White Justin 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.:** 16-011501

**Employee:** Justin White

**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.¹ Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Employee testified regarding continued problems with his hands including pain, sensitivity, throbbing, decreased grip, difficulty handling and dropping things, difficulty with driving, cramping and tremors. Employee further testified to continued problems with his elbows including pain, difficulty driving, numbness, tremors, difficulty with use, tingling and difficulty sleeping. The administrative law judge found claimant credible. He further found no pre-existing disability to employee's hands or elbows.

Referencing employee's testimony and the evidence as a whole the administrative law judge awarded:

- 17.5% of the right upper extremity at the 175-week level (30.625 weeks)

- 28.75% of the right upper extremity at the 210-week level (60.375 weeks)

- 17% of the left upper extremity at the 175-week level (29.75 weeks)

- 26.45% of the left upper extremity at the 210-week level (55.545 weeks)

Employer/insurer argues that the administrative law judge's findings on the issue of nature and extent of disability are excessively high and unsupported by competent evidence because his award exceeds the disability ratings of employer's authorized treating physician, Dr. David Brown. Dr. Brown evaluated employee's permanent disability as 4% at the level of the right elbow and 4% at the level of the left elbow.

¹ Page 5 of the Award, line six of the second paragraph below the subtitle Issue 2. Nature and Extent of Disability incorrectly references a finding of "26.45% of the right elbow (55.545 weeks) [emphasis added]." As referenced earlier in the same paragraph and noted in the Summary of Findings on page 2 of the Final Award, the administrative law judge awarded 26.45% of employee's left upper extremity at the 210-week level. This clerical error does not affect the rights of the parties or our ability to review this appeal.

Injury No.: 16-011501

Employee: Justin White

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Employer/insurer's argument disregards the fact that the administrative law judge's permanent partial disability award is significantly lower than the assessment of employee's expert Dr. Bruce Schlafly, who found, assuming no additional treatment, that employee sustained permanent disability related to the compensable injury of 25% of each hand at the level of the wrist due to work-related bilateral carpal tunnel syndrome and releases, and an additional 35% permanent partial disability of each elbow, due to work-related cubital tunnel syndrome and releases.

Employer/insurer also advances a theory that the administrative law judge erred as a matter of law when he failed to reduce the amount of permanent disability awarded to employee to account for injuries that involved individual component parts of the same extremity.

In support of this contention, employer/insurer cites James McIntyre v. American Waste Reclamation Company, Inj. No. 88-168126 (LIRC, 1992). In that case, the Commission affirmed an administrative law judge's award that discounted an award for permanent partial disability to employee's right elbow based on separately assessed disability to the employee's right wrist.² The Commission found, "[W]hen there are injuries to individual component parts of the same extremity, it is appropriate to reduce the amount of disability awarded for that extremity to accommodate for the inequity which occurs from the combined effected of scheduled ratings."³

McIntyre was never appealed and does not represent judicial precedent of a superior court that the Commission has a duty to follow. See Danny Harris vs. Ralls County, Missouri, No. ED107606, October 1, 2019, at 34. Moreover, the reasoning of a former Commission does not bind this Commission because the doctrine of stare decisis does not apply to administrative bodies. State ex rel. AG Processing, Inc. v. PSC, 120 S.W.3d 732 (Mo. 2003).

McIntyre's logic suggests that an employee with two perfectly healthy elbows, rated at 210 weeks each, amounting to 420 weeks pursuant to the schedule, is somehow better off than having a perfectly healthy body, even if he suffers from a myriad of other injuries and conditions. Such reasoning would preclude an award of more than 400 weeks of permanent partial disability in a single claim, based on the premise that an employee "can't lose more than his entire body," valued at 400 weeks in the statutory injury schedule. Because of such potentially irrational and unfair consequences, we disavow McIntyre's finding that a disability award involving component parts of the same scheduled extremity must be reduced "to accommodate for the inequity which occurs from the combined effect of scheduled ratings." McIntyre, supra, p. 2.

We further consider McIntyre's interpretation of § 287.190 inconsistent with the mandate of strict construction set out in § 287.800. As explained by the court in Allcorn v. Tap Enters., 277 S.W.3d 823 (Mo. App. 2009):

² The administrative law judge in McIntyre calculated permanent partial disability to employee's right elbow on 192.5 weeks, rather than the scheduled 210 weeks. McIntyre, supra, p. 2.

