Daniel Deluca v. YRC, Inc. / Yellow Roadway Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-102356

**Employee:** Daniel Deluca

**Employer:** YRC, Inc. (settled)

Yellow Roadway Corporation (settled)

**Insurer:** Old Republic Insurance Company (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 19, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued December 19, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **24th** day of July 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Daniel Deluca

Injury No.: 13-102356

Dependents: N/A

Employer: YRC, Inc. (settled)

Yellow Roadway Corporation (settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Second Injury Fund

Insurer: Old Republic Ins. Company c/o

Gallagher Bassett Services (settled)

Hearing Date: October 18, 2018

Checked by: LBS

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged October 13, 2013
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of 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? Not against the Second Injury Fund
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant allegedly sustained an occupational disease to his low back on or about October 13, 2013.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: BAW referable to the low back
14. Nature and extent of any permanent disability: 17.5 % of the body as a whole (low back)
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: In dispute
3. Weekly compensation rate: In dispute
4. Method wages computation: In dispute

1. Amount of compensation payable

Employer previously settled.

1. Second Injury Fund liability:

NONE

Issued by DIVISION OF WORKERS' COMPENSATION

injury # 13-102356

Employee: Daniel Deluca Injury No.: 13-102356

Dependents: N/A Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Employer: YRC, Inc. (settled) Department of Labor and Industrial

Yellow Roadway Corporation (settled) Relations of Missouri

Additional Party: Second Injury Fund Jefferson City, Missouri

Insurer: Old Republic Ins. Company c/o

Gallagher Bassett Services (settled)

Hearing Date: October 18, 2018

An evidentiary hearing was held in the above-referenced matter on October 18, 2018. Daniel Deluca ("Claimant") appeared in person and was represented by counsel, Mr. James Sievers. The Second Injury Fund ("Fund") was represented by counsel, Assistant Attorney General Da-Niel Cunningham. Claimant previously settled his claim against YRC Inc./Yellow Roadway Corporation ("Employer") and its insurer, Old Republic Insurance Company c/o Gallagher Bassett Services ("Insurer").

The parties stipulated to the following facts:

1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. Claimant sustained an occupational disease as a result of repetitive lifting and driving up to October 13, 2013;
3. Employer was provided proper notice of Claimant's injury;
4. Employer/Insurer did not pay any Temporary Total Disability ("TTD") benefits;
5. Employer/Insurer did not pay any medical benefits;
6. Venue for the Hearing in this matter is proper at the St. Louis office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are:

1. Does the Statute of Limitations bar Claimant's claim against the Second Injury Fund?
2. Is Claimant's medical conditions and disability medically casually related to the alleged repetitive trauma?

Revised Form 31 (3/97)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

1. What date did Claimant reach maximum medical improvement ("MMI")?
2. What are Claimant's average weekly wage, TTD rate, and permanent partial disability ("PPD") rates?
3. What is the nature and extent of the Second Injury Fund's liability?

EXHIBITS

Claimant offered and admitted into evidence, the following Exhibits:

Exhibit 1: Deposition of Dr. David Volarich

Exhibit 2: Deposition of Dr. Adam Sky

Exhibit 3: Deposition of Ms. Delores Gonzalez

Exhibit 4: Stipulation for Compromise Settlement for Injury # 13-102356

Exhibit 5: Stipulation for Compromise Settlement for Injury # 05-080360

Exhibit 6: Operative report of Dr. Thomas Forget dated November 21, 2013

Exhibit 7: Operative reports of Dr. Anthony Sudekum dated May 3, 2006, and May 17, 2006

Exhibit 8: Medical records of Dr. Artan Markollari

Exhibit 9: Medical records of Dr. Robert Hagan

The Second Injury Fund offered and admitted into evidence, the following Exhibits:

Exhibit I: Claim for Compensation filed on March 27, 2014

Exhibit II: Amended Claim for Compensation filed on May 9, 2017

Exhibit III: Second Injury Fund's Answer to the Amended Claim for Compensation filed on or about May 19, 2017

Exhibit IV: Letter from the Second Injury Fund dated September 5, 2018

Note: Some of the records submitted at the Hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on October 18, 2018.

FINDINGS OF FACT

Based upon the relevant testimony of Claimant at Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Revised Form 31 (3/97)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Claimant worked for the Employer as a pickup and delivery driver for 15 years. Claimant would handle freight and perform heavy lifting. In the morning he would deliver freight, in the afternoon he would pick up freight. When Claimant moved freight, it would weigh anywhere from five to hundreds of pounds. He did not have an assistant. Claimant was never a manager or a supervisor. Claimant never worked with a computer in his job.

