Sterling Bennett v. Coatings Unlimited, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-077933**

**Employee:** Sterling Bennett

**Employer:** Coatings Unlimited, Inc. (settled)

**Insurer:** Phoenix Insurance Company/Travelers Indemnity Company of Connecticut (settled)

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

The above-entitled 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, heard oral arguments, and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 4, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued June 4, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **10th** day of January 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

AWARD

Employee: Sterling Bennett

Injury No.: 13-077933

Dependents: N/A

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Employer: Coatings Unlimited, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Phoenix Insurance Company/

Travelers Indemnity Company of Connecticut (Settled)

Hearing Date: January 23, 2019

Record Closed February 22, 2019

Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

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: August 14, 2013

1. State location where accident occurred or occupational disease was contracted: Clay County

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: Claimant

was employed as a painter for Employer and was climbing out of a bucket lift to take down some containment

in the ceiling, when he slipped on the top rail and fell back into the bucket causing his right knee to twist

awkwardly.

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right Knee

1. Nature and extent of any permanent disability: 22.5% of the Right Knee

1. Compensation paid to-date for temporary disability: $121.87

1. Value necessary medical aid paid to date by employer/insurer? $23,416.08

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

Employee: Sterling Bennett

Injury No.: 13-077933

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

1. Employee's average weekly wages: Sufficient to result in the appropriate rates of compensation

1. Weekly compensation rate: $853.08 for TTD/$446.85 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer's liability resolved by virtue of the compromise settlement

1. Second Injury Fund liability:

Claim for permanent partial disability is denied

TOTAL: $0.00

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and 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 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Laurence D. Mass.

Revised Form 31 (3/93)

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Issued by DIVISION OF WORKERS' COMPENSATION

injury No. 13-077933

Employee: Sterling Bennett

Dependents: N/A

Employer: Coatings Unlimited, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Phoenix Insurance Company/ Travelers Indemnity Company of Connecticut (Settled)

Injury No.: 13-077933

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Phoenix Insurance Company/ Travelers Indemnity Company of Connecticut (Settled)

On January 23, 2019, the employee, Sterling Bennett, appeared in person and by his attorney, Mr. Laurence D. Mass, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Coatings Unlimited, Inc., and its insurer, Phoenix Insurance Company/Travelers Indemnity Company of Connecticut, were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by its attorney, Assistant Attorney General Adam T. Sandberg.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until February 22, 2019. Although we did not go back on the record, or take any further evidence in this case, the record, then, closed automatically on that date and the parties filed their proposed awards or briefs by March 1, 2019.

Along with this Claim [Injury Number 13-077933, with an alleged date of injury of August 14, 2013, alleging injury to the right knee], Claimant also tried his other open companion claim at the same time. Injury Number 14-021772, with a date of injury of March 24, 2014, alleges injury to the left hand and ribs. A separate award has been issued for each of these cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) Sterling Bennett (Claimant) sustained an accidental injury that resulted in injury to Claimant.

2) Claimant was an employee of Coatings Unlimited, Inc. (Employer).

3) Venue is proper in the City of St. Louis, by agreement.

4) The Claim was filed within the time prescribed by the law.

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5) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of 853.08 for total disability benefits and 446.85 for permanent partial disability (PPD) benefits.

6) Employer paid temporary total disability (TTD) benefits in the amount of $121.87, representing a period of time of one day.

7) Employer paid medical benefits totaling $23,416.08.

8) Claimant sustained permanent partial disability of 22.5% of the right knee, on account of the 2013 injury.

ISSUES:

1) What is the appropriate date of injury for this case?

2) Did the accident arise out of and in the course of Claimant's employment for Employer?

3) Did Claimant provide Employer with appropriate notice of this injury?

4) What is the liability, if any, of the Second Injury Fund for permanent partial disability?

5) Is the Second Injury Fund entitled to claim a safety penalty under Mo. Rev. Stat. § 287.120 to reduce Second Injury Fund liability in this case?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

1. Medical treatment records of SSM DePaul Health Center, The Orthopedic Center of St. Louis, Liberty Hospital, Metropolitan Orthopedics LTD., PRORehab, Dr. Daniel Phillips, Olive Ambulatory Surgery Center, Concentra Medical Center, Dr. Anthony Masi, SSM Health St. Joseph Hospital in St. Charles, Dr. Vijaya Vasudevan, Barnes-Jewish Hospital and Stipulations for Compromise Settlement in Injury Numbers 99-039388, 13-077933 and 14-021772

1. Stipulation for Compromise Settlement in Injury Number 99-039388 (Date of Injury of April 9, 1999) between Claimant and an employer

1. Stipulation for Compromise Settlement in Injury Number 13-077933 (Date of Injury of August 14, 2013) between Claimant and Employer

1. Stipulation for Compromise Settlement in Injury Number 14-021772 (Date of Injury of March 24, 2014) between Claimant and Employer

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1. Independent medical report of Dr. Shawn Berkin dated September 1, 2017

1. Deposition of Ms. Delores Gonzalez dated March 15, 2018

1. Vocational rehabilitation report of Ms. Delores Gonzalez dated November 13, 2017

1. Curriculum Vitae of Ms. Delores Gonzalez

1. Award of benefits from the Social Security Administration

**Second Injury Fund Exhibits:**

I. Certified employment records of Sterling Bennett from Coatings Unlimited, Inc.

II. Certified medical records of Dr. Alexandra Strong

III. Résumé of Mr. Kevin R. Bergman

IV. Selected records from the Social Security Administration in connection with Claimant's application for Social Security disability benefits

**Note:** Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on January 23, 2019. No additional markings have been made since their admission on that date.

**FINDINGS OF FACT:**

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions, the vocational opinion and deposition, the medical treatment records, the other documentary evidence, and the testimony of the other witnesses for Claimant and the Second Injury Fund, as well as my personal observations of Claimant and the other witnesses at hearing, I find:

1) **Claimant** is a 56-year-old, right-hand dominant, currently unemployed individual, who was working for Coatings Unlimited, Inc. (Employer) as a painter on or about August 14, 2013. He worked for Employer for approximately 3 years, from 2012 to 2015, when, in February 2015, he was told that Employer had no more work for him after he was released from care for his work injury. He has not worked anywhere else since then because of the effects of all of his injuries/conditions. He applied for, and is receiving, Social Security disability benefits.

2) **Claimant** testified that he graduated from high school at Conway Day School. He said that he attended Hazelwood West until eighth grade, where he received special education services because he was learning challenged and had horrible grades. Then, he transferred to Conway Day School, which he described as "pretty lenient" and not like a regular high school. He said that even though he was a half credit short, he still received his high school diploma. He has also taken a couple of college courses. He denied having any computer skills, and explained that his daughter set up his phone so he could receive e-mails, but if he wants to send one, he needs help.

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3) Claimant testified that he has been a painter and in the painters' union most of his career. Immediately after high school, Claimant went to Texas to work for LeBus International as a welder, but he was only there a little over a year before he moved back to Missouri to work for his grandfather's business, Sterling Engineering. He worked as a rodman as part of a surveying team. He would go out with the instrument as they were shooting grades or distances and stop where he was told, put up the pole and mark it with stakes if it was the correct grade or distance. He never did any of the calculations or actual surveying, just holding the rod and marking where he was told to go. Claimant said that he worked there over the summers while in high school, and, then, until he was age 22, after he returned from Texas. Next, he worked for PaintSmiths, which was his father-in-law's company, as a driver and painter. He went through a four-year apprenticeship program and became a journeyman painter while working for PaintSmiths. He mostly did commercial painting work.

