Lisa Coffer v. Health Management Associates, Inc./Twin Rivers Regional Medical Center

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 13-104240

**Employee:** Lisa Coffer

**Employer:** Health Management Associates, Inc./Twin Rivers Regional Medical Center (settled)

**Insurer:** Liberty Insurance Corporation (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. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the issue of Second Injury Fund liability.

The administrative law judge determined that the Second Injury Fund is liable for permanent total disability as a result of the combination of employee's pre-existing neck, low back, anxiety, colon cancer, and right elbow conditions and disabilities, and the bilateral hands and wrists condition and disability caused by the December 13, 2013 occupational disease.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in applying § 287.220.2 RSMo to employee's claim, because the Missouri Workers' Compensation Law § 287.010 RSMo, as amended in 2013, provides a permanent disability claim filed against the Second Injury Fund for occupational disease after January 1, 2014, is governed by § 287.220.3 RSMo.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee worked for Health Management Associates, for 23 years, beginning in 1990, engaged for the most part, as a PBX operator. The last day she worked was December 13, 2013, when she was taken off work by her doctor related to pain in her hands, wrists, and elbows. On December 7, 2013, a nerve conduction study was done, which revealed severe left carpal tunnel syndrome and entrapment of the left ulnar nerve across the elbow; and mild to moderate right carpal tunnel syndrome with entrapment of the right ulnar nerve as well.

On December 13, 2013, employee sustained an occupational disease (bilateral carpal tunnel syndrome) arising out of and in the scope of her employment with employer. Employee was previously diagnosed and treated for colon cancer, undergoing surgery.

Injury No. 13-104240

Employee: Lisa Coffer

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in 2004, and also developed anxiety after this event. Employee underwent cervical discectomy and fusion at C5-6 in 2011. She developed low back pain in 2006, for which she underwent disc decompression at L4-5, L5-S1 in March 2008. On February 6, 2012, employee underwent surgery to repair her right lateral epicondylitis (elbow). No evidence was provided to show that any of the pre-existing disabilities claimed by employee fell within the conditions enumerated in § 287.220.3(2). Employee filed an occupational disease claim for workers' compensation on November 24, 2014, seeking permanent total disability benefits from the Second Injury Fund.

Dr. Robert Poetz opined that employee was permanently and totally disabled as a result of the combination of pre-existing and primary injuries. He found her to be at maximum medical improvement as of December 13, 2013, although she could get benefit from additional treatment. He rated employee's primary injury disability at 30% permanent partial disability of the right hand and wrist and 25% permanent partial disability to the left hand and wrist. Dr. Paul Hinton agreed that employee was permanently and totally disabled as a result of the combination of pre-existing and primary injuries, but rated the primary injury at 18.75% permanent partial disability of each wrist. A vocational rehabilitation specialist, Ms. Susan Shea, evaluated employee on March 21, 2017, and opined that employee was permanently and totally disabled due to restrictions and limitations from her extensive pre-existing conditions in combination with her bilateral carpal tunnel syndrome, and that no employer would hire the employee reasonably expecting her to perform the job for which she is hired. Employee also credibly testified regarding her pain, current symptoms and limitations, and her belief that she is unable to perform any employment.

We find that employee was permanently and totally disabled as a result of the combination of her pre-existing and primary injuries, and that the disability rating attributable to her bilateral carpal tunnel syndrome work-related occupational disease was 22.75% to the right wrist and 20% to the left wrist. We find employee provided no evidence that any of her pre-existing disabilities met a required condition set forth in § 287.220.3(2)(a) or (b).

On March 1, 2016, employee settled her claim against the employer/insurer for 18.75% permanent partial disability of the body as a whole referable to carpal tunnel syndrome in both wrists.

The parties stipulated at the hearing on January 16, 2019, that the date of onset of the occupational disease was December 13, 2013. Employee filed her occupational disease claim for permanent total disability benefits against the Second Injury Fund on November 24, 2014. The parties further stipulated before the administrative law judge, that appellate jurisdiction remains with the Missouri Court of Appeals, Southern District.

Conclusions of Law

Due to the date of the filing of employee's claim in 2014, § 287.220.3(1) RSMo, applies in this matter.

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Employee: Lisa Coffer

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Section 287.220.3 provides as follows:

(1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(Emphasis ours.)

We focus our decision on the language of the statute addressing a subsequent compensable injury which is an occupational disease filed after January 1, 2014. The statute clearly states such injuries, by occupational disease, "shall be compensated as provided in this subsection," i.e. subsection 3, as opposed to subsection 2.¹ We understand this language to mean that when one (a) files a workers' compensation claim (b) against the Second Injury Fund where (c) the subsequent compensable injury is an occupational disease and (d) the filing date is after January 1, 2014, then § 287.220.3 RSMo, applies.

Here, employee's claim against the Second Injury Fund involves a subsequent compensable injury which is an occupational disease. Employee filed her claim on November 24, 2014. Therefore, § 287.220.3 RSMo, applies in this matter. The language of subsection 3 is clear and unambiguous, requiring that a claim against the Fund involving an occupational disease filed after January 1, 2014, is governed by that subsection. We must read and apply the statute under the dictate of strict construction, which means we cannot presume anything not expressed by the actual words chosen by the legislature.² § 287.800 RSMo.

Employee is seeking permanent total disability benefits against the Second Injury Fund. In reviewing employee's claim as required under § 287.220.3(2), the language of the subsection clearly shows her claim for permanent total disability is not compensable against the Second Injury Fund. Employee's pre-existing disabilities do not meet the allowable conditions prescribed by the statute, as amended in 2013.

¹ This particular issue was a matter of first impression, until the Missouri Court of Appeals, Eastern District issued its decision in Bruce Krysl v. Treasurer of Missouri as Custodian of the Second Injury Fund, No. ED107591 (Oct. 1, 2019, as corrected on October 22, 2019, request for rehearing or transfer denied, November 4, 2019). The Court held that the date of injury assigned to Krysl's occupational disease (1/1/13) was determinative as to which subsection prevailed. At the time of this writing, that matter was awaiting finality. The time for requesting transfer directly to the Supreme Court under Court Rule 83.04 had not yet expired. In so ruling, the Missouri Court of Appeals, Eastern District, reversed the Commission in its ruling that the date of filing the occupational disease claim was determinative. In contrast to our analysis in this case, and our analysis in the Krysl case, the Eastern District Court's decision gave no effect to the plain and unambiguous words, "filed after," in subsection 3.

² We also note that the Chairman of the Commission was a member of the 97th General Assembly and voted on the exact changes. This exact fact pattern was expressly contemplated during the debate and was meant to be covered by the plain and unambiguous words "filed after" in § 287.220.3 RSMo.

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Employee: Lisa Coffer

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Subsection 287.220.3 provides as follows:

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop

Employee has not provided evidence that her preexisting conditions and disabilities fall under any of the allowable criteria designated in subsection 3 (2). Because § 287.220.3 RSMo, prevents employee's claim for permanent total disability against the Second Injury Fund, as a matter of law, we must deny employee's claim. All other issues are moot.³

We reverse the award of the administrative law judge.

Employee's occupational disease claim against the Second Injury Fund for permanent total disability is denied because it is barred by § 287.220.3 RSMo.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten is attached solely for reference.

³ We acknowledge that the parties stipulated to the date of injury of the occupational disease as December 13, 2013. However, the stipulation does not change the filing date. Nor does such stipulation prevail over the language of the statute.

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Employee: Lisa Coffer

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Colnejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED