Thomas Fenwick v. The Doe Run Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 14-036462

**Employee:** Thomas Fenwick

**Employer:** The Doe Run Company

**Insurer:** American Zurich Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund (open)

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.

On July 25, 2019, employee filed a Motion to Strike Employer/Insurer's Statement of Facts (Motion to Strike). On July 30, 2019, employer/insurer filed its Response to Respondent Employee's Motion to Strike Employer/insurer's Statement of Facts (Response).

Commission Rule 8 CSR 20-3.030(5)(C), effective October 30, 2019, provides, in pertinent part:

> The petitioner's brief shall contain a fair and concise statement of facts without argument, with citations to the pertinent pages of the transcript supporting each factual assertion. . . . Upon its own motion, or upon motion by any interested party, the commission may, in its discretion, decline to consider any brief or any portion of a brief that is not filed in accordance with these rules (emphasis added).

Employee's Motion to Strike identifies specific portions of petitioner employer/insurer's statement of facts that construe employee's responses to employer/insurer's cross-examination as representing employee's trial testimony. Employee urges the Commission to strike employer/insurer's statement of facts on the basis that it is not fair and without argument, and, at fifteen pages in length, is not "concise".

Employer/insurer's Response declares that no statutory or regulatory authority supports employee's Motion to Strike and implies that the Commission is devoid of power to strike a party's statement of facts. This argument is clearly erroneous in that the last line of the Commission Rule 8 CSR 20-3.030(5)(C), specifically authorizes the

Injury No. 14-036462

Employee: Thomas Fenwick

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Commission, on its own motion or the motion of any interested party, to decline to consider any brief or any portion of a brief that fails to comply with the Commission's rules.

Notwithstanding the deficiencies in petitioner employer/insurer's statement of facts identified in employee's Motion to Strike, we consider the motion as moot in light of our decision herein affirming the administrative law judge's award. We therefore decline to rule on employee's Motion to Strike.

**Nature and Extent of Disability**

Employer/insurer's application for review contends that the administrative law judge erred in failing to factor in permanent partial disability attributable to a 2002 injury in awarding employee 20% permanent partial disability of the right upper extremity at the 175-week level, 20% permanent partial disability of his left upper extremity at the 175-week level and $1,787.40 for disfigurement based on scars on each wrist.

The record includes evidence of a prior 2002 right finger injury and right extensor tendon repair. On September 12, 2002, Dr. Rotman assessed 5% permanent partial impairment at the level of employee's right hand related to this injury and discharged employee for full work activities. *Transcript*, 415. On April 23, 2003, employee entered into a stipulation for compromise settlement for $8,308.65 less a 25% attorney's fee, based on approximate disability of 15% of the right wrist. *Transcript*, 416.

On April 5, 2017, addressing employee's 2002 right index finger laceration, Dr. Volarich found "there may be a small amount of disability from the minor extensor lag that is considered too small to quantify since he was asymptomatic in the right hand leading up to his current work injuries." *Transcript*, 95. Dr. Cantrell's December 15, 2015, evaluation included no rating of preexisting disability attributable to employee's 2002 right hand injury. *Transcript*, 156-157.

Based on Dr. Volarich's and Dr. Cantrell's evaluations, we find that employee sustained minimal permanent partial disability attributable to his prior, 2002 right finger injury. We conclude that the administrative law judge's award of permanent partial disability gave appropriate credit for all preexisting disabilities, as his award specifically states. *Award*, p. 5.

The administrative law judge visually examined employee's wrist disfigurement at hearing. *Transcript*, 32. He found that "In addition to his permanent partial disability, the employee is seriously and permanently disfigured based on the scars on each of his wrists." *Award*, p. 5. We note that the administrative law judge's award of four weeks for disfigurement, totaling 1,787.40 is slightly less than the 1,858.32 amount attributable to disfigurement employer/insurer offered employee relating to his May 22, 2014, injury on March 1, 2016. *Transcript*, 505. Based on this evidence in the record, we affirm the administrative law judge's award of permanent partial disability and disfigurement related to employee's May 22, 2014, injury.

