Bruce Krysl v. Veiled Prophets of St. Louis

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(After Mandate from the Missouri Court of Appeals for the Eastern District)

**Injury No.:** 13-104992

**Employee:** Bruce Krysl

**Employer:** Veiled Prophets of St. Louis (Settled)

**Insurer:** New Hampshire Insurance Company (Settled)

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

On October 1, 2019, the Eastern District Court of Appeals issued an opinion reversing the January 17, 2019 award and decision of the Labor and Industrial Relations Commission (Commission). *Bruce Krysl v. Treasurer of the State*, ED107591 (October 1, 2019, tran. denied February 4, 2020). By mandate dated February 6, 2020, the Court confirmed its decision to reverse the Commission's award and decision and remanded this matter to the Commission for further proceedings consistent with the Court's opinion.

In its decision, the Court specifically directed:

> The Court, being sufficiently advised of and having considered the premises, adjudges that the award rendered by the Labor and Industrial Relations Commission in Injury No. 13-104992 be reversed and remanded to the aforesaid Commission with instructions to reinstate the ALJ's award of permanent partial disability benefits in accordance with this Court's opinion delivered October 1, 2019.

Therefore, pursuant to this express directive and the mandate from the Court, we issue the following award.

The Second Injury Fund is liable to employee for 23.398 weeks of permanent partial disability benefits, or $10,144.90.¹

The award and decision of Administrative Law Judge John K. Ottenad, issued May 18, 2018, is attached solely for reference.

¹ On February 10, 2020, the Second Injury Fund filed Petitioner's Motion for Final Review and Ruling, asking the Commission to review and rule on the Second Injury Fund's second point of its application for review, dated May 24, 2018. The Commission did not address that second point in its January 17, 2019 decision, because it did not need to address the second point after it ruled on the first point in the application for review. The Second Injury Fund did not file a further appeal to the Missouri Court of Appeals regarding its second point of its application for review before the Commission.

The mandate by the Court of Appeals does not provide any instruction for the Commission to address the second point of the Second Injury Fund's application for review. After the mandate, the Second Injury Fund filed a motion with the Court of Appeals to recall the mandate, apparently to have its second point addressed. The Court of Appeals denied that motion on February 18, 2020. For the above reasons, the Commission denies the Second Injury Fund's Motion for Final Review and Ruling.

- 2 -

Enployee: Bruce Krysl

For necessary legal services rendered to employee, Thomas J. Gregory, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

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

Given at Jefferson City, State of Missouri, this _29th_ day of April 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

S. Kiki Curls

Shalonn K. Curls, Member

Attest:

Secretary

Issued by DIVISION OF JERKERS' COMPENSATION

Injury No. 13-104992

AWARD

Employee: Bruce Krysl

Injury No.: 13-104992

Dependents: N/A

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Employer: Veiled Prophets of St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company

C/O AIG Claims, Inc. (Settled)

Hearing Date: February 13, 2018

Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: January 1, 2013

1. State location where accident occurred or occupational disease was contracted: St. Louis City

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 sculptor for Employer and after his years of performing hand-intensive, repetitive work

with his right hand, he developed right wrist carpal tunnel syndrome.

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 Wrist

1. Nature and extent of any permanent disability: 21.25% of the Right Wrist

1. Compensation paid to-date for temporary disability: $3,120.00

1. Value necessary medical aid paid to date by employer/insurer? $13,872.84

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Issued by DIVISION OF ..... JERKERS' COMPENSATION

Injury No. 13-104992

Employee: Bruce Krysl

Injury No.: 13-104992

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

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

1. Weekly compensation rate: $433.58 for TTD/$433.58 for PPD

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

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer previously settled its risk of liability

1. Second Injury Fund liability:

1. 398 weeks of permanent partial disability 10,144.90

TOTAL: 10,144.90

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: Thomas J. Gregory

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On February 13, 2018, the employee, Bruce Krysl, appeared in person and by his attorney, Mr. Thomas J. Gregory, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Veiled Prophets of St. Louis, and its insurer, New Hampshire Insurance Company C/O AIG Claims, Inc., 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 Assistant Attorney General Madalyn Enzmann. 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) On or about January 1, 2013, Bruce Krysl (Claimant) sustained an occupational disease arising out of and in the course of employment that resulted in injury to Claimant. 2) Claimant was an employee of Veiled Prophets of St. Louis (Employer). 3) Venue is proper in the City of St. Louis. 4) Employer received proper notice. 5) The Claim was filed within the time prescribed by the law. 6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $\ 433.58 for total disability benefits and $\ 433.58 for permanent partial disability benefits. 7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 3,120.00, representing a period of time of 7 weeks. 8) Employer paid medical benefits totaling $\ 13,872.84.

