Mark Lynch v. Anheuser Busch Companies, Inc.

(Affirming Amended Award and Decision of Administrative Law Judge)

**Injury No.** 09-039485

**Employee:** Mark Lynch 09-101188

**Employer:** Anheuser Busch Companies, Inc. (settled)

**Insurer:** Indemnity Insurance Company of North America (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 amended 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 amended award and decision of the administrative law judge dated December 13, 2019, and awards no compensation in the above-captioned case.

The amended award and decision of Administrative Law Judge Marvin O. Teer, Jr., issued December 13, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 2nd ______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed the evidence, read the briefs of the parties, and considered 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 disagree with the majority's decision to affirm the administrative law judge's awards. While I agree with the administrative law judge's determination on the issues of whether employer had proper notice and the date of employee's January 15, 2009 occupational disease (2009 OD), The administrative law judge erred in finding no Second Injury Fund liability based on the synergistic combination of employee's 2009 OD and his preexisting disabilities.

The administrative law judge did not find employee to be permanently and totally disabled despite accepting employee's medical expert, Dr. Dwight Woiteshek's report and findings with no contrary evidence, and accepting employee's testimony as credible. The totality of the evidence supports a finding of permanent and total disability due to the combined effect of employee's primary work injury and pre-existing conditions. The Second Injury Fund submitted no expert testimony evidence to the contrary. The administrative law judge erred in finding that employee is not permanently and totally disabled from a combination of his 2009 OD and preexisting disabilities. I believe that the administrative law judge used his own personal opinion when he concluded that employee's pre-existing conditions alone were his motive for retiring. Additionally, I do not believe that the administrative law judge took into account employee's testimony as to how his repetitive injuries to his right and left wrists, hands, and forearms limited his ability to do work tasks and resulted in restrictions and impairments that combined with his preexisting conditions.

Dr. Woiteshek concluded that employee's preexisting disabilities leading up to and including the 2009 OD while working for employer were the prevailing factors in causing his disabilities and need for his subsequent treatment. Despite this evidence, the administrative law judge determined that employee's plan to quit work was done without consideration of his primary injuries. Employee testified that he believed his retirement, and inability to engage in any other employment, was caused by a combination of all his prior injuries with his carpal tunnel and tinnitus. He confirmed that he was having problems with his left and right wrists leading up to the time he quit working for employer. Prior to quitting work, he did not know what he specifically had, but he knew he was having issues. Employee is not a medical doctor, and he did not know he had carpal/ulnar tunnel until he was diagnosed with it. Employee believed his conditions, such as his hearing, neck, lower back, both shoulders, both wrists, and both hips all contributed to him not being able to work. The administrative law judge erred in discounting and ignoring the credible evidence and the testimony of Mr. Terry Cordray, the only vocational expert in this matter. The administrative law judge offered no reasonable basis for discrediting Mr. Cordray's expert vocational opinions.

To summarize, I believe that the totality of all the evidence points to a finding of permanent and total disability against the Second Injury Fund due to a combination of employee's 2009 OD and his pre-existing disabilities. Because the majority has determined otherwise, I respectfully dissent.

Shalonn K. Curls Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012

www.labor.mo.gov/DWC

DECEMBER 13, 2019

09-039485 #ATTY GENERAL ERIC SCHMITT 815 OLIVE ST STE 200 ST LOUIS, MO 63101

C/monded Award 09039485S1WC35100020191213ATTG002001

Injury No : 09-039485 Injury Date : 01-30-2009 Insurance No. : 413943587

*Employee : MARK A LYNCH #Employee Attorney: PHILLIP A TATLOW 08777208 9 1250 EMERALD GARDENS DR ST PETERS, MO 63376-4305 10525 BIG BEND BLVD KIRKWOOD, MO 63122

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

MIC 142 (06-15) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

**Employee:** Mark Lynch

**Dependents:** N/A

**Employer:** Anheuser Busch Companies, Inc. (Settled)

**Injury No.:** 09-101188 & 09-39485

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Address:** 1600 N. 5th Street, Suite 100, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th Floor, 10th 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10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th, 10th

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

1. Method wages computation: Stipulated

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None

1. Second Injury Fund liability: None

**TOTAL: 0.00**

1. Future requirements awarded: N/A

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: Philip Tatlow.

WC-32-R1 (6-81)

Page 2

A final hearing was held on August 28, 2019, at the Division of Workers’ Compensation in the City of St. Louis, Missouri. Attorneys Phillip Tatlow and Thomas Mihalczo represented Mark Lynch (“Claimant”). Anheuser Busch Companies, Inc. (“Employer”), and its insurer, previously settled their liability. Deputy Attorney General of Civil Litigation Jeremiah Morgan and Assistant Attorney General Madalyn J. Campbell represented the Second Injury Fund (“the Fund”).

The parties stipulate as follows:

1. Venue is proper in St. Louis, Missouri
2. The Claim was timely filed
3. Claimant suffered an occupational disease within the course and scope of employment
4. Employer was fully insured in compliance with the requirements of Chapter 287
5. Claimant’s Permanent Total Disability (“PTD”) rate is $772.53
6. Claimant’s Permanent Partial Disability (“PPD”) rate is $404.56
7. Employer paid no medical expenses.
8. Employer paid no temporary and total disability (“TTD”) benefits.

1. The date of Claimant's alleged occupational disease.
2. If proper notice was given to Employer
3. Nature and extent of the Second Injury Fund's ("SIF") liability.

Exhibit 1; Settlement Stipulation for Injury \#: 09-039485

Exhibit 2: Settlement Stipulation for Injury \#: 09-101188

Exhibit 3: Medical Report of Dr. Dwight Woiteshek; August 1, 2011 (12 pages)

Exhibit 3(a): Dr. Dwight Woiteshek's CV (4 pages);

Exhibit 4: Vocational Assessment report of Mr. Terry Cordray, January 22, 2018; (16 pgs)

Exhibit 4(a.): Terry Cordray's CV (5 pages)

Exhibit 5: Deposition of Terry Cordray, August 3, 2018 (108 pages);

Exhibit 6: Certified records of Dr. Jeffrey W. Martin, Orthopedic Center of St. Louis; (39 pages)

Exhibit 7: Certified records of Dr. John Vellinga, Physician's Pain Clinic; (40 pages)

Exhibit 8: Certified records of Dr. Robert Margolis, St. Louis Neurological Institute (16 pgs)

Exhibit 9: Certified records of Dr. S. Vic Glogovac (20 pages);

Exhibit 10: Workers' Compensation file, injury \#'s: 87-121618, 91-025607, 95-016695, and 99-107931 (38 pages);

Exhibit 11: Anheuser Busch Job Description;

Exhibit