Michael Lexow v. Boeing Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 16-029680

**Employee:** Michael Lexow

**Employer:** Boeing Company (settled)

**Insurer:** Self-Insured (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

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

The administrative law judge determined that the Second Injury Fund is liable for permanent total disability benefits.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge misapplied § 287.220.3 RSMo by including preexisting conditions within her analysis that do not satisfy the criteria for permanent total disability claims against the Second Injury Fund.

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

At the outset, we defer to, and hereby adopt as our own, the administrative law judge's assessment that employee was a credible witness. From employee's credible testimony, we derive the following facts regarding employee's vocational history.

After graduating high school, employee attended a technical college and earned a certificate in aircraft maintenance. This training and certification allowed him to inspect, repair, and maintain aircraft. From 1976 through 1979, employee served in the United States Air Force performing aircraft and jet engine maintenance. Following an honorable discharge, employee continued to perform jobs in the private sector involving aircraft and aircraft simulator maintenance, inspections, service, and repair.

Employee last worked as an aircraft simulation technician for the employer named in this claim. This position was physically demanding, and required heavy lifting, hand intensive activities, extended kneeling and squatting, use of numerous hand tools, and

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overhead work. Employee stopped working for employer in early 2016 in order to undergo left knee and right shoulder surgeries. Although he had intended to return to work, employee was ultimately unable to do so owing to ongoing medical restrictions from his surgeries.

Employee brings this claim against the Second Injury Fund alleging he is permanently and totally disabled as a result of the combination of left carpal tunnel syndrome sustained while working for employer, and his numerous preexisting conditions of ill-being.

**Right Shoulder.** In 1998, employee injured his right shoulder in a skiing accident. This injury required surgery. In 2002, after employee suffered a new falling injury, treating physicians diagnosed him with chronic dislocation of the right shoulder. Employee underwent physical therapy and received injections. In 2015, an MRI revealed significant degenerative changes, mild instability, and a superior labral tear. In January 2016, employee underwent a right shoulder capsular release, biceps tenodesis, and AC resection. The treating surgeon, Dr. Peter Anderson, believes employee may need a shoulder replacement in the future.

Leading up to the primary injury, employee suffered considerable difficulty with his right shoulder, including frequent dislocation. As a result, he tried to keep his arm as close to his side as he could while working, and asked for help doing any type of overhead or heavy lifting.

Employee's medical expert, Dr. David Volarich, rated employee's preexisting disability referable to the right shoulder at 60% permanent partial disability. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the right shoulder was equal to 50%, or 116 weeks.

**Left shoulder.** In January 2010, employee suffered a left shoulder injury. He received treatment in the form of physical therapy and injections. Employee continues to experience pain and limitations in his left shoulder.

Dr. Volarich rated employee's preexisting disability referable to the left shoulder at 20% permanent partial disability. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the left shoulder was equal to 15%, or 34.8 weeks.

**Left biceps.** In January 2006, employee suffered an injury to his left arm. Treating physicians diagnosed a ruptured biceps. Employee underwent a distal biceps tendon repair surgery, but continued to have some weakness in his arm.

Dr. Volarich rated employee's preexisting disability referable to this condition at 20% permanent partial disability. We find that, at the time of the April 2016 primary injury,

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employee's permanent partial disability with respect to this condition was equal to 15%, or 33.3 weeks.

Preexisting bilateral carpal tunnel syndrome. In 2003, employee developed bilateral carpal tunnel syndrome (CTS) as a result of repetitive work for his employer. Employee underwent bilateral carpal tunnel release surgeries in 2004. Employee suffered a loss of endurance and dexterity, and needed to take more breaks at work.

On September 9, 2005, employee settled a workers' compensation claim for the 2003 bilateral CTS consistent with permanent partial disability ratings of 17.5% of the left wrist and 18.6% of the right wrist, plus a 10% load or multiplicity factor. On December 12, 2005, employee settled a related claim against the Second Injury Fund consistent with a permanent partial disability rating of 25% for the preexisting right shoulder condition.

Dr. Volarich rated employee's preexisting permanent partial disability referable to bilateral CTS at 35% of each wrist. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to bilateral CTS was equal to 18.6% of the right wrist, or 32.55 weeks, and 17.5% of the left wrist, or 30.625 weeks.