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

The award and decision of Administrative Law Judge Carl Strange, issued February 7, 2019, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Given at Jefferson City, State of Missouri, this $\qquad 4th \qquad$ day of December 2019.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Jr., Member


Attest:


**Injury No. 14-036462**

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I consider the majority's award of permanent partial disability and future medical in this matter excessive in light of employee's demonstrated lack of credibility and the credible expert opinions in the record.

I concur with the majority's opinion insofar as it finds that employee's Motion to Strike Employer/Insurer's Statement of Facts is authorized by Commission Rule 8 CSR 20-3.030(5)(C) which requires that a petitioner's brief "shall contain a fair and concise statement of facts without argument" and expressly permits the Commission "upon its own motion or upon motion by any interested party. [to] decline to consider a statement of fact that is not in compliance with its rules."

That said it is relevant to note that this provision represents a recent change in this Commission rule. Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(B), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission and three months after employer/insurer's response to employee's motion to strike its statement of facts.

Employer/insurer's July 20, 2019, response to employee's Motion to Strike was therefore accurate in its representation that no express authority to make such a motion existed in either § 287.480 or in the Commission rules that were in effect at the time employer's brief and employee's Motion to Strike were filed.

The administrative law judge's award of permanent partial disability relies on the subjective testimony of employee. Employee underwent a physical demands evaluation as part of his job application to work for the Missouri Department of Corrections at the end of 2017. The December 14, 2017 report indicated that employee passed this physical demands testing. Considering that the physical demands included dragging a 150-pound object over 18 feet and running 300 yards, it strains belief that a person with employee's subjective bilateral hand complaints could have successfully performed such physically demanding tasks.

In addition to the inconsistencies raised by employee's performance on the 2017 physical demands evaluation, the record shows many inconsistencies between employee's subjective statements and objective findings. Nearly every single doctor employee visited, in addition to physical therapists, noted symptom magnification behavior. In addition, employee told Dr. Volarich that he could use chainsaws and trimmers despite reporting an inability to use his hands for hardly any activity at all. Transcript, 33, 86-87.

Injury No. 14-036462

Employee: Thomas Fenwick

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The administrative law judge's award of 20% permanent partial disability of each upper extremity and an additional four weeks of disfigurement further neglected to consider employee's prior severe injury to his right hand in 2002, for which a settlement was reached on the basis of 15% permanent partial disability of each wrist.

Section 287.190.6(3) requires any award of compensation to be reduced by an amount proportional to the permanent partial disability determined to be a preexisting condition sufficient to cause or prolong the disability or need of treatment. Here, employee suffered a severe prior injury to his right hand in 2002 and reached a settlement on the basis of 15% permanent partial disability of the right wrist. Accordingly, any finding of permanent partial disability attributable to the May 22, 2014, injury must factor in the 15% rating from the 2002 injury. The administrative law judge erred in failing to mention or include employee's prior 15% rating when making his finding.

Future Medical Aid

The administrative law judge further erred in finding employee entitled to future medical treatment in the form of over-the-counter analgesics. The administrative law judge gave no basis for his award other than to acknowledge that Dr. Volarich recommended over-the-counter analgesics and to state that Dr. Volarich's opinion was more credible than any other conflicting opinion.

Dr. Crandall placed employee at maximum medical improvement on December 15, 2015, recording employee's satisfaction with the surgeries he received, all while working full time. Dr. Volarich has no specialty in hands or carpal tunnel surgery, whereas Dr. Crandall is highly specialized in these areas. The opinion of Dr. Crandall, together with employee's statements regarding his condition, is significantly more credible and entitled to greater weight than the opinion of Dr. Volarich.

Conclusion

Based on the foregoing, after factoring in employee's prior settlement for 15% of the right wrist in 2003, employee should be awarded no more than 17.5% permanent partial disability of each wrist plus a 10% load and two weeks of disfigurement.

Further, because the record clearly shows that employee has no need for future medical treatment, the administrative law judge's award of future medical should be reversed.

