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

- 2 -

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

- 3 -

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

- 4 -

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 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: Employee developed bilateral epicondylitis performing his job duties as an electrical lineman.

1. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

1. Part(s) of body injured by accident or occupational disease: upper extremities

1. Nature and extent of any permanent disability: 5% per elbow (right and left)

1. Compensation paid to date for temporary disability: No temporary total disability benefits were provided to the employee in this case

1. Value necessary medical aid paid to date by employer/insurer? No medical treatment was provided to the employee

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

1. Employee's average weekly wages: Sufficient for the maximum compensation rate.

1. Weekly compensation rate: $562.67/294.73

1. Method wages computation: By stipulation

1. The employee and employer/insurer entered into a stipulation for compromise lump sum settlement for $6,189.33 based on approximate disability of 5% of the right elbow and 5% of the left elbow at the level of permanent partial impairment. An administrative law judge with the Division of Workers' Compensation approved this Stipulation for Compromise Settlement on or about April 15, 2010.

1. On July 16, 1998 through the date of the hearing, the Claimant, William F. Creek, was lawfully married to Laura J. Creek and that at the time of the accident that on July 16, 1998 Laura J. Creek was totally dependent upon Claimant.

1. The date of Maximum Medical Improvement is April 1, 1999.

COMPENSATION PAYABLE

1. Second Injury Fund liability: The evidence does not support Second Injury Fund liability for permanent partial disability or permanent total disability.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Paul Riechert for the necessary legal services plus expenses of $10,329.94 rendered to the Employee.

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

On August 29, 2018, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, William Creek, appeared in person and with counsel, Paul Reichert and David Childers. The Second Injury Fund appeared through Assistant Attorney General, Cara Lee Harris. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee previously settled.

The parties stipulated that:

1. On or about July 16, 1998, Utilicorp, Inc., was an employer operating subject to Missouri's Workers' Compensation Law and during this time was fully insured by Insurance Company of Pennsylvania c/o Specialty Risk Services;

1. On the alleged injury date of July 16, 1998, William F. Creek was an employee of the employer, and was working under and subject to the Missouri Workers' Compensation Law;

1. On or about July 16, 1998, the employee sustained an accident, which arose out of and in the course and scope of his employment with the employer;

1. The above-referenced employment and occupation occurred in Benton County, Missouri. The parties further stipulate and consent to the hearing being conducted for the convenience of all parties in Jackson County, Missouri;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

1. The employee notified the employer of his injury as required by Section 287.420 RSMo;

1. The Claim for Compensation was filed within the time prescribed by Section 287.430 RSMo;

1. At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of 562.67 for temporary total disability compensation and a compensation rate of 294.73 for permanent partial disability compensation;

1. No temporary total disability benefits were provided to the employee in this case;

1. The employer and insurer provided no medical treatment to the employee;

1. The employee and employer/insurer entered into a stipulation for compromise lump sum settlement for $6,189.33 based on approximate disability of 5% of the right elbow and 5% of the left elbow at the level of permanent partial impairment. An administrative law judge with the Division of Workers' Compensation approved this Stipulation for Compromise Settlement on or about April 15, 2010.

1. That on July 16, 1998 through the date of the hearing, the Claimant, William F. Creek, was lawfully married to Laura J. Creek and that at the time of the accident that on July 16, 1998 Laura J. Creek was totally dependent upon Claimant;

1. The date of Maximum Medical Improvement is April 1, 1999.

ISSUES

The remaining issues were as follows:

1. Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of permanent total disability compensation?

1. The Second Injury Fund asserts the affirmative defense that the present claim Injury No. 98-174915 has previously been heard by the Division of Workers' Compensation and is, therefore, barred by the doctrine of res judicata.

1. The Second Injury Fund firmly asserts that the doctrine of collateral estoppels applies to the claim based on the finality of Injury No. 98-171887.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

1. Whether or not employee's spouse is a dependent within the meaning of Schoemehl v. Treasurer, 217 S.W.3d 900 (Mo banc 2007) and may be entitled to benefits thereunder.

FINDINGS OF FACT AND RULINGS OF LAW

On August 10, 1999, Claimant filed Injury No. 98-174915 referencing a July 16, 1998, repetitive upper extremity injury and Injury No. 98-171887 filed on August 10, 1999, alleging low back injury caused by an accident with resulting depression.

