Martha Satterfield v. Carlisle Power Transmission

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-098713

Employee: Martha Satterfield

Employer: Carlisle Power Transmission (Settled)

Insurer: New Hampshire Insurance Co./AIG (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 30, 2016. The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 30, 2016, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $\qquad 7th \qquad$ day of July 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

1. Value necessary medical aid paid to date by employer/insurer? $\ 3,763.80.
2. Value necessary medical aid not furnished by employer/insurer? N/A.
3. Employee's average weekly wages: Sufficient to yield the maximum permanent partial disability rate.
4. Weekly Compensation Rate: $\ 446.85.
5. Method wages computation: By agreement.

1. Amount of compensation payable:

Settled as to Employer.

1. Second Injury Fund liability: Yes.

22.45 weeks $x \$ 446.85=

TOTAL: \mathbf{\$ 1 0 , 0 3 1 . 7 8 .}$

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John Newman, Esq.

The parties appeared before the undersigned Administrative Law Judge on November 8, 2016, for a Final Hearing in Springfield, Missouri, to determine the liability of the Second Injury Fund in the matter of Martha Satterfield. Attorney John Newman represented Ms. Satterfield. Assistant Attorney General Skyler Burks represented the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund. Carlisle Companies and its insurer previously settled with Ms. Satterfield and did not participate in the hearing. The parties stipulated to the following:

1. On December 20, 2013, Martha Satterfield (Claimant) sustained an accidental injury arising out of and in the course of her employment with Carlisle Companies (also referenced as Carlisle Power Transmission), a Missouri employer fully insured with New Hampshire Insurance Company/AIG Workers’ Compensation (hereafter referenced collectively as Employer).
2. The injury occurred while Claimant was working in Springfield, Greene County, Missouri. Venue and jurisdiction are proper.
3. Employer and Claimant were subject to the Missouri Workers’ Compensation Law on the date of the injury.
4. Employer received proper notice of the injury. The claims against Employer and the Second Injury Fund were filed timely.
5. The average weekly wage at the date of injury was sufficient to yield a permanent partial disability rate of $\ 446.85.
6. Employer paid medical expenses totaling $\ 3,763.80, and temporary disability of $\ 7,329.65.
7. As a result of the work injury on December 20, 2013, Claimant sustained a 16.5 percent permanent partial disability to the right foot at the 150-week level.

The parties agree that the following are the issues for the hearing:

- Does the Second Injury Fund have liability?

- If yes, what is the nature and extent of that liability?

The following exhibits were offered and received into evidence without objection:

1. Stipulation for Compromise Settlement with Employer approved September 13, 2016
2. Medical Report of Dr. David Volarich, with exhibits

I. Deposition of Martha Satterfield

Claimant testified credibly. Claimant is 72 years old. She had been employed with Carlisle Power Transmission (also known as Carlisle Companies) for at least 20 years. She has held a number of different production jobs during her employment there. On December 20, 2013, she was working as a packer, which was a physically-demanding position. About 10:30 p.m., after having worked more than six hours of her shift, she sustained a work injury. It occurred when the steel toe of her shoe caught on the corner of a pallet. This thrust her forward and toward a large cloth-like buggy. While the buggy broke her fall, Claimant's foot was yanked from underneath the pallet, causing a metatarsal fracture.

Employer provided appropriate medical treatment. Because no light duty was available within Claimant's doctor-imposed restrictions, she was off work for several months. Conservative treatment eventually allowed Claimant to return to work; however, she continued to have physical problems as a result of the injury of December 20, 2013.

Claimant explained that her job requires extensive standing. Extensive standing exacerbates her pain. Even when sitting, Claimant will sometimes have shooting pains in her lower extremity. Consequently, she now must take rest breaks when possible to alleviate the discomfort in her foot. She has to keep her eyes on the floor to avoid additional falls. She previously walked five miles multiple times a week for fitness; she now can walk no more than half that distance. She no longer can run. She takes over-the counter and prescription medications (tramadol) for relief of the foot pain, as well as for other conditions.

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[^0]: ${ }^{1}$ Only evidence necessary to support the Award is included in the Findings of Fact. Objections not previously addressed now are overruled. The Administrative Law Judge made no marks or highlights in any of the exhibits.