4) Claimant testified that in 1999, he was up on a scaffold at work when the wheel of the scaffold went into a hole, and threw him off the scaffold onto a post that went up into his right armpit, causing him to injure his right shoulder. He testified that he had an initial surgery to repair a torn rotator cuff and take out some arthritis. On the first day that he returned to work after the surgery, he blew out his shoulder again, and had to have another surgery. Eventually, he returned to work painting, but he was only able to raise his right arm to shoulder height, so he had trouble painting with the right hand. He said that he was able to keep pace with painting because he learned to use his left hand more for the job.

5) I found no medical treatment records in evidence for the right shoulder treatment and surgery that Claimant received as a result of the 1999 work injury.

6) Claimant and employer resolved the April 9, 1999 injury (Injury Number 99-039388) by Stipulation for Compromise Settlement (Exhibits 1 and 2) for the payment of $67,094.34, or 25% permanent partial disability of the right shoulder and $50,000.00 for any and all future medical. This Stipulation was approved by Administrative Law Judge Matthew Vacca on June 11, 2002.

7) Claimant testified that he, next, sustained injury when he was involved in a motor vehicle accident when he T-boned a car turning left in front of him. He totaled his van and sustained neck and low back injuries.

8) Medical treatment records from SSM DePaul Health Center (Exhibit 1) document the history of neck and left upper extremity pain and complaints Claimant had since the 2007 motor vehicle accident. Additionally, he had mid and lower lumbar pain that was treated with lumbar epidural steroid injections, which significantly improved his back pain. Dr. James Lu took Claimant to surgery on May 12, 2008 and performed a C3-4 radical discectomy and bilateral foraminotomy, autologous bone marrow aspiration, C3-4 anterior interbody arthrodesis using PEEK interbody spacer, and C3-4 anterior cervical fixation using anterior cervical plate and vertebral body screws, to treat Claimant's left-sided C3-4 facet arthropathy with foraminal stenosis.

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9) Claimant testified that after his neck injury and fusion surgery, he cannot turn his head and has to turn his whole body to look sideways. He said that he also cannot look up, so painting ceilings became a lot harder. He continued working for PaintSmiths as a painter, but painting was more difficult.

10) Claimant left PaintSmiths in 2010 or 2011 after divorcing his wife, and worked a couple other places for about two years, until obtaining the job with Employer. Claimant explained that his work for Employer involved car plant shutdowns in many different places, from Kentucky to Kansas City to Illinois.

11) Claimant testified that on or about August 14, 2013, he was working at the Claycomo Plant taking down containment. He explained that when they go into car plants, they are given certain areas to work on at one time, so they have to install containment (plastic sheeting) from the ceiling above the steel joists down around the area in which they are working. He estimated that they are 60 or 70 feet off the ground and they have to actually climb up into the steel beams to install and remove the containment because of the pipes, electricity and other structures up around the ceiling. Claimant said that the bucket lift only goes up so high (right to the bottom of the bar joists below where the pipes and other structures start), which requires them to use a double-hook lanyard to tie off to one structure, while they throw a cable up over the next beam, tie off, climb up, and then repeat the process while they climb through the steel beams to get to the ceiling. He testified that they had been doing this off and on for about two years with the containment and he is always tied off to prevent a serious fall. Claimant said that every once in a while Employer's safety person (Kevin) or the riding boss (Bob) would do a little safety talk, but they were mostly seeing the Ford safety people as they were working. Claimant testified that he was never cited by any of the Ford safety people for safety violations when he was working in their plant.

12) On or about August 14, 2013, Claimant testified that it was raining and water leaked through the plant roofs in Kansas City. He was trying to take down the last part of the containment in the ceiling, so he threw the lanyard up and started to climb out of the bucket lift, up the railings of the lift to get up into the ceiling, but when he got to the top rail of the lift, his foot slipped and he fell back into the bucket causing his knee to twist awkwardly. Claimant said that he reported the injury to Bob Lucks, his supervisor for Employer, who told him to go to a doctor, and instructed him to tell the doctor he stepped off a curb if he is asked if it happened on the job. However, when they realized he was going to need surgery, Bob said that they would have to turn it into the shop and admit that it was really a workers' compensation injury.

13) Medical treatment records of Dr. Alexandra Strong (SIF Exhibit II) document a visit on October 1, 2013 for right knee pain. Claimant gave a history of the symptoms being present for six weeks and that on August 26, 2013, he stepped off a curb and twisted his knee. He had an MRI of the right knee on September 27, 2013, which showed a complex tear of the medial meniscus. Dr. Strong discussed the need for knee surgery with Claimant to address the tear.

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14) Medical treatment records from **The Orthopedic Center of St. Louis** (Exhibit 1) document the treatment that Claimant received from **Dr. John Krause** in connection with this work injury. Dr. Krause first examined Claimant on October 9, 2013. He took a consistent history of the work injury on August 14, 2013, diagnosed a right medial meniscus tear, and causally related the diagnosis and need for surgery to the work injury. Dr. Krause performed a right knee arthroscopy and partial medial meniscectomy on October 17, 2013, to treat Claimant's right medial meniscus tear from his work injury. Claimant continued to follow-up with Dr. Krause after surgery and was released to go back to full-duty work on December 16, 2013, after he successfully completed his physical therapy. By February 7, 2014, Dr. Krause placed Claimant at maximum medical improvement for this injury. Claimant had full range of motion in the knee, but with some tenderness and mild discomfort. Dr. Krause opined that Claimant was able to continue working full duty, without restrictions on account of the knee injury.

15) Claimant testified that after his knee surgery, his right knee has never been the same. He said that between his neck, back and right knee, he had problems going up and down stairs.

16) Claimant and Employer resolved the August 14, 2013 injury (Injury Number 13-077933) by **Stipulation for Compromise Settlement** (Exhibits 1 and 3) for the payment of $16,086.60, or 22.5% permanent partial disability of the right knee. Claimant left the Second Injury Fund portion of his Claim for this injury open at the time of his settlement with Employer. This Stipulation was approved by Administrative Law Judge Emily Fowler on November 15, 2016.

17) Claimant testified that when he returned to work for Employer after his right knee surgery, they were working on painting the ceilings, walls and floors in the restrooms, locker rooms and break areas.

18) Claimant testified that on or about March 24, 2014, he was in a downstairs locker room painting with an apprentice, Mike Quinlisk. He was spraying the ceiling while standing up 4 feet high on an extension ladder, when the ladder slipped out from underneath him and he fell on his chest, both arms and both hands. He explained that the ladder had had rubber feet to keep it from slipping and the surface was level and stable. The ladder was not placed in front of a door, there was no traffic in the locker room and they had "Do Not Enter" signs posted. He had an apprentice to help him and to hold the ladder, but he was not in the room at the time because they did not have any more filters for his facemask, so he could not be in the room while Claimant was painting. Claimant confirmed that Bob Lucks, from Employer, had seen them using the ladders for painting a few times when they were painting around toilets and stalls, as had the Ford safety people, who were in there a lot, and no one raised any concern about the use of the ladders for painting in this manner. Claimant said that after he fell his whole body hurt, but the worst was his left hand, that was clenched up like a claw.