Issued by DIVISION OF JRKERS' COMPENSATION

Injury No. 13-104992

9) Claimant sustained permanent partial disability of 21.25% of the right wrist, as a result of the January 1, 2013 (primary) injury.

ISSUES:

1) What is the nature and extent of Claimant's permanent partial disability?

2) What is the liability of the Second Injury Fund?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

1. Stipulation for Compromise Settlement in Injury Number 13-104992 (Date of Injury of January 1, 2013) between Claimant and Employer
2. Report of Injury for Injury Number 13-104992
3. Medical treatment records of St. Anthony's Medical Center
4. Medical treatment records of Dr. Victoria Jansen at St. Anthony's Physician Organization
5. Medical treatment records of The Retina Institute
6. Medical treatment records of Dr. Nicholas Martin at Premier Care Orthopedics and Sports Medicine
7. Medical treatment records of Dr. George Thampy
8. Certified medical treatment records of Dr. David Brown
9. Deposition of Dr. David Volarich, with attachments, dated October 6, 2017

Second Injury Fund Exhibits:

Nothing offered or admitted into evidence at the time of hearing

Notes: 1) If any of the records submitted at hearing contain handwritten comments or other marks, these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on February 13, 2018.

2) Unless otherwise noted below, any objections contained in the deposition exhibit are overruled and the testimony fully admitted into evidence in this case.

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Issued by DIVISION OF JIRKERS' COMPENSATION

Injury No. 13-104992

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion and deposition testimony, the medical treatment records and the Stipulation for Compromise Settlement between Claimant and Employer in this case, as well as based on my personal observations of Claimant at hearing, I find:

1. **Claimant** is a 65-year-old retired sculptor, who was employed by Veiled Prophets of St. Louis (Employer) for approximately 23 years, from 1994 until October 2017. As a sculptor for Employer, Claimant was responsible for creating the sculptures for the floats in the Veiled Prophet Parade and for use at the Veiled Prophet Ball. He testified that his work required the use of ladders, lifts, crawling and working on his knees, while utilizing handsaws, utility knives, files and other hand tools to create the sculptures out of Styrofoam. He noted that this was a very physical job, and he primarily used his dominant right hand for sculpting with the tools, as he steadied himself with his left hand.

1. **Claimant** testified that after years of performing hand-intensive, repetitive work with his right hand as a sculptor, he developed right hand carpal tunnel syndrome. He said that he would notice pain and burning in the right hand after a day of hard work, soon after he started working for Employer, but the problems got worse over the years as he continued to work. He said that using a knife or files was the worst. By 2015, Claimant said that he requested treatment for his right hand complaints from Employer because he was having constant problems in the hand, even before he started working for the day.

1. **The Report of Injury for Injury Number 13-104992 (Exhibit 2)**, filed by Employer, indicates that Claimant sustained a carpal tunnel injury to his wrist on January 1, 2013, and Employer was notified on that same date. It also indicates that the Workers' Compensation Administrator was notified on July 23, 2015, which is also the same date as Claimant's last work date, as confirmed in this filing.

1. **Claimant** testified that while his boss was aware of the ongoing hand problems he was having, he has no idea why the date of January 1, 2013 was used in the Report of Injury for the Date of Injury or the date Employer was notified. Claimant confirmed that he never requested treatment in 2013, but rather in 2015, when the Report of Injury was, actually, first filed. He testified that he neither missed any time from work, nor had any change in pay or earning capacity, as a result of the right hand carpal tunnel syndrome until 2015.

1. **The medical treatment records of Dr. David Brown (Exhibit 8)** show that Dr. Brown first examined Claimant on September 21, 2015, as a referral from AIG-Work Comp. The New Patient Questionnaire contains a consistent history from Claimant of pain, numbness and tingling in his right forearm, hand and wrist, that started approximately 20 years ago, that he attributed to his repetitive sculpting during that time (up to approximately 7,200 strokes per day). It also contains a prior history of diabetes, macular edema, right foot surgery in 2012 and a Charcot fracture of the left ankle.

