Angela Voges-Burkhardt v. Kuna Food Services

and 17 % of each elbow, plus a 10 % load. Employee credibly testified (and we so find) that she continues to experience problems with her bilateral wrists and elbows. Employee's hands go numb at night. Employee is unable to use a computer for more than a couple of hours and does not use a keyboard to type at all. Employee's elbows get achy when she lifts things. We find the ratings reflected in the settlement to be persuasive. We find that, at the time of the primary injury, employee suffered permanent partially disabling conditions affecting her bilateral upper extremities to the extent of 17 % of each elbow and 17 % of each hand.

On October 9, 2000, employee suffered an injury to her left shoulder; she settled a workers' compensation claim arising from this injury for 17 % of the left shoulder. Employee credibly testified (and we so find) that she continues to experience problems with her left shoulder. Employee experiences aching pain in her left shoulder when she sleeps. We find the rating reflected in the settlement to be persuasive. We find that, at the time of the primary injury, employee suffered a 17 % permanent partial disability of the left upper extremity at the 232 -week level.

Although it's true, as the administrative law judge noted, that employee endorsed significant relief of her low back symptoms when she saw Dr. Du on January 10, 2006, we note that this was less than one month after injections performed on December 16, 2005, and that Dr. Du's diagnosis remained L4-5 disc protrusion.

We note also that Dr. Cantrell's opinions in this case conflict with the opinions of all other experts, including Dr. Lange, who was retained by the employer. We find that Dr. Cantrell's opinions are against the weight of the evidence and are not particularly credible. On the other hand, we find that the opinions expressed by Dr. Lange, and supported by Drs. Kitchens and Margolis, are persuasive and justify a finding that employee suffered more than a mere strain/sprain injury on April 29, 2005.

Accordingly, we conclude that employee's work for employer was a substantial factor causing her to sustain an L4-5 disc herniation as well as a 25 % permanent partial disability of the low back as a result of the April 29, 2005, work injury.

We find persuasive and adopt the opinion from Dr. Margolis that employee's preexisting bilateral upper extremity problems constituted hindrances and obstacles to employment, and that these conditions combine synergistically with the effects of the work injury. We find that a 10\% load factor is appropriate to represent the synergistic combination of employee's preexisting and primary disabilities.

Section 287.220.1 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." That section provides that a preexisting disability must meet certain thresholds before Second Injury Fund liability is triggered.

We have found that, at the time employee sustained the compensable work injury, she suffered from permanent partially disabling conditions affecting her bilateral upper extremities to the extent of 17 % of each elbow and 17 % of each hand, as well as 17 % of the left shoulder. We have also found that employee's primary injury amounts to a 25 % permanent partial disability of the body as a whole referable to the low back. Each of these conditions meet the applicable thresholds under § 287.220.1. We have credited Dr. Margolis's opinion that employee's preexisting upper extremity problems constituted hindrances or obstacles to employment at the time the last injury was

sustained. We have also credited Dr. Margolis's opinion that employee's low back injury combines synergistically with the preexisting bilateral upper extremity conditions. We conclude that the Second Injury Fund is liable for permanent partial disability benefits.

We calculate Second Injury Fund liability as follows. Employee's primary injury resulted in 25\% permanent partial disability of the body as a whole referable to the lumbar spine, or 100 weeks of permanent partial disability. Employee's preexisting permanent partially disabling conditions total 170.34 weeks of permanent partial disability. The sum of preexisting and primary permanent partial disability is 270.34 weeks. When we multiply the sum by the 10 % load factor, the result is 27.03 weeks.

The Second Injury Fund is liable for 27.03 weeks of permanent partial disability benefits at the stipulated rate of $\ 297.76, for a total of $\ 8,048.45.

We modify the award of the administrative law judge as to the issues of the nature and extent of disability resulting from the primary injury and Second Injury Fund liability.

The Second Injury Fund is liable for permanent partial disability benefits in the amount of $\ 8,048.45.

The award and decision of Administrative Law Judge Suzette Carlisle, issued January 5, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of an 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 $26^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Angela Voges-Burkhardt ${ }^{1}$

Injury No.: 05-040151

Dependents: N/A

Before the

Employer: Kuna Food Services

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional : Second Injury Fund (Denied)

Insurer: Commerce \& Industry Ins. Co./

Chartis Claims, Inc.

Hearing Date: October 22, 2010

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: April 29, 2005
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 injured her low back when she lifted a lug (tub) of chicken at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 10 % PPD referable to the low back
15. Compensation paid to-date for temporary disability: $\ 570.54
16. Value necessary medical aid paid to date by employer/insurer? $\ 10,898.63

[^0]

[^0]: ${ }^{1}$ The Division's records reflect Claimant's name as Angela Voges however she testified that she was married in 2007 and her last name is now Burkhardt.

Employee: Angels Voges - Burkhardt

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 446.65
3. Weekly compensation rate: $\$ 297.76 / \ 297.76
4. Method wages computation: Agreement

1. Amount of compensation payable:

(0) weeks of temporary total disability (or temporary partial disability)

NONE

40 weeks of permanent partial disability from Employer

$\ 11,910.40

1. Second Injury Fund liability: No

TOTAL:

$\ 11,910.40

1. Future requirements awarded: None

Said payments to begin 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: Nile D. Griffiths

Employee: Angela Voges-Burkhardt

Injury No.: 05-040151

Dependents: N/A

Employer: Kuna Food Services

Additional : Second Injury Fund (Denied_

Injury No.: 05-040151

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A hearing was held at the Missouri Division of Workers’ Compensation (DWC), St. Louis office at the request of Angela Voges-Burkhardt (Claimant), on October 22, 2010, pursuant to Section 287.450 RSMo (2005). ${ }^{2}$ Claimant seeks a final award for permanent total disability (PTD) against the Employer or the Second Injur