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.

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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

WC-32-R1 (6-81)

Page 1

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

WC-32-R1 (6-81)

Page 2

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.

WC-32-R1 (6-81)

Page 4

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