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The records show that Claimant had previously seen Dr. Mitchell Rotman on August 27, 2015, and Dr. Daniel Phillips on that same date for EMG/nerve conduction studies, which showed carpal tunnel syndrome on top of peripheral neuropathy, attributable to his diabetes in both the upper and lower extremities. Dr. Brown diagnosed chronic severe right carpal tunnel syndrome, and recommended surgery to address this condition. He took Claimant to surgery on October 22, 2015, and performed a right carpal tunnel release. When Claimant followed up with Dr. Brown after surgery, he reported marked improvement in the numbness and tingling in the right hand, such that by November 30, 2015, Dr. Brown released Claimant to full-duty work with no restrictions. Finally, on March 25, 2016, Dr. Brown rated Claimant as having 4% permanent partial disability of the right wrist attributable to the surgically treated right carpal tunnel syndrome.

6) Claimant testified that as a result of his surgically treated right carpal tunnel syndrome, he had some continued issues with tingling in his right hand after performing a couple hours of work. However, he returned to basically the same sculptor job he had been performing before the hand surgery and continued to work until his retirement from Employer in October 2017.

7) Claimant and Employer resolved their portion of this January 1, 2013 case (Injury Number 13-104992) by Stipulation for Compromise Settlement (Exhibit 1) for the payment of $16,990.92, or 21.25% permanent partial disability of the right wrist, plus 2 weeks of disfigurement. The Second Injury Fund Claim was left open on the Stipulation. This Stipulation for Compromise Settlement was approved by Administrative Law Judge Margaret D. Landolt on May 5, 2017.

8) Prior to this right wrist carpal tunnel syndrome Claim, Claimant sustained pre-existing disability to his body as a whole, from an underlying, pre-existing diabetic condition.

9) Claimant testified that in the summer of 2011, he started noticing tingling in his toes, primarily on the right, and some vision problems. He was noticing that he had to get closer to the computer screen than normal to see what was on the screen. These complaints kept increasing into 2012, with cloudiness of vision and a small dead spot right in the middle of his field of vision, as well as right foot swelling, which prompted a hospital admission in April 2012. Claimant testified that at the time of his admission, he was basically unconscious and had a staph infection in his right foot.

10) On April 8, 2012, Claimant was admitted to St. Anthony's Medical Center (Exhibit 3) with complaints of right leg swelling for a month, labored breathing, and a blood sugar level in the 800's, among other things. Claimant was transferred to the ICU for sepsis and pneumonia, and was also diagnosed with diabetes mellitus (uncontrolled), cellulitis of the right ankle and edema of the right leg, among other things. While in the hospital, he was found to have diabetic polyneuropathy and retinopathy. On April 11, 2012, Claimant underwent a right ankle joint debridement. A subsequent culture showed a staph infection in the right ankle. Claimant began a course of treatment with Dr. Thampy for his newly diagnosed diabetes.

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Injury No. 13-104992

11) Claimant testified that he was in the hospital until April 19, 2012, and, then, discharged to a rehab facility, where he stayed until April 26, 2012. He continued to treat for his diabetes and other conditions while in the rehab facility. When he was discharged from the rehab facility, Claimant testified that he had devices to help him with ambulation, including a walker, a cane and a wheelchair. He said that he has used those devices, mostly the cane, to walk, ever since that time. He said that his vision problems also started in 2012. He was diagnosed with retinopathy and has treated with The Retina Institute, receiving injections in both eyes every six weeks since 2013.

12) Claimant testified that he missed work from April 8, 2012 until June 7, 2012, while fighting the right ankle infection with IV antibiotics. After returning to work, Claimant continued working for approximately five more years, until October 2017, when he retired.

