William Creek v. Utilicorp United, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 98-174915

**Employee:** William Creek (deceased)

**Dependent:** Laura J. Creek (substituted party)

**Employer:** Utilicorp United, Inc. (settled)

**Insurer:** Insurance Company of State of Pennsylvania (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. 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 denying 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.¹

On August 10, 1999, employee filed a claim for compensation against employer and the Second Injury Fund alleging a low back injury caused by a work accident on July 16, 1998.² The Division of Workers' Compensation (Division) assigned this claim Injury No. 98-171887. Also on August 10, 1999, employee filed a second, separate claim, alleging an occupational disease due to repetitive stress to both upper extremities with an onset date of July 16, 1998.³ The Division assigned employee's occupational disease claim, the subject of this appeal, Injury No. 98-174915. On April 15, 2010, employee entered into a compromise settlement of his occupational disease claim assigned Injury No. 98-174915 with employer/insurer.⁴

On April 15, 2010, Administrative Law Judge Henry T. Herschel conducted a final award hearing relating to employee's claim assigned Injury No. 98-171887. Administrative Law Judge Herschel's Final Award, dated July 16, 2010, referenced only Injury No. 98-171887. He awarded permanent partial disability of 20% related to employee's

¹ Line 2 of the second paragraph on page 5 of the administrative law judge's FINDINGS OF FACT AND RULINGS OF LAW incorrectly states that employee filed his initial request for final hearing in Injury Nos. 98-174915 and 98-171887 on July 25, 2010 (emphasis added). Employee's attorney filed his initial hearing request with the Division on January 25, 2010. See Second Injury Fund's Exhibit I, Transcript, 475. This clerical error did not affect the rights of the parties and does not affect our ability to review this appeal.

² Transcript, 156.

³ Id. 159.

⁴ Id. 410.

Injury No.: 98-174915

Employee: William Creek

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lower back and 6% permanent partial disability related to his psychological condition against the employer, and assessed no liability against the Second Injury Fund. Employee appealed Administrative Law Judge Hershel's award to the Commission. On May 31, 2011, the Commission affirmed the Administrative Law Judge's award with a supplemental opinion. Employee then sought judicial review. On September 4, 2012, the Missouri Court of Appeals, Western District, affirmed the Commission's Final Award with a memorandum statement, pursuant to Supreme Court Rule 84.16(b).

In addition to finding no Second Injury Fund liability based on the evidence presented, Administrative Law Judge Lisa Pottenger opined that the doctrine of res judicata appeared to preclude employee from collecting benefits in connection with the instant occupational disease claim. In so finding, she noted that (1) both employee and the Second Injury Fund were parties to, present, and represented at the April 15, 2010, hearing regarding Injury No. 98-171887; (2) the medical and vocational experts employee produced at the April 15, 2010, hearing were aware of the alleged occupational injury to employee's upper extremities filed on August 10, 1999; (3) Administrative Law Judge Hershel's July 16, 2010, award included a finding that the employee had no disability from prior elbow injuries; and (4) employee's evidence in this appeal includes revised opinions from the same experts he used at the April 15, 2010, hearing.

In order for res judicata to apply, the following four identities must be present:

1) identity of the thing sued for;

2) identity of the cause of action;

3) identity of the persons and parties to the action; and

4) identity of the quality of the person for or against whom the claim is made.

Kesler v. Curators of the Univ. of Mo., 516 S.W.3d 884,890 (Mo. App. 2017).

At the inception of the April 15, 2010, hearing relating to Injury No. 98-171887, Administrative Law Judge Herschel identified a single accident occurring on or about July 16, 1998, involving alleged injury to employee's lower back. At hearing, Administrative Law Judge Herschel made no mention of employee's entirely separate claim for occupational disease injury to his bilateral upper extremities caused by work related repetitive stress trauma, alleging July 16, 1998, as the date of onset. Administrative Law Judge Herschel's July 16, 2010 award includes only a passing reference to the employee as having healed from his left knee and elbow injuries.

In that Administrative Law Judge Hershel did not identify the employee's separate occupational disease claim as a disputed issue at the April 15, 2010, hearing and made no final determination relating to this claim in his July 16, 2010, award, we find that the thing sued for and cause of action in that case are not identical to employee's claim herein. Because the necessary prerequisite identities referenced in Kesler are not present, we disavow the administrative law judge's finding that the doctrine of res judicata bars employee from pursuing his occupational disease claim assigned Injury No. 98-174915, the subject of this appeal.

