Debra Pitman v. Sanofi Aventis

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 $14^{\text {th }}$ day of December 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Attest:

Secretary

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 14, 2009
5. State location where accident occurred or occupational disease was contracted: Saint Louis County
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 repetitive trauma in her right wrist.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right wrist
14. Nature and extent of any permanent disability: 15 % of the right wrist
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,666.87

Employee: Debra Pitman

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for applicable rates
3. Weekly compensation rate: $\$ 380.47 / \ 380.47
4. Method wages computation: By agreement

1. Amount of compensation payable:

Employer previously settled.

1. Second Injury Fund liability: Yes

13.705 weeks of permanent partial disability from Second Injury Fund: $\ 5,214.34

TOTAL:

$\ 5,214.34

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: Sam Eveland

Employee: Debra Pitman

Dependents: N/A

Employer: Sanofi Aventis (Settled)

Additional Party Second Injury Fund

Insurer: Zurich American Insurance

C/O Broadspire Services

Hearing Date: January 5, 2012

Injury No.: 09-080841

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: KOB

The parties appeared before the undersigned Administrative Law Judge on January 5, 2012 for a final hearing to determine the liability of the Second Injury Fund in the matter of Debra Pitman ("Claimant"). Attorney Sam Eveland represented Claimant. Assistant Attorney General Rachel Houser represented the Second Injury Fund. Sanofi Aventis ("Employer"), and its Insurer, previously settled with Claimant and did not participate in the hearing.

The parties stipulated to the following:

1. On or about October 14, 2009, Claimant sustained an occupational disease arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in Saint Louis County.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.; Venue is proper in the City of Saint Louis; Employer received proper notice of the claim; and Claimant filed the claim within the time allowed by law.
3. The average weekly wage at the date of injury was sufficient to result in compensation rates of $\ 380.47 for temporary total disability ("TTD"), and $\ 380.47 for permanent partial disability ("PPD").
4. Employer did not pay any TTD, but did pay medical expenses totaling $\ 6,666.87.
5. Claimant and the Second Injury Fund stipulated to certain degrees of PPD, as indicated later in this Award.

The issue to be determined is the liability of the Second Injury Fund. The Second Injury Fund alleges it has no liability because an occupational disease is not a compensable "injury."

Claimant offered the following exhibits, which were received into evidence without objection:

A. Stipulation for Compromise Settlement - Primary Injury

B. Dr. Shawn Berkin - Medical Report

C. Dr. David Brown - Medical Records

D. Signature Health Services - Medical Records

The Second Injury Fund did not offer any additional exhibits

1. Claimant testified live. Her testimony was credible. She is a woman in her mid-50's who worked as a packaging agent for Employer.
2. In October 2009, Claimant sustained an injury due to repetitive motion arising out of and in the course of employment that resulted in injury to Claimant's right hand. The diagnosis was carpal tunnel syndrome.
3. Claimant received medical care as described in Exhibits B and C, including surgery.
4. Claimant and Employer settled the workers' compensation claim arising out of the accident for 15 % of the right wrist.
5. Claimant has the following limitations or complaints regarding the work injury: She has pain in her hand to her elbow; She wears a brace and cannot open jars; She has numbness, swelling and weakness.
6. Prior to the date of injury, Claimant had the following disabling injuries or conditions:

a. In 2005, Claimant sustained an injury to her left knee, which was problematic prior to that time. Claimant received medical care as described in Exhibits B and D, including surgery and injections. She has symptoms of pain, swelling, popping, limited range of motion, and the inability to squat or kneel. The injury was disabling and constituted a hindrance and obstacle to employment. Claimant and the Second Injury Fund agreed that the preexisting permanent partial disability associated with Claimant's left knee was 171 / 2 % PPD of the left knee.

b. In 2006, Claimant was diagnosed with osteonecrosis of the right hip, and in June 2006, she underwent a right total hip arthroplasty. Claimant received medical care as described in Exhibits B and D. She continues to have pain, sleep disruption, trouble getting up and down from the floor, and difficulty climbing steps. The condition was disabling and constituted a hindrance and obstacle to employment. Claimant and the Second Injury Fund agreed that the preexisting permanent partial disability associated with Claimant's right hip is 40 % PPD of the right hip.

1. Dr. Shawn Berkin examined Claimant, took a history, and issued a report. He found Claimant sustained an accident arising out of and in the course of employment that resulted in injury to Claimant. He provided the following ratings of permanent partial disability, and opined the combination of disabilities was significantly greater than their simple sum:

a. With respect to the primary injury: 30 % of the right wrist.

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

i. 45 % of the left knee; and

ii. 65 % of the right hip.

Claimant has established a right to recover from the Second Injury Fund. A claimant in a worker's compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo.App. E.D.2008). In order for a claimant to recover against the SIF, he must prove that he sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial disability. § 287.220.1 RSMo. A claimant must also prove that he had a pre-existing permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or reemployment should he become unemployed; and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 % for major extremities. Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App. E.D. 2008)(citations omitted). In order for a claimant to be entitled to recover permanent partial disability benefits from the Second Injury Fund, he must prove that the last injury, combined with his pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004).

Although it has stipulated to the basic elements of the case, the Second Injury Fund asserts a legal defense that would absolve it of any liability in cases such as this. The Second Injury Fund argues that when the legislature changed the construction of the Mi