Jeremy Reynolds v. Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 13-048443

Employee: Jeremy Reynolds

Employer: Fulton State Hospital (Settled)

Insurer: C A R O (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 $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

On July 11, 2013, employee reinjured his post-operative left ankle when he stepped on a pallet while working for employer. Dr. John Krause reviewed an MRI showing employee's preexisting ligament reconstruction was still intact, and diagnosed an ankle sprain. Employee settled his claim against the employer/insurer based upon an approximate 7.5\% permanent partial disability of the left ankle at a customized " 91.45 week level," apparently to account for the fact employee's ankle was already compromised. Transcript, page 52. Employee seeks enhanced permanent partial disability benefits from the Second Injury Fund based on an alleged synergistic interaction between the effects of the primary left ankle injury and preexisting permanent partially disabling conditions affecting his groin, left ankle, left wrist, and right knee.

The administrative law judge found that employee suffered a preexisting 3.5 % permanent partial disability of the left wrist, ${ }^{1}$ a preexisting 10 % permanent partial disability of the body as a whole referable to the groin, ${ }^{2}$ a preexisting 41 % permanent partial disability of the left ankle, ${ }^{3}$ and a preexisting 15 % permanent partial disability for the right knee; ${ }^{4}$ she also

[^0]

[^0]: ${ }^{1}$ In 2012, employee injured his left wrist when he fell during a scuffle with a combative patient. Dr. Eddie Runde diagnosed a left wrist and left pinkie finger sprain, and employee settled a claim against the employer/insurer based upon an approximate 3.5 % permanent partial disability of the left wrist.

${ }^{2}$ In 2011 a patient grabbed employee's groin area during a scuffle. Dr. Runde diagnosed a bilateral testicle and scrotum injury; Dr. Harmon later diagnosed orchialgia, orchitis, and epididymitis. Employee settled his claim against the employer/insurer based upon an approximate 10\% permanent partial disability of the body as a whole, plus 3.5 weeks of disfigurement.

${ }^{3}$ In 2008 employee suffered a torn anterior talofibular ligament while playing basketball with patients. He underwent three surgeries and settled his claim against the employer/insurer based upon an approximate 38\% permanent partial disability of the left ankle. In 2012 employee suffered another left ankle injury walking on uneven concrete while working for employer. Dr. Runde diagnosed a sprain with tears of the peroneal tendons, and employee settled his claim against the employer/insurer based upon an approximate 3\% permanent partial disability of the left ankle.

${ }^{4}$ In 2002 employee suffered a right knee meniscal tear injury stepping off a piece of equipment. He underwent an arthroscopic chondroplasty and medial plica synovectomy, and settled his claim against a prior employer based upon an approximate 15 % permanent partial disability of the right knee.

Found that employee suffered a 7.5% permanent partial disability of the left ankle at a customized 91.45 week level as a result of the primary injury, but denied the claim against the Second Injury Fund on a finding that employee failed to present any credible or convincing evidence of a synergistic interaction between the effects of the primary injury and employee's preexisting conditions of ill-being.

Employee filed a brief wherein he fails to identify any evidence of synergy, and instead cites the record for evidence of the complaints and symptoms referable to each of his injuries in isolation. We note that, at the hearing before the administrative law judge, employee's attorney did not ask him whether he experiences any enhanced disability from the combination of his preexisting conditions of ill-being with the effects of the work injury. We note also that the May 11, 2011, report from Dr. David Volarich does not (for obvious reasons) contain an opinion from the doctor regarding the primary injury of July 11, 2013, or identify any synergistic interaction between that injury and employee's preexisting conditions of ill-being. Our review of the medical treatment records in evidence does not readily disclose any findings indicative of synergy, and we will not parse them for such findings especially where employee does not, in his brief, provide us with any citations to evidence of synergy.

Typically, the synergistic interaction between bilateral extremity injuries (e.g., a left ankle and a right knee) would be well within the realm of lay understanding, but here employee has failed to provide any evidence of synergy, lay or expert. As a result, we must affirm the administrative law judge's award denying benefits from the Second Injury Fund, because an award of compensation cannot rest upon mere speculation or surmise. *Griggs v. A. B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. 1973).

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Vicky Ruth, issued February 11, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **15th** day of July 2015.

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No.
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: July 11, 2013.
5. State location where accident occurred or occupational disease was contracted: Fulton, Callaway County, Missouri.
6. Was above employee in the employ of above employer at the time of the 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 stepped on a pallet, tipped, and rolled his left ankle.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: left ankle.
14. Nature and extent of any permanent disability: 7.5 % of the left ankle (based on a 91.45 -week ankle due to prior disability).
15. Compensation paid to-date for temporary disability: N/A.

1. Value necessary medical aid paid to date by employer/insurer? N/A.
2. Value necessary medical aid not furnished by employer/insurer? N/A.
3. Employee's average weekly wages: N/A.
4. Weekly compensation rate: $\ 276.32.
5. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: Previously settled.
2. Second Injury Fund liability: None.
3. Future medical awarded: N/A.

On November 5, 2014, Jeremy Reynolds (the claimant) and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing regarding the Second Injury Fund claims in Injury Numbers 08-041325, 11-080366, 12-000434, 12-019268, and 13-048443. Claimant was represented by attorney Christine Kiefer. The Second Injury Fund was represented by attorney Maggie Ahrens. Claimant testified in person at the hearing. The parties submitted brief position statements on or about November 21, 2014, and the record closed at that time.

The parties stipulated to the following:

Injury No. 08-041325

1. On or about May 16, 2008, Jeremy Reynolds (the claimant) was an employee of Fulton State Hospital (the employer) when he sustained an injury by accident to his left ankle. This accident occurred while claimant was working in the course and scope of his employment with employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured by State of Missouri, in care of CARO.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's compensation rate of for permanent partial disability benefits was $\ 359.74.
8. Medical aid was provided.

1. On or about October 9, 2011, claimant was an employee of Fulton State Hospital (the employer) when he sustained an injury by accident to his body as a whole referable to the groin. This accident occurred while claimant was working in the course and scope of his employment with employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured by State of Missouri, in care of CARO.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant's compensation rate of for permanent partial disability benefits was $\ 425.19.
7. Medical aid was provided.

1. On or about January 7, 2012, the claimant was an employee of Fulton State Hospital (the employer) when he sustained an injury by accident to his left ankle. This accident occurred while claimant was working in the course and scope of his employment with employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured by State of Missouri, in care of CARO.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's average weekly compensation rate for permanent partial disability benefits was $\ 421.17.
8. Medical aid was provided.

1. On or about March 23, 2012, the claimant was an employee of Fulton State Hospi