13) Claimant followed up with Dr. Victoria Jansen at St. Anthony's Physician Organization (Exhibit 4) after the hospitalization in 2012. He was first examined by Dr. Jansen on May 18, 2012, and noted to have osteomyelitis of the right ankle and uncontrolled diabetes mellitus. At the visit on July 6, 2012, Dr. Jansen noted that Claimant now had left foot swelling that started on June 14, 2012, after he went back to work a week earlier than that following his right foot hospitalization. She also noted that he has had right foot swelling since the infection in the right ankle, and that his swelling is worse by the afternoon in both feet after he is up on them for the day. Dr. Jansen suspected that the swelling was due to venous insufficiency, since it resolved after sleeping at night.

14) Medical treatment records of Dr. George Thampy (Exhibit 7) document a visit on August 13, 2012 for his diabetes. Claimant was noted to have paresthesia to his feet and fingers, symptomatic of the diabetes being a chronic condition. It was noted that he would need long-term use of insulin to control the diabetes, and that the consequences of uncontrolled diabetes included accelerated progression of kidney, eye, nervous system and heart diseases. Dr. Thampy also recommended an ophthalmology consult, as soon as possible, for a dilated eye examination.

15) Claimant testified that after he returned to work following the hospitalization for the right ankle, he noticed that his diabetes made his job more challenging. He had problems with balance and could not stand at work all day anymore. He said that he had to basically sit while he worked, which made his job more difficult. He said that he found it difficult to get into the right position to perform his work, and cut himself a couple times as a result.

16) Claimant continued to see Dr. Jansen (Exhibit 4) into 2013 with reports of his diabetes being well controlled on insulin, but ongoing issues with his ankles swelling and his left ankle cracking, popping and causing pain when walking. On October 21, 2013, Dr. Jansen noted that Claimant had a Charcot fracture of the left foot, for which he was in a CAM walker and treating with Dr. Martin. Regular visits with Dr. Jansen continued into 2016, with reports of ongoing issues in the left foot (pain from Charcot

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Injury No. 13-104992

fracture) and right foot, as well as treatment for diabetic retinopathy, and treatment for his diabetes mellitus.

17) Medical treatment records of Dr. Nicholas Martin at Premier Care Orthopedics and Sports Medicine (Exhibit 6) document Claimant's treatment for his left foot/ankle issues from May 13, 2013 through July 8, 2016. In his initial visit with Dr. Martin on May 13, 2013, Claimant provided a history of a prior Charcot on the right side, which resulted in Claimant putting extra pressure on the left ankle since April 2012. He complained of swelling and dull aching pain in the left ankle. X-rays taken at that visit showed a consolidated Charcot of the right ankle, with a flattened subtalar joint and ankle joint, as well as an active Charcot arthropathy on the left ankle that has been occurring for the past year. He was placed in a CAM walker boot, was to use crutches as much as possible, and given pain medication. He had regular visits and remained in the walker boot throughout 2013, transitioning into a regular shoe in early 2014. Records into 2016 noted ongoing pain issues and problems associated with periodic ulcerations on the foot/ankle.

18) Medical treatment records from The Retina Institute (Exhibit 5) document the treatment Claimant received there for his eyes from July 19, 2013 through June 9, 2016. The initial note dated July 19, 2013 contains a description from Claimant of a one-year history of gradually decreased vision, as well as insulin-dependent diabetes, and neuropathy and Charcot joints, suggesting the disease may have been more longstanding. Both of Claimant's eyes showed diffuse macular edema due to background retinopathy. Claimant began a course of treatment of intravitreal injections of Lucentis for the management of diabetic macular edema in each eye. The records show that the multiple injections in each eye resulted in improved vision and a stable retina. The records document periods where his vision would become blurry again and a new round of injections would be administered.

19) Claimant testified that his vision improved with the injections, but he must continue to receive the injections to maintain the improved eyesight. He noted a dead spot in the left eye, especially, and blurry vision returns if he does not receive the regular injections in the eyes.

20) Claimant said that his diabetic problems made his right hand worse. Because of his lack of balance from his feet and from having to perform his work sitting, he said that he had to go into positions that were dangerous and caused a progression of his carpal tunnel syndrome complaints in the right hand.

