Arthur Anttila v. Dyno Nobel, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 14-000493

**Employee:** Arthur Anttila

**Employer:** Dyno Nobel, Inc. (settled)

**Insurer:** Ace American Insurance Co. (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.

Hearing was held in this matter with all parties participating on October 4, 2018. After the conclusion of the hearing, the employer and insurer settled the case with employee by Stipulation for Compromise Settlement which was approved by the administrative law judge on December 10, 2018. The sole issue remaining for the administrative law judge to address in her February 7, 2019 final award was whether, and to what extent, there was Second Injury Fund liability.

The administrative law judge determined that as of June 17, 2015,¹ the Second Injury Fund is liable to pay for permanent total disability benefits of a weekly differential of $404.62 for a period of 235 weeks, and thereafter, the full amount of permanent total disability at $851.47, for employee's lifetime.

The Second Injury Fund (Fund) filed a timely application for review with the Commission alleging the administrative law judge erred in that she applied the incorrect law relative to Fund liability; found two separate claims represented by a single claim; found employee sustained a separate occupational disease "subsequent to the traumatic accident" on January 3, 2014; found employee's single claim established both a pre-existing injury and last injury to establish Fund liability; and found there was a preexisting qualifying disability which combined with the primary injury for Fund liability.

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

Employee's date of birth was July 1, 1950. He worked as a road truck driver for employer since about 2011. Employee was educated through the twelfth grade and attended 1.5 years of college. Aside from his decades-long career (approximately 43 years) as a truck driver, employee owned a construction company for three years. Employee did not return to work after the January 3, 2014 accident.

¹ June 16, 2015 is the date found by the administrative law judge as the date of maximum medical improvement. The judge identified the 235 weeks as the number of weeks of compensation reflected by the settlement amounts with the employer/insurer. Award, page 10, footnote 5.

Injury No.: 14-000493

Employee: Arthur Anttila

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**Acute Injury by Accident**

At the hearing, the parties stipulated that on or about January 3, 2014, employee sustained an accident which arose out of and in the course and scope of his employment with employer. Additionally, employee sustained an occupational disease which arose out of and in the course and scope of his employment with employer. *Transcript, page 6.* However, the Fund "disputes that employee's injury was compensable until after the last injury." *Award, page 3, footnote 1.*

On January 3, 2014, employee was delivering trailers from Joplin, Missouri to Kansas City. Upon arrival in Kansas City, he attempted to remove a pin from the fifth wheel trailer. In pulling the pin to dislodge it, he felt a crunch in his neck. He continued to work, but on the drive back to Joplin began experiencing severe pain in his left arm and neck.

The next day employee sought treatment from his chiropractor, who sent him to the emergency room. He was evaluated for left shoulder complaints. Employee notified the employer of his injury and was sent for treatment to Dr. Charles Mauldin on January 6, 2014. Dr. Mauldin, after ordering an MRI, determined employee's injury was related to a preexisting shoulder condition and released him from authorized care.

Employee treated on his own thereafter, undergoing a cervical fusion on June 12, 2014, to address a C5-6 disc herniation with severe nerve root impingement.² He also underwent a left carpal tunnel surgery at that time. Employee indicated that after surgery, his left arm pain was relieved, but his neck still bothered him. While undergoing physical therapy, claimant indicated some left arm pain, weakness, or coldness. *Transcript, pages 22-24.* He received a cervical injection on October 28, 2014. *Transcript page 1407.* He was released from neck treatment as of June 17, 2015.

Employee still experiences neck pain and has limitations on movement. He has difficulty standing for long periods and has limited lifting ability. He experiences weakness in his left arm, which causes problems gripping. He has difficulty sleeping and requires assistance from his wife with certain activities.

**Injury by Occupational Exposure**

At the hearing in October 2018, employee testified that he had experienced ongoing neck and arm pain for several years while working for employer. The roads which he traveled were often unpaved. Employee asserted the trucks were often old and needed new shocks; that he bounced around while driving, and the roads were hard on his body.

Employee treated with a chiropractor, Dr. David Mullin, beginning in October 2011 for left arm and right leg numbness and neck adjustment. Employee indicated that this was "maintenance," "to get realigned," "it helped me perform better," *Transcript, pages 26, 28-30, 50-54,* and that he had no problems doing his job prior to January 3, 2014. Employee did not miss any work for related to chiropractic appointments or pain. He denied having to work slower, take extra breaks or needing accommodation in any fashion by employer prior to his January 3, 2014 injury. He denied these conditions limited his ability to perform his work. *Transcript, page 29.*

² We note that the administrative law judge refers to right arm pain "at this time as well," implying that it was prior to the June 2014 surgery, at page 6 of the Award, paragraph 5. Dr. Chabot notes his opinion that any right shoulder complaints reported in January 2015, were not related to his alleged work injury but represented evidence of tendonitis. *Transcript page 956, 957.* The parties do not focus on right extremity complaints.