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19) Claimant testified that after he fell, the apprentice came in and Claimant said that they needed to get everything picked up and get out of there, because they were always told that their company could get thrown off the job if Ford found that they got hurt on the job. They were told by Employer to get out and call Bob, which they did. The apprentice drove Claimant to the hospital and they called Bob on the way. Claimant said that when they got to Liberty Hospital, they took his glove off and found the bone sticking out of the palm of his left hand. He was taken to surgery that night.

20) Medical treatment records from Liberty Hospital (Exhibit 1) document the treatment Claimant received at that facility beginning on the day of this accident. Claimant gave a consistent history of falling off the ladder at work and injuring his left hand, as well as having left elbow and right rib pain. Claimant was taken to surgery by Dr. David Steinbronn for irrigation and debridement of open left index and long finger metacarpophalangeal joint dislocations, a closed reduction of the left index and long finger metacarpophalangeal dislocations, and a laceration repair of the left palm, to treat his open dorsal dislocations of the left index and long finger metacarpophalangeal joints with possible radiodigital artery disruption to the index finger. Claimant was discharged from the hospital the next day following the surgery.

21) Claimant followed up with Dr. William Feinstein at Metropolitan Orthopedics, LTD. (Exhibit 1) on March 28, 2014. Dr. Feinstein found marked swelling throughout the hand and limited motion. He, too, diagnosed open dislocation of the metacarpal phalangeal joints of the left index and middle fingers. He changed the dressings and recommended no use of the left hand, except for digital range of motion exercises. By April 4, 2014, Claimant was complaining of numbness in the left index and middle fingers. Dr. Feinstein ordered electrodiagnostic studies of the left hand and physical therapy, which Claimant received at PRORehab, P.C. (Exhibit 1). The electrodiagnostic studies performed by Dr. Daniel Phillips (Exhibit 1) on April 11, 2014 confirmed the complete loss of sensory responses to the left index and middle fingers, as well as showed that, most likely, there are direct traumatic injuries to the index and middle finger digital nerves, which overlies chronic, previously asymptomatic median neuropathy at the carpal tunnel. In addition to the prior diagnosis, Dr. Feinstein also diagnosed left carpal tunnel syndrome and a complex open wound of the left hand with possible injuries to the left index and middle finger radial and/or ulnar digital nerves. Dr. Feinstein recommended surgery to address these complaints and findings.

22) Dr. Feinstein took Claimant to surgery at Olive Ambulatory Surgery Center (Exhibit 1) on April 22, 2014. He performed an open left carpal tunnel release, exploration of the left hand wound, and neurolysis of the radial and ulnar digital nerves to the left index and middle fingers, to treat Claimant's left carpal tunnel syndrome and open left hand wound with injuries to the radial and ulnar digital nerves to the left index and middle fingers.

23) Following surgery, Claimant was kept in physical therapy for the left hand at PRORehab. As he followed up with Dr. Feinstein, Claimant reported some improvement in the use of the left hand, but continued decreased sensation. By July

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16, 2014, Claimant was noted to be making progress with improved range of motion, strength and sensation. The PRORehab note dated August 29, 2014, shows that Claimant reported he was back to 80% of normal, but he still had pain in the hand and the fingers. On September 15, 2014, Dr. Feinstein noted Claimant's progress, but his continued weakness with heavy gripping. He discontinued his formal physical therapy and released him to resume regular duties as of that date. Dr. Feinstein last examined Claimant on November 24, 2014, at which time he discharged Claimant from care and released him at maximum medical improvement for this work injury. In a note dated February 16, 2015, he rated Claimant as having 8% permanent partial impairment of the left upper extremity. He did not believe that there were any permanent restrictions or additional medical care needed in this case.

24) While Claimant was treating with Dr. Feinstein for his left hand, he also sought treatment at Concentra Medical Center (Exhibit 1) for his chest/rib pain from the fall. Claimant was examined on April 11, 2014 and was diagnosed with a chest wall contusion and chest wall pain. A CT of the thorax with contrast taken on that same date showed rib fractures involving the right anterior fourth, fifth and sixth ribs. Claimant was prescribed pain medications and modified duties. By June 17, 2014, Claimant's symptoms were improving, but he still had some pain in the rib area. He had been working within the light-duty restrictions and his pain level that had been at 5/10 was down to 1/10. He was released from care for his rib injury on that date. The doctor noted, "No permanency expected."

25) Claimant and Employer resolved the March 24, 2014 injury (Injury Number 14-021772) by Stipulation for Compromise Settlement (Exhibits 1 and 4) for the payment of $24,973.33, or 25% permanent partial disability of the left hand and 5% permanent partial disability of the body as a whole referable to the ribs, minus a 15% penalty for a safety violation. Claimant left the Second Injury Fund portion of his Claim for this injury open at the time of his settlement with Employer. This Stipulation was approved by Administrative Law Judge Emily Fowler on November 15, 2016.

26) Claimant testified that he still does not have feeling in the pinky, ring and middle fingers and he still experiences pain in the hand from below the index finger to the thumb.

27) Claimant testified that while he was in treatment and therapy for the left hand, he was working light duty for Employer. He thinks he may have even returned to full duty leading up to February 2015, and was working in Kansas City running a crew doing floors, but he had a vacation planned in January 2015, and told Bob that he needed to leave a few days before the job was actually completed. He said that when he returned from the trip, Bob said that they could not use him anymore, and he has not worked anywhere since that time.

28) Claimant testified that he has been treating for sleep apnea for 20 years or better, and has been using a CPAP machine for almost that same amount of time. The only medical records in evidence on this condition are from Dr. Anthony Masi (Exhibit 1)

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beginning on May 29, 2015. That first note contains a history of Claimant using CPAP therapy at night since 2004 for his moderate obstructive sleep apnea. Claimant described the severity of his symptoms as severe, waking up numerous times per night and having excessive daytime sleepiness. Dr. Masi ordered a new sleep study on June 9, 2015, and diagnosed severe obstructive sleep apnea, chronic insomnia, hypersomnia, and morbid obesity, for which he adjusted the CPAP setting and ordered a sleep aid medication. Even with the medication, Claimant reported that he was having trouble sleeping because of his chronic neck and back pain.

29) In September 2015, Claimant said that he woke up one morning and could not feel anything from his right elbow to the last three fingers of his right hand (pinky, ring and middle). He said that he was sent for a nerve conduction study and was diagnosed with a pinched nerve in his elbow and right carpal tunnel syndrome.

30) Medical treatment records from Dr. William Feinstein at Metropolitan Orthopedics, LTD. (Exhibit 1) show a consistent history of Claimant waking up in 2015 with numbness in his right hand. An EMG/nerve conduction study performed by Dr. Daniel Phillips (Exhibit 1) on September 9, 2015 showed Claimant had a chronic situation, despite the more recent onset of symptoms. Dr. Phillips noted that the prior EMG from April 2014 showed significant right median neuropathy, even though Claimant was completely unaware of it and was not having any symptoms. In addition to the median neuropathy at the right wrist, Claimant also had significant ulnar neuropathy at the right elbow and ulnar neuropathy at the wrist. On September 22, 2015, Dr. Feinstein performed a right ulnar nerve decompression through the cubital tunnel, right ulnar nerve decompression at the wrist to the Guyon's canal, and a right open carpal tunnel release to treat Claimant's right cubital tunnel syndrome, right Guyon's canal ulnar nerve decompression and right carpal tunnel syndrome. Claimant followed up with Dr. Feinstein after surgery showing improvement in his condition with decreasing complaints and improved function in the right elbow/hand until he was released from care for the right arm by Dr. Feinstein on October 27, 2015.