21) The deposition of Dr. David Volarich (Exhibit 9) was taken by Claimant on October 6, 2017 to make his opinions in this case admissible at trial. Dr. Volarich is an osteopathic physician, who is board certified in nuclear medicine, occupational medicine and as an independent medical examiner. He examined Claimant on one occasion, November 16, 2016, for the purpose of an independent medical examination at the request of Claimant's attorney. He provided no treatment. He issued his medical report in this case on that same date, after his review of the medical treatment records and after performing a physical examination of Claimant. Dr. Volarich took a

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consistent history of the injury at work leading up to January 1, 2013, and of Claimant's medical treatment and complaints following that injury, as well as of Claimant's pre-existing conditions/diseases and complaints. His physical examination of Claimant revealed diminished pinprick sensation in both lower extremities in a stocking distribution; decreased/absent reflexes in the lower extremities; difficulty with balance and significant deformities of both feet, left greater than right, because of the Charcot foot joint formations, as well as a 40% loss of power (noted in the motor examination); the retina appeared to be slightly ischemic; positive compression provocative testing over the right carpal tunnel, with negative Phalen's, reverse Phalen's, Tinel's and Finkelstein's testing bilaterally; decreased range of motion in the right wrist; and decreased grip strength in the right hand. Leading up to January 1, 2013, Dr. Volarich diagnosed overuse syndrome of the right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome), status post open carpal tunnel release, medically causally related to his work activities for Employer, for which he rated claimant as having 35% permanent partial disability of the right wrist.

22) Dr. Volarich also diagnosed insulin-dependent diabetes mellitus, with peripheral neuropathy and retinopathy, as well as Charcot foot formation, left greater than right, secondary to the diabetes, which pre-existed the January 1, 2013 work injury. He testified that he saw a definitive diagnosis of diabetes mellitus with peripheral neuropathy, the Charcot joints and retinopathy made in April 2012, prior to the right wrist carpal tunnel syndrome. He rated Claimant as having 50% permanent partial disability of the body as a whole, pre-existing January 1, 2013, due to his insulin-dependent diabetes mellitus, causing diabetic peripheral neuropathy, retinopathy and Charcot foot formation. Dr. Volarich opined that the pre-existing disability was a hindrance or obstacle to employment or re-employment. He also opined that the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and, so a loading factor should be added. Dr. Volarich explained, in detail, how the pre-existing diabetic condition, and associated peripheral neuropathy, Charcot foot formation and vision problems, combined to accelerate the evolution of the right wrist carpal tunnel, thus, resulting in a synergistic combination of those disabilities to make Claimant more disabled than the simple sum of the disabilities. Finally, Dr. Volarich testified that diabetes is a lifelong condition, that is probably going to deteriorate with time, and will require active treatment his whole life.

23) On cross-examination, Dr. Volarich confirmed that Claimant had the retinopathy diagnosed in 2012, but received the ophthalmologic treatment (injections) first in 2013. He agreed that the injections have provided some improvement in his eye condition. He did not believe that Claimant's diabetes was well controlled after his diagnosis in 2012 and leading up to 2013.

24) On cross-examination by the Second Injury Fund, Claimant confirmed that he was diagnosed with uncontrolled diabetes in 2012, and also had the surgery on the right foot for the staph infection. While he had the right foot problems in 2012, he agreed that he first was diagnosed with the Charcot foot on the left on May 13, 2013. He also

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Injury No. 13-104992

agreed that Dr. Martin felt the left foot issues were related to the prior right foot problems, as a result of placing extra pressure on the left foot to lessen the pressure on the right, as it was healing. Claimant confirmed that in 2014, and again in 2016, Dr. Martin discussed with him the possibility of needing to amputate the foot because of ongoing issues with the left foot, and his severe mid-foot collapse on the left. He also confirmed that the eye injections helped his vision issues, but he has a need for regular injections, especially on the left, to maintain his vision.

25) Claimant, finally, noted that in July 2012, his diabetes was noted to be controlled with insulin, according to Dr. Jansen and Dr. Thampy.

RULINGS OF LAW:

Based on a comprehensive review of the evidence described above, including Claimant's testimony, the expert medical opinion and deposition testimony, the medical treatment records and the Stipulation for Compromise Settlement between Claimant and Employer in this case, as well as based on my personal observations of Claimant at hearing, and based on the applicable laws of the State of Missouri, I find the following:

I find that there is no dispute in this case, and the evidence clearly shows, that Claimant sustained an occupational disease injury, arising out of and in the course of his employment for Employer, which resulted in an injury to his right wrist. I find that he was working as a sculptor for Employer and that after his years of performing hand-intensive, repetitive work with his right hand, he developed right wrist and hand complaints. I find that Claimant sustained overuse syndrome of the right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome), status post open carpal tunnel release. I find that his right wrist injury was medically causally connected to his job duties as a sculptor for Employer leading up to January 1, 2013. I further find, based on the stipulation of the parties, that Claimant sustained 21.25% permanent partial disability of the right wrist, related to this compensable occupational disease injury at work for Employer, leading up to January 1, 2013.

