| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Raymond Priest |
| Employer: | Breckenridge Material Co., Inc. (Settled) |
| Insurer: | Liberty Mutual Fire 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 § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. |
| Preliminaries |
| The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability. |
| The administrative law judge determined that the Second Injury Fund is liable for 30.4 weeks of permanent partial disability benefits. |
| Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in failing to find preexisting disability due to hearing loss and a synergistic effect based thereupon; and (2) in failing to include permanent partial disability referable to employee’s preexisting conditions of restless leg syndrome and periodic limb movement disorder, diabetes, hyperlipidemia, hypertension, congestive heart failure, and obesity in his calculation of Second Injury Fund liability.For the reasons stated below, we modify the award of the administrative law judge referable to the issue of Second Injury Fund liability. |
| Discussion |
| The administrative law judge’s award sets forth the stipulations of the parties and the administrative law judge’s findings of fact and conclusions of law referable to the numerous issues disputed at the hearing. We adopt and incorporate those findings and conclusions to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact and conclusions of law pertinent to our modifications herein. |
| Second Injury Fund liability |
| It is uncontested that employee has suffered from significant hearing deficits since childhood. The administrative law judge determined, however, that he could not calculate employee’s preexisting disability referable to hearing loss because “[t]he |
Injury No. 10-097781
Employee: Raymond Priest
- 2 -
hearing loss allegation is not predicated on the statutory and regulatory requirements for calculating hearing loss PPD[.]" Award, page 5. We disagree with the administrative law judge's (implied) conclusion that the requirements for proving occupational hearing loss under § 287.197 RSMo and 8 CSR 50-5.060 apply for purposes of determining the nature and extent of preexisting hearing loss in the context of calculating Second Injury Fund liability. By its plain terms, § 287.197 applies only to claims against an employer for "losses of hearing due to industrial noise." Here, employee is not pursuing a claim for industrial hearing loss against his employer, but rather a claim against the Second Injury Fund for the synergistic interaction between his primary injury and the hearing loss he has suffered since childhood.
The Second Injury Fund concedes that § 287.197 does not apply to this claim, but argues that we should nonetheless require employee to satisfy the requirements of 8 CSR 505.060, which would include providing the results from three separate audiograms. We are not persuaded. The plain language of 8 CSR 50-5.060, like that of § 287.197, refers to an employer's liability for occupational hearing loss. Specifically, 8 CSR 50-5.060(4) provides that "[t]raumatic occupational hearing losse(s) shall be measured as prescribed in section 287.197, RSMo and this rule." Nothing in the regulation requires (or even suggests) that its provisions apply to a claim asserting synergistic disability against the Second Injury Fund for preexisting hearing loss not caused by an occupational injury. As employee points out, both § 287.197 and 8 CSR 50-5.060 require the fact-finder to account for and deduct, in calculating permanent partial disability, preexisting hearing loss and hearing loss due to age, neither of which considerations make sense in the context of assessing an employee's preexisting permanent partial disability for purposes of Second Injury Fund liability. We note also that neither § 287.197 nor 8 CSR 50-5.060 would permit us to include considerations such as disability referable to a speech impediment or other disorder linked to hearing loss, whereas nothing in § 287.220.1 RSMo would prevent us from including (if satisfactorily proven) preexisting permanent partial disability referable to such conditions. We conclude, therefore, that § 287.197 and 8 CSR 50-5.060 do not apply to claims against the Second Injury Fund alleging hearing loss due to non-occupational sources.
Turning to the testimony from Dr. Poetz, however, we note that he rendered his opinions regarding synergy in a purely conclusory fashion, and did not specifically describe or explain the interaction between employee's preexisting hearing loss-or, for that matter, any other of his preexisting conditions-and employee's primary injuries to the left shoulder and cervical spine. It is well-established that an award of workers' compensation benefits cannot rest upon mere speculation and surmise. Griggs v. A. B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). And the Missouri courts have declared that an employee fails to meet his burden of proof where his expert "fail[s] to provide any legitimate, persuasive explanation ... making only conclusory and unsupported statement[s]." Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 378 (Mo. App. 2006).
On the other hand, the Second Injury Fund has not challenged the administrative law judge's determination that a loading or synergy factor would be appropriate in this case. And, although Dr. Poetz's conclusory testimony regarding synergy is, in our view, entitled to little weight, we cannot conclude in the absence of any contrary expert medical testimony that it is entirely "weightless." Given these circumstances, we deem
a finding of synergy to be adequately supported, and we calculate Second Injury Fund liability, as follows:
140 weeks ( 35 % of the body as a whole referable to the combined effect of each of employee's preexisting conditions of ill-being including hearing loss, low back pain, sleep apnea, restless leg syndrome and periodic limb movement disorder, diabetes, obesity, hyperlipidemia, hypertension, and congestive heart failure) +20 weeks ( 5 % of the body as a whole referable to the cervical spine) +69.6 weeks ( 30 % of the left shoulder) $=229.6$ weeks \times 15 % loading factor $=34.44 weeks \times \ 418.58 weekly compensation rate for permanent partial disability benefits $=\ 14,415.90.
We conclude the Second Injury Fund is liable for $\ 14,415.90 in permanent partial disability benefits.