Injury No.: 14-000493

Employee: Arthur Anttila

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**Primary and Preexisting Conditions**

The administrative law judge found the traumatic injury by accident on January 3, 2014, to the neck/left extremity to be a preexisting disability. We disagree and find this injury to be the primary/last injury.

Employee filed his claim against employer in August 2015, identifying the body parts injured as "Left shoulder/arm/hand and cervical spine." *Transcript*, page 1465. He specifically identified the mechanism of injury as pulling a pin from the fifth wheel when he experienced pain and discomfort in the named areas. The initial claim included a claim against the Fund, identifying only left shoulder and left leg preexisting injuries from 1994. When employee amended his claim in May 2016, he added to the description of his injury, "Additionally employee was exposed to significant vibrations in the on-the-job operation of the vehicle. Resulting in injury to his cervical spine." *Transcript*, page 1440. However, the preexisting injuries remained the same.³

We set aside for the moment an examination of whether the occupational exposure to repetitive jarring resulted in a preexisting disability.⁴ The medical records showed that employee had a number of other prior medical conditions and surgeries, but the evidence did not establish any preexisting disabilities that met the requirements of § 287.220.3 RSMo. The preexisting injuries identified by employee in his initial and amended claims as left shoulder and left leg from 1994, did not result in any permanent disability.

**Expert opinions**

Employee sought an independent medical examination from Dr. Robert Paul on January 27, 2016. Dr. Paul identified two distinct injuries - a traumatic injury to the cervical spine with residual carpal tunnel syndrome on January 3, 2014; and an injury to the spine due to prior occupational exposure to constant jarring over the three years he drove for employer.

Dr. Paul rated the disability due to "all conditions relative to his employment" at the employer as 50 % body as a whole; with 15 % of this "apportioned to his exposure to the hazards of an occupational illness/disease in the form of cumulative trauma to his cervical spine" and 35 % to his cervical fusion with residuals. In addition, he found a 20 % disability at the 175 week level for left traumatic carpal tunnel syndrome. He found no disability for employee's alleged preexisting disabilities to his left shoulder or left leg. Although Dr. Paul lists other medical conditions evident in the records, he does not find any of them disabling. *Transcript*, page 1414.

Dr. Paul opined that employee was permanently and totally disabled due to the combined effects of disabilities from the January 3, 2014, injury "with prior disabilities." *Transcript*, 1414. Dr. Paul's opinion was premised on identifying cumulative trauma to employee's cervical spine as the prior disability. *Transcript*, pages 145 and 1414. The doctor suggested a functional capacity evaluation be performed.⁵ Employee reports his belief that he had the following restrictions or limitations from Dr. Paul: sitting four hours in a workday; standing/walking three hours in a workday; alternating positions every 20-30 minutes. *Transcript*, page 34. Other indications in the record suggest a weight lifting limit of ten pounds for no more than two and a half hours during an eight hour period. *Transcript*, pages 1382-84.

³ We note that the administrative law judge identified diabetes and hearing as preexisting injuries in her award, but that employee "did not testify to any restrictions from either condition at the hearing, however." *Award*, page 5.

⁴ See the discussion under the heading, Expert opinions.

⁵ We are unable to locate that report in the record. Mr. Philip Eldred summarizes various references to doctor restrictions in his report at *Transcript*, pages 232-34. The doctor's reference to the evaluation is at 1357.

Injury No.: 14-000493

Employee: Arthur Anttila

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Closer in time to the January 2014 injury, employer's expert, Dr. Michael Chabot examined employee on January 28, 2015. He later reviewed subsequent records of diagnostic testing and prepared reports dated August 5, 2015 and October 28, 2015. He opined that employee's acute cervical spine injury was work-related and rated the disability at 15 % (body as a whole) due to the injury and subsequent surgery. He identified 5 % of that disability rating as attributable to preexisting disease at C4-5 level. Transcript, pages 957-958. As of January 28, 2015, he opined that employee was able to return to full, unrestricted duty, noting that employee no longer complained of any significant neck or left upper extremity problems.

Both Dr. Paul and Dr. Chabot found that there was some evidence of a preexisting condition in employee's neck. Dr. Paul found this to have resulted from employee's work as a truck driver experiencing repetitive jarring and specifically related it to the last three years of work with the employer, apparently based on employee's report of the conditions of roads traveled during that employment. Dr. Chabot appears to have attributed any preexisting disability to degenerative processes. Both doctors also identified some mild degenerative changes at C3-4, evidence of stenosis and other factors in the neck.