Claimant primarily drove a GMC Brigadier, which was a manual truck without air-ride seats. Claimant also occasionally drove Volvo trucks. Claimant testified that all of the trucks were "raggedy."

On October 13, 2013, Claimant had a weekly paycheck of 1,300 and made 65,000 a year. He made that amount from 2010 through 2013. Claimant, typically, worked 40-50 hours a week.

Claimant did not complete high school; he did obtain his GED. Claimant did not receive any education or training after receiving his GED.

Prior to October 13, 2013, Claimant testified he had back pain for a long time. Eventually, he reported his pain to Jim Vicorelli, the Terminal Manager. Mr. Vicorelli told Claimant to go to his primary care doctor ("PCP"). Claimant did go to his PCP, who did not treat him but referred him to Dr. Forget. Dr. Forget performed two back surgeries; one on November 21, 2013, and one in December of 2014. Following the surgeries, Claimant continued to have chronic constant pain in his back that radiated down both legs into his feet. The doctor released Claimant from treatment for his back on February 16, 2015.

Claimant believes his back injury was caused by getting in and out of the truck, bouncing in the truck, not having power steering, pulling on "raggedy" trailer doors, and handling freight over many years.

Claimant was diagnosed with diabetes in 2009. He has neuropathy in both feet that manifested with numbness, tingling, and burning. His feet would swell in the truck, and it would hurt to wear shoes.

In 2005, Claimant had bilateral carpal and cubital tunnel surgery. He returned to work with no restrictions. The carpal and cubital tunnel syndromes made it hard to steer, shift, and handle freight.

In 2010, Claimant's PCP diagnosed him with depression. He was given medication, but it did not alleviate his symptoms. He was drinking too much and sleeping a lot. After his back surgeries, his symptoms worsened. As a result, his PCP gave him additional medications to treat his depression.

Claimant currently takes medication for his depression and diabetes. After he was released from treatment, Claimant has not taken any prescription medication for his back, carpal tunnel syndrome, or cubital tunnel syndrome. Claimant does take over-the-counter Tylenol PM.

Revised Form 31 (3/97)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Claimant did not return to work for Employer following his back surgeries. He has constant pain in his feet, hands, and back. On a typical day, he tries to walk and move around. He does not use a computer.

Claimant believes he cannot perform any work, other than manual labor, because he does not have any education or training past 11th grade.

On cross-examination, Claimant testified that he went to his PCP for his back complaints on his own. He also treated with Dr. Forget on his own. Employer did not send Claimant to either doctor, and his Employer did not pay for the treatment he received.

When Dr. Forget released Claimant, he did not give Claimant any restrictions. On May 19, 2014, Dr. Hagan first diagnosed Claimant with peripheral neuropathy. On January 26, 2015, Claimant was examined to determine if he had RSD in his lower extremities.

None of Claimant's treating doctors told him his work was the cause of his back complaints. None of Claimant's treating doctors put any restrictions on his ability to work. Claimant testified that Dr. Forget suggested Claimant not go back to driving a truck.

Claimant's diabetes was diagnosed during a routine DOT examination in 2005. Claimant had not had any symptoms before that time. Later, Claimant began to experience dizziness and was placed on diabetes medication. Claimant does not wear special shoes or socks due to his diabetic neuropathy. Claimant does not eat a special diet to maintain healthy blood sugar levels; he just "watches what he eats" and does not drink too much alcohol. Claimant testified he could still work with his diabetes, but the numbness in his hands made it difficult to use the clutch in the truck.

Claimant was "somewhat satisfied" with the carpal and cubital tunnel surgeries. However, the numbness and tingling in his hands did return. Claimant never went back to the surgeon to tell him his symptoms had returned. Claimant was released without restrictions following his carpal and cubital tunnel surgeries. Dr. Sudekum gave Claimant wrist supports to wear to minimize his complaints. Claimant still uses those supports. Claimant's carpal and cubital tunnel symptoms never prevented him from working at Employer. Claimant never requested accommodations or requested additional treatment once Dr. Sudekum released him.

Starting February 14, 2014, Claimant was on light duty for 26 weeks. During that time, he was paid short-term disability through his union. He was at home that entire time, and did not call or report into work. After 26 weeks, Claimant was released to full duty. Claimant did not receive notice that he was no longer employed until he was removed from the seniority board of the union in 2018. Claimant never received written notice of his termination from Employer.