A hearing was held on April 15, 2010, before Administrative Law Judge Henry Herschel. Prior to the hearing on July 25, 2010, employee filed a request for hearing against the employer and the Second Injury Fund in Injury Nos. 98-174915 and 98-171887. At that time Claimant indicated that they were prepared to present evidence on both cases at the same hearing. The final hearing was set in Sedalia, Missouri, on April 15, 2010. On January 29, 2010, the Division issued notices of hearing on both Injury Nos. 98-174915 and 98-171887. On April 15, 2010, all parties appeared in Sedalia, Missouri, to try both injury numbers. On the day of hearing, the employer and the employee entered into a compromise settlement of employee's claim against the employer regarding bilateral upper extremity injury No. 98-174915. The parties reached an agreement for 5% per elbow as a result of the occupational exposure. At that time the Claimant and the Second Injury Fund had not entered into an agreement regarding the upper extremity.

ALJ Herschel made a record regarding issues and stipulations, as evidenced in Exhibit 8, but did not make reference at any time to Injury No. 98-174915. The parties did not offer or mention Injury No. 98-174915 and, instead, it appears from the transcript that Injury No. 98-171887, which references the low back accident, was tried. At that time the employee offered expert opinions of Drs. Belz, Swearingin, Lemons, and Shane Bennoch, as well as the testimony of Claimant.

The issues that were tried in 98-171887 were whether: 1) Claimant was entitled to permanent total disability or permanent partial disability for his workplace injuries; 2) whether the Second Injury Fund or the employer/insurer is liable for payment of benefits, and; 3) whether future medical care should be awarded. The stipulations of the parties from the April 15, 2010, hearing are outlined in Claimant's Exhibit 9.

At that time Claimant introduced several experts. One was Dr. Shane Bennoch. Dr. Bennoch was aware of an occupational injury of the upper extremities on July 16, 1998, as well as a low back injury that occurred on the same day. Dr. Bennoch opined at the hearing and in medical reports that were put into evidence in 2010, that Claimant was unable to work due to chronic pain of the low back and depression, which were the result of the July 16, 1998 accident.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

He explained the biomechanical problems of Claimant's low back requires him to lie down throughout the day. Dr. Bennoch also noted Claimant's 1994 low back injury coupled with the 1998 back injury render Claimant unemployable in the open labor market. Dr. Bennoch opined Claimant as unemployable based on the low back injuries despite performing a physical examination of Claimant's elbows and hands which were found to be normal range of motion along with normal grip and muscle strength of his upper extremities.

Another expert that was entered into evidence in 2010 was Dr. Norbert Belz. Dr. Belz in 2000 noted five out of five testing of grip and strength of upper extremities despite the diagnosis of bilateral epicondylitis. Then Dr. Belz stated Claimant was permanently and totally disabled as a result of chronic pain of the low back and resulting depression from the July 16, 1998, accident. Dr. Belz, who performed a physical examination, noted that Claimant's pinch grip, the Jamar dynamometer findings, were all above normal for an average male. He also noted motor strength was normal within his upper extremities at that time.

Claimant also presented the testimony and reports of vocational expert Mr. Swearingin. Swearingin opined that as a result of back injuries that occurred in 1994 and in 1998, that Claimant was unemployable in the open labor market. Swearingin too referenced right and left upper extremities, but found that Claimant was unemployable in the open labor market based on a 1994 back injury and the 1998 work-related back injury.

Judge Herschel, after reviewing the evidence and observing Claimant testify, found that Claimant's testimony at trial was not convincing. Judge Herschel did not find that Claimant was permanently and totally disabled by either the last injury or as a result of a combination of low back injuries that combined with the July 16, 1998, low back injury. He also found that Claimant had no disability from a prior left knee and elbow injuries in his award. Judge Herschel did not find Second Injury Fund liability for either permanent total or permanent partial disability but found 20% permanent partial disability referable to the low back and 6% permanent partial disability body as a whole referable to his mental state as a result of the July 16, 1998, low back injury.

