Troy Barnes v. Karrenbrock Construction, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 16-104170**

**Employee:** Troy Barnes

**Employer:** Karrenbrock Construction, Inc. (Settled)

**Insurer:** Bitco General Insurance Corporation (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 10, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 10, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **17th** day of December, 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

Injury No. 16-104170

Employee: Troy Barnes

I have reviewed and considered all of the competent and substantial evidence in 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 reversed.

I find the opinion of Dr. Jerry Meyers persuasive that employee was permanently and totally disabled due to the primary injury in combination with employee's preexisting conditions. This opinion was supported by vocational expert Timothy D. Kaver, who stated on July 8, 2019:

> I concur with Dr. Meyers' opinion that [employee] is totally and permanently disabled due to the combination of his most recent November and December of 2016 work-related bilateral carpal tunnel injuries/surgeries. The carpal tunnel injuries/surgeries have created obstacles to his reemployment, and combined with his pre-existing medical concerns [employee] is totally and permanently disabled.

*Award, p. 6 (citing Exhibit 16).*

I do not find persuasive vocational expert J. Stephan Dolan's opinion that he was permanently and totally disabled because he "was unemployable and had no access to the labor market prior to the primary injury," or that employee "was employed only because of accommodations and excess use of opioids." *Award, p. 6 (quoting Exhibit II).*

I further disagree with the administrative law judge's finding that "the role of the claimant's pre-existing medical conditions that did not constitute pre-existing permanent partial disabilities, suggests that the claimant does not meet the current statutory criteria for permanent total disability benefits from the Second Injury Fund [because the] statute in its current state appears to require exclusion of those pre-existing medical conditions in determining the source of the claimant's total disability." *Award, p. 12.*

When interpreting statutes, one is required to give words their plain and ordinary meaning whenever possible with a goal of giving effect to the legislature's intent. *St. Louis Police Officers' Association v. Board of Police Commissioners of the City of St. Louis, 259 S.W.3d 526,528 (Mo. banc 2008).* Statutes should be interpreted to avoid unreasonable or absurd results including those that might defeat the purpose of the legislature. *Leiser v. City of Wildwood, 59 S.W.3d 597,603 (Mo. App. 2001).* An adjudicator should presume that the legislature included every word of the statute for a purpose and that every word has meaning. *Hewitt v. St. Louis Rams P'ship, 409 S.W.3d 572,574 (Mo. App. 2013).*

There is no question that, due to lack of funding, the legislature intended to limit the Second Injury Fund's liability when it enacted the current version of § 287.220, RSMo. Nonetheless, the fact remains that the legislature did not intend to disallow consideration of other conditions once an employee meets the threshold under one of the four statutory categories. The legislature presumably intended to set a threshold to

Injury No. 16-104170

Employee: Troy Barnes

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reach Second Injury Fund liability where a preexisting condition must have been significant enough to equate to at least fifty weeks of disability and meets one of the subsections 1-4. If the employee satisfies one of these conditions precedent, nothing in the language of the statute prohibits the administrative law judge from considering other unrelated conditions that do not necessarily qualify under one of the four condition precedents. Certainly, the statute would not intend to prohibit permanent total disability for an individual who was able to qualify under more than one subsection or condition precedent.

The administrative law judge's interpretation of § 287.220.3 is inconsistent with the recent Missouri Court of Appeals, Western District, opinion in *Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker WD83030* (July 14, 2020, Rule 83.02 motion for transfer granted September 4, 2020). I agree with the Western District appellate court majority's reasoning in this important decision, now under consideration by our state's Supreme Court.

I would reverse the administrative law judge's award denying benefits against the Second Injury Fund. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Troy Barnes

Dependents: N/A

Employer: Karrenbrock Construction, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Bitco General Insurance Corporation (Settled)

Hearing Date: July 17, 2019

Injury No.: 16-104170

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

1. Are any benefits awarded herein? No

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

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

1. Date of accident or onset of occupational disease: November 18, 2016

1. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri

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: The employee, a cement finisher, developed bilateral recurrent carpal tunnel syndrome from repetitive wrist intensive activities at work.

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: Both wrists

1. Nature and extent of any permanent disability: 10% Permanent partial disability to each wrist plus two weeks for disfigurement

1. Compensation paid to-date for temporary disability: $7,755.77

1. Value necessary medical aid paid to date by employer/insurer: $23,583.99

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,286.97
3. Weekly compensation rate: $\$ 857.98 / \ 464.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

TOTAL:

NONE

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: James P. Krupp, Esq.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

This Workers' Compensation case requires a determination of Second Injury Fund liability arising out of a work-related injury in which the claimant, a concrete finisher, developed bilateral recurrent carpal tunnel syndrome from repetitive wrist intensive activities at work. The sole issue for determination is liability of the Second Injury Fund. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered depositions of the claimant, Jerry R. Meyers, M.D., a vocational report from Timothy Kaver, numerous photographs, a wage report from the employer, records from the Missouri Division of Workers' Compensation, and voluminous medical records. The defense offered a deposition of David M. Brown, M.D., and a vocational report from J. Stephen Dolan.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2016, because the occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

In 2015, this 56-year-old claimant, a cement mason/concrete finisher for the past 30 years, developed recurrent carpal tunnel syndrome. Dr. Petre first examined the claimant in June 2015 for hand/wrist pain. Eventually Dr. Petre referred the claimant to Dr. Moeser who examined the claimant in March 2016 and sent him for a nerve conduction study. Dr. Moeser diagnosed bilateral carpal tunnel syndrome. See Exhibit 3B. The Employer/Insurer directed the claimant to Dr. Brown for treatment. On September 12, 2016, Dr. Phillips took a medical history of a greater than one-year history of right worse than left recurrent sharp, dull, throbbing, aching hand pain, intermittent global numbness and weakness. He noted that the claimant underwent successful bilateral carpal tunnel releases in 2002 with complete symptomatic relief. He performed testing that revealed recurrent median nerve neuropathies across the carpal tunnels. See Exhibit 3F.

The claimant's last day of work for this or any other employer was November 18, 2016. On November 22, 2016, Dr. Brown performed a right carpal tunnel release, and on December 5, 2016, Dr. Brown performed a left carpal tunnel release. See Exhibit 3F. On March 29, 2017,

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

Dr. Brown examined the claimant and found the numbness and tingling in his hands were much improved in both hands with some soreness. On April 11, 2017, Dr. Brown opined the claimant suffered a 4% permanent partial disability to each hand. See Exhibit 3F. The claimant settled his Workers' Compensation Claim with his employer based on a 10% permanent partial disability to each wrist. See Exhibit 3E.

Pre-Existing Conditions

On Jan. 10, 1997, the claimant suffered a non-surgical compression disc fracture in his lower back at L1 when his snowplow truck went off a bridge crashing to the ground 20-30 feet bel