Exhibits

Claimant's Exhibits

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Deposition of Dr. David Volarich

(Exhibit 1)

Dr. David Volarich examined Claimant twice. When he examined Claimant on August 18, 2016, Claimant reported that he had experienced back pain radiating into both lower extremities up to October 13, 2013. Claimant reported he was diagnosed with lumbar radiculopathy and was taken to surgery for L4-5 laminectomies and an L4-S1 foraminotomy. Claimant did not do well postoperatively and returned to surgery at which time the doctor removed a herniated disc at L4-5 and performed a posterior fusion with instrumentation at L4-S1.

Claimant reported pain in his low back that radiated to both legs with burning pain in his thighs. He also had some weakness in his legs. Claimant experienced the worst back pain with flexion and extension. Dr. Volarich diagnosed Claimant with preexisting chronic lumbar syndrome requiring intermittent medications for which he assessed 15% permanent partial disability. The doctor assessed Claimant's disability at 50% of the body as a whole for the injury up to October 13, 2013, which encompassed his two back surgeries. Dr. Volarich diagnosed Claimant with bilateral lower extremity radiculopathy with peripheral nerve decompression subsequent to October 13, 2013.

Claimant was already receiving Social Security Disability the first time he saw Dr. Volarich. Dr. Volarich placed restrictions on Claimant's ability to work, but did not find Claimant was unable to work.

Dr. Volarich examined Claimant, again, on April 20, 2017. At that examine, Claimant told Dr. Volarich about his bilateral carpal and cubital tunnel surgeries as well as his diagnosis of diabetes in 2009.¹ Dr. Volarich maintained his rating of 50% body as a whole for Claimant's primary injury and 15% preexisting disability at the level of the lumbar spine for his chronic lumbar syndrome. Dr. Volarich added ratings of 25% preexisting disability of the bilateral wrists and elbows for carpal and cubital tunnel syndrome and 35% preexisting disability due to Claimant's severe diabetes.

Dr. Volarich recommended that Claimant undergo vocational assessment to determine if he was employable in the open labor market. If a vocational assessment could identify a job for which Claimant was suited, he had no objection to him attempting to work. If a vocational assessment was unable to identify a job, for which he was suited, it was the doctor's opinion that Claimant was permanently totally disabled due to a combination of his preexisting and primary disabilities.

The parties took the deposition of Dr. Volarich May 3, 2018. Dr. Volarich testified that he did not rate Claimant's preexisting injuries and conditions in his report of October 18, 2016, because he was not provided any records regarding those conditions and disabilities. When Claimant returned on April 20, 2017, Dr. Volarich had been provided medical records regarding Claimant's preexisting medical conditions, complaints, and treatment.

¹ Claimant changed attorneys between his first and second examinations by Dr. Volarich. His first attorney withdrew on January 20, 2017, and his second attorney entered on February 6, 2017.

Revised Form 31 (3/97)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Based on his last examination, Dr. Volarich was uncertain if Claimant could work in the open labor market. Therefore, he recommended Claimant undergo vocational assessment to see if there was a job for which he was qualified. Later, Dr. Volarich reviewed the psychiatric evaluation of Dr. Adam Sky and the vocational assessment of Ms. Dolores Gonzalez and determined Claimant would be unable to compete in the open labor market. He further determined Claimant was permanently and totally disabled as a direct result of the work-related injury in combination with his preexisting medical conditions.

On cross-examination, Dr. Volarich conceded that prior to October 13, 2013, Claimant had no restrictions placed on his ability to work because of his lumbar spine. In fact, Claimant was performing at a heavy demand level. Dr. Volarich admitted that none of Claimant's treating doctors linked his low back complaints to his job duties for Employer.

Deposition of Dr. Adam Sky

(Exhibit 2)

Dr. Adam Sky evaluated Claimant on September 13, 2017. Claimant reported that he had not been doing well from a psychiatric standpoint. He felt like he had "lost everything" and that he was "losing his mind." Claimant had become more irritable, withdrawn, and did not feel like socializing or helping with his grandchildren. Claimant's symptoms had become progressively worse since his accident of October 13, 2013.

Claimant reported that his childhood was difficult. He had to drop out of school in the 11th grade to help with the family finances. Claimant was married in 1983 and divorced in 2013 after his wife became addicted to prescription pain medication. Claimant had to get a restraining order against his ex-wife, and later discovered she had taken most of their savings. As a result of his wife's behavior, Claimant lost his home. Claimant is very close to his two adult daughters; he resides in his daughter's basement. Claimant told Dr. Sky he has been drinking more than he used to (drinking almost a fifth of vodka a day) and occasionally smokes marijuana.