Despite the parties stipulating at the outset of the hearing to a date of injury of January 1, 2013, presumably based on the evidence in the record and testimony elicited at trial, both parties argued in post-trial briefs about the appropriate date of injury to consider for the case. I would also note that neither party sought on the record to make the date of injury an issue to be decided in this case. Accordingly, since no issue was raised at trial about the date of injury and since the parties stipulated to a date of injury of January 1, 2013 at trial, I find that I am bound by the stipulation of the parties at hearing and will not comment further on this matter first raised in the post-trial briefs.

As both issues in this case are inter-connected, I will address both issues in the same section of the Award.

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Injury No. 13-104992

Issue 1: What is the nature and extent of Claimant's permanent partial disability?

Issue 2: What is the liability of the Second Injury Fund?

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.

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,

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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. Volarich demonstrate and certify, within a reasonable degree of medical certainty, that Claimant sustained permanent partial disability as a result of the work-related right wrist injury, as well as his pre-existing condition.

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 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 21.25% permanent partial disability of the right wrist, on account of the January 1, 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 (January 1, 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 met his burden of proof to show an entitlement to a permanent partial disability award against the Second Injury Fund.

Claimant has alleged pre-existing disability to the body as a whole referable to his diabetes mellitus and associated conditions of peripheral neuropathy, retinopathy and Charcot foot formations that potentially combine with the disability from the primary 2013 right wrist injury to trigger Second Injury Fund liability. In order for the alleged pre-existing disability to actually trigger Second Injury Fund liability, it must meet the appropriate threshold of 12.5%.

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permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity and it must be found to have been a hindrance or obstacle to employment or re-employment, should Claimant become unemployed.

With regard to Claimant's pre-existing condition, I find Claimant's testimony and his statements in the medical reports credible regarding the continued complaints and problems he had, and the effect the pre-existing condition had on his ability to work, prior to January 1, 2013. I also found medical treatment records and/or reports in evidence documenting the treatment Claimant received for his diabetes mellitus, and other associated conditions, prior to the January 1, 2013 work injury.

I further find Dr. Volarich's diagnoses and opinions on the pre-existing condition to be competent, credible and reliable evidence. Dr. Volarich rated Claimant as having pre-existing permanent partial disability on account of the pre-existing condition. Dr. Volarich further credibly opined that the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. Finally, Dr. Volarich opined that the disabilities represented a hindrance or obstacle to employment or re-employment.

The Second Injury Fund argues that because Claimant continued to receive medical treatment for his diabetes mellitus and related conditions (peripheral neuropathy, retinopathy and Charcot foot formations) following the January 1, 2013 right wrist carpal tunnel syndrome injury, then, the condition had not reached a point of maximum medical improvement, and, therefore, cannot be included in any calculation of Second Injury Fund benefits in this case. As support for this proposition, the Second Injury Fund cites to cases such as Cardwell v. Treasurer, 249 S.W.3d 902 (Mo. App. E.D. 2008), Hoven v. Treasurer, 414 S.W.3d 676 (Mo. App. E.D. 2013) and Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. E.D. 2014). I find, after a thorough review of each of these cases, that they are distinguishable from the facts at issue in the case at bar, and, thus, are not determinative on the outcome of this case.

First and foremost, I find that all of the cases cited by the Second Injury Fund are premised on multiple workers' compensation injuries and when those injuries reach the point of maximum medical improvement for the purposes of assessing permanent partial disability for those injuries. The Cardwell court noted, "One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment." Cardwell at 910. Citing Cardwell, the Hoven court held, "The level of permanent disability associated with an injury cannot be determined until it reaches the point of maximum medical improvement." Hoven at 678. Similarly, the Miller court, cited this same holding from Hoven on the inability to determine permanent disability for an injury until maximum medical improvement is reached. Miller at 220.

