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 treatment was heavily influenced by Dr. Brown's strong recommendation against additional surgery. Employee

4 Transcript, p. 9.

5 Award, p. 5.

6 Transcript, p. 232.

7 Transcript, p 208.

Injury No.: 16-011501

Employee: Justin White

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conceded he had lost confidence in Dr. Brown's ability to provide further assistance, but now wishes to pursue the additional surgery in the hope of improving his symptoms, consistent with Dr. Schlafly's recommendation.

The administrative law judge might have rejected Dr. Schlafly's opinion regarding employee's need for future medical and disregarded employee's change of heart about pursuing additional medical treatment, including surgery. That said the administrative law judge was entitled to rely on Dr. Schlafly's expert medical opinion and employee's credible testimony at hearing regarding the issue of additional medical treatment. Because employee has demonstrated a reasonable probability that future treatment is needed we affirm the administrative law judge's award of future medical.

**Conclusion**

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

The award and decision of Administrative Law Judge Carl Strange, dated March 19, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 13th day of December 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 16-011501

Employee: Justin White

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 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, disfigurement and future medical in this matter incorrect in light of the weight of the medical evidence in the record. I further consider the majority's failure to discount the administrative law judge's permanent partial disability award to justify disability awarded to component parts of the same extremity incorrect as a matter of law.

The administrative law judge erred in awarding disability to each wrist in addition to each elbow. As this Commission found in *James McIntyre v. Am. Waste Reclamation Co., Inj. No. 88-168126 (LIRC, 1992)*, "When there are two or more injuries related to the use of the same arm, both injuries are considered as one partial disability to the arm rather than to the component parts." *Id.* 2. See also *Ludwig v. Columbia Brewing Co., 225 S.W.2d 489 (Mo. App. 1949)*, and *Carenza v. Vulcan-Cincinnati, Inc., 368 S.W.2d 507 (Mo. App. 1963)*.

The employee in *McIntyre* suffered injuries to his right wrist and right elbow, and the administrative law judge in that case awarded percentages to the wrist and elbow together under the scheduled 210 weeks for the elbow. Specifically, the administrative law judge assessed a percentage of the elbow at 192.5 weeks, and a percentage of the wrist at 17.5 weeks (which together add up to 210 weeks). The Commission affirmed the administrative law judge, finding that "When 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 effect of scheduled ratings." *McIntyre, p. 2*.

In the present matter, the administrative law judge improperly declined to assess partial disability to each upper extremity as one disability to each arm, as set for by *McIntyre*. Instead, the administrative law judge specifically assessed partial disability to each elbow and each wrist individually, using the full 210 and 175-week schedules for each.

The fact that *McIntyre*, per se, is not binding judicial precedent does not preclude this Commission from adopting its sound reasoning. The majority incorrectly suggests that *McIntyre* deviates from existing case law. *McIntyre* is in fact entirely consistent with *Carenza, supra*, in which the court of appeals specifically held the statutory schedule *must not be applied* in a manner that results in disability that exceeds scheduled ratings. *Carenza, supra*, at 513.

The majority's reliance on the strict construction mandate of § 287.800 to uphold the administrative law judge's calculation of disability in this case is similarly incorrect. Application of strict construction to § 287.190, pursuant to the standard set out in *Allcom v. Tap Enters., 277 S.W. 3d 823 (Mo. App. 2009)*, logically precludes an award based on a scheduled extremity that exceeds the statute's expressly scheduled weekly

Injury No.: 16-011501

Employee: Justin White

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amount. To construe the statute otherwise is to extend its operation to matters that are not affirmatively pointed out by its terms.

Secondly, and in a similar vein, the percentages awarded by the administrative law judge are excessively high. Dr. David Brown, the treating surgeon who performed all four carpal/cubital tunnel release surgeries and had an unparalleled perspective of employee's condition, rated employee's permanent partial disabilities as 4% to each elbow. Dr. Brown also performed a nerve conduction study, which showed a return to normal values. Dr. Brown's reliable opinion was based on his intimate understanding of the employee's symptoms and treatment and his positive results from surgery. The administrative law judge awarded percentages vastly greater than those stated by Dr. Brown. Rather than addressing Dr. Brown's opinion, the administrative law judge instead relied wholly on employee's trial testimony. Because the administrative law judge failed to consider Dr. Brown's reliable opinion and the objective medical evidence, his permanent partial disability award is excessively high, unsupported by competent and substantial evidence and must be overturned.