Left knee. In 2002, employee suffered an injury to his left knee in the same fall referenced above that injured his right shoulder. In 2004, after an MRI revealed a torn medial meniscus in the left knee, Dr. Anderson performed a surgical repair. Employee experienced some improvement from this surgery, but continued to suffer left knee pain, as well as difficulty squatting, running, jumping, kneeling, and walking long distances.

In 2014, employee sustained a new injury to his left knee while hurrying to cross a street; employee's course of treatment culminated with a second surgical meniscus repair in January 2016. Following the surgery, employee continued to suffer from swelling, difficulty with stairs, and difficulty with squatting or kneeling at work. Following a September 2016 partial meniscectomy and chondroplasty, employee ultimately underwent a total knee replacement in February 2017.

Dr. Volarich rated employee's preexisting disability referable to the left knee at 65% permanent partial disability. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the left knee was equal to 55%, or 88 weeks.

Low back. Employee began suffering from low back pain in 2004. Treating physicians diagnosed degenerative disc disease and recommended medications, injections, and physical therapy. Employee's symptoms continued to increase, and when conservative treatments were ineffective in addressing his pain, employee underwent a radiofrequency ablation from L3 to L5 in 2015. Employee continued to suffer with constant low back pain which increased with sitting or any activities. Employee required help from coworkers to lift heavier items at work.

Dr. Volarich rated employee's preexisting disability referable to the low back at 25% permanent partial disability of the body as a whole. We find that, at the time of the April

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2016 primary injury, employee's permanent partial disability with respect to the low back was equal to 20%, or 80 weeks.

Neck. In December 2013, employee was lifting a canopy at work when he felt a pop in his neck, followed by radiating pain from his neck into his shoulder and hand. In May 2014, employee underwent an anterior cervical discectomy, decompression, and fusion at C4-5, C5-6, and C6-7. Employee missed nearly two months of work following the surgery. While the surgery relieved the radiating pain into employee's shoulder and hand, employee continues to suffer from pain, stiffness, and limited motion in his neck.

Dr. Volarich rated employee's preexisting disability referable to the neck at 40% permanent partial disability of the body as a whole. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the neck was equal to 30%, or 120 weeks.

Heels. In 2006, employee developed pain in both of his heels. Treating physicians diagnosed bilateral plantar fasciitis, and a bone spur in the left heel. Employee received treatment in the form of orthotics and injections. Employee continued to suffer pain and fatigue in his feet while working.

Dr. Volarich rated employee's preexisting disability referable to the heels at 5% permanent partial disability of each foot. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to plantar fasciitis was equal to 3.5% of each foot at the 150-week level, or 5.25 weeks.

Eyesight. In 2005, treating physicians diagnosed employee with pattern dystrophy, a congenital visual condition which caused employee difficulty when looking at wiring and reading schematics at work. However, we note that Dr. Volarich did not rate any preexisting permanent partial disability referable to employee's eyesight. Nor did employee provide any other evidence that would permit us to apply the regulatory provisions for evaluation of visual disabilities.¹ For this reason, we find that employee did not suffer any preexisting permanent partial disability referable to his vision.

Primary injury - left carpal tunnel syndrome

In November 2015, employee developed increasing numbness and tingling in his dominant left arm and hand. In April 2016, Dr. Anderson diagnosed left carpal tunnel syndrome (CTS). The parties stipulated that April 13, 2016, was the appropriate date of injury for employee's left CTS, and also that employee reached maximum medical improvement from the effects of the primary left CTS on December 9, 2016. At that time, employee continued to experience an ongoing dull ache at the base of his left wrist, as well as numbness and pain in his left hand.

Employee settled his claim against the employer/insurer for the primary injury consistent with a rating of 17.5% permanent partial disability of the left wrist. We find this rating to

1 See 8 CSR 50-5.020.

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be persuasive. We find that employee suffered 17.5% permanent partial disability referable to the left wrist as a result of the primary injury of left CTS.

As of December 9, 2016, employee was 58 years of age, and had not worked for nearly a year. Employee believes he remains incapable of returning to or sustaining work in the open labor market owing to his bilateral shoulder problems (which hinder overhead work), bilateral hand problems (which hinder hand intensive work), back problems (which prevent prolonged sitting), neck problems (which prevent him from holding his head in one