31) Medical treatment records from Dr. Bakul Dave (Exhibit 1) document the pain management treatment Claimant has been receiving since September 9, 2015. Claimant reported chronic pain in his neck, back, right knee, right shoulder, and left hand, with numbness in both hands and radiating pain to both legs, that started three years ago, but has been getting worse. He was taking over-the-counter medications that were no longer helping. Dr. Dave prescribed pain medication and monitored his ongoing complaints and need for opioid medication through June 30, 2017.

32) Claimant testified that in May 2017, he went to the hospital with problems with his blood sugar and was diagnosed with diabetes. Medical treatment records from SSM Health St. Joseph in St. Charles (Exhibit 1) show that he was admitted to the hospital on May 19, 2017 with high blood sugar (blood glucose level over 500), and was diagnosed with Type II Diabetes Mellitus, poorly controlled, obesity and hyperlipidemia. He followed up with Dr. Vijaya Vasudevan (Exhibit 1) on June 19, 2017, who noted that his blood sugars have been better controlled with medication

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and injections, but still found diminished sensation in the right thigh above the knee, and complaints of blurred vision. He diagnosed uncontrolled Type II Diabetes Mellitus, obesity, hyperlipidemia, hypocalcemia, and diabetic polyneuropathy. Claimant testified that he continues to take medications, insulin and injections for his diabetes.

33) Currently, Claimant testified that he is taking a number of medications for his various conditions. He takes two medications for diabetes, one for his thyroid, one for depression, two for cholesterol, a Vicodin every four hours for pain and a muscle relaxer every eight hours. Claimant noted that he takes the pain medication for complaints in his neck, back, right shoulder and right knee.

34) In terms of his current physical activities, Claimant testified that he does not do any painting anymore. His daughters' husbands do all the yard work and home repairs because the vibration with the yard work hurts his hands too much. He said that he is able to do some minor cooking (microwave or sandwich machine), but since 2015 his daughters take turns bringing over meals for him. They also clean his house and do the laundry, although, he admits that he is able to do some light laundry. On an average day, he wakes up, takes his pain medication, takes a hot shower for about an hour, makes some food and then figures out what to do that day. He limits his driving to 15 miles or less because of the medications. He said that he used to fish and bow hunt, but fishing is too hard on his hands and he cannot pull the bow back anymore. He cannot walk too far or climb trees to hunt anymore either. His daughters pay the bills so he does not mess up the checkbook like he has in the past.

35) Dr. Shawn Berkin (Exhibit 5) examined Claimant on August 2, 2017 for an independent medical examination at the request of Claimant's attorney. Dr. Berkin is an osteopathic physician, who is board certified in family medicine, occupational medicine and as an independent medical examiner. He examined Claimant on one occasion and provided no medical treatment to Claimant. He issued one report dated September 1, 2017, after taking a history from Claimant, performing a physical examination and reviewing the medical treatment records. Claimant provided a consistent history of the March 24, 2014 work injury, as well as his pre-existing right shoulder, neck, low back and right knee conditions/injuries. Dr. Berkin also reviewed treatment records and included in his report Claimant's subsequent treatment with pain management, and for diabetes, sleep apnea, and his right wrist/elbow surgery. On physical examination, Dr. Berkin found decreased range of motion in the neck with tenderness, but no trigger points, spasm or radicular pain; no swelling or atrophy and normal sensation in the upper extremities; decreased range of motion in the right shoulder with tenderness and a positive impingement test, but no glenohumeral instability; tenderness in the left hand, with no swelling or deformity, and full range of motion; decreased range of motion in the low back and tenderness; and tenderness in the right knee without swelling, instability or abnormal sensation.

36) Medically causally related to the March 24, 2014 work injury, Dr. Berkin diagnosed open dislocations of the 2nd and 3rd metacarpals of the left hand, trauma to the index and middle fingers of the left hand, left carpal tunnel syndrome and multiple right-

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sided rib fractures, status post closed reductions of the metacarpophalangeal dislocations and neurolysis of the radial and ulnar digital nerves of the left index and middle fingers, with an open left carpal tunnel release. As a result of these diagnoses, medically casually related to the March 24, 2014 injury, Dr. Berkin rated Claimant as having 40% permanent partial disability of the left wrist and 12.5% permanent partial disability of the body as a whole referable to the multiple right-sided rib fractures. Pre-existing the March 24, 2014 work injury, Dr. Berkin rated permanent partial disability for the following conditions/injuries: 35% of the body as a whole referable to the cervical spine; 20% of the body as a whole referable to the lumbar spine; 40% of the right shoulder; 35% of the right knee; and 20% of the body as a whole for severe obstructive sleep apnea. He opined that the pre-existing disabilities represented a hindrance or obstacle to employment or reemployment at the time of the March 2014 injury, and that the combination of the disabilities is significantly greater than their simple sum, so a loading factor should be added.

37) Dr. Berkin opined that Claimant could not return to his previous work as a painter, and he recommended that a vocational assessment be conducted to see if there are any jobs available for him based on his limitations and impairments. If there are jobs available for which he is qualified, Dr. Berkin felt that would be acceptable. However, if no jobs were identified or Claimant was determined to be unable to compete for employment in the open labor market, Dr. Berkin opined that Claimant should be considered permanently and totally disabled. Finally, Dr. Berkin listed several restrictions involving use of the right hand (no forceful gripping, squeezing, pinching, pulling, twisting or reaching for extended periods), left hand (avoid torque like, high impact stresses, vibratory equipment, and activities requiring manual dexterity or fine motor skills), right arm (limited lifting or working above shoulder level), and right knee (cautious on stairs, ladders or uneven surfaces), as well as overall limited lifting and no excessive squatting, kneeling, stooping, turning, twisting, lifting or climbing.

38) The deposition of Ms. Delores Gonzalez (Exhibit 6) was taken on March 15, 2018 by Claimant to make her opinions in this case admissible at trial. According to her Curriculum Vitae (Exhibit 8), Ms. Gonzalez is a certified vocational rehabilitation counselor. She evaluated Claimant at his attorney's request on September 26, 2017 to determine whether Claimant was able to be employed in the open labor market. She reviewed the extensive medical treatment records and the medical opinions in the course of her evaluation. She issued her vocational rehabilitation report (Exhibit 7) dated November 13, 2017. Ms. Gonzalez took a social, educational, and vocational history from Claimant. He reported complaints ranging from fatigue and shortness of breath, to swelling in his hands and feet with walking, to joint pain, stiffness and weakness in his right shoulder, hands, elbow, knees, neck and low back. In the section titled "Activities of Daily Living," Ms. Gonzalez recorded various complaints and limitations Claimant had prior to and attributable to the 2014 injury, as well as a number of complaints and problems that surfaced subsequent to March 2014, including problems walking more than 5 minutes since 2015, lifting problems with the right arm since 2015, functional issues with both hands since 2014 (increased pain in the right since 2015), and problems with memory, focus and concentration since

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1. Ms. Gonzalez performed a transferability of skills analysis and determined that Claimant does not have transferable skills due to his severely restricted residual functional capacity. She conducted vocational testing, and Claimant scored in the below average range on reading, average range on math computation and low range on spelling. She testified that while math computation was a relative strength for Claimant, he could not perform a job like bookkeeping because of the problems with his hands.