**Disfigurement**

The administrative law judge awarded excessive disfigurement benefits, particularly in that he failed to properly take into account employee's prior settlement for five weeks of disfigurement to his right hand. Section 287.190.4 imposes a statutory maximum of 40 weeks of compensation for all disfigurement, including past, present, and future claims. The administrative law judge awarded 20 weeks of disfigurement for employee's surgical scars, constituting 50% of the 40-week maximum, and failed to consider the prior settlement of five weeks of disfigurement for burns to employee's right hand in the award. This is highly excessive considering the objective medical evidence.

Dr. Brown noted well-healed scars at employee's January 10, 2018, office visit after all surgeries had been completed. Dr. Schlafly, employee's own expert, during his October 23, 2017 independent medical examination noted that scars on employee's hands were about one-inch long and scars on his elbows were about two inches long, while noticing several residual burn scars to employee's right hand. Even though these residual burn scars were previously settled on the basis of five weeks of disfigurement, the administrative law judge awarded upwards of four weeks for the small single scar on employee's right hand and three weeks for the small single scar on the left hand. He furthermore awarded as high as eight weeks for the left elbow and five weeks for the right elbow, despite the small, well-healed nature of the scars. The administrative law judge declined to address the prior settlement of five weeks of disfigurement to employee's right hand. As such, the administrative law judge's disfigurement award is highly excessive and unsupported by competent and substantial evidence.

**Future Medical**

The administrative law judge erred in finding employee entitled to future medical care in the form of revision ulnar surgery for each elbow. The administrative law judge based his award on a mistaken finding that the opinions of Dr. Schlafly were more persuasive than the opinions of Dr. Brown.

Injury No.: 16-011501

Employee: Justin White

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Dr. Brown was the treating surgeon for employee throughout his treatment for his hands and elbows and, as such, his opinions outweigh the opinions of Dr. Schlafly in this matter. Dr. Brown performed all four carpal/cubital tunnel release surgeries. Only Dr. Brown had the intimate medical understanding of employee's condition to properly assess his need for future medical care. Dr. Schlafly, on the other hand, was not a treating provider and never surgically operated on employee. He merely saw employee on one occasion at the request of employee's attorney for an independent medical examination. Therefore, the administrative law judge erred in finding the opinions of Dr. Schlafly more reliable than the opinions of Dr. Brown.

Dr. Brown's reliable opinion held there was no guarantee that a repeat surgery would improve employee's symptoms at all. In fact, Dr. Brown felt that additional surgeries posed an increased risk to employee due to the fact that employee had already undergone surgery. Moreover, employee himself expressed to Dr. Brown that he did not wish to pursue any future medical treatment.

**Conclusion**

For the reasons discussed above, the administrative law judge's findings on the issues of nature and extent of disability, disfigurement, and future medical aid are unsupported by the competent and substantial evidence in the record and his award should be reversed.

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Justin White

Injury No. 16-011501

ISSUED BY DIVISION OF WORKERS' COMPENSATION

Employee: Justin White

Injury No. 16-011501

Dependents: N/A

Employer: The Doe Run Company

Additional Party: Second Injury Fund (OPEN)

Insurer: American Zurich Insurance Company

Hearing Date: December 17, 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? February 19, 2016.

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 the employee was doing and how accident happened or occupational disease contracted: Employee was performing repetitive activities for the employer and injured his bilateral wrists and bilateral elbows.

Employee: Justin White

Injury No. 16-011501

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

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

1. Nature and extent of any permanent disability: 17.5% of the right upper extremity at the 175 week level, 28.75% of the right upper extremity at the 210 week level, 17% of the left upper extremity at the 175 week level, and 26.45% of the left upper extremity at the 210 week level.

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

1. Value necessary medical aid paid to date by the employer-insurer: 57,459.50.

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

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

1. Weekly compensation rate: $464.58 per week for 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 $91,194.73 (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

On December 17, 2018, the employee, Justin White, 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 February 19, 2016, 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 February 19, 2016, 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 February 19, 2016, 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 occupational disease.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for permanent partial disability is $\ 464.58.
7. The employee's occupational disease is medically causally related to the work exposure occurring on or about February 19, 2016.
8. The employer has furnished $\ 57,459.50 in medical aid to the employee.
9. The employer has paid no temporary total disability.
10. The employee reached maximum medical improvement on January 22, 2018.

1. Future Medical Aid
2. Nature and Extent of Disability

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

1A. Report of Dr. Bruce Schlafly;

1B. Supplemental Report of Dr. Bruce Schlafly;

1C. Curriculum Vitae of Dr. Bruce Schlafly;

1. N/A
2. Report of Injury;
3. Claim for Compensation;

Employee: Justin White

Injury No. 16-011501

1. Medical History of Employee concerning February 19, 2016 Occupational Disease:

A. Viburnum Medical Clinic;

B. Dr. David Brown;

C. Dr. Daniel Phillips;

D. Farmington Sports and Rehab;

1. Medical Records of Dr. David Brown;
2. Medical Records of Dr. Daniel Phillips; and
3. Stipulation for Compromise Settlement, Injury No. 15-031692.