Claimant's Hamilton Anxiety Rating Scale and Montgomery-Asberg Depression Rating Scale were positive for both moderate anxiety and moderate depression. Dr. Sky diagnosed Claimant as having major depressive disorder, generalized anxiety disorder, and moderate alcohol use disorder due to the October 13, 2013 injury. He diagnosed Claimant as having major depressive disorder, single episode, before the 2013 work accident.

Dr. Sky rated Claimant as having 40% permanent partial psychiatric disability psychiatric disability due to the October 13, 2013, injury. In addition, he rated Claimant as having 20% preexisting permanent partial disability. Dr. Sky recommended that Claimant receive psychiatric and psychological treatment including therapy and medication.

The parties deposed Dr. Sky on April 12, 2018. Dr. Sky agreed Claimant had not received any psychiatric treatment from a psychiatric medical care provider. Claimant's only treatment for psychiatric issues was from his PCP. The first note mentioning depression was on in the medical records of Claimant's PCP. While the depression diagnosis was mentioned again in Claimant's records, there was no indication of any other psychiatric symptomology.

Revised Form 31 (3/97)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Claimant had psychosocial factors that also would have affected his mood, including his wife's drug addiction, his financial issues, his ex-wife's death, and losing his home. In reviewing the medical records from Claimant's PCP, it appears that, from a physical standpoint, Claimant's condition deteriorated as he treated with that doctor. However, there does not seem to be the same documentation of a psychiatric deterioration. The only psychiatric medication Claimant currently takes is buspirone, which is an antianxiety medication. By Claimant's own admission, he was doing better psychiatrically prior to the primary work accident.

Deposition of Ms. Delores Gonzalez

(Exhibit 3)

Ms. Gonzalez performed a vocational rehabilitation evaluation of Claimant on December 16, 2017. Prior to that evaluation, she reviewed the medical records regarding Claimant's treatment. Ms. Gonzalez noted Claimant appeared to be tired and drowsy throughout her interview of him. Claimant reported he had joint stiffness, weakness of muscles, muscle cramping, back pain, difficulty walking, peripheral neuropathy, and numbness and tingling in his extremities. Claimant had constant pain in his low back that radiates into both hips. He also reported numbness, tingling, and burning sensations in his legs and feet. He had constant achy pain in his hands and has difficulty grasping and gripping.

Ms. Gonzalez performed a Transferability of Skills Analysis on Claimant. Based on the results of Claimant's Wide Range Achievement Test Fourth Addition, Claimant would not be expected to assimilate to a new work environment or learning situation that required basic reading, sentence comprehension, spelling, or math skills. From a vocational perspective, Claimant is a 55-year-old gentleman (advanced age), with a 10th grade education, significantly impoverished educational skills, and permanent physical and psychiatric disabilities which prevent him from performing any of his past jobs or any job in the open labor market.

Using the evaluations and restrictions of Drs. Volarich and Sky, Ms. Gonzalez determined that Claimant has the residual functional capacity of less than competitive work. From a vocational perspective, she found that it is unreasonable to expect an employer to hire someone with Claimant's physical and mental conditions. Therefore, Ms. Gonzalez concluded Claimant is not employable in the open labor market. She further opined Claimant is permanently and totally disabled as a combination of his primary and preexisting injuries and conditions.

The parties took Ms. Gonzalez's deposition on September 17, 2018. Ms. Gonzalez testified that the Transferability of Skills Analysis requires applying a client's demonstrated vocational and relevant work skills to other jobs for which he might qualify. Based solely on Claimant's achievement testing, he would not be expected to assimilate to a new work environment or learning situation that relied upon academically based training or written instructions. Ms. Gonzalez testified Claimant was not a candidate for vocational rehabilitation as he is not currently capable of any competitive work for which there is in a reasonably stable job market. He is unable to work due to a combination of his preexisting and primary injuries and conditions.

On cross-examination, Ms. Gonzalez conceded that she did not review any of Claimant's employment records. Ms. Gonzalez also conceded that Claimant did not have any physician-

Revised Form 31 (3/97)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

imposed restrictions for the lumbar spine, wrist, or any other part of the body, prior to October 13, 2013. None of Claimant's treating physicians put any restrictions on his ability to work. Claimant was working at a level above the restrictions imposed by Dr. Volarich up to the October 13, 2013 injury. Considering the restrictions Dr. Volarich imposed on Claimant's back and wrist, he could only perform light, unskilled work. Ms. Gonzalez testified light, unskilled work would include jobs such as a school bus monitor, an usher, and a furniture rental consultant.

Stipulation for Compromise Settlement for Injury # 13-102356

(Exhibit 4)

Claimant settled Injury # 13-102356 for $31,279.50, which was equal to 17.5% BAW (low back). The settlement was "on an entirely disputed basis."