39) Ms. Gonzalez believed that when considering all of the functional limitations placed on Claimant by Dr. Berkin, Claimant is left with a residual functional capacity of less than sedentary competitive work. She also noted his continued chronic pain and use of narcotic pain medication, as well as his significant memory loss and confusion since 2014 as part of the reason for why he is unable to secure or maintain work in the open labor market. She noted that he would not present well in a job interview because he appears drowsy and confused, had impaired attention and memory, had problems holding a pencil with his right hand and took his blood sugar twice during the interview. Based on Claimant's age, 12th grade education with special education coursework, impoverished reading and spelling skills, and all of Dr. Berkin's functional limitations, as well as what she personally witnessed during the interview, Ms. Gonzalez opined that Claimant is not a candidate for vocational rehabilitation and is not currently capable of work in the open labor market as a result of the accident of March 24, 2014 in combination with his pre-existing disabilities/conditions.

40) On cross-examination, Ms. Gonzalez testified that his shortness of breath started in 2004, his problems with gripping, grasping and dropping things with both hands started between 2014 and 2015, and his swelling in his feet and hands started after the primary injury. She tried to relate his memory, concentration and focus problems to his sleep apnea dating back to the 1990s, but admitted that there are no doctor's notes that support that causal connection. Ms. Gonzalez agreed that prior to his 2014 injury, Claimant had no permanent restrictions, and the doctors who treated Claimant for the 2013 and 2014 injuries also released him to return to work without restrictions. Ms. Gonzalez further admitted that she took all of Dr. Berkin's restrictions into account in rendering her opinion in this case, including those regarding the right hand. In fact, she agreed that Claimant was not suited to sedentary work due to the injuries/limitations to both hands, wrists, elbows and his shoulder. She testified that it is vocationally relevant that he is taking hydrocodone now because placement often requires a drug test, and he could not pass one on that medication. Ms. Gonzalez also admitted that she testified at Claimant's Social Security disability hearing, as well.

41) Claimant confirmed that with regard to the 2013 and 2014 injuries, he did nothing differently on those occasions with the lift bucket or with the extension ladder than he had done before when they were working in the rafters or in the locker rooms or bathrooms, as far as safety was concerned. He said that safety people from Ford had seen him doing this same thing in the past and never said anything about it, nor was he ever written up for it by Employer, until after the 2013 and 2014 injuries. He, specifically, noted that supervisors from Employer and Ford safety people had seen employees climbing the rails to get out of the lift buckets, and standing on the rails,

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because there was no other way to get out of the lifts to get up into the rafters, and they never questioned the employees about doing this in the past. Claimant testified that he received both safety violations from Employer at the same time and put a question mark on them because he did not agree with them. Claimant noted that although there are other types of lifts that could be ordered that would eliminate the need to climb up the rails to get out into the rafters, Bob did not order those and Claimant had no opportunity to order his own equipment.

42) On cross-examination, Claimant admitted that he agreed with some of what was contained in the safety violations he received, but he disagreed with other parts of it. He admitted that prior to 2014, he had received training on how to use ladders and how to secure ladders so that they do not slip, and that prior to 2013, he had received training on the proper use of aerial lifts and not to use the rails as steps. He said that Employer went over safety training materials all the time. Claimant noted that Kevin, from Employer, started keeping track of safety classes, trainings, etc., after a different worker for Employer died on the job. He admitted that he received the safety training materials (books) when he was hired and that he signed an agreement to follow the safety rules. He also noted that it was mandatory to report injuries to Ford, but they did not do that because their supervisor, Bob Lucks, told them to only report to him and he would tell them what to do. He said that Bob regularly threatened to fire them if they did not do what he told them to do.

43) On further cross-examination, Claimant admitted that it was his hands, back, neck and right side (knee, elbow, shoulder, neck, whole right side) that prevented him from doing things (chores) around the house. He explained that his pain symptoms got worse in 2015, prompting him to seek pain management and stronger pain medication than the five to six ibuprofen a day he had been taking prior to that time. He admitted that the first time he was diagnosed with diabetes was in May 2017. He agreed that his right elbow and wrist problems started in 2015, and said that the surgery did not eliminate all of his symptoms. He said that his fingers on the right hand are still numb and it is hard to grip or hold things. His elbow also still hurts. Prior to February 2015, Claimant denied dropping things with the right hand, and denied having numbness or a pinched nerve. He said that he received some tennis elbow injections in 2008 for right elbow pain, but he felt it was good after the shots. It was nothing like he experienced in 2015. Claimant also agreed that he has problems/numbness in his feet that started in 2016 and it feels funny when he walks. Claimant's weight also increased after he stopped working.

44) Upon continued cross-examination, Claimant testified that his 2013 injury happened probably two or three days before he saw Bob and was limping around, when Bob told him to go to a doctor. He was not sure if the date was exactly August 14, 2013, but it was two or three days before he saw the doctor (Med First) in Kansas City. He was cross-examined quite extensively by the Second Injury Fund questioning the date of injury with the Second Injury Fund attorney using December 1, 2013 as the date Claimant saw Dr. Strong, not October 1, 2013, which was the date he actually saw Dr. Strong, according to the records. Claimant insisted that Bob was not there on the date

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of the injury, but Claimant's ground man, Fred, saw it happen and reported to Bob within a few days of the occurrence.

45) Claimant admitted that he did not look for work anywhere else after his work for Employer ended. He felt it would be hard to ask for a job when he was not really supposed to be driving because of the pain medications and muscle relaxers. He collected unemployment for a brief period of time, but, then, stopped that and filed for disability. Claimant admitted that he was denied when he first applied for Social Security disability benefits, but he appealed and added records regarding his right wrist/elbow surgery, the lumbar MRI and pain management, and, then, he was approved for those benefits. Claimant confirmed that other than his right shoulder problems, he had no permanent restrictions from a doctor prior to March 24, 2014.

46) The Second Injury Fund placed in evidence Claimant's Disability Determination Explanation (SIF Exhibit IV) based on his initial filing for Social Security disability benefits. Claimant reported injuries/conditions involving his right shoulder, neck fusion, right knee, left hand (carpal tunnel and nerve damage), diabetes, gout, low back and obesity as a basis for his claim for benefits. In a decision dated September 23, 2015, Lori Moyers, SDM, found that his condition was "not severe enough to keep you from working." They were unsure if he could perform his past relevant work, but they determined that he could adjust to other work, such as furniture rental consultant, usher or counter clerk. Interestingly, there was a Work Activity Questionnaire filled out by Bob Lucks from Employer in the file. It was dated June 22, 2015. In it, Mr. Lucks attests that Claimant was able to complete all the usual duties required of his position without special assistance, regularly reported to work as scheduled, completed his work in the same amount of time as similar employees, and was 100% as productive as other employees in similar positions. There is also an MRI of the lumbar spine taken on May 4, 2015, which showed multilevel degenerative changes of the lumbar spine, most pronounced at L4-5 and L5-S1.