As Claimant testified, she long has had problems with her hands, including weakness and constant aching. She must wear braces to perform her job. ${ }^{2}$ Even then she often drops things. She cannot perform everyday tasks, such as opening jars or driving her vehicle, without aching in her left hand. While she had no doctor-imposed restrictions to her hands before December 20, 2013, the deformity in her hands and the pain was extant long before the primary or last work injury. Medical records reveal that Dr. Wyrsch had diagnosed osteoarthritis as early as March 13, 2006. Even a cursory look at Claimant's knotted fingers reveals significant deformity. It is apparent even to a layman that the osteoarthritis has caused a severe disability in Claimant's hands and has affected her ability to perform the hand-intensive activities.

On November 25, 2015, Dr. David Volarich examined Claimant, took a history, and issued a report. Dr. Volarich asserted that Claimant had an accident arising out of and in the course of employment that resulted in injury and disability to Claimant's foot. With respect to Claimant's primary or last work injury occurring on December 20, 2013, Dr. Volarich found that Claimant had suffered a fracture of the right foot at the first metatarsal and "continues to experience difficulties from this injury." Upon Dr. Volarich's inquiry, Claimant advised the rating physician that standing all day on concrete had caused her more pain, inhibited her in quick movements, and required her to be more careful in taking steps. She also explained that she requires rest for her foot while on breaks and during slow times.

Dr. Volarich concluded that Claimant's injury to her right foot, resulting from the December 20, 2013, work accident, resulted in a 25 percent permanent partial disability at the level of the first metatarsal. This rating took into consideration Claimant's ongoing pain and difficulty with prolonged weight-bearing and impact activities.

Dr. Volarich also identified preexisting disabilities to each hand as a result of degenerative arthritis. Xrays demonstrated osteoarthritis of the PIP joints, with an angular deformity at the base of the articular surfaces. Dr. Volarich noted that Claimant had "significant pain" in her hands in all of her joints. Claimant had reported to Dr. Volarich that the deformity in her hands started when she was assigned to work with gas hoses shortly after being employed with Carlisle in 1996. She noted grip weakness and difficulty with fine motor activities. She reported to Dr. Volarich that she had a hard time opening jars, dropped small items, and experienced difficulty lifting heavy items. While she could drive, she had to switch hands. She began wearing splints at work. Despite these ongoing hand symptoms, Claimant continued to work full duty. With respect to the preexisting disabilities, Dr. Volarich said Claimant had suffered a 25 percent permanent partial disability to each hand as a result of advanced arthritic changes causing pain and weakness. Dr. Volarich found these preexisting disabilities to the hands were a hindrance to Claimant's employment or reemployment. Finally, Dr. Volarich opined:

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[^0]: ${ }^{2}$ During her deposition taken on August 30, 2016, the Assistant Attorney General asked Clamant whether she was having "any trouble with your right foot" leading up to December $20^{\text {th }}$ of 2013. Claimant responded, "No." The Assistant Attorney General then asked whether Claimant was having any trouble performing her job duties or "just doing her your own personal life" because of "any physical issues" prior to December 20, 2013. Claimant again responded, "No." (Exhibit I, pp. 51-52). At trial, Claimant explained that she believed the questioning pertained only to any physical issues involving the right foot, Having personally observed her testimony, I find Claimant's explanation credible.

The combination of her disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added.

The ratings of disability or disabilities in this report have been established by medical findings, demonstrated by this examiner and are certified by this examiner, a board certified and licensed physician in the state of Missouri.

With respect to the primary or last work injury, the Second Injury Fund stipulated that it resulted in a 16.5 percent permanent partial disability to the right foot at the 150 -week level. This is consistent with the stipulation for compromise settlement previously reached between Claimant and Employer/Insurer. I accept this stipulation as an accurate assessment of the degree of disability from the primary injury.

I find Dr. Volarich credible in all other respects. I accept his assessment of disability regarding the preexisting injuries to the right and left hands. I find Claimant suffered a preexisting 25 permanent partial disability to each hand due to degenerative osteoarthritis. I also find credible his assessment that the preexisting and primary disabilities combine synergistically and a loading factor is warranted due to the multiple extremities involved. Given the involvement of the three extremities, I find this to be a unique instance in which a 20 percent loading factor is warranted.