I also find it important to note at this juncture, since all of these holdings effectively relate back to the Cardwell decision, that Cardwell did not even truly deal with maximum medical improvement being a precursor to determining pre-existing permanent partial disability. As was noted by the court in Lewis v. Treasurer, 435 S.W.3d 144, 154 (Mo. App. E.D. 2014), "Cardwell, which Hoven and Miller relied upon, was not only dealing with PPD benefits, but the timing of payment for such benefits. Cardwell, was, first and foremost, clarifying the point at

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which various disability benefits in workers' compensation cases begin and end." A close reading of *Cardwell* shows that maximum medical improvement was used by the court, not for determining access or entitlement to permanent partial disability benefits, but rather as the point in time at which the payment of temporary disability benefits ends and the payment of permanent disability benefits begins. In that respect, even though the term "maximum medical improvement" is not contained anywhere in the statute, it makes sense in the context of a workers' compensation injury case, that there must be some point at which the timing of certain workers' compensation benefits begin and end.

It is clear to me in reading *Hoven* and *Miller* that the courts, there, expanded the use of "maximum medical improvement" beyond just the timing of the payment of benefits, to determining access or entitlement to permanent partial disability in Second Injury Fund cases. However, this expansion was only done in the context of multiple injury cases, and determining if a pre-existing injury case had reached the point of maximum medical improvement prior to a subsequent injury case for the purpose of assessing Second Injury Fund liability. None of these cases dealt with a pre-existing, disabling, systemic condition, like diabetes mellitus, and the determination of, at what point permanent partial disability can be assessed for calculating Second Injury Fund permanent partial disability benefits for that condition.

While it certainly makes sense, in the context of an injury case, especially a workers' compensation injury case, to use the point of maximum medical improvement to determine when permanent partial disability can be assessed, I find that it makes much less sense to try to impose such a standard on a pre-existing, disabling, systemic condition, like diabetes mellitus. In treatment for a workers' compensation injury case, there is generally a beginning (the date of injury) and an end (the release by a doctor at maximum medical improvement). In this context, it only makes sense that permanent disability would be assessed following the conclusion of care and the release by the doctor. However, in the case of a disabling, systemic condition, the beginning may be the onset of symptoms and the diagnosis of the condition, but there may well not be a definitive end to the treatment, as treatment may be needed for the rest of the person's life. I find that merely because treatment continues for such a systemic condition, that does not make it any less disabling, or less of an impact on that person's ability to work or compete in the open labor market. It may make it more of a challenge to assess disability or provide competent, credible medical proof of permanent partial disability for such a condition at a given point in time, but that is up to the employee to obtain and submit such evidence to meet his burden of proof.

In the case at bar, Claimant submitted into evidence medical treatment records noting diagnosis and treatment for diabetes mellitus prior to the January 1, 2013 primary injury. On April 8, 2012, Claimant was admitted to St. Anthony's Medical Center with complaints of right leg swelling for a month, labored breathing, and a blood sugar level in the 800's, among other things. Claimant was diagnosed with diabetes mellitus (uncontrolled), cellulitis of the right ankle and edema of the right leg, and was also found to have diabetic polyneuropathy and retinopathy. The right foot and ankle issues were eventually characterized as a Charcot foot formation, a result of the uncontrolled diabetes. Throughout the rest of 2012, Claimant treated with Drs. Victoria Jansen and George Thampy, whose records show diagnoses of diabetes mellitus, and complaints involving both feet and his eyes. Finally, in the medical treatment records of Dr. Nicholas Martin from 2013, I found x-ray evidence of a consolidated Charcot of the right ankle.

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from the prior year, with a flattened subtalar joint and ankle joint, as well as an active Charcot arthropathy on the left ankle that has been occurring for the past year. These medical treatment records were bolstered by the credible testimony of Claimant, who confirmed that he not only was diagnosed with diabetes mellitus prior to 2013, but also had associated complaints and diagnoses referable to his eyes and bilateral feet/legs prior to 2013. So even though treatment continued for the diabetes mellitus and the associated conditions (peripheral neuropathy, retinopathy and bilateral Charcot foot formations) after 2013, I find that these conditions were both symptomatic and disabling prior to 2013.