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Jr., Member

Employee: Thomas Fenwick

Injury No. 14-036462

Employee: Thomas Fenwick

Injury No. 14-036462

Dependents: N/A

Employer: The Doe Run Company

Additional Party: Second Injury Fund (OPEN)

Insurer: American Zurich Insurance Company

Hearing Date: October 10, 2018

Checked by: CS/kg

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? May 22, 2014.

1. State location where accident occurred or occupational disease contracted: Iron 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 happened or occupational disease contracted: Employee was performing repetitive activities and injured his bilateral wrists.

1

Employee: Thomas Fenwick

Injury No. 14-036462

1. Did accident or occupational disease cause death? N/A.

1. Parts of body injured by accident or occupational disease: Right and left wrist.

1. Nature and extent of any permanent disability: 20% of the right upper extremity at the 175 week level and 20% of the left upper extremity at the 175 week level.

1. Compensation paid to date for temporary total disability: 0.00.

1. Value necessary medical aid paid to date by employer-insurer: 26,615.85.

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

1. Employee's average weekly wage: Not Calculated.

1. Weekly compensation rate:

$446.85 for temporary total disability, permanent total disability, and permanent partial disability.

1. Method wages computation: By Agreement.

1. Amount of compensation payable: Employee awarded permanent partial disability and disfigurement from the employer-insurer in the amount of $33,066.90 (See Findings).

1. Second Injury Fund liability: N/A.

1. Future requirements awarded: Yes (See Findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 costs plus 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kenneth Seufert

Employee: Thomas Fenwick

Injury No. 14-036462

On October 10, 2018, the employee, Thomas Fenwick, appeared in person and by his attorney, Kenneth Seufert, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Jay Lory. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about May 22, 2014, The Doe Run Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by American Zurich Insurance Company.
2. On or about May 22, 2014, the employee was an employee of The Doe Run Company and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about May 22, 2014, the employee sustained an occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for temporary total disability, permanent total disability, and permanent partial disability is $446.85.
7. The employee's injury is medically causally related to the work injury occurring on or about May 22, 2014.
8. The employer has furnished $26,615.85 in medical aid to the employee.
9. The employer has paid no temporary total disability.

1. Future Medical Aid
2. Nature and Extent

The following exhibits were offered and admitted into evidence:

1A. Report of Dr. David Volarich;

1B. Curriculum Vitae of Dr. David Volarich;

1C. Records provided to Dr. David Volarich;

1. N/A
2. Report of Injury for 5/22/2014 DOI;
3. Claim for Compensation for 5/22/2014 DOI;
4. Medical History of Employee for 5/22/2014 DOI:

1. Dr. Evan Crandall;

Employee: Thomas Fenwick

Injury No. 14-036462

1. Dr. Daniel Phillips;
2. Pro Rehab/Athletico;

1. Report of Injury for on or about 4/28/2015 DOI;

1. Claim for Compensation for on or about 4/24/2015 DOI;

1. Medical History of Employee for on or about 4/28/2015 DOI:

1. Salem Memorial District Hospital;

2. Viburnum Medical Clinic;

3. Midwest Imaging;

4. Dr. James Coyle;

5. Professional Imaging;

6. St. Luke's Hospital;

7. Dr. Gregory Smith;

8. Dr. David Peeples;

9. Dr. James Doll;

10. Pro Rehab/Athletico;

1. Report of Dr. Russell Cantrell;
2. Report of Dr. Michael Chabot;
3. Division of Workers' Compensation Records;
4. Pre-existing Medical History of Employee:

1. Midwest Health Group;

2. SE Health Center Reynolds County;

1. Pre-existing Medical Records of The Orthopedic Center of St. Louis;

Employer-Insurer's Exhibits:

A. Curriculum Vitae of Dr. Evan Crandall;

B. Curriculum Vitae of Dr. James Doll;

C. Curriculum Vitae of Dr. Russell Cantrell;

D. Curriculum Vitae of Dr. Michael Chabot;

E. Department of Corrections Essential Functions Evaluation;

F. Correspondence from Insurer to Employee; and

G. Casenet Printout.

APPLICABLE LAW:

- The standard of proof for entitlement to an allowance for future medical aid cannot be met simply by offering testimony that it is "possible" that the claimant will need future medical treatment. *Modlin v Sunmark, Inc.*, 699 S.W. 2d 5, 7 (Mo.App.1995). The cases establish, however, that it is not necessary for the claimant to present "conclusive evidence" of the need for future medical treatment. *Sifferman v Sears Roebuck and Company*, 906 S.W. 2d 823, 838 (Mo. App.1995). To the contrary, numerous cases have made it clear that in order to meet their burden, claimants are required to show by a "reasonable probability" that they will need future medical treatment. *Dean v St. Lukes Hospital*, 936 S.W. 2d 601 (Mo.App.1997). In addition, employees must establish through competent medical evidence that the medical care requested, "flows from the accident" before the employer is responsible. *Landers v Chrysler Corporation*, 963 S.W. 2d 275, (Mo.App.1997).

Employee: Thomas Fenwick

Injury No. 14-036462

Thomas Fenwick ("Employee") began working for The Doe Run Company ("Employer") in 2007. While at Employer, Employee performed repetitive work as a hand miner, roof man, truck driver, and heavy equipment operator. As a result, Employee has requested an award of future medical aid regarding his bilateral carpal tunnel resulting from the occupational disease occurring on or about May 22, 2014. In support of his position, Employee has offered numerous medical records and the medical report of Dr. David Volarich. Following his examination of Employee, Dr. Volarich recommended Employee to "continue a home exercise program, walk for 30 minutes a day, and take over-the-counter analgesics as needed for discomfort" (Employee's Exhibit 1-A). It logically follows that Employee will require continued medical care in the form of over-the-counter analgesics to address and control the symptoms that are a result of the May 22, 2014 work-related injury. Consequently, I find the opinions of Dr. Volarich to be supported by the evidence and more credible than any other conflicting opinion. I further find that the evidence supports a finding that Employee will require future medical treatment in the form of over-the-counter analgesics to cure and relieve him from the effects of his May 22, 2014 work-related injury. Based on the evidence and my above findings, Employer-Insurer is therefore directed to furnish additional medical treatment related to Employee's May 22, 2014 work-related injury in accordance with Section 287.140 RSMo.

At the time of the hearing, Employee testified that he continued to have problems with his right hand that included swelling, cramps, numbness, pain, tingling, decreased grip, decreased strength, difficulty using vibrating tools, and difficulty with stamina. Further, Employee noted that he continued to have problems with his left hand that included swelling, cramps, numbness, pain, tingling, decreased grip, decreased strength, difficulty using vibrating tools, and difficulty with stamina. Consequently, I find the Employee's testimony to be persuasive.

Based on the evidence and my above findings and after giving credit for all pre-existing disability, I find that Employee suffered a twenty percent (20%) permanent partial disability of the right upper extremity at the 175 week level and a twenty percent (20%) permanent partial disability of the left upper extremity at the 175 week level as a result of the May 22, 2014 work-related injury. The twenty percent (20%) of each wrist is equal to 70 weeks. Accordingly, Employer-Insurer is therefore directed to pay Employee the sum of 446.85 per week for 70 weeks for a total of 31,279.50. In addition to his permanent partial disability, the employee is seriously and permanently disfigured based on the scars on each of his wrists. Based on these scars, I find that the employee is entitled to 4 weeks for disfigurement. The Employer-Insurer is therefore directed to pay to the employee the sum of 446.85 per week for 4 weeks for a total of 1,787.40 for disfigurement. The total amount awarded against Employer-Insurer for permanent partial disability and disfigurement is equal to $33,066.90.

Kenneth Seufert, attorney at law, is allowed a fee of costs plus 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on 0-7-19

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 exsculed award in the Division's case file.


Made by:


Carl Strange

Administrative Law Judge

Division of Workers' Compensation