Fred Hoven v. Sachs Electric Company

and rated the injury at 5 % permanent partial disability of the right wrist. But four to six months later, employee's grip strength decreased in his right hand and his pain symptoms returned. Eventually, employee sought further treatment with Dr. Schlafly, who performed a repeat right carpal tunnel release in June 2009, and a left carpal tunnel release and left ulnar nerve transposition in August 2009. Employee experienced relief from his symptoms for about four to six months after the surgeries with Dr. Schlafly. After that, employee began to experience a return of the symptoms of tingling, loss of grip strength, and numbness.

Employee testified that his symptoms referable to his bilateral elbows and wrists were about the same on the day of the hearing as they were before Dr. Schlafly performed the series of surgeries in 2009. Employee's arms fall asleep when he talks on the telephone, drives, or writes, and he frequently drops items. Other current problems include numbness and tingling into the fingers and diminished right grip strength.

Dr. Lichtenfeld, the only doctor to testify, opined that employee has not reached maximum medical improvement for the 2004 primary injury. At his deposition, Dr. Lichtenfeld made clear he believes employee may benefit from further EMGs and nerve conduction studies and, if those studies so indicate, further surgery. Dr. Lichtenfeld rendered permanent partial disability ratings, but with the caveat that his ratings were subject to change if employee gets more treatment. Dr. Lichtenfeld's opinion stands unopposed on the record. Dr. Schlafly's treatment notes also suggest employee may need additional evaluation and possible surgery: Dr. Schlafly completed an "Attending Physician's Disability Statement" to indicate that employee should be able to go back to work by January 5, 2010, but that employee "may need surgery for right ulnar nerve."

Employee's testimony supports the proposition that the treatments and surgeries he's received so far have not been effective in relieving his complaints, and that future significant treatment may, as Dr. Lichtenfeld opined, be warranted. Perhaps if employee had testified or provided other evidence to show that he does not intend or anticipate any further significant treatment for the 2004 injuries, we might be able to combine such evidence with Dr. Lichtenfeld's provisional/permanent disability ratings to find employee is at maximum medical improvement and to evaluate the degree of permanent partial disability referable to the 2004 injuries. But upon careful review of employee's testimony, we can find no mention of the question whether employee anticipates further treatment for the bilateral wrists or left elbow. (We note employee mentioned that he is "putting off" surgery for his right elbow-this testimony is inconclusive in that it indicates both a reluctance to get further surgery and the possibility that surgery is ultimately intended by employee). Discerning no basis in employee's testimony for a finding that his medical condition is permanent, we return to Dr. Lichtenfeld's uncontested opinion that employee would benefit from further evaluation and treatment for the primary injuries and that employee's disabling conditions are not necessarily permanent.

Given this evidence and these circumstances, we credit Dr. Lichtenfeld on the issue of permanency. We find employee is not at maximum medical improvement for the 2004 bilateral upper extremity injuries.

In order to prove Second Injury Fund liability for enhanced permanent partial disability benefits, a threshold requirement is that an employee with preexisting permanent partial disability sustain "a subsequent compensable injury resulting in additional permanent partial disability ..." § 287.220.1 RSMo. In other words, employee is required to prove, as a preliminary matter, that his 2004 primary injuries left him with residual permanent partial disability. Section 287.090.6(1) RSMo defines "permanent partial disability" as "a disability that is permanent in nature and partial in

The permanent nature of an injury must be shown to a reasonable certainty, and such proof may not rest on surmise and speculation. See *Farmer-Cummings v. Future Foam*, 44 S.W.3d 830, 834 (Mo. App. 2001); *Sanders by Carmean v. St. Clair Corp.*, 943 S.W.2d 12, 16 (Mo. App. 1997).

We have found, based on Dr. Lichtenfeld's uncontested testimony, that employee is not at maximum medical improvement for the primary work injury. It follows that we cannot determine the nature or extent of any permanent disability resulting from the primary injury. As the court explained in *Cardwell v. Treasurer of Mo.*, 249 S.W.3d 902, 910 (Mo. App. 2008): "One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. ... Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent ..." Here, the essential issue of whether further medical progress may be reached has not been resolved by the proof put forward by employee. The only doctor to testify opined that employee is not at maximum medical improvement and that he would benefit from further evaluation. The notes from Dr. Schlafly and employee's own testimony support the proposition that employee remains in need of further treatment for the primary injuries. Employee did not testify as to whether he intends further significant treatment, and his only mention of further surgery is inconclusive.

Simply put, we don't know whether employee's medical condition or any disability referable to the primary injury are permanent. As a result, any determination of permanent partial disability referable to the primary injury would necessarily hinge upon surmise and speculation.

In light of the foregoing considerations, we conclude that employee has failed to show that he sustained a "subsequent compensable injury" resulting in permanent partial disability for purposes of § 287.220.1.

Employee failed to prove he suffered a subsequent compensable injury resulting in permanent partial disability for purposes of § 287.220.1 RSMo. Accordingly, employee's claim against the Second Injury Fund is denied.

The award and decision of Administrative Law Judge Suzette Carlisle is attached solely for reference.

Given at Jefferson City, State of Missouri, this 19th day of July 2012.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**V A C A N T**

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Fred Hoven

Departments: N/A

Employer: Sachs Electric Company (Settled)

Additional: Second Injury Fund

Insurer: Zurich American Insurance Company (Settled)

Injury No.: 04-145596

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: October 13, 2011

Checked by:SC

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: December 28, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis City, MO
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: Claimant developed bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome from repetitive activities as an electrician.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral hands and elbows
14. Nature and extent of any permanent disability: 25 % of the right wrist, 15 % of the left wrist, 15 % of the left elbow (Settled)
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 11,844.81

Employee: Fred Hoven

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1200.00
3. Weekly compensation rate: $\$ 675.90 / \ 354.05
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Employer settled prior to hearing

1. Second Injury Fund liability: Yes

20.6344 weeks of pe