Bruce Krysl v. Veiled Prophets of St. Louis

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 13-104992

**Employee:** Bruce Krysl

**Employer:** Veiled Prophets of St. Louis (Settled)

**Insurer:** New Hampshire Insurance Company (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 parties' arguments, and considered the whole record. Pursuant to § 286.090, RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the issue of Second Injury Fund liability.

The administrative law judge determined that the Second Injury Fund is liable for 23.398 weeks of permanent partial disability benefits.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred because the Workers' Compensation law, as amended in 2013, does not allow an award of permanent partial disability benefits against the Second Injury Fund for occupational disease claims filed after January 1, 2014.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

On January 1, 2013, employee sustained an occupational disease (carpal tunnel syndrome) arising out of and in the scope of his employment with employer. Employee was previously diagnosed with diabetes. On July 5, 2016, employee filed an occupational disease claim for workers' compensation seeking permanent partial disability benefits from the Second Injury Fund.

Due to the date of the filing of employee's claim, § 287.220.3(1), RSMo, applies in this matter. It provides as follows:

1. All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

Injury No.: 13-104992

Employee: Bruce Krysl

- 2 -

The dispositive portion in this section refers to "all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection."1 We understand this language to mean that when one (1) files a workers' compensation claim (2) against the Second Injury Fund where (3) the subsequent compensable injury is an occupational disease and (4) the filing date is after January 1, 2014, then § 287.220.3, RSMo, applies.2

Here, employee's claim against the Second Injury Fund involves a subsequent compensable injury which is an occupational disease. Employee filed his claim on July 5, 2016. Therefore, § 287.220.3, RSMo, applies in this matter.

Here, employee is only seeking permanent partial disability against the Second Injury Fund. Pursuant to § 287.220.3(2), RSMo, employee's claim for permanent partial disability is not allowed against the Second Injury Fund. The subsection provides as follows:

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund.

Because § 287.220.3, RSMo, prevents employee's claim for permanent partial disability against the Second Injury Fund, as a matter of law, we must deny employee's claim. All other issues are moot.3

**Decision**

We reverse the award of the administrative law judge.

Employee's occupational disease claim against the Second Injury Fund for permanent partial disability is denied because it is barred by § 287.220.3, RSMo.

1 Although this particular issue is a matter of first impression, one Missouri appellate court stated, "with respect to claims involving occupational diseases, the legislature specifically used the phrase 'subsequent compensable injury' to describe when the 2013 modification to the law applies to the employee's claim." *Gattenby v. Treasurer*, 516 S.W.3d 859, 862 (Mo. App. 2017). The *Gattenby* court did not involve an occupational disease claim. However, the court noticed different wording in the statute for claims against the Second Injury Fund that involved an occupational disease as the subsequent compensable injury, noting that the focus on the filing date, instead of the date of injury, indicated that in such occupational disease claims, "it matters not when the 'preexisting' injury occurred." *Id.* at 862 n.3. We also note that the Chairman of the Commission was a member of the 97th General Assembly and voted on the exact changes. This exact fact pattern was expressly contemplated during the debate and was meant to be covered by the plain language in § 287.220.3, RSMo.

2 We note that the administrative law judge did not apply the law as amended in 2013, but the law as provided in 2005. The 2013 law is the appropriate law for this matter as the claim was filed on July 5, 2016.

3 We acknowledge that parties stipulated to the date of injury of the occupational disease as January 1, 2013. However, the stipulation does not change the filing date. Nor does such stipulation prevail over the language of the statute.

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The award and decision of Administrative Law Judge John K. Ottenad, issued May 18, 2018, is attached solely for reference.

Given at Jefferson City, State of Missouri, this 17th day of January 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- Robert W. Cornejo, Chairman

- Reid K. Forrester, Member

- Curtis E. Chick, Jr., Member

Attest:

- Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-104992

AWARD

Employee: Bruce Krysl

Injury No.: 13-104992

Dependents: N/A

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Employer: Veiled Prophets of St. Louis (Settled)

Additional Party: Second Injury Fund

Insumer: New Hampshire Insurance Company

C/O AIG Claims, Inc. (Settled)

Hearing Date: February 13, 2018

Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: January 1, 2013

1. State location where accident occurred or occupational disease was contracted: St. Louis City

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant

was employed as a sculptor for Employer and after his years of performing hand-intensive, repetitive work

with his right hand, he developed right wrist carpal tunnel syndrome.

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right Wrist

1. Nature and extent of any permanent disability: 21.25% of the Right Wrist

1. Compensation paid to-date for temporary disability: $3,120.00

1. Value necessary medical aid paid to date by employer/insurer? $13,872.84

WC-32-R1 (6/81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-104992

Employee: Bruce Krysl

Injury No.: 13-104992

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Sufficient to result in applicable rates of compensation

1. Weekly compensation rate: $433.58 for TTD/$433.58 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer previously settled its risk of liability

1. Second Injury Fund liability:

23.398 weeks of permanent partial disability

10,144.90

TOTAL: 10,144.90

1. Future requirements awarded: None.

Said payments to begin immediately 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: Thomas J. Gregory

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bruce Krysl

Dependents: N/A

Employer: Veiled Prophets of St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company

C/O AIG Claims, Inc. (Settled)

Injury Number: 13-104992

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On February 13, 2018, the employee, Bruce Krysl, appeared in person and by his attorney, Mr. Thomas J. Gregory, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Veiled Prophets of St. Louis, and its insurer, New Hampshire Insurance Company C/O AIG Claims, Inc., were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Madalyn Enzmann. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about January 1, 2013, Bruce Krysl (Claimant) sustained an occupational disease arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of Veiled Prophets of St. Louis (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of 433.58 for total disability benefits and 433.58 for permanent partial disability benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $3,120.00, representing a period of time of 7 weeks.

8) Employer paid medical benefits totaling $13,872.84.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-104992

9) Claimant sustained permanent partial disability of 21.25% of the right wrist, as a result of the January 1, 2013 (primary) injury.

ISSUES:

1) What is the nature and extent of Claimant's permanent partial disability?

2) What is the liability of the Second Injury Fund?

EXHIBITS:

The following exhibits were admitted into evidence:

**Employee Exhibits:**

1. Stipulation for Compromise Settlement in Injury Number 13-104992 (Date of Injury of January 1, 2013) between Claimant and Employer
2. Report of Injury for Injury Number 13-104992
3. Medical treatment records of St. Anthony's Medical Center
4. Medical treatment records of Dr. Victoria Jansen at St. Anthony's Physician Organization
5. Medical treatment records of The Retina Institute
6. Medical treatment records of Dr. Nicholas Martin at Premier Care Orthopedics and Sports Medicine
7. Medical treatment records of Dr. George Thampy
8. Certified medical treatment records of Dr. David Brown
9. Deposition of Dr. David Volarich, with attachments, dated October 6, 2017

**Second Injury Fund Exhibits:**

Nothing offered or admitted into evidence at the time of hearing