³ Id.

Impry No.: 16-011501

Employee: Justin White

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'[A] strict construction of a statute presumes nothing that is not expressed.'

3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6TH ED. 2008). The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. 82 C.J.S. Statutes § 376 (1999). Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. 3 SOUTHERN STATUTORY CONSTRUCTION § 58:2 (6TH ED. 2008). The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. 3 SUTHERLAND STATUTORY CONSTRUCTION § 58:2 (6th ed. 2008). Id. 828.

Because the injury schedules set out in § 287.190 include no provision for discounting an award based on an assessment of disability to individual component parts of the same extremity, such an application does not come within the scope of the language used and is inconsistent with the strict construction mandate.

We affirm the administrative law judge's assessment of permanent partial disability based on employee's testimony regarding current symptoms and the competing medical expert opinions in the record. Courts have held "The Commission is not bound by a medical expert's percentage estimates, because the degree of disability is not solely a medical question. Deciding the percentage or degree of disability to award a claimant is a finding of fact within the unique province of the Commission." ABB Power T& D Co. V. Kempker, 236 S.W.3d 43, 52. We decline to second-guess the administrative law judge's assessment of employee's credibility based on his first-hand observation at hearing or to disturb his calculation of disability relating to employee's injury in this case.

Disfigurement

Employer/insurer urges that the administrative law judge's 20-week disfigurement award, based on scars to employee's wrists and elbows, is highly excessive considering the objective medical evidence and unsupported by competent and substantial evidence.

Employer/insurer argues that the disfigurement award failed to account for a settlement related to an earlier 2015 injury based on five weeks of disfigurement for burns to employee's right hand and urges the award was not justified because employee's scars are small and, according to employer's expert Dr. Brown, "well-healed."

Employee's prior 2015 claim for compensation involved burns between an index and middle finger sustained on May 8, 2015. Division records, of which we take administrative notice, include employer's May 11, 2015, Report of Injury related to that claim. That report states, "Employee trying to mud up a blowout and [was] burned between index and middle finger when stitching on glove burned through."

Injury No.: 16-011501

Employee: Justin White

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The transcript documents the administrative law judge's visual examination of employee's scars, which included scars, stitch marks, pinholes and pits on employee's elbows and wrists.4 Based on his visual examination, the administrative law judge 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 and elbows [emphasis added]."5

Based on this evidence, we find that the administrative law judge's disfigurement award in this case included no compensation for burn scaring between employee's index and middle fingers. The disfigurement awarded herein therefore did not duplicate payment employee received from this employer/insurer in a settlement related to his earlier May 8, 2015, injury.6 We affirm the administrative laws judge's evaluation of disfigurement related to this injury based on his personal observation of employee's surgical scars and expertise in evaluating disability based on disfigurement.

Future Medical

An employee need not present conclusive evidence of a need for future medical treatment to be entitled to an award of future medical benefits. Rather, the employee "needs only to show a reasonable probability that the future treatment is needed because of his work-related injury." Furthermore, "Future medical should not be denied because an employee may have reached maximum medical improvement." See Greer v. Sysco Food Servs., 475 S.W.3d 655, 672 (Mo. 2015).

The administrative law judge awarded future medical relating to employee's bilateral carpal tunnel and bilateral cubital tunnel to include additional revision surgery at each elbow and anterior transposition of the ulnar nerve at each elbow consistent with the recommendation of employee's medical expert Dr. Bruce Schlafly. Employer/insurer alleges the administrative law judge erred in finding Dr. Schlafly's opinion more persuasive than that of Dr. Brown because Dr. Brown, employee's treating surgeon, had a more intimate understanding of employee's condition. Employer/insurer urges that Dr. Brown opined that a repeat surgery would pose an additional risk to employee and that employee told Dr. Brown that he did not wish to pursue any future medical treatment.

Dr. Brown's January 22, 2018, letter to employer/insurer's attorney and claims adjuster falls short of stating that employee would not benefit from additional treatment, including surgery. Although the memo highlighted the risk attendant to a repeat surgery, it acknowledged that additional surgery "might improve [employee's] symptoms" and concluded, "After discussing the pros and cons," that employee's stated decision on that date not to proceed with additional treatment "[was] a reasonable choice."7 At hearing, employee testified that his initial decision not to pursue additional