Injury No.: 98-174915

Employee: William Creek

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Employee's August 2, 2018, deposition, admitted into evidence at the administrative law judge's August 29, 2018, hearing, included testimony regarding the effects of his upper extremity injuries. In addition, Mrs. Laura Creek, employee's wife, testified at hearing the disability she observed regarding employee's upper extremities.

After personally observing employee at the prior hearing regarding his claim in Injury No. 98-171887, Administrative Law Judge Herschel found employee's testimony unconvincing. The Commission's Final Award in Injury No. 98-171887, specifically referenced and adopted Administrative Law Judge Hershel's credibility findings. Both awards are a part of the record.

After considering the testimony of employee and his wife produced at hearing, as well as the Commission's prior determination regarding employee's credibility, we concur with the administrative law judge's assignment of greater weight to the medical opinion of hand and spine orthopaedic surgeon William O. Reed, Jr. regarding the disability to employee's upper extremities. On October 15, 1998, Dr. Reed evaluated and treated employee's bilateral elbow pain. On that date he recommended and delivered steroid injections to employee's left elbow and prescribed Vicodin for pain "in case a flare reaction results." Dr. Reed noted normal range of motion in both elbows and authorized employee to continue his regular work duties. He assigned no permanent disability relating to employee bilateral elbow pain.

We adopt the administrative law judge's analysis of employee's additional new evidence, consisting of revised opinions of vocational expert Wilbur Swearingin and Dr. Norbert Belz. Both Mr. Swearingin and Dr. Belz now find employee unemployable in the open labor market as a result of left and right upper extremity epicondylitis combined with prior low back and psychiatric disability. The administrative law judge discredited both experts, finding their current opinions "unpersuasive and inconsistent with their opinions issued in 2000 and in the 2010 hearing before Judge Herschel." In so finding, the administrative law judge noted that both experts were well aware of employee's claimed disability to his upper extremities at the 2010 hearing yet found at that time that employee's July 16, 1998, low back injury and a prior low back injury had rendered him permanently and totally disabled. Based on this evaluation of the evidence presented, Administrative Law Judge Pottenger denied permanent partial or permanent total disability against the Second Injury Fund.

Based on the foregoing analysis, we are unpersuaded by employee's argument that the administrative law judge's denial of compensation constituted a substitution of her personal beliefs "for unimpeached testimony and unpermitted lay belief substituted for

5 Transcript, 414.

6 Id. 414-432.

7 Id. 412.

8 Award, 7.

Injury No.: 98-174915

Employee: William Creek

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medical opinion."9 The Second Injury Fund was not required to introduce vocational or medical evidence to challenge employee's experts. Here, as in the case of *Seifner v. Treasurer of Missouri-Custodian of the Second Injury Fund*, 362 S.W.3d 59 (Mo. App. 2012) the administrative law judge did not form her own opinion as to an alternative theory of causation which was unsupported by the evidence. Rather, she merely found that employee's expert testimony was not credible and that due to the lack of credible medical evidence on the issue of nature and extent of disability and medical causation, she could not find in employee's favor. *Id.*, at 67.

Employee's attorney further argues that the pre-2005 version of § 287.800, which applies to this case, requires that provisions of the law "shall be liberally construed" and compels an award of compensation. We disagree. The "liberal construction mandate" does not impinge on the Commission's function as the trier of facts, nor does it allow a claim that lacks an essential element required by law. See *Hall v. Country Kitchen Restaurant*, 936 S.W.2d 917,922 (Mo. App. 1997).10

**Conclusion**

We affirm and adopt the award of the administrative law judge denying compensation with this supplemental opinion.

The award and decision of Administrative Law Judge Lisa Pottenger, issued October 15, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 25th day of July 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Secretary

9 Brief of Petitioner William Creek and Claimant Laura Creek, filed with the Labor and Industrial Relations Commission on February 7, 2019.

10 Overruled in part on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

**Employee:** William Creek (Deceased 9-27-18)

**Dependents:** Laura J. Creek (Substituted Party)

**Employer:** Utilicorp United, Inc. (Settled)

**Insurer:** Insurance Company of State of Pennsylvania c/o Specialty Risk Services (Settled)

**Additional Party:** Missouri State Treasurer, As Custodian for the Second Injury Fund

**Hearing Date:** August 29, 2018

Checked by: LP/drl

1. Are any benefits awarded herein? No

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: July 16, 1998

1. State location where accident occurred or occupational disease was contracted: Pettis County, Missouri

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 c