The administrative law judge found Dr. Paul to be more persuasive. Despite this, she chose to disregard the doctor's finding that the occupational repetitive trauma was preexisting and she chose to identify the acute injury by accident as the preexisting condition. We adopt Dr. Paul's opinion to the extent that the traumatic injury by accident on January 3, 2014, which resulted in neck and left carpal tunnel surgery was the last or primary injury. We find there was preexisting disease in the cervical spine and adopt the 5 % body as a whole rating attributed to this disability by Dr. Chabot.

In June 2016, employee's vocational expert Mr. Philip Eldred opined that employee was permanently and totally disabled as "a result of his January 3, 2014, injury in isolation." Transcript, 192, 214, 240. This differed from Dr. Paul's opinion on the basis for permanent total disability. Mr. Eldred explained that he did not identify any pre-existing conditions in the medical records that were a cause of functional limitations nor did employee report that any prior condition affected his ability to perform his work.

To summarize, we find that employee suffered an injury by accident on January 3, 2014, which resulted in disability to his neck and left extremity as carpal tunnel syndrome. This was the primary injury. We adopt the permanent partial disability rating of Dr. Paul with regard to the primary injury as 35 % to his cervical fusion with residuals and 20 % at the 175 week level to his left traumatic carpal tunnel syndrome. We find preexisting disease in the cervical spine and adopt the disability rating of Dr. Chabot of 5 % of the body as a whole referable to preexisting disease at C4-5.

Conclusions of Law

The administrative law judge erred in finding two separate claims.

The administrative law judge found that employee sustained two distinct injuries in the course of employment with the employer. One, a traumatic accident while pulling a trailer pin, which resulted in cervical injury and left carpal tunnel syndrome. The second injury she found was the occupational injury due to exposure to jarring, (i.e. an occupational disease of repetitive motion). There appears to be some difference of opinion between Drs. Chabot and Paul on whether these are both industrial injuries. Nevertheless the parties stipulated that both injuries arose out of the employment. (See Award, page 3, footnote 1.) Accepting the parties' stipulation, we believe the judge was in error in finding that both injuries were properly plead under one injury claim "via an amended claim." Award, page 8, footnote 3.

Injury No.: 14-000493

Employee: Arthur Anttila

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The judge cites as a basis for her approach that there is "no statutory basis that requires separate claims and/or injury numbers for separate injuries." The administrative law judge and the Commission are limited to construe the provisions of the statute strictly. Included in the duty to strictly construe a statute, we believe, is the limitation to look to the text of the statute for our authority.

Section 287.800.1 RSMo does not contain a provision allowing the interpretation adopted by the administrative law judge. As our courts have instructed:

> A strict construction of a statute presumes nothing that is not expressed,... [I]t means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter.

*Allcorn v. Tap Enters.,* 277 S.W.3d 923,929 (Mo. App. 2009) (citations omitted).

Where no provision gives "permission" to give effect to an action, its absence requires us to conclude that the legislature did not intend for such expansive use of the claim filing process.

While we understand the notion that administrative proceedings should not unduly burden the parties with meaningless procedural formalities, the circumstances here show good reason why the statute does not expressly allow multiple injury claims to be filed within one claim. The record is unclear and inconsistent on employee's theory on two points: (1) whether these are two distinct primary injuries both of which stem from work with this employer as the prevailing factor and (2) what is the claimed preexisting disability. Clarity in these respects is essential to determine Fund liability.

The approach taken by the administrative judge created confusion as to the relationship between primary and preexisting disabilities, which is the pivotal point of analysis in Second Injury Fund claims. As the Fund notes in its brief, the May 2016 amended claim filed by employee suggests an additional mechanism of injury but does not suggest it is a preexisting disability for Fund liability. The approach taken by the administrative law judge to find two injuries in one claim and then convert one of those injuries to a preexisting condition further confused and inserted uncertainty into the theories for defense by the opposing parties. In certain circumstances, this practice could potentially raise a question of adequate notice to the parties that may give rise to due process issues. Extending this practice to the extreme could result in an omnibus approach to claim filing, including all conceivable descriptions of injuries wrapped into one claim, such that five, ten, fifteen, or more loosely related injuries could be wrapped together as one claim. The danger of allowing such expansive pleading practice raises obvious concerns for the clear delineation of issues for the defending party, as well as for the reviewing tribunal.

Section 287.220.3 RSMo applies to the claim against the Second Injury Fund.