In making these findings, I have considered Claimant's credible testimony and Dr. Volarich's report. In particular, I note Dr. Volarich's extensive findings on pages 2 through 4 of his report outlining Claimant's job duties and how her injury obviously impacts her ability to perform her job. As Dr. Volarich recited, Claimant's work duties require her to kneel, stand, squat, walk, sit, climb, and bend. He specifically summarized Claimant's complaints that standing all day on concrete now causes pain in her foot. She is forced to rest her feet during each of her work breaks, despite wearing shoes with wide soles and arch supports. She cannot move as quickly, and she has to be more careful where she steps.

Dr. Volarich continued to detail in his report Claimant's numerous hand-intensive duties, including the need to lift 40 to 50 pounds, reach, carry, push, and pull. He specifically noted that Claimant's arthritic hands had such weakness that Claimant had trouble gripping and holding items, and she required the use of splints and medication to get through the workday.

While prior to the work injury (and continuing thereafter) Claimant experienced pain in performing handintensive work, now she also has increased pain performing those aspects of her job requiring extensive standing on concrete due to her fractured foot. The reasonable inference is that a person who has significant pain and problems performing hand-intensive tasks will find those tasks substantially more difficult when she cannot rely on her lower extremities because of yet another injury. Certainly, the evidence is sufficient to support Dr. Volarich's opinion that the combination of disabilities to Claimant's three extremities (foot and two hands) results in not just an additive disability, but an overall disability much greater than the simple sum of each individual disability.

Claimant must prove all elements of her claim to a reasonable probability. Cardwell v. Treasurer, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). To recover against the Second Injury Fund, she must prove she sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial

disability. § 287.220.1 RSMo. ${ }^{3}$ She also must prove that she has a preexisting permanent partial disability that (1) existed when the last injury was sustained, (2) was of such seriousness as to constitute a hindrance or obstacle to her employment or reemployment should she become unemployed, and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 percent 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). Finally, she must demonstrate that the last injury, when combined with her preexisting permanent partial disability, causes a 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). "Where the statute applies, the employer is liable only for the amount of disability caused by the current injury, and the fund is liable in the amount of the increase in disability caused by the synergistic effect of the two injuries." Pierson v. Treasurer of State, 126 S.W.3d 386, 389 (Mo. banc 2004), as modified on denial of reh'g (Feb. 24, 2004). When the facts fall within the realm of lay understanding, a Claimant's testimony may constitute substantial evidence of the nature, cause, and extent of disability. Claspill v. Fed Ex Freight E., Inc., 360 S.W.3d 894, 897 (Mo. App. S.D. 2012). Claimant has met this burden imposed by law.

The Second Injury Fund has argued that Claimant failed to sustain her burden of proof on the issue of synergism. The Fund contends that it is not enough for Dr. Volarich to opine that the combination of the disabilities is greater than their simple sum. The Fund argues that there must be evidence explaining how the preexisting and primary disabilities combine. In support of its position, the Fund provided the Administrative Law Judge with citations to the following cases. Each of these cases is distinguishable from the instant case.

In Winingear v. Treasurer, 474 S.W.3d 203 (Mo. App. W.D. 2015), the "Commission specifically did 'not find Dr. Cohen's opinion in this case as to the synergistic effect to be credible or persuasive.' " Id. at 209. The Court of Appeals affirmed the Commission's Award denying Second Injury Fund benefits, determining it was bound by the Commission's credibility determination on expert witnesses. By contrast in this case, after a review of all of the evidence and the reasonable inferences drawn there from, I specifically have found Dr. Volarich's opinion to be credible and persuasive on the issue of synergism.

In Brown v. Treasurer, 795 S.W.2d 479 (Mo. App. E.D. 1990), the evidence was either, as stated by Brown and confirmed by Drs. Stronsky, Conrad, and Levy, that the combination of the two permanent partial disabilities resulted in permanent total disability, or as reported by Dr. Graff, the two permanent partial disabilities considered independently did not result in permanent total disability. "The only evidence that Brown was not totally and permanently disabled was the report of Dr. Graff. But despite the fact that he was retained by the Second Injury Fund, Dr. Graff did not address the effect of combining the two disabilities, he merely rated each disability separately and independently." 705 S.W.2d at 483. Thus, the appellate court determined that the Commission erred in awarding enhanced permanent and partial disability against the Second Injury Fund because there was no evidence to support such award.

