Charles Harris v. Hutkin Development Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-122130

Employee: Charles Harris III

Employer: Hutkin Development Company (Settled)

Insurer: Westport Insurance Corporation

c/o Gallagher Bassett Services (Settled

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated May 11, 2012. The award and decision of Administrative Law Judge Suzette Carlisle, issued May 11, 2012, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $9^{\text {th }}$ day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Insurer: Westport Insurance Corporation, c/o Gallagher Bassett Services (Settled)

Hearing Date: March 14, 2012

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: September 19, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis 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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant's repetitive use of his hands as a contractor caused the development of bilateral carpal tunnel syndrome.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left and right wrists
14. Nature and extent of any permanent disability: 15 % permanent partial disability of both the left and right wrists (Settled)
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for maximum rate listed in number 19.
3. Weekly compensation rate: $\ 404.66
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Employer settled prior to hearing.

1. Second Injury Fund liability:

21.53 weeks of permanent partial disability from Second Injury Fund $\ 8,712.33

TOTAL:

$\ 8,712.33

1. Future requirements awarded: None.

Said payments to begin immediately 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: Brent Cantor

Employee: Charles Harris II.

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Hutkin Development (Settlement)

Additional Party: Second Injury Fund

Insurer: Westport Insurance Corporation (Settled)

Injury No.: 08-122130

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

The parties appeared before the undersigned administrative law judge on March 14, 2012 for a final hearing to determine the liability of the Second Injury Fund (SIF), in the matter of Charles Harris III. (Claimant). Attorney Brent C. Cantor represented Claimant. Assistant Attorney General Rachel K. Houser represented SIF. The record closed after presentation of the evidence. Employer, Hutkin Development, and their Insurer, Westport Insurance Corporation, previously settled with Claimant for 15 % permanent partial disability (PPD) of each wrist, and did not participate in the hearing.

The parties stipulated to that on or about September 19, 2008:

1. Claimant was employed by Employer, and sustained an occupational disease injury in St. Louis County, located in Missouri, and venue is proper;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law;
3. Employer's liability was fully insured by Westport Insurance Corporation;
4. Employer had notice of the injury,
5. A Claim for Compensation was timely filed; and
6. Claimant's average weekly wage was sufficient for a compensation rate of $\ 404.66; and
7. If the Court finds the case compensable, the parties stipulate the percentages of disability and loading factors contained in Exhibit N-I should apply

The sole issue to be determined is whether there is a compensable claim against SIF when the primary injury is an occupational disease?

All evidence was reviewed but only evidence which supports this award will be summarized below. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they

were made prior to becoming a part of this record, and were not placed there by the undersigned administrative law judge.

Claimant's Exhibits A through M and joint Exhibits N-I and O-II were admitted without objection. The SIF did not offer any additional exhibits.

Claimant testified live and his testimony was credible. Claimant performed construction projects for Employer which included painting, drywall, and building demolition. He used power tools to perform his job duties. Claimant's hands became numb with tingling, pain, and locking in 2008.

1. Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant's bilateral hands/wrists.
2. A September 4, 2008 nerve conduction study revealed bilateral carpal tunnel syndrome. Claimant received bilateral carpal tunnel surgeries on September 23, 2008, as described in Exhibit E.
3. Claimant and Employer settled the workers' compensation claim arising out of the injury for 15 % PPD of each wrist, a 10 % load, and two weeks for disfigurement.
4. Claimant has the following limitations or complaints regarding the work injury: Claimant's hands continue to lock up, and they hurt when he brushes his teeth. Claimant could no longer perform his work activities. He last worked in 2009.
5. Prior to 2008, Claimant had the following disabling injuries or conditions:

a. Claimant sustained an injury to his low back when he slipped and fell on ice. In 1991, surgery was performed to remove a herniated disc. Medical records are not in evidence. Claimant continued to work but had chronic back pain. The injury was disabling and constituted a hindrance and obstacle to employment.

b. Claimant sustained a gunshot wound to the left thigh, and surgery was performed to repair sciatic nerve damage. Medical records are not in evidence. After Claimant's release, he continued to have leg weakness and numbness. The injury was disabling and constituted a hindrance and obstacle to employment.

1. Dr. Bruce Schlafly examined Claimant, took a history, and issued a report. He found Claimant's work activities with Employer were the prevailing factor that caused him to develop bilateral carpal tunnel syndrome. He provided the following ratings of permanent partial disability:

a. With respect to the primary injury: 25 % PPD of each wrist.

b. With respect to the preexisting disabilities, which constituted a hindrance and obstacle to employment:

i. 25 % PPD of the low back.

ii. 65 % PPD of the left hip at 207 week level.

c. Dr. Schlafly opined the primary and preexisting disabilities created a synergistic effect and created a hindrance or obstacle to employment.

Claimant asserts SIF is liable for PPD benefits. However, SIF contends the word "injury" as defined in § 287.020.3 RSMo excludes occupational diseases. Claimant's bilateral carpal tunnel syndrome is an occupational disease, therefore not an "injury." Claimant failed to prove he sustained a "subsequent compensable injury" under § 287.220.1, so SIF is not liable.

I find persuasive the Commission's decision in Kathleen Peters v. Treasurer of Missouri as Custodian of the Second Injury Fund (2012 WL 769835). In Peters, the claimant sustained a repetitive motion injury to her right shoulder. The Commission held SIF's argument did not consider the complete definition of injury in § 287.020.3, which includes occupational diseases within the definition of "injury" in Chapter 287. Section 287.020.3(5) RSMo which 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).

In Peters, the Commission found "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.

1. 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.
2. 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 th