Employee was injured on January 3, 2014. Section 287.220.3 governs all claims against the Fund for injuries occurring after January 1, 2014, and all claims against the Fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014.

*Employee's original claim and his amended claim both identify the preexisting conditions for Fund liability as the left shoulder and left leg from 1994. In contrast, the administrative law judge found the acute injury by accident on January 3, 2014, to be a preexisting disability, and that the occupational exposure was the "last" or primary injury because his occupational exposure continued for a few more hours after the acute event.*

Injury No.: 14-000493

Employee: Arthur Anttila

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The administrative law judge's award does not provide any analysis of whether the preexisting condition falls within the threshold of fifty weeks disability or as a qualifying disability.

Section 287.220.3 (2) (a) a. of the Workers' Compensation Act requires any claimant seeking benefits from the Second Injury Fund to show "a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability;" and that disability must meet one of the following conditions:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

Claims against the Fund under this section are limited to permanent total disability, which results from the combination of the primary injury and a qualifying preexisting disability. That preexisting disability must meet the minimum threshold of 50 weeks permanent partial disability. The only preexisting disability which was rated by the experts is the condition which is referred to by Dr. Paul as the cumulative trauma (occupational disease) and by Dr. Chabot as degenerative process in the neck. We have found Dr. Chabot's rating on this condition to be more persuasive, at 5 % permanent partial disability of the body as a whole. This does not meet the threshold level of 50 weeks.

We have rejected the administrative law judge's finding that the injury by accident on January 3, 2014 was the preexisting disability. We find that the acute injury by accident on that date was the primary injury. The preexisting disability did not meet the threshold requirement of a minimum of fifty weeks of permanent partial disability. Therefore, Second Injury Fund liability is not established.

Decision

We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because employee failed to demonstrate a preexisting condition that combined with the primary injury meeting the requirements of § 287.220.3.

7 We further note that we are not convinced by the evidence that the occupational disease as described by Dr. Paul was a preexisting condition shown to be at maximum medical improvement on the day of the primary injury. An occupational disease does not become a compensable injury until the disease causes disability. Such disability would exist where it is shown to affect the employee's ability to perform ordinary tasks or his earning capacity. *Garrone v. Treasurer of State*, 157 S.W. 3d 237, 242 (Mo.App. E.D. 2004). Employee's clear testimony was that he was not inhibited from doing his work or other activities prior to the January 3, 2014 traumatic injury to his neck and left arm. Employee's vocational rehabilitation expert also confirmed this. However, a finding on this issue is not necessary to our conclusion that Fund liability has not been established.

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The award and decision of Administrative Law Judge Karen Wells Fisher is attached solely for reference.

Given at Jefferson City, State of Missouri, this **4th** day of August 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

Attest:

**Secretary**

Employee: Arthur Anttila

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

I would affirm the administrative law judge's award allowing benefits for permanent total disability against the Second Injury Fund, as detailed in the Award. Because the Commission majority has decided otherwise, I respectfully dissent.

*Shalonn K. Curls, Member*

Employee: ARTHUR ANTTILA

Injury No. 14-000493

Dependents: N/A

Employer: DYNO NOBEL, INC,

Additional Party: SECOND INJURY FUND

Insurer: ACE AMERICAN INSURANCE CO.

Hearing Date: OCTOBER 4, 2018

Checked by:

1. Are any benefits awarded herein? Yes.
2. Were the injury and occupational disease compensable under Chapter 287? Yes.
3. Was there an accident and incident of occupational disease under the Law? Yes.
4. Date of accident and onset of occupational disease: January 3, 2014, as to both.
5. State location where accident occurred or occupational disease contracted: Accident occurred in Kansas City, MO but the Employer is located in Joplin. The occupational disease was sustained in various locations due to Employee's work as a truck driver. The parties stipulated to Joplin as the appropriate venue.
6. Was above employee in employ of above employer at time of alleged accident and occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident and occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was in Kansas City attempting to remove a pin from a fifth-wheel trailer when he injured his cervical spine. Employee was also exposed to vibrations and jarring from operating a truck for Employer, resulting in injury to his cervical spine. That

Issued by DIVISION OF WORKERS' COMPENSATION

occupational exposure ended after Employee returned his truck to Joplin later on the date of accident.

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

1. Parts of body injured by accident and occupational disease: Cervical spine and left hand/arm.

1. Nature and extent of any permanent disability: 35% BAW for Employee's traumatic cervical spine injury, 20% for the resulting left carpal tunnel syndrome, and 15% BAW for subsequent occupational injury to his cervical spine resulting from repetitive truck jarring and vibrations. (As agreed upon by the parties in settlement post trial.)