The question, then, becomes Claimant's ability to meet his burden of proof on the extent of the disability Claimant had referable to these systemic conditions, pre-existing and leading up to the January 1, 2013 work injury. I find Claimant met his burden of proof, in this regard, with the competent, credible and reliable medical opinion of Dr. David Volarich. Dr. Volarich quite clearly opined that Claimant had disability referable to insulin-dependent diabetes mellitus, with peripheral neuropathy and retinopathy, as well as Charcot foot formation, left greater than right, secondary to the diabetes, which pre-existed the January 1, 2013 work injury. While I may not ultimately agree with the exact percentage of disability that he assessed, there is no question that he credibly assessed pre-existing permanent partial disability in this case.

There is also no question that the record is devoid of any contrary opinions on the presence of pre-existing permanent partial disability, nor any indications from a physician that they would be unable to quantify the amount of permanency within a reasonable degree of medical certainty because of the ongoing nature of Claimant's treatment for diabetes mellitus, and the associated conditions. Therefore, I find that the record contains a credible assessment of the presence of pre-existing permanent partial disability on account of the pre-existing diabetes mellitus (and associated conditions), with no contrary medical opinions whatsoever in the record on the presence of that disability.

Based on the totality of the evidence in the record, as described above, I find that Claimant had pre-existing permanent partial disability of 37.5% of the body as a whole referable to insulin-dependent diabetes mellitus, with associated conditions of peripheral neuropathy, retinopathy and bilateral Charcot foot formation, which pre-existed the January 1, 2013 work injury.

Given the applicable statutory thresholds of 15% of a major extremity or 12.5% of the body as a whole (50 weeks), I find that the pre-existing body as a whole disability referable to the diabetes mellitus meets the statutory threshold to trigger Second Injury Fund liability. I further find that the pre-existing body as a whole disability referable to the diabetes mellitus and the associated conditions were of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. Finally, consistent with Dr. Volarich's opinion on combination, I find that the combination of the pre-existing and primary injury disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. I, therefore, find that Claimant is entitled to receive 23.398 weeks of compensation from the Second Injury Fund.

In order to calculate the amount of this award from the Second Injury Fund, I added together all of the qualifying disabilities and assessed a loading factor of 12.5% [21.25% of the

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Right wrist (37.1875 weeks) + 37.5% of the body as a whole referable to the diabetes mellitus (150 weeks) = 187.1875 total weeks of compensation times the 12.5% loading factor = 23.398 weeks from the Fund]. I arrived at the 12.5% loading factor based on the credible evidence submitted at trial, the severity of the disabilities that combined to create the Second Injury Fund liability in this case, and the impact the disabilities had on Claimant's ability to work or compete for work in the open labor market.

Accordingly, the Second Injury Fund is responsible for the payment of 23.398 weeks of permanent partial disability pursuant to this award.

Claimant sustained an occupational disease injury, arising out of and in the course of his employment for Employer, which resulted in an injury to his right wrist. He was working as a sculptor for Employer and after his years of performing hand-intensive, repetitive work with his right hand, he developed right wrist and hand complaints. Claimant sustained overuse syndrome of the right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome), status post open carpal tunnel release. His right wrist injury was medically causally connected to his job duties as a sculptor for Employer leading up to January 1, 2013. Claimant sustained 21.25% permanent partial disability of the right wrist, related to this compensable occupational disease injury at work for Employer, leading up to January 1, 2013. Claimant had pre-existing permanent partial disability of 37.5% of the body as a whole referable to insulin-dependent diabetes mellitus, with associated conditions of peripheral neuropathy, retinopathy and bilateral Charcot foot formation, which pre-existed the January 1, 2013 work injury. Based on the applicable thresholds, the pre-existing body as a whole disability referable to the diabetes mellitus meets the statutory threshold to trigger Second Injury Fund liability. Claimant also met his burden of proof to show that the pre-existing body as a whole disability referable to the diabetes mellitus and the associated conditions were of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. The Second Injury Fund is to pay 23.398 weeks of permanent partial disability benefits, or $10,144.90. Compensation awarded is subject to a lien in the amount of 25% of all payments in favor of Mr. Thomas J. Gregory for necessary legal services.

I certify that on **May 18, 2018** 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 **MARVIN**