 1989, Dr. Sertl noted that the employee had minimal motion at the PIP joint of the second toe due to the scarring in and around the severe fracture area.

The employee told Dr. Berkin that since that injury he continued to have cramping right foot pain and foot numbness. Dr. Berkin's examination of the right foot revealed amputation of the right great toe and swelling of the interphalangeal joint of the second toe. There was tenderness over the stump of the amputated great toe extending into the forefoot. The employee walked with a limp and stepped flat footed on his right leg. There was discomfort to the forefoot with full flexion and extension of the ankle. The employee was unable to elevate on his toes and complained of pain to his right foot when squatting. It was Dr. Berkin's opinion that the employee had a 100 % permanent partial disability of the right great toe at the metacarpophalangeal joint; and due to the loss of function to his right foot from the amputation of the great toe, there was an additional 15 % permanent partial disability of the right lower extremity at the level of the ankle.

In Injury Number 88-093241 with an injury date of August 11, 1988, the employee settled his permanent partial disability claim for 110 % of the right great toe and 30 % of the second toe of the right foot.

The employee told Dr. Berkin that in 2006 he developed pain to his right shoulder due to repetitive lifting at work.

The employee started seeing Dr. Hulsey in October of 2006 for bilateral shoulder pain. Dr. Hulsey's initial impression was probable AC joint synovitis with impingement syndrome, bilateral shoulders, right greater than left. Dr. Hulsey injected his right shoulder in the AC joint and subacromial space. An MRI showed increased signal around the AC joint. In January of 2007, Dr. Hulsey performed surgery. He noted that there was a very superficial partial thickness tear of the rotator cuff with mild fraying of the labrum; and performed a limited debridement, subacromial decompression and arthroscopic excision of the distal clavicle. The post-operative

**Injury No. 08-120998**

Diagnosis was impingement syndrome, AC joint arthrosis, and partial rotator cuff tear of the right shoulder. In July of 2007, Dr. Hulsey rated the shoulder at 10% permanent partial disability.

The employee started treating with Dr. Crandall in October of 2006. A nerve conduction study demonstrated mild to moderate carpal tunnel syndrome. Dr. Crandall performed bilateral carpal tunnel releases in December of 2006. In December of 2006, Dr. Hulsey noted that the employee had bilateral carpal tunnel releases with no significant improvement in pain. In June of 2007, Dr. Crandall noted that the bilateral carpal tunnel surgeries resolved the numbness and helped him sleep better. He still had loss of strength and some stiffness at times. It was Dr. Crandall's opinion that the employee sustained a 5% permanent partial disability of each wrist secondary to his carpal tunnel syndrome and surgery.

The employee told Dr. Berkin that since his treatment he continued to have pain to his right shoulder and weakness in his right arm. The employee cannot weld and cannot lift with his right arm. On exam, Dr. Berkin noted tenderness on palpation to the right shoulder over the proximal humerus and acromioclavicular joint. Impingement and empty can testing were positive; and O'Brien and lift-off testing was painful. The employee had a 20 degree loss of abduction and 10 degree loss of flexion and internal rotation. It was Dr. Berkin's opinion that the employee had a 30% permanent partial disability of the right upper extremity at the shoulder.

On examination of the right hand and wrist, Dr. Berkin noted a positive Tinel's sign over the carpal tunnel and Phalen's test. There was pain to the wrist on full flexion and extension. The examination of the left hand and wrist showed positive Tinel's sign over the carpal tunnel; and there was pain to the left wrist on full flexion and extension. Due to the history of bilateral carpal tunnel syndrome, it was Dr. Berkin's opinion that the employee had a permanent partial disability of 35% of each upper extremity at the level of the wrist.

In Injury Number 06-087132 with a date of injury on or about September 18, 2006 the employee settled his case for 12.5% permanent partial disability of each wrist and 15% of the right shoulder.

The employee told Dr. Berkin that in July of 2008 he developed symptoms of burning pain and numbness to his elbows along with tingling to his fingers after working as a welder for Play Power Inc. for nineteen years.

The employee started treating with Dr. Strege in April of 2009 for bilateral elbow problems. An EMG/nerve conduction study showed no evidence of ulnar neuropathy at the wrist or elbow and evidence of mild bilateral carpal tunnel syndrome. The employee had symptoms of epicondylitis both medially and laterally but no significant evidence of ulnar neuropathy at the cubital tunnel. Dr. Strege noted that an electrodiagnostic finding of carpal tunnel syndrome was not surprising in light of his previous history of carpal tunnel releases. In July of 2009, Dr. Strege performed a fasciotomy of the lateral and medial epicondyle of the right elbow and in August of 2009 performed a fasciotomy of the lateral and medial epicondyles of the left elbow.

due to a diagnosis of bilateral lateral and medial epicondylitis. In January of 2010, Dr. Strege rated 5 % permanent partial disability of each elbow.

The employee told Dr. Berkin that he has continued to have pain to his elbows; numbness to his arms; and difficulty grasping with his hands. The examination of the right elbow showed tenderness over the medial and lateral epicondyles; with a positive Tinel's sign over the cubital tunnel. The examination of the left elbow showed tenderness over the lateral epicondyle and a positive Tinel's sign over the cubital tunnel. The employee had complaints of pain and tenderness to his elbows; and numbness, weakness and fatigue to his arms. It was Dr. Berkin's opinion that the employee sustained a 35 % permanent partial disability of each elbow.

The employee settled his primary injury for 17.5 % permanent partial disability of each elbow with a 10 % multiplicity.

It was Dr. Berkin's opinion that the pre-existing disabilities represented a hindrance or obstacle to employment or re-employment. It was his opinion that when the bilateral involvement of the disabilities is considered in combination, there was a significantly greater disability than their simple sum and a loading factor of 10 % should be applied.

Based on the testimony of the employee and the medical evidence, I make the following rulings:

I find that the primary injury to the employee's bilateral upper extremities resulted in a 17.5 % permanent partial disability of each right elbow at the 210 week level for a total of 73.5 weeks of compensation

I find that the employee's pre-existing 1988 right foot injury was of such seriousness as to constitute a hindrance or obstacle to employment or obtaining re-employment. I find that the pre-existing 1988 right foot injury resulted in a 110 % permanent partial disability of the right great toe at the 40 week level and 30 % permanent partial disability of the right second toe at the 14 week level for a total of 48.20 weeks of compensation.

I find that the employee's pre-existing bilateral wrist and right shoulder injury was of such seriousness as to constitute a hindrance or obstacle to employment or obtaining reemployment. I find that the pre-existing bilateral wrist and right shoulder injury resulted in a

12.5 % permanent partial disability of each wrist and 15 % permanent partial disability of the right shoulder for a total of 78.55 weeks of compensation.

I find that the employee's pre-existing right foot, left wrist, right wrist and right shoulder injuries and the last injury to both elbows combined synergistically to create a total disability of 230.29 weeks. This total disability is based on a loading factor of 15 %. After deducting the percent of disability that existed prior to the last injury (126.75) and the disability resulting from the last injury alone ( 73.50 weeks) from the total disability attributable to all injuries or conditions existing at the time of the last injury ( 230.29 weeks), the remaining balance to be paid by the Second Injury Fund is equal to 30.04 weeks. The Second Injury Fund is therefore directed to pay to the employee the sum of $\ 404.66 per week for 30.04 weeks for a total award of permanent partial disability of $\ 12,155.99.

Kenneth Seufert, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

Lawrence C. Kasten

Chief Administrative Law Judge

Division of Workers' Compensation