1. Compensation paid to-date for temporary disability: $1,949.86

1. Value necessary medical aid paid to date by employer/insurer? $7,223.79

1. Value necessary medical aid not furnished by employer/insurer? 100,775.05

1. Employee's average weekly wages: 1,277.21

1. Weekly TTD/PTD/PPD compensation rate: $851.47/$851.47/$446.85

1. Method wages computation: Agreement of parties.

COMPENSATION PAYABLE

1. Amount of compensation payable by Employer/Insurer:

Settlement of all issues against Employer/Insurer including past and future medical, permanent partial disability and past temporary total disability via compromise lump sum settlement of $350,000.00 entered into after the hearing.

1. Second Injury Fund liability: YES

Permanent Total Disability benefits from the Second Injury Fund:

Weekly differential of 404.62 payable by the SIF for 235 weeks, beginning on June 17, 2015, and 851.47 thereafter for Employee's lifetime.

1. Future requirements awarded: None

Said payments to begin immediately and be payable and 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Jonathan B. Pitts.

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**Employee:** Arthur Anttila

**Injury No. 14-000493**

**Dependents:** N/A

**Employer:** Dyno Nobel, Inc.

**Additional party:** Second Injury Fund

**Insurer:** Ace American Insurance Co.

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 4, 2018.

The claimant, Arthur Anttila, appeared personally and through his attorney, Jonathan Pitts. The Employer/Insurer appeared through its attorney, Christopher Moberg. The Second Injury Fund appeared through their attorney, Michael Bang.

The parties entered into the following stipulations of fact:

1. On January 3, 2014, Dyno Nobel, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was insured by Ace American Insurance Co.

1. On January 3, 2014, Arthur Anttila was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

1. The above-referenced employment occurred in Newton County, Missouri, and the accident occurred in Johnson County, Missouri. Venue in Joplin is proper via the consent of all parties.

1. On January 3, 2014, Employee sustained an accident which arose out of and in the course and scope of his employment with Dyno Nobel, Inc. Additionally, Employee sustained an occupational disease which arose out of and in the course and scope of his employment with Dyno Nobel Inc.¹

1. The employee notified the employer of his accident as required by Section, 287.420, RSMo.

¹ The Second Injury Fund disputes that Employee's injury was compensable until after the last injury.

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(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) Employer/Insurer provided temporary total disability ("TTD") benefits of $1,949.86, from January 6, 2014 to January 21, 2014.

(8) Employer/Insurer provided medical benefits of $7,223.79.

(9) Employee reached maximum medical improvement ("MMI") on June 16, 2015.

(10) The attorney fee being sought by Jonathan Pitts of the Pitts Law Office is 25%.

The parties further stipulated that the issues to be resolved by hearing are as follows:

(1) Whether Employer/Insurer are obligated to pay for past medical expenses in the amount of $100,775.05

(2) Whether Employee sustained injuries that will require additional or future medical care in order to cure and relieve the effects of his injury.

(3) Whether Employee is entitled to 73 weeks (January 22, 2014 to June 17, 2015) of temporary total disability compensation.

(4) The nature and extent of any permanent partial disability or permanent total disability liability of Employer/Insurer and the Second Injury Fund.²

EVIDENCE PRESENTED

The claimant testified at the hearing in support of his claim. In addition, the claimant offered for admission the following exhibits:

Exhibit 1 - Dr. Robert Paul's Deposition (with IME and C.V.)

Exhibit 2 - Phil Eldred's Deposition (with Vocational Report and C.V.)

Exhibit 3 - June 3, 2014 Treatment Demand Letter

Exhibit 4 - Medical Records

Exhibit 6 - Medical Bills & Spreadsheet

Exhibit 7 - DOT Physicals

Exhibit 8 - 13-Week Wage Statement

Exhibit 9 - CMS Review

The exhibits were received and admitted into evidence.

² Given the post-trial settlement between Employee and Employer/Insurer, the only issue contemplated in this award is the liability of the Second Injury Fund for PTD benefits.

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The Employer/Insurer offered for admission the following exhibits:

- Exhibit A - Complete Medical Report of Dr. Chabot

- Exhibit B - Deposition of Ben Hughes

- Exhibit C - Deposition of Employee

- Exhibit D - Deposition of Dr. Paul

The exhibits were received and admitted into evidence. The Second Injury Fund offered no exhibits. The Division of Workers' Compensation file was marked as Legal File. And the Court took judicial notice of this exhibit.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

**Background/Employment**

Employee, Arthur "Art" Anttila, is 68 years of age, having been born on July 1, 1950. He resides in Dover, Tennessee, with his wife.