47) After receiving the initial denial, Claimant appealed (SIF Exhibit IV) the decision on September 28, 2015. He cited a change in his mental and physical conditions, namely, a decline in social function and motivation, his right elbow and wrist diagnoses and surgical treatment, and his pain medication being changed from tramadol to hydrocodone, which makes him drowsy and unable to operate machinery or climb heights.

48) Claimant appeared and testified at a Social Security hearing on August 4, 2017, after which a Social Security Administration decision (Exhibit 9) was issued on August 30, 2017. Ms. Gonzalez also testified at this hearing. On the basis of Claimant's "severe impairments" to the neck, right hand, left hand, obesity, bilateral lower extremity neuropathy, left index and middle fingers, and right shoulder, Claimant was ruled disabled by the Social Security Administration as of February 1, 2015, and entitled to collect disability benefits.

49) Claimant's daughter, Lindsay Lohagen, testified on her father's behalf at the trial. She confirmed that since her father last worked, he needs help around the house that

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she and her sister provide. She said that he has a hard time holding a pen, so writing checks is a problem. They have helped him with cleaning the house, laundry and cooking since February 2015. She has noticed that he has trouble gripping with his hands, so opening things, and using a mop or a broom causes problems. Their husbands also do all the yard work, home repairs and snow removal for Claimant. She said that her father also gets really confused on dates, names, etc., so they take care of the record keeping for him.

50) Kevin Bergman, Employer's Safety Director since April 1, 2013, testified on behalf of the Second Injury Fund at the trial. Mr. Bergman has worked for Employer for 12 years as a journeyman painter, supervisor and safety manager on site, before becoming the Safety Director for the company. He confirmed his experience listed in his résumé (SIF Exhibit III) and noted that he has done the same type of work in the past that Claimant was performing when he was injured. Mr. Bergman's job includes monitoring the work in the field, overseeing what the supervisors are doing, doing classroom and hands-on training with the employees, and keeping documentation on all the trainings that are given. They do fall-protection training the last Friday of each year and other safety trainings throughout the year. He confirmed that Employer provides written safety materials to employees and he disciplines employees for not following the rules.

51) In terms of the safe use of lifts, Mr. Bergman explained that employees should be tied off in the bucket lift and should have two feet firmly on the platform of the basket. They are not supposed to step on the rails to climb out of the basket. He said that he made every reasonable effort to ensure employees' knew the safety rules and followed them, and he always addressed violations. He testified that Claimant was aware of the rules about not climbing on the rails, and it was a violation of that rule that caused the injury to Claimant in 2013. Mr. Bergman confirmed that there are different lifts that have steps in them to use to climb out, but the absence of steps does not change the need to follow the rules. With regard to the use of ladders, Mr. Bergman testified that the unsafe act was not securing the ladder before climbing on it. The rule is there to prevent people from falling, and Claimant's injury in 2014 is the type of injury meant to be prevented by following the rule.

52) Mr. Bergman reviewed some of the documentation contained in Claimant's employment records from Employer (SIF Exhibit I). He identified page 5 of the exhibit as the Safety Violation Notice he issued to Claimant after his fall in 2013 while climbing the rails of the bucket lift, and confirmed that Claimant was aware of these rules prior to August 2013. He also identified page 2 of the exhibit as the Safety Violation Notice he issued to Claimant after falling off the ladder in 2014, and confirmed that Claimant was trained about the safety rules related to ladders. He identified page 9 of the exhibit as the retraining that Claimant received on January 13, 2014, after his 2013 injury. That document also states that Claimant's "Start Date" (presumably for the job on which he was injured in 2013) was August 26, 2013. Mr. Bergman said that it was not possible that Claimant received both safety violations on the same day, because the retraining after the 2013 injury occurred on January 13,

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2014, and the second injury did not occur until March 2014, with the second Safety Violation Notice being dated April 21, 2014.

53) On cross-examination, Mr. Bergman confirmed that lifts often don't reach high enough and employees are required to get out of the lifts to fully perform their work. So, Mr. Bergman admitted that, if the lifts did not have steps and Claimant still had to get out to do his work, either he had to climb out or ask for different equipment so he could get out of the lift without climbing the rails. Mr. Bergman admitted that he was not in Kansas City on this job and Bob Lucks was in charge, so if these were the only lifts provided by Mr. Lucks, then employees would have had no choice but to climb the rails to get out of the lifts to do their assigned jobs for Employer. Mr. Bergman even admitted that Employer would have expected them to climb out to get the job done if that was the equipment they were given. Concerning the second injury in 2014, Mr. Bergman admitted that it would have been a violation to have the apprentice in the room without a working mask. Finally, Mr. Bergman testified that the supervisor, Bob Lucks, expects the workers to do what he assigns them to do. He said that he doesn't know if Bob would ask them to break the rules, but he would want them to get the job done.

54) In light of the testimony about rule violations and the equipment provided (or not provided), I asked Mr. Bergman how Employer handles the situation, like here, where a rule violation occurs because of the equipment provided, or a rule violation occurs because a different rule violation was being avoided. He explained that now employees have "stop work authority" that allows them to stop working before a violation that might put them at risk and to bring the matter (potential for violation or need for different equipment) to an authority figure without the fear of being retaliated against. He believed that rule started in 2015, so he did not believe this rule was in place when Claimant was working and sustained these two injuries.

55) I observed that when Claimant was present in the courtroom to testify in this matter, he was shifting back and forth in his chair quite a bit and leaning forward, in an apparent attempt to take pressure off his back and gain some relief of his complaints.

RULINGS OF LAW:

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions, the vocational opinion and deposition, the medical treatment records, the other documentary evidence, and the testimony of the other witnesses for Claimant and the Second Injury Fund, as well as my personal observations of Claimant and the other witnesses at hearing, and based upon the applicable laws of the State of Missouri, I find:

There is no dispute in this case and parties have agreed that Claimant sustained an accident that resulted in injury to Claimant. However, they disagree on the date of the accident, and whether it arose out of and in the course of employment. In addition to these two threshold issues, there is also the issue of whether Claimant provided appropriate notice of the accident to Employer. Each of these issues must be decided before proceeding to determine if Claimant has

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met his burden of proving an entitlement to permanent partial disability benefits from the Second Injury Fund, as well as whether the Second Injury Fund is entitled to claim a safety penalty reduction in this case. Claimant reached a settlement with Employer/Insurer that allowed them to resolve their liability for this injury prior to trial, leaving Claimant to proceed to hearing against the Second Injury Fund to resolve their disputes over these issues.

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

As the first two issues in this case are inter-related, I will address both of them in the same section of the Award.

Issue 1: What is the appropriate date of injury for this case?

Issue 2: Did the accident arise out of and in the course of Claimant's employment for Employer?

Under Mo. Rev. Stat. § 287.120.1 (2005), every employer subject to the Workers' Compensation Act shall furnish compensation for the personal injury of the employee by accident arising out of and in the course of employee's employment. According to Mo. Rev. Stat. § 287.020.2 (2005), accident is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." Further, under Mo. Rev. Stat. § 287.020.3(1) (2005), "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Finally, under Mo. Rev. Stat. § 287.020.3(2) (2005), an injury is deemed to arise out of and in the course of the employment only if the accident is the prevailing factor in causing the injury and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment.