Stipulation for Compromise Settlement for Injury # 05-080360

(Exhibit 5)

Claimant settled Injury # 05-080360 for $59,203.42 which was equal to 17.5% of each wrist with a 10% load, and 22.55% of each elbow (with a credit for what was paid on the wrists), with a 10% load, and 6 weeks of disfigurement.

Operative report of Dr. Thomas Forget

(Exhibit 6)

Dr. Forget's records indicate that Claimant underwent three epidural steroid injections prior to undergoing surgery. Dr. Forget performed surgery on November 21, 2013, in which he performed an L4-L5 laminectomy and explored the L5-S1 disc space. The postoperative diagnoses were lumbar stenosis at L5-S1 and L4-L5 with a calcified disc herniation at L5-S1.

Operative reports of Dr. Anthony Sudekum

(Exhibit 7)

On May 3, 2016, Dr. Sudekum performed a left open carpal tunnel release and left cubital tunnel release with an anterior submuscular transposition of the ulnar nerve under musculofascial flaps. On May 17, 2006, Dr. Sudekum performed a right open carpal tunnel release and a right cubital tunnel release with an anterior submuscular transposition of the ulnar nerve under musculofascial flaps.

Medical records of Dr. Artan Markollari

(Exhibit 8)

Dr. Markollari examined Claimant on November 16, 2011, at which time the history indicates Claimant's diabetes was asymptomatic and that Claimant was compliant with his medication and diet. However, the doctor's notes indicate that Claimant's diabetes was "uncontrolled." It appears that, up until this visit, Claimant had not been monitoring his insulin levels with a meter; therefore, the doctor recommended he begin to do so. Claimant was taking medication for hypertension with no side effects or symptoms from the hypertension. The

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

records indicate Claimant was diagnosed with depression on May 10, 2010, and low back pain on June 14, 2011.

**Medical records of Dr. Robert Hagan**

*(Exhibit 9)*

Dr. Hagan first examined Claimant on April 14, 2014. Claimant complained of numbness in his feet and legs. Claimant reported he had experienced numbness in his feet since 2010.

Dr. Hagan noted that Claimant is diabetic. Claimant's exam was positive for diabetic peripheral neuropathy with overlying peripheral nerve compression. Dr. Hagan recommended that Claimant undergo surgical decompression of the left lower extremity at the common peroneal, proximal, tibial, and plantar nerves as well as a tarsal tunnel release.

Claimant had surgery on May 9, 2014, that decompressed the nerves in his left lower extremity and released his tarsal tunnel. The postoperative diagnoses was diabetic polyneuropathy and compression neuropathy at several levels.

**Second Injury Fund Exhibits**

**Claim for Compensation dated March 27, 2014**

*(Exhibit I)*

Claimant's Original Claim for Compensation for Injury # 13-102356 was filed on March 27, 2014. It alleged injuries to his neck and low back as the result of an occupational disease. No claim was filed against in the Second Injury Fund in the Original Claim.

**Amended Claim for Compensation dated May 9, 2014**

*(Exhibit II)*

Claimant filed his Amended Claim for Compensation on May 9, 2017. The only "additional information" was in Section 7, "Part(s) of the Body Injured", which read: "neck, back, and body as a whole." On the second page of the Claim for Compensation, Claimant checked the box indicating that he was alleging a claim of Permanent Total Disability against the Second Injury Fund, but Claimant did not list any preexisting disabilities or injuries.

**Answer to Claim for Compensation dated May 19, 2017**

*(Exhibit III)*

The Fund filed its Answer to Claimant's Amended Claim for Compensation on or about May 19, 2017. In its Answer, the Fund alleged that Claimant's claim against the Fund was "time barred by Section 287.430 RSMo."

Revised Form 21 (3/97)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 13-102356

Further, *Elrod* was decided when the Workers' Compensation statute was to be liberally

construed. *Elrod* at 716. In *Couch*, the court specifically noted that the *Elrod* court was "obliged

to construe the Workers' Compensation Law liberally"; which was no longer the case when

*Couch* was decided. *Couch* at 422. Since Section 287.800 RSMo was amended in 2005, this

matter, as was *Couch*, should be decided using strict construction and weighing the evidence

impartially. Applying those standards, I find Claimant's claim against the Second Injury Fund is

barred by the Statute of Limitations.

**CONCLUSION**

Section 287.430 RSMo bars Claimant's claim against the Second Injury Fund; all other

issues are moot and will not be decided.

I certify that on 12-17-18

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case file.

By


Made by:

Lee B. Schaefer

Administrative Law Judge

Division of Workers' Compensation

Revised Form 31 (5/97)

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