Anttila was educated through the twelfth grade, attended 1.5 years of college at Florida State, and subsequently obtained a certificate in construction. The entirety of his working career was spent as a truck driver, with the exception of three years in Florida as the owner of a construction company.

In 2011 Employee began working for the employer, Dyno Nobel, as a road driver of dynamite/explosives. He continued in this employment through January 3, 2014.

**Preexisting Injuries**

Prior to sustaining the injury of January 3, 2014, Anttila presented with significant injuries and/or medical conditions, which include:

- **Left Shoulder.** While working as a truck driver for Freymiller Trucking, Anttila injured his left shoulder when the wind threw him out of his truck. The injury required two surgeries to repair, and Anttila testified it did not cause him difficulties performing any subsequent jobs.

- **Diabetes and hearing.** Anttila indicated he was diabetic and required the use of a right hearing aide at the time of his January 2014 injuries. He did not testify to any restrictions from either condition at the hearing, however.

**Accident**

On January 3, 2014, a Friday, Anttila was delivering trailers from Joplin to Kansas City. After arriving in KC, he attempted to remove a pin from a fifth wheel trailer. The pin was difficult

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to dislodge and when Anttila yanked on it he felt a crunch in his neck. While driving back to Joplin he began experiencing severe pain in his left arm and neck.

Occupational Exposure

Anttila also testified to experiencing ongoing neck and arm pain for several years while working for Dyno Nobel. He testified the trucks he operated were old, needed new shocks, and bounced him around. Anttila frequently drove dynamite shipments to the Canadian oil shale fields, and he testified those roads were frequently unpaved, icy/snowy, and replete with potholes. He indicated those roads were especially hard on his body. Anttila testified he was exposed to jarring on the drive home to Joplin on I-49 after sustaining his work injury.

Anttila began treating with his chiropractor, Dr. David Mullin, in October 2011. He saw Dr. Mullin for neck, left arm, and back pain approximately 29 times from that date through December 2013, including on December 30, 2013. Dr. Mullin indicated on September 2, 2013, that he was "trying to keep [Art] driving."

Medical Treatment

Anttila testified he attempted to treat with Dr. Mullin the next day, but was referred to the ER. He was evaluated by his primary care doctor, Dr. Corbin VanDeWege, on January 4th for left shoulder complaints. Anttila indicated he then notified Dyno Nobel of his injury.

Employer/Insurer referred him to Dr. Charles Mauldin on January 6, 2014. Dr. Mauldin, after ordering a left shoulder MRI, concluded on January 21st that his injury was related to Anttila's preexisting shoulder condition and released him from authorized care.

Anttila then treated on his own, through health insurance provided via COBRA. A cervical MRI was ordered in March, which showed a C5-6 disc herniation with severe nerve root impingement. Anttila was experiencing right arm pain at this time as well, which he attributed to crushed nerves. He underwent a 2-level cervical fusion with Dr. Edwin Cunningham on June 12, 2014.

While undergoing post-surgical physical therapy, Anttila was still experiencing left arm weakness and coldness. He received at least 1 cervical epidural steroid injection, several additional MRIs, and a CT scan. Anttila was released from neck treatment on or around June 17, 2015.

Current Conditions

Anttila testified he now experiences constant neck pain of 6 to 8 (on the 0-10 pain scale) with pain medications and 8 without. He is unable to look up without losing his balance or stand at counters for long periods. Anttila uses Oxycodone four times a day for his pain. He testified the heaviest item he now lifts is an 8-pound gallon of milk.

With respect to his left arm, Anttila testified to weakness, diminished grip strength and musculature, and problems with dropping items and gripping a cell phone. He indicated he only sleeps three to four hours per night due to his pain and has been unable to make love to his wife.

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since the accident/injury. Anttila testified that he requires assistance from his wife to enter and exit the shower and get dressed.

Anttila indicated he was a high-earning truck driver at the time of his January 3, 2014, injury, making about $70,000 per year. He enjoyed the job, especially going places and meeting new people, and had planned to work until he was 70. He testified he misses work and now feels like a shut in. Attila indicated he now has to recline frequently and change positions every 20 minutes due to his injuries. He testified he believes he is permanently and totally disabled due to his neck and left arm injuries due to muscle loss, problems lifting, and an inability to sit or stand for long periods. Attila indicated he had applied for jobs at auto parts stores but had been rejected due to his injuries.

Independent Medical Examinations

Anttila was evaluated by Dr. Robert Paul on January 27, 2016, at the request of his counsel. Dr. Paul diagnosed Employee with 2 distinct injuries: a traumatic injury to his cervical spine (with residual left carpal tunnel syndrome) on January 3, 2014, and injury to his cervical spine from occupational exposure to constant jarring.