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I find that Claimant credibly testified that on or about August 14, 2013, he was climbing out of a bucket lift to take down some containment in the ceiling, when he slipped on the top rail and fell back into the bucket causing his right knee to twist awkwardly. There is no question that this description of Claimant's work activities is consistent with the type of work that Employer assigned Claimant to perform at or around the time of this injury. I find that Claimant worked as a painter for Employer, and, as such, it was necessary for him to install and remove containment all the way up into the ceiling to seal off an area where they were performing their work.

The Second Injury Fund raised questions about the date of the injury, as well as whether he injured his knee in this manner, in the course and scope of his employment, because of an inconsistent description of how and when the injury occurred in the medical treatment records of Dr. Alexandra Strong. In her note dated October 1, 2013, Claimant complained of right knee pain and gave a history of the symptoms being present for six weeks, and that on August 26, 2013, he stepped off a curb and twisted his knee. Claimant provided no history of the injury at work in this note from his visit with Dr. Strong.

However, Claimant credibly testified at trial that when he reported the injury to Bob Lucks, his supervisor for Employer, Mr. Lucks told him to go to a doctor, and instructed him to tell the doctor he stepped off a curb if he is asked if it happened on the job. However, when they realized he was going to need surgery, Bob said that they would have to turn it into the shop and admit that it was really a workers' compensation injury. The Second Injury Fund presented no evidence from Mr. Lucks, or anyone else, to contradict Claimant's description of his instructions from his supervisor after sustaining the accidental injury. Further, Claimant's employment records from Employer, show that he was disciplined by Employer for the exact mechanism of injury he described, climbing up the rails to get out of the bucket lift, and Mr. Bergman confirmed in his testimony that Claimant's violation of the safety rules with that mechanism of injury (slipping while climbing the rails) caused the 2013 knee injury.

Although Claimant admitted at trial, that the injury may not have occurred exactly on August 14, 2013, using the description on the timeframe of the accident in Dr. Strong's records, six weeks prior to October 1, 2013, would place the injury date sometime in the middle of August 2013. I also note that Employer raised no issue with the use of an injury date of August 14, 2013, as they paid medical benefits, temporary total disability benefits, and, ultimately, settled the case with Claimant using a date of injury of August 14, 2013.

Accordingly, based on Claimant's credible testimony and the other evidence described above, I find that Claimant sustained a compensable accidental injury on August 14, 2013, when he was climbing out of a bucket lift to take down some containment in the ceiling, and he slipped on the top rail and fell back into the bucket causing his right knee to twist awkwardly. I further find that the accident arose out of and in the course of his employment for Employer, by virtue of the accident being the prevailing factor in causing the injury and it not coming from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment. Medically causally related to the accidental injury on August 14, 2013, I find that Claimant sustained a right medial meniscus tear, status post a right knee arthroscopy and partial medial meniscectomy. I find that this diagnosis and causation opinion is supported by the findings and opinions of Dr. John Krause.

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Issue 3: Did Claimant provide Employer with appropriate notice of this injury?

Under **Mo. Rev. Stat. § 287.420 (2005)**, "No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice."

Case law has held that the purpose of this section is to give an employer the timely opportunity to investigate the facts surrounding an accident, and if the accident occurred, the chance to provide the employee with medical treatment in order to minimize the disability. *Willis v. Jewish Hospital*, 854 S.W.2d 82 (Mo. App. E.D. 1993) *overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003)*. However, if the employee failed to give timely written notice of the injury, that failure may be circumvented if the failure to give timely written notice did not prejudice the employer. Courts have held that the most common way for an employee to establish lack of prejudice is for the employee to show that the employer had actual knowledge of the accident when it occurred.

Considering the competent and substantial evidence listed above, I find that Claimant met his burden of proving that Employer had actual notice of the injury, and, thus, was not prejudiced by the lack of timely written notice in this case.

Consistent with Claimant's credible testimony, I find that when Claimant slipped on the rails and fell, twisting his knee, on August 14, 2013, he verbally reported the injury to his supervisor, Bob Lucks, and after it was apparent that surgery would be needed for the knee, consistent with his instructions from his supervisor, he also, then, reported it to Employer. I find that Employer clearly had the opportunity to investigate the injury since Employer disciplined Claimant for an alleged violation of their safety rules. Additionally, I find that Employer had the opportunity to control medical treatment and mitigate their exposure for temporary total disability by providing light-duty work during his recovery from knee surgery.

Therefore, given the facts described above, I find that Employer had actual notice of the accidental injury on August 14, 2013. I, further, find that the employer had the chance to investigate and direct Claimant's medical treatment for this injury. Although Claimant may not have actually written out a description of the injury and given it to Employer within the statutory timeframe, given all of these facts, I do not see how the employer was prejudiced, even if there was a lack of written notice of the injury. Under **Mo. Rev. Stat. § 287.420 (2005)**, since I find Employer had actual notice of the accident and was not prejudiced by the lack of written notice, Claimant has met his burden of proof on the issue of notice.

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Issue 4: What is the liability, if any, of the Second Injury Fund for permanent partial disability?

Under **Mo. Rev. Stat. § 287.190.6 (1) (2005)**, "permanent partial disability" means a disability that is permanent in nature and partial in degree. The claimant bears the burden of proving the nature and extent of any disability. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. 1973). Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. *Fogelsong v. Banquet Foods Corp.*, 526 S.W.2d 886, 892 (Mo. App. 1975) (citations omitted).

Additionally, under the 2005 amendments to the Workers' Compensation Law, the Legislature added further provisions that have an impact on the determination of the nature and extent of permanent partial disability. **Mo. Rev. Stat. § 287.190.6 (2) (2005)** states,

> Permanent partial disability... shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Therefore, according to the terms of this statute, it is incumbent upon the claimant to have a medical opinion from a physician that demonstrates and certifies claimant's permanent partial disability attributable to a given injury within a reasonable degree of medical certainty. Further, if there are conflicting opinions from physicians in a given case, then objective medical findings must prevail over subjective findings.

In awarding permanent partial disability from the Second Injury Fund under these statutory provisions, it is, thus, necessary to deal with each of these sections. Considering the competent and substantial evidence listed above, I find that the medical opinions from Dr. Berkin demonstrate and certify, within a reasonable degree of medical certainty, that Claimant sustained permanent partial disability referable to the right knee, as well as to other injuries/conditions that pre-existed the March 24, 2014 work injury.

In cases such as this one where the Second Injury Fund is involved, we must also look to **Mo. Rev. Stat. § 287.220 (2005)** for the appropriate apportionment of benefits under the statute. In order to recover from the Fund, Claimant must prove that he had a pre-existing permanent partial disability that existed at the time of the primary injury. Then to have a valid Fund claim, that pre-existing permanent partial disability must combine with the primary disability in one of two ways. First, the disabilities combine to create permanent total disability, or second, the

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disabilities combine to create a greater overall disability than the simple sum of the disabilities when added together.

