Edmund Vogel v. Anheuser Busch Companies, Inc.

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.

The administrative law judge determined that employee failed to meet his burden of proving that his primary injury combined with his preexisting conditions of ill-being to result in permanent total disability for purposes of § 287.220.1 RSMo. After careful consideration, we agree. Employee alleges that he is permanently and totally disabled, in part, because of significant limitations in his ability to endure prolonged sitting or standing as of December 1, 2008, the date of the primary injury. We are not persuaded. The record contains a November 4, 2008, treatment note memorializing an annual checkup with employee's primary care physician, Dr. Kevin Smith. On that date, Dr. Smith found that employee was a healthy adult male, noted employee was doing well following carpal tunnel surgery, did not identify (or even mention) any sitting or standing restrictions or limitations, and noted that employee wanted to canoe the Mississippi river after his retirement in December. Especially in light of this evidence, we are not persuaded by the opinions from employee's experts on the subject of permanent total disability, at least with regard to any Second Injury Fund liability.

We note, however, that despite finding and rating preexisting permanent partial disability referable to employee's cervical spine, lumbar spine, and left shoulder, the administrative law judge left these disabilities out of her calculation of Second Injury Fund liability based on a finding that these "were insufficient to trigger SIF liability." *Award*, page 14. But in the case of *Treasurer of Missouri-Custodian of the Second Injury Fund v. Witte*, 414 S.W.3d 455 (Mo. 2013), the Supreme Court of Missouri held that only one of employee's preexisting conditions of ill-being must satisfy the statutory thresholds under § 287.220.1 to trigger Second Injury Fund liability, and that once an employee makes such a showing, all disability referable to preexisting conditions must be included in calculating Second Injury Fund liability. *Id.* at 467. Accordingly, in order to give effect to this relevant and controlling case law, we must modify the administrative law judge's award with respect to her calculation of Second Injury Fund liability.

We defer to and adopt the administrative law judge's findings as to the extent of permanent partial disability referable to employee's cervical and lumbar spines, left shoulder, bilateral knees, and bilateral wrists, as well as her choice to assign a 15% loading factor. We additionally find employee's preexisting permanent partial disability referable to the left hip equal to 5% permanent partial disability of the body as a whole, and find that this condition was serious enough to amount to a hindrance or obstacle to employment or reemployment. Consequently, applying *Witte*, we calculate Second Injury Fund liability, as follows:

26.26 weeks (15% of the right wrist) + 8.75 weeks (5% of the left wrist) + 72 weeks (45% of the right knee) + 48 weeks (30% of the left knee) + 23.2 weeks (10% of the left shoulder) + 20 weeks (5% of the body as a whole referable to the cervical spine) + 20 weeks (5% of the body as a whole referable to the lumbar spine) + 20 weeks (5% of the body as a whole referable to the left hip) = 238.21 weeks x 15% loading factor = 35.73

weeks $x \ 404.66 weekly compensation rate for permanent partial disability benefits $=\ 14,458.50.

We conclude the Second Injury Fund is liable for $\ 14,458.50 in permanent partial disability benefits.

We modify the award of the administrative law judge as to the issue of Second Injury Fund liability.

The Second Injury Fund is liable for $\ 14,458.50 in permanent partial disability benefits.

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 15, 2014, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission 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 $17^{\text {th }}$ day of June 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Hearing Date: September 15, 2014

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 1, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 sustained injury to his bilateral hands from repetitive computer work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral hands
14. Nature and extent of any permanent disability: 15 % permanent partial disability of the right wrist and 5\% permanent partial disability of the left wrist (Settled)
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for the rates listed in number 19.
3. Weekly compensation rate: $\$ 772.53 / \ 404.66
4. Method wages computation: Stipulated

1. Amount of compensation payable: (Employer settled prior to hearing)
2. Second Injury Fund liability: Yes

23.26 weeks of permanent partial disability from Second Injury Fund $\quad \ 9,412.40

TOTAL: $\quad \ 9,412.40

1. Future requirements awarded:

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: Attorney Phillip Tatlow

The parties listed below appeared before the undersigned administrative law judge on September 15, 2014, for a hearing for a final award at the request of Edmund Vogel ("Claimant") for permanent total disability ("PTD") benefits from the Second Injury Fund ("SIF"). Claimant appeared for the hearing, testified, and was represented by Attorney Phillip Tatlow. The SIF appeared represented by Assistant Attorney General Kristin Frazier. The court reporter was Ms. Jennifer Jett. The record closed on September 15, 2014 after presentation of all the evidence.

Anheuser Busch Companies, Inc. ("Employer"), is self-insured, and settled their case with Claimant prior to the hearing for 15 % permanent partial disability ("PPD") of the right wrist, and 5 % PPD of the left wrist, and did not participate in the hearing.

At the hearing the parties stipulated to the following:

1. On December 1, 2008, Claimant was employed by Employer in St. Louis City;
2. Claimant and Employer operated under the Missouri Workers' Compensation Law; ${ }^{1}
3. Employer's liability was fully self-insured, { }^{2}$
4. Employer received proper notice of an injury,
5. A claim for compensation was timely filed,
6. Claimant's average weekly wage was sufficient to result in the following benefit rates: $\ 772.53 for temporary total disability ("TTD") and permanent total disability ("PTD") and $\ 404.66 for PPD,

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[^0]: ${ }^{1}$ Statutory references in this award are to Chapter 287 of the Revised Statu