Dr. Paul concluded Anttila was permanently totally disabled due to the January 3, 2014, accident with prior occupational exposure to his cervical spine. He opined Anttila was limited to standing/walking three hours in an eight-hour day, sitting four hours, must alternate sitting and standing every 20 to 30 minutes, and take frequent rest breaks to relieve pain.

Dr. Michael Chabot evaluated Anttila on January 28, 2015, at the request of Employer/Insurer. Dr. Chabot concluded Employee's cervical spine injury was related to his work injury and rated the injury at 15% BAW (5% pre-existing). Dr. Chabot felt Anttila could return to full/unrestricted work duties.

Vocational Opinions

Anttila underwent a vocational examination by Phillip Eldred, on June 25, 2016, at the request of his counsel. After performing an interview and various testing, Mr. Eldred concluded Anttila was permanently totally disabled due to the injury of January 3, 2014.

Eldred testified at his June 5, 2017, deposition that if Anttila's occupational injury due to vibrations is considered a separate injury from the January 3, 2014, accident, he would be permanently and totally disabled due to a combination of those injuries. (Exhibit 2, page 46).

Vocational expert Benjamin Hughes evaluated Anttila for Employer/Insurer on April 14, 2017. Hughes concluded Anttila could return to his career as a truck driver given the lack of restrictions found by Dr. Chabot. He indicated, however, that Anttila would be unable to compete for competitive employment under Dr. Paul's work restrictions.

FINDINGS AND CONCLUSIONS

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer.

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The burden of proving an entitlement to compensation is the employee. §287.808. RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions. §287.800, RSMo.

I. Liability of the Second Injury Fund

In order to find permanent total disability against the Second Injury Fund, it is necessary that the employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with a prior permanent partial disability to result in total disability. §287.220.1, RSMo. (2000); *Brown v. Treasurer of Missouri*, 795 S.W.2d 479, 482 (Mo. App. 1990); *Anderson v. Emerson Elec. Co*, 698 S.W.2d 574, 576 (Mo. App. 1985).

This standard was most simply set forth when the Missouri Court of Appeals held:

> Where a preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the employee for the permanent total disability after the employer has paid the compensation due the employee for the disability resulting from the work-related injury. *Reiner v. Treasurer of State of Missouri*, 837 S.W.2d 363, 366 (Mo. App. 1992)

In determining the extent of disability attributable to the employer and Second Injury Fund, the extent of the compensable injury must be determined first. *Roller v. Treasurer of the State of Missouri*, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. *Id.* It is therefore necessary that the employee's last injury be closely evaluated and scrutinized to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any Second Injury fund liability.

In the present case, after consideration and review of the evidence, I find and conclude that Mr. Anttila sustained two distinct injuries.³ First, he sustained a traumatic accident while pulling a trailer pin in Kansas City, resulting in injury to his cervical spine and left carpal tunnel syndrome. Second, he sustained an occupational injury due to exposure to jarring while operating various trucks in his 3 years of employment with Dyno Nobel. I further find that occupational exposure ended on January 3, 2014 (his last day of work), subsequent to the traumatic accident. He continued to be exposed to jarring from his truck on the drive home to Joplin after delivering trailers.

I further find that the traumatic accident/injury of January 3, 2014, causes Anttila to suffer residual pain and discomfort and to be governed by limitations and restrictions. I find and conclude that while this accident and resulting injury creates a hindrance and obstacle to employment or potential employment, this injury does not render the employee permanently and totally disabled.

³ Both injuries were plead under one injury number via an amended claim. From my review of R.S.Mo. Section 287 and the regulations and in light of strict construction, I can find no statutory basis that requires separate claims and/or injury numbers for separate injuries.

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when considered alone. I also find Anttila sustained 15% permanent partial disability to the cervical spine for his last occupational injury injury to his cervical spine resulting from repetitive truck jarring and vibrations. I further find he sustained 35% PPD of the body as a while for Employee's traumatic cervical spine injury and 20% at the 175-week level for the resulting left carpal tunnel syndrome.

Employee's pre-existing condition need not have reached MMI at the time of the last injury to be considered in calculating Fund benefits. *Lewis v. Treasurer of State*, 435 S.W.3d 144, 153 (Mo. App. E.D. 2014). This is because claimant is seeking PTD benefits. "For purposes of PTD, however, the specific percentage of preexisting disability is irrelevant and the timing of benefits is dependent on the MMI date for the primary injury, not the preexisting injury. *Lewis v. Treasurer of State*, 435 S.W.3d 144 (Mo. App. E.D. 2014). Section 287.220.1 does not state that the preexisting disability or disabilities must be at MMI in order to be considered for PTD benefits. Fund liability for PTD under Section 287.220.1 occurs when the claimant establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disabilities. *Lewis v. Treasurer of State*, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014). "For a claimant to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD. *Lewis v. Treasurer of State*, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014).