Dr. Graf's report was similarly problematic in the case of Robert Dawson v. Treasurer, Injury No. 85153664 (Mo.Lab.Ind.Rel.Com. 1992), also cited by the Second Injury Fund. There, the Administrative Law Judge awarded permanent total disability against the employer, finding that the preexisting disabilities were not "industrially disabling." On appeal, the Commission modified the Administrative Law Judge's decision and awarded permanent total disability as against the Second Injury Fund. In so ruling, the Commission observed that the report of Dr. Graf (the Fund's expert) had the same deficiency

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[^0]: ${ }^{3}$ All statutory references are to the law in effect on the date of the last injury.

as the one in Brown, supra, and was not helpful in determining the Fund's liability. It bears repeating that Dr. Graf's error was that he gave no opinion on the synergistic effect of two partial disabilities.

Finally, the Fund cites the Commission decision in Jeremy Reynolds v. Treasurer, Injury No. 4410520 (Mo.Lab.Ind.Rel.Com. 2015). In that case, although Dr. Volarich opined that the preexisting and primary disabilities combined synergistically, the Administrative Law Judge simply did not find such evidence credible. "[C]laimant did not provide credible and convincing evidence that the disability from the January 2012 ankle injury ( 3 % of the left ankle/ 4.65 weeks) combined synergistically with his preexisting disabilities to create an overall greater disability than their simple sum." The Labor Commission affirmed with a separate opinion. In so doing, the Commission stated as follows:

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).

(Slip. Op. 2).

The instant case is unlike Reynolds in which the last injury was nearly insignificant, thus making expert's opinion on synergism suspect and subject to particular scrutiny. To the contrary, Ms. Satterfield's foot fracture in the instant resulted in a settlement rating of 16.5 percent at the 150 -week level. The injury left her with appreciably more pain and limitations than she had with her preexisting conditions. Dr. Volarich gave a thorough narrative of Claimant's job duties, her limitations, and need for accommodations to get through the workday, such as orthotics, braces, and additional rest periods. Claimant testified to increased pain as well as the postural and mobility problems associated with the last accident. As the Commission noted in Reynolds, the synergistic interaction between bilateral extremity injuries normally is within the realm of lay understanding. That is precisely the situation in this case. The synergistic effect between Claimant's significant disabling conditions in three extremities certainly is "within the realm of lay understanding" in this case.

Moreover, when determining a Claimant's disability, the Administrative Law Judge may consider all of the evidence, as well as the reasonable inferences that can be drawn from lay testimony. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 239 (Mo. App. S.D. 2003). Drawing reasonable inferences from the credible testimony of Claimant, it is apparent that Claimant's disability from the last accident, when combined with the preexisting hand disabilities, creates a disability much greater than the simple sum of the individual disabilities. Dr. Volarich serves to bolster Claimant's testimony. The Second Injury Fund has presented no credible evidence suggesting otherwise.

I find and conclude that the combination of the preexisting and primary disabilities is greater than their simple sum in this case. I calculate the Second Injury Fund's liability as follows:

Primary Disability (right foot):

$16.5 \% \times 150-week level =24.75 weeks

Preexisting Disability (right hand):

25.0 \% \times 175-week level =43.75 weeks

Preexisting Disability (left hand):

25.0 \% \times 175-week level =\underline{43.75} weeks

Simple Sum:

112.25 \mathrm{weeks}

Multiplied by the loading factor:

x \frac{.20}{22.45 \text { weeks }}$

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Martha Satterfield

Injury No.: 13-098713

The Second Injury Fund is liable to Claimant for 22.45 at the stipulated permanent partial disability rate of $\ 446.85, for a total of $\ 10,031.78.

Attorney John Newman shall have a lien of 25 percent of this amount as a reasonable fee for necessary legal services rendered to Claimant.

Made by: $\qquad$

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation