Edin Muratovic v. Kerry Ingredients

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-051298

**Employee:** Edin Muratovic

**Employer:** Kerry Ingredients

**Insurer:** Arch Insurance Company

**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 read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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.

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." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." *Id.*

The administrative law judge's award correctly notes that Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

> [T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

*Knisley v. Charleswood Corp.,* 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Later, in findings addressing employee's alleged preexisting disabilities for purposes of Second Injury Fund liability, the award references employee's ability to work from August 2008 to June 2012, despite "measurable disability with respect to his preexisting psychiatric issues" and notes employee's ability to work for employer "in the same job with the same duties, with each of these [physical] preexisting conditions present."

1 Award, pp. 11-12.

2 Award, p. 12.

Injury No.: 12-051298

Employee: Edin Muratovic

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We consider the administrative law judge's discussion of employee's past ability to work despite alleged preexisting disabling conditions extraneous to his finding that "Nothing in the record illustrates that [employee's preexisting] conditions would be a hindrance or obstacle in the future [emphasis added]."3

In addition to the evidence discussed in the administrative law judge's award relating to the issue of employee's alleged preexisting disabilities, we note that Dr. David Volarich's March 3, 2014, report cites no basis for his conclusion that employee's right upper extremity disability, binaural hearing loss and tinnitus constituted hindrances to his employment or reemployment.4 On April 23, 2014, ophthalmologist Dr. Flavius G. Pernoud reported that the employee "has no particular ocular or visual complaints."5 Dr. Pernoud stated, "Although Mr. Muratovic has had his cataracts removed, his visual status is excellent with no impairment according to Missouri regulations [emphasis added]."6 On November 22, 2013, otolaryngologist Dr. Anthony Mikulec reported binaural impairment of 33% and 1% disability related to employee's tinnitus, and suggested that a hearing aid would likely make a dramatic impact on the quality of employee's life and those around him. However, Dr. Mikulec's report made no finding that employee's hearing loss constituted a potential hindrance or obstacle to employee's employment or reemployment.7

We defer to the administrative law judge's assessment of the employee's credibility and his evaluation of the vocational and medical expert evidence in the record. We affirm his finding that employee failed to establish he suffered from any preexisting condition that constituted a potential hindrance or obstacle to employment for purposes of Second Injury Fund liability.

Burden of proving permanent and total disability against the Second Injury Fund

The administrative law judge's award initially states "For Claimant to demonstrate Fund liability for PTD, he must establish: (1) The extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD. Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014)."8

Later, addressing Second Injury Fund liability for permanent total disability, the award notes that employee "failed to demonstrate the synergistic effect that his psychiatric issues have on the primary injury [emphasis added]" and concludes, "Typically, physical injuries combine in a synergistic effect to prevent a worker from accomplishing his tasks. Therefore, I find no liability for the Second Injury Fund."9 This language incorrectly suggests that an employee must prove a synergistic effect to establish permanent total disability against the Second Injury Fund. As discussed in Lewis, supra, careful reading of § 287.220 RSMo reveals that while the statute requires a

3 Id.

4 Transcript. 113.

5 Id. 533-534.

6 Id.

7 Id. 525-528.

8 Award, p. 12.

9 Award, p. 12.

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showing of synergy to support an award of permanent partial disability benefits, there is no such requirement for purposes of proving entitlement to permanent total disability benefits. Instead, in a claim against the Second Injury Fund for permanent and total disability employee need only show that the primary injury and preexisting conditions of ill-being "together result" in permanent total disability.

We affirm the administrative law judge's finding that employee failed to demonstrate that any of his preexisting conditions had the potential to constitute a hindrance or obstacle to employment or future employment. In that none of employee's preexisting conditions qualify as preexisting disabilities for purposes of combining with disability from employee's last injury, pursuant to § 287.220 RSMo and Kinsley, supra, the administrative law judge correctly concluded that the Second Injury Fund has no liability in this case.

The above clarifications of the administrative law judge's award do not detract from his correct analysis of the evidence in the record or his ultimate legal conclusions.

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

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.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued August 6, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 9th day of April 2019.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- **Robert W. Cernisio, Chairman**

- **Reid K. Forrester, Member**

- **Curtis E. Chick, Jr., Member**

Attest:

**Pamela M. Holzmann/UK**

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 12-051298

AWARD

Employee: Edin Muratovic

Injury No.: 12-051298

Dependents: N/A

Employer: Kerry Ingredients

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Additional Party Treasurer as Custodian of the Second

Injury Fund

Insurer: Arch Insurance Company

Hearing Date: 5/3/2018

Jefferson City, Missouri

Checked by: JPK

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: 6/8/2012

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

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: While

lifting a bucket of ingredients to make candy, he twisted and injured his lower back resulting in pain and

numbness down his left leg.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Lumbar spine

1. Nature and extent of any permanent disability: 25% BAW referable to the lumbar spine

1. Compensation paid to-date for temporary disability: $24,183.06

1. Value necessary medical aid paid to date by employer/insurer? $32,166.01

Revised Form 21 (3/97)

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1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 511.50
3. Weekly compensation rate: $\ 341.00
4. Method wages computation: Stipulated

1. Amount of compensation payable:

100 weeks PPD from Employer

$\ 34,100.00

1. Second Injury Fund liability: No

TOTAL:

$\ 34,100.00

1. Future requirements awarded:

N/A

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: Frank J. Niesen, Jr.

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 12-051298

Employee: Edin Muratovic

Dependents: N/A

Employer: Kerry Ingredients

Additional Party: Treasurer as Custodian of the Second Injury Fund

Insurer: Arch Insurance Company

Hearing Date: 5/3/2018

injury No.: 12-051298

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: JPK

On 5/3/2018, the parties appeared for a hearing at the Missouri Division of Workers' Compensation, St. Louis Office ("Division"). Edin Muratovic ("Claimant") appeared in person and with counsel, Frank J. Niesen, Jr. Kerry Ingredients, (employer) and Arch Insurance Company ("insurer") were represented by Donald Balfour. The Second Injury Fund was represented by Assistant Attorney General, David Drescher.

1) The employer, Kerry Ingredients, was operating subject to Missouri's Workers' Compensation Law on or about 6/8/2012.

2) Edin Muratovic was its employee at all times herein.

3) The employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed.

4) St. Louis, Missouri is the proper venue.

5) Employee's average weekly wage is 511.50.

6) Applicable rates of compensation are 341.00 for TTD and 341.00 for PPD.

7) Employer paid 32,166.01 in medical expenses and $24,183.06 in TTD benefits, representing 65 4/7 weeks, during the period 6/9/2012 through 9/9/2013.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) David T. Volarich, D.O. Deposition 2/29/2016.

2) Jennifer E. Brockman, M.D. Deposition 4/19/2016

3) James E. Israel, CRC Deposition 4/22/2016

4) Emir Keric, M.D. - D/S: 6/25/2012 - 10/15/2012

5) Naseem Shekhani, M.D. - D/S: 6/25/2012 - 10/15/2012

6) St. Anthony's Medical Center - D/S: 6/18/2012; 6/29/2012; 10/29/2015 and 10/3/2016

WC-32-R1 (6-81)

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