The Claimant appealed the decision which was affirmed by the Commission. Eight years later, the Claimant requested a final hearing for Injury No. 98-174915 to determine liability against the Second Injury Fund only. At the time of the present hearing, Claimant was ill due to unrelated throat cancer that had advanced in stage, but presented the same experts of Wilbur Swearingin and Dr. Belz, along with the transcript from the prior hearing as outlined in SIF Exhibit II.

Claimant presented his wife, Laura Creek, who was married to Mr. Creek at the time of the July 16, 1998, accident/occupational exposure claims of the upper extremities and continues to be married to him as well as dependent on claimant. Ms. Creek testified at the present hearing

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

the disability she observed regarding Claimant's upper extremities. However, I find based on the medical evidence presented and outlined in Claimant's Exhibit 8, that Claimant did not have the disabilities of his upper extremities as related to the July 16, 1998 occupational exposure claim. Indeed, medical treatment for the upper extremities reveal only 4 treatment records regarding epicondylitis of the upper extremities out of 1,778 documents, including the prior hearing transcript from the 2010 hearing. Therefore, I find based on the evidence presented that Claimant sustained 5% per elbow as a result of the July 16, 1998, occupational exposure.

Although Claimant presented the opinions of Dr. Belz and Swearingin, who now state Claimant is unemployable in the open labor market as a result of the left and right upper extremity epicondylitis that, combined with the low back and psych, I find their opinions unpersuasive and inconsistent with their opinions issued in 2000 and in the 2010 hearing before Judge Herschel. In fact, Dr. Belz and vocational expert Swearingin were well aware of the upper extremities at the time of the 2010 hearing, yet found the low back injury of July 16, 1998, and a prior low back injury rendered Claimant permanently and totally disabled. Therefore, I find that Claimant did not meet his burden of proof that the bilateral epicondylitis combine with the low back to create permanent total disability against the Second Injury Fund since Claimant's experts are unpersuasive and lack credibility.

The Second Injury Fund also provided the affirmative defense that res judicata applies to this case. The Second Injury Fund contends that in April 2010, that Claimant asserted he was permanently and totally disabled from either a July 16, 1998, back injury in isolation or as a result in combination with his disabilities that preexisted July 16, 1998. Due to the outcome of the April 2010 hearing, employee has now changed his theory of the case. He uses the same experts who testified in April of 2010, who have changed their opinions, and now say that the July 16, 1998, back injury is a preexisting disability to a July 16, 1998, bilateral upper extremity injury even though the experts knew and considered employee's upper extremity problems at the time they issued their first opinions. (See Exhibit 5, Pages 26, 27, 32-36, 40; Exhibit 2, Page 1391, 1392.) Even though Claimant's experts opine that he is now permanently and totally disabled as a result of an upper extremity injury that combines with a low back injury and psyche, there is no new evidence regarding the extent of either employee's low back injury or upper extremity injuries for which they could change their opinion other than the award that was issued in 2010.

It appears in reviewing the evidence that Claimant is now attempting to litigate his claim against the Second Injury Fund again, which is exactly what res judicata is precluding. Res judicata "serves to 'prevent a multiplicity of suits and appeals with respect to a single cause of action, and is designed to protect defendants against fragmented litigation, which is vexatious and costly.'" Kesler v. Curators of the University of Missouri, et al. 516 S.W.3d 884, 896 (Mo.App. W.D. 2017)(citing Kesterson v. State Farm Fire and Cas. Co., 242 S.W.3d 712, 176 (Mo.App. ) banc 2008)).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Creek

Injury No: 98-174915

It appears that employee is seeking benefits from the Second Injury Fund for a combination between a work injury of July 16, 1998, and preexisting disabilities, which is the same thing he was seeking in the hearing held on April 15, 2010. Nor has Claimant filed new claims against the Second Injury Fund and, although he has generated new evidence, it does not appear there is sufficient grounds for a new cause of action. Indeed, the identities of the parties to the action are the same. Both the employee and the Second Injury Fund were parties to, present, and represented at the hearing on April 15, 2010.

Although there is no Second Injury Fund liability based on the evidence presented, it also appears that the Claimant is precluded from collecting benefits due to the doctrine of *res judicata*. Since this award denies permanent total disability or permanent partial disability benefits, the rest of the issues to be tried are moot.

I certify that on **10-15-18** 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 **Cage**

**Lisa Potterger**

Administrative Law Judge

Division of Workers' Compensation