Phillip Lamb v. FAG Bearings Corporation / Schaeffler Group USA, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 10-113575

**Employee:** Phillip Lamb

**Employers:** - FAG Bearings Corporation - Schaeffler Group USA, Inc.

**Insurer:** Phoenix Insurance Company - Travelers Indemnity Company of America

**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. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing 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.

The Second Injury Fund and the employer/insurer both filed applications for review. In their applications for review, both applicants raised the issue of whether the administrative law judge failed to adequately address the legal impact of the settlement of a prior Claim for Compensation with a date of injury of August 16, 2010. The applicants argue that the current claim was addressed via the settlement of the prior claim, and therefore, there should be no recovery on the claim of repetitive trauma to the bilateral upper extremities, as pursued through the current claim.

Employee notes in his Reply Brief of October 26, 2018, that the Second Injury Fund and the employer/insurer have raised this theory for the first time in their briefs before the Commission - that the current occupational exposure to repetitive motion injuries sustained to bilateral upper extremities was settled with the acute low back injury claim. We agree with employee's assertion. There is nothing in the record before us that clearly identifies for the administrative law judge or for the employee, that the employer/insurer or the Second Injury Fund was promoting this theory at the hearing before the administrative law judge.

We find the applicants' argument to be without merit.

On October 1, 2010, the Division of Workers' Compensation received a claim filed by employee against this employer for a work injury on August 16, 2010. That claim was designated Injury No. 10-077757, and identified employee's injury while operating an 800 ton press and turning to grab and pull a billet while on the job. Body parts identified

Injury No.: 10-113575

Employee: Phillip Lamb

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in that claim were "low back area, left and right shoulder, left and right hands."¹ That matter was settled with employer/insurer on September 20, 2012, with an approximate disability rating of 20% of "body," and identifying disputes between the parties to: "all issues," as handwritten onto the form. Transcript, page 658. Aside from this, no further explanatory information was provided in the settlement itself to limit or expand the scope of agreement.² Employer/insurer provided treatment prior to the settlement of that claim in the form of back surgery on or about June 30, 2011. Employee was released from care by the surgeon on December 1, 2011. All authorized treatment by the employer/insurer relative to that claim was exclusively to employee's low back. The medical records do not suggest any other physical issues were being addressed.

At the time the parties signed that settlement, the current claim, Injury No. 10-113575, had been filed on August 3, 2012, alleging injury due to "repetitive use demands at his job, resulting in injuries to his hand/wrists and shoulders." Body parts identified were "bilateral carpal tunnel and bilateral shoulders." Date of injury was identified as August 25, 2010, which was the last day worked.³ The employee's theory of recovery throughout this claim has been on a repetitive trauma basis from occupational exposure, causing injury to his bilateral upper extremities. After settling the prior low back claim, Injury No. 10-077757, on September 20, 2012, employee began receiving authorized medical treatment to his bilateral upper extremities under this Injury No. 10-113575. On February 26, 2013, Dr. Robert Paul evaluated employee at his attorney's request, and diagnosed carpal tunnel syndrome and overuse syndrome to bilateral shoulders, and possible bursitis, resulting from work exposure.

On or after November 14, 2013, Dr. Paul Toma evaluated employee at the request of employer/insurer, for occupational exposure injuries, ultimately diagnosing bilateral carpal tunnel and bilateral shoulder impingement syndrome and possible rotator cuff tear. The record before us shows that objective testing was first performed at Dr. Toma's order. Dr. Toma found employee's wrist and shoulder injuries were work related. Employer/insurer has paid 15,086.15 in temporary disability on this claim and 37,378.22 in necessary medical aid, relative to the upper extremities. In early 2014, Dr. Toma performed surgeries on employee's shoulders and right wrist. The parties stipulated at the hearing in the current Injury No. 10-113575, that the date of maximum medical improvement was June 9, 2014. Transcript, page 3.

Clearly, the diagnosis and treatment of the upper extremity issues were not medically identified until after employment ended, and after the settlement of the low back injury. Without a firm medical diagnosis of the conditions in the current claim, the assertion by the Second Injury Fund and the employer/insurer that settlement of those injuries were contemplated to have been included in the earlier claim's settlement, is baseless -- or at

1 In contrast, Employer's Report of Injury dated August 23, 2010 for the August 16, 2010 event, identified the injury as a strain only to the lower back, with body parts affected "low back area (inc (sic) lumbar & lumbo-sacral)."

2 Employer/insurer's attorney in the prior settlement is the same individual representing employer/insurer in the current matter.

3 Employee was discharged by the employer on that date for failing to report the back injury in the prior claim within 24 hours.

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Employee: Phillip Lamb

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the very least, not documented in any form that merits our serious review of the assertion.

The administrative law judge found that employee's lifting accident, injuring his back on August 16, 2010, was a preexisting disability to the low back in the instant claim. We agree, that this distinct low back injury was properly considered as a preexisting disability in the current claim of repetitive motion trauma to upper extremities, diagnosed at some point after the low back injury.

**Conclusion**

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

The award and decision of Administrative Law Judge Karen Wells Fisher, issued July 20, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 29th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 10-113575

Employee: Phillip Lamb

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence, and in consideration of the parties' briefs and oral argument, as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

The administrative law judge ruled that the Second Injury Fund is liable on the basis of permanent total disability, which arose from the combined effect of a preexisting back injury and the primary injury to the upper extremities. I believe the evidence supports the conclusion that it was the lumbar back injury that was the cause of the permanent total disability. I do not believe that it was a combination of the preexisting injury and the primary injury which caused the condition of permanent total disability.

The record before us shows that all medical and rehabilitative experts opined that employee was permanently and totally disabled.¹ The administrative law judge, and all the medical professionals have found employee sustained only a permanent partial disability as a result of the primary work injury (upper extremities).

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." Section 287.220 requires us to first determine the compensation liability of the employer for the last injury, considered alone. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003). Having determined that the liability resultant from the work injury was not permanent and total, the next step is to determine if the work injury combined with preexisting disabilities to result in permanent total disability.

While employee and employer/insurer settled the lumbar strain disability for 20% body as a whole in 2012, the Commission is not limited in its ability to consider the level of disability from that injury, as it relates to the question of whether that injury combined with the primary injury to result in permanent total disability. There are many reasons a party may settle a claim for a lower disability rating than they may believe it merits. There is no need to conjecture as to those reasons, although I note this new claim (the instant matter before us) was still pending at the time of settlement of the back injury.

Employee testified as to the nature of his limitations, which in large part were related to his back injury. Dr. P. Brent Koprivica's review of employee's medical records and deposition revealed that "the nature of the limitations which he described posturally are so overwhelming that, in my opinion, he would not be able to access the open labor market." *Transcript*, page 747. Dr. Koprivica further opined that employee was permanently and totally disabled "based on the lumbar impairment without consideration of the disabilities involving both hands and wrists and both shoulders." *Id.* The severity

¹ Benjamin Hughes, the vocational rehabilitation specialist for the Second Injury Fund was somewhat equivocal in his opinion, indicating that employee could be employable given the limited restrictions imposed by some doctors, but based on Dr. Koprivica's opinion, employee was permanently and totally disabled.

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of the limitations were such that claimant reported he could not sit or stand for more than 5 minutes before back pain and numbness and pain in his right leg would affect his functioning. *Transcript*, pages 759-760. At his December 9, 2015 deposition, he described his back pain as constant, and "24/7," *Transcript*, page 761, and that there never was a day he was without pain. Employee testified that his back was the reason he wasn't working. *Transcript*, page 758. I find most persuasive the opinion of Dr. Koprivica that it was the low back injury alone which resulted in employee's permanent total disability status.

The Second Injury Fund only has liability if employee is permanently and totally disabled from a combination of his lumbar back and his upper extremities (the primary injury). *Lawrence v Treasurer*, 470 S.W.3d 6, 14 (Mo. App. W.D. 2015). Here, the evidence suppo