Employer-Insurer's Exhibit:

A. Curriculum Vitae of Dr. David Brown.

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).

FINDINGS OF FACT & RULINGS OF LAW:

Issue 1. Future Medical Aid

Justin White ("Employee") began working for the Doe Run Company ("Employer") in 2007. While at Employer, Employee performed repetitive work in the blast furnace and at the recycling plant. As a result, Employee has requested an award of future medical aid regarding his bilateral carpal tunnel and bilateral cubital tunnel resulting from the occupational disease occurring on or about February 19, 2016. In support of his position, Employee has offered numerous medical records and the medical report of Dr. Bruce Schlafly. Following his examination of Employee, Dr. Schlafly recommended "an additional surgery for treatment of Mr. White's work-related bilateral cubital tunnel syndrome, in that I recommend revision surgery at each elbow, for anterior transposition of the ulnar nerve at each elbow" (Employee's Exhibit 1-A). Employer-Insurer has referred to the records of the treating physician, Dr. David Brown, in support of their position that Employee is not entitled to future medical care. In his January 22, 2018 medical note, Dr. Brown noted "Although it is possible performing an anterior

**Injury No. 16-011501**

Transposition of his ulnar nerve might improve his symptoms there is a risk that surgery may make him worse.... After discussing the pros and cons Justin decided he does not want to proceed with any additional treatment at this point....I'll see him back on an as needed basis" (Employee's Exhibit 6). At the time of the hearing, Employee testified he wanted the additional medical care, but not by Dr. Brown since he did not do the ulnar nerve transposition during the last surgery although Employee expected it. On March 13, 2018, Dr. Bruce Schlafly noted that after reviewing Dr. Brown's notes that, "it remains my conclusion that I recommend revision ulnar nerve surgery for Mr. White, at each elbow" (Employee's Exhibit 1-B).

It logically follows that Employee will require future medical care in the form of a revision ulnar surgery as a result of the February 19, 2016 work-related occupational disease. Consequently, I find the opinions of Dr. Schlafly to be supported by the evidence and more persuasive 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 a revision ulnar surgery to cure and relieve him from the effects of his February 19, 2016 work-related occupational disease. Based on the evidence and my above findings, Employer-Insurer is directed to furnish additional medical treatment related to Employee's February 19, 2016 work-related occupational disease in accordance with Section 287.140 RSMo.

At the time of the hearing, Employee testified that he continued to have problems with his hands that included pain, sensitivity, throbbing, decreased grip, difficulty handling and dropping things, difficulty driving, cramping and tremors. Further, Employee noted that he continued to have problems with his elbows that included pain, difficulty driving, numbness, tremors, difficulty with use, tingling and difficulty sleeping. Based on the evidence, I find Employee's testimony to be persuasive. Regarding his burn injury to his hand, Employee and Employer-Insurer settled injury number 15-031692 for disfigurement only. After reviewing the evidence, I find that Employee had no pre-existing disability to his hands or elbows.

Based on the evidence and my above findings, I find that Employee suffered a 17.5% of the right upper extremity at the 175 week level, 28.75% of the right upper extremity at the 210 week level, 17% of the left upper extremity at the 175 week level, and 26.45% of the left upper extremity at the 210 week level as a result of the February 19, 2016 work-related occupational disease. The 17.5% of the right wrist (30.625 weeks), the 28.75% of the right elbow (60.375 weeks), the 17% of the left wrist (29.75 weeks), and the 26.45% of the right elbow (55.545 weeks) total 176.295 weeks. Accordingly, Employer-Insurer is therefore directed to pay Employee the sum of 464.58 per week for 176.295 weeks for a total of 81,903.13. 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. Based on these scars, I find that the employee is entitled to 4 weeks on his right wrist, 5 weeks on his right elbow, 3 weeks on his left wrist, and 8 weeks on his left elbow for a total of 20 weeks for disfigurement. Employer-Insurer is therefore directed to pay to the employee the sum of 464.58 per week for 20 weeks for a total of 81,903.13.

TI3661-0160

Employee: Justin White

$9,291.60 for disfigurement. The total amount awarded against Employer-Insurer for permanent partial disability and disfigurement is equal to $91,194.73.

**ATTORNEY'S FEE:**

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:**

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

I certify that on 3-19-19 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 executed award in the Division's case file.

By **A.D.**


Made by:

**Carl Strange**

Administrative Law Judge

Division of Workers' Compensation