For purposes of calculating PTD benefits, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. *Lewis v. Treasurer of State*, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014). A claimant must establish the extent, or percentage, of the permanent partial disability resulting from the last injury only, and prove that the combination of the last injury and the preexisting disabilities resulted in permanent total disability. Once the court found that claimant had a preexisting disability and was permanently totally disabled after the primary injury, the court must determine the amount of disability resulting from the primary injury alone, which fixed the amount of employer's liability, and then deduct that amount from the compensation due the claimant for PTD to determine the Fund's liability. *Lewis v. Treasurer of State*, 435 S.W.3d 144, 158 (Mo. App. E.D. 2014).

At the hearing, the Second Injury Fund cited *Garrone v. Treasurer of State* as the legal basis for disputing Fund liability. *Garrone* holds that an "occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." 157 S.W.3d 237, 242. The Fund's reliance on *Garrone* is misplaced. As I have concluded Anttila's last injury was his occupational exposure to truck vibrations and jarring, the date in which it became compensable is irrelevant.

Turning to the issue of permanent total disability, Dr. Paul credibly testified that Anttila was permanently and totally disabled, but as a result of a combination of the January 3, 2014, accident and prior cumulative trauma to the cervical spine.4 (Exhibit 1, page 11 - report). In rendering this decision, I find Dr. Paul credible, reliable, and worthy of belief. Moreover, the Fund failed to counter Dr. Paul's opinion with one from their own medical doctor. I also find the

4 The fact that Dr. Paul concluded the injuries occurred in reverse order from that of this award does not invalidate or illegitimize the credibility of his opinion.

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opinions, report, and deposition of vocational expert Phillip Eldred credible. I specifically find his deposition testimony credible that if Anttila's occupational injury due to vibrations was considered a separate injury from the January 3, 2014, accident, he would be permanently and totally disabled due to a combination of those injuries. (Exhibit 2, page 46).

Conversely, I find the opinions of Dr. Chabot and Mr. Hughes lack credibility. I specifically find his opinion that Anttila can return to full/unrestricted work not credible. Mr. Anttila was an extremely credible witness at trial, and I conclude his testimony regarding serious limitations due to the work injury and occupational exposure is supported by the medical records and the physical findings of Dr. Paul. I therefore specifically discredit Mr. Hughes' testimony that Anttila can return to completive employment, either as a truck driver or at the medium exertional level.

Anttila's last occupational exposure injury, in combination with the pre-existing traumatic injury, cause him to be governed by significantly greater permanent restrictions and limitations. I find credible Anttila's testimony that he reclines frequently and change positions every 20 minutes due to serious pain from his cervical injuries. His grip is significantly diminished in this left hand per testing from Dr. Paul. Moreover, both Dr. Paul and Phillip Eldred credibly testified that Anttila is unable to compete in the open labor market due to a combination of the primary work incident and pre-existing conditions.

Accordingly, I find competent and substantial evidence supporting a finding that Mr. Anttila is permanently and totally disabled as a result of a combination of the occupational exposure injury of January 3, 2014 and the preexisting traumatic accident which occurred earlier that day. Therefore, the Second Injury Fund is ordered to pay Employee, Arthur Anttila, the sum of $851.47 per week for the employee's lifetime. The payment of permanent total disability compensation by the Second Injury Fund is effective as of June 16, 2015, when he reached maximum medical improvement.

Therefore, beginning June 17, 2015, for a period of 235 weeks³, the Fund shall pay the 404.62 differential (851.47 PTD rate minus $446.85 PPD rate). Thereafter, the Fund shall be responsible for permanent total disability at the rate of $851.47 for the remainder of Mr. Anttila's life, subject to modification and review as provided by law.

3 This represents the number of weeks of compensation reflected by the settlement amounts (items 3, 4, 5, & 7) listed on page 2 of the stipulation.

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II.

An attorney's fee of 25 percent of all benefits ordered to be paid to Mr. Jonathan Pitts is hereby approved, and shall be a lien against the proceeds until paid. Interest as provided by law is applicable.

I certify that on 2-7-19

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file. By $\qquad m p \square$

Made by:


Karen Wells Fisher

Administrative Law Judge

Division of Workers' Compensation