In the second (permanent partial disability) combination scenario, pursuant to Mo. Rev. Stat. § 287.220.1 (2005), the pre-existing disability must also meet certain thresholds before liability against the Second Injury Fund is invoked and they must be of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment should employee become unemployed. *Messex v. Sachs Electric Co.*, 989 S.W.2d 206 (Mo. App. E.D. 1999) *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). The pre-existing disability must result in a minimum of 12.5% permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity. These thresholds are not applicable in permanent total disability cases.

It is first necessary to determine the nature and extent of the permanent partial disability against Employer. I find, pursuant to the stipulation of the parties at the outset of this hearing, that Claimant sustained 22.5% permanent partial disability of the right knee, on account of the August 14, 2013 (primary) injury.

Having now established the nature and extent of the permanent partial disability attributable to the primary injury against Employer, it is now appropriate to determine whether or not Claimant has successfully met his burden of proving Second Injury Fund liability for permanent partial disability based on the combination of his primary (August 14, 2013) injury and any pre-existing permanent partial disabilities. Having thoroughly considered all of the competent and credible evidence in the record, I find that Claimant has failed to meet his burden of proof to show an entitlement to a permanent partial disability award against the Second Injury Fund in this case.

Claimant has alleged permanent partial disability, pre-existing the August 14, 2013 injury, to the body as a whole referable to his cervical spine, lumbar spine, sleep apnea and to his right shoulder, that potentially combines with the disability from the primary 2013 right knee injury to trigger Second Injury Fund liability. In reviewing Dr. Berkin's independent medical report dated September 1, 2017, I notice that while he breaks down disability attributable to the March 24, 2014 injury and what pre-existed that injury, he makes no such division as what disability was attributable to the August 14, 2013 injury and what, specifically, pre-existed that injury. In other words, Dr. Berkin's report offers specific opinions on primary and pre-existing disability referable to a date of March 24, 2014, but he offers no such specific opinions on primary and pre-existing disability referable to a date of August 14, 2013.

When reading that report in connection with the medical treatment records and Claimant's testimony, I find that the right knee disability, he assigns in that report, is clearly associated with the August 14, 2013 work injury, even though he does not directly provide that opinion. I can further surmise that the cervical and lumbar spine disability is most likely associated with the 2007 motor vehicle accident and the right shoulder disability is associated with the 1999 work injury, even though Dr. Berkin does not specifically provide those opinions. However, since it is clear from Claimant's testimony and the medical treatment records that his lumbar spine and sleep apnea conditions continued to worsen over time, such that he required more and different treatments to address his complaints as the years went by, I find that it

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becomes somewhat speculative for me to try to determine how much disability he had for those conditions as of (pre-existing) August 14, 2013, as opposed to as of (pre-existing) March 24, 2014, since Dr. Berkin does not provide clear opinions in that regard.

Additionally, I find that Dr. Berkin opines that the pre-existing disabilities represented a hindrance or obstacle to employment or reemployment "at the time of the March of 2014 injury involving his left hand and chest." I find that Dr. Berkin offers no such opinion as to the pre-existing disabilities at the time of the August 2013 injury involving the right knee. One could certainly speculate that this kind of opinion would carry back to the prior date if it was attributable to the later, but I find that awards of compensation must be based on more than mere speculation.

Finally, Claimant had the burden of proving that the August 14, 2013 injury combined with the pre-existing disabilities to create a disability greater than the simple sum of the disabilities in order to trigger Second Injury Fund liability. In the same section of his September 1, 2017 report entitled "DISABILITY RATING: RE: 03/24/14 INJURY," right after he provides ratings for Claimant's various injuries/conditions, he includes boilerplate Second Injury Fund combination language that says, "I feel the combination of his disabilities is significantly greater than their simple sum, and a loading factor should be applied." At first glance, it is clear that this combination language Dr. Berkin provides in this report, includes the combination of the March 24, 2014 disabilities with everything else listed. I find nothing in the report, and no opinions from Dr. Berkin, that narrowly tailors the combination language to the combination of the August 14, 2013 injury and any pre-existing disabilities creating a synergistic effect and invoking Second Injury Fund liability for permanent partial disability.

Further, even if I could derive such an opinion by assuming the combination language applied to the August 14, 2013 injury, just as he applies it to the March 24, 2014 injury, I find that Dr. Berkin offers no additional explanation or support for this boilerplate language to explain how those injuries actually combined to create that greater disability than the simple sum of the disabilities. All I have is one sentence in the report from Dr. Berkin that merely mentions combination without any discussion as to how or why exactly the right knee combines with the right shoulder or the neck or anything else to make him worse than if he just had those injuries alone. Also, while Claimant testified as to the continuing problems he had with his shoulder after the right shoulder injury, and to his neck after the motor vehicle accident and to his right knee after the work injury, I found very little clear testimony from him on how the combination of the injuries affected him. In fact, the only mention of how those injuries combined affected him was one comment from Claimant that between his neck, back and knee, he had a lot of problems going up and down stairs.

Therefore, I find that Claimant has failed to meet his burden of proving that the Second Injury Fund is liable for the payment of permanent partial disability in this case for a number of reasons. This finding is primarily based on Dr. Berkin's failure to, specifically, opine the nature and extent of the permanent partial disabilities that may have pre-existed the August 14, 2013 injury, his failure to, specifically, opine that any disabilities were a hindrance or obstacle to employment or re-employment prior to August 14, 2013 (as opposed to March 24, 2014), and his failure to provide clear and persuasive opinions (along with explanations) for how the August 14, 2013 injury combined with any pre-existing disabilities to result in a greater overall amount of

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disability than the simple sum. This finding is also based on Claimant's failure to provide clear and convincing evidence on how these disabilities may have combined to make him worse on account of the combination. Accordingly, Claimant's claim for permanent partial disability benefits from the Second Injury Fund is denied.

Since I have found that Claimant is not entitled to any benefits from the Second Injury Fund in this case, the remaining issue of the Second Injury Fund's entitlement to a safety penalty is moot and will not be addressed in this Award.

**CONCLUSION:**

Claimant sustained a compensable accidental injury on August 14, 2013, when he was climbing out of a bucket lift to take down some containment in the ceiling, and he slipped on the top rail and fell back into the bucket causing his right knee to twist awkwardly. The accident arose out of and in the course of his employment for Employer, by virtue of the accident being the prevailing factor in causing the injury and it not coming from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment. Medically causally related to the accidental injury on August 14, 2013, Claimant sustained a right medial meniscus tear, status post a right knee arthroscopy and partial medial meniscectomy. Since Employer had actual notice of the accident and was not prejudiced by the lack of written notice, Claimant has met his burden of proof on the issue of notice. Claimant sustained permanent partial disability as a result of this August 14, 2013 injury in the amount of 22.5% of the right knee.

Based on numerous deficiencies in Dr. Berkin's opinions in this case, and Claimant's failure to provide clear and convincing evidence on how these disabilities may have combined to make him worse on account of the combination, Claimant failed to meet his burden of proving his entitlement to permanent partial disability benefits from the Second Injury Fund. Claimant's claim for permanent partial disability benefits from the Second Injury Fund is denied.

Since Claimant is not entitled to any benefits from the Second Injury Fund in this case, the remaining issue of the Second Injury Fund's entitlement to a safety penalty is moot and will not be addressed in this Award.

I certify that on _6-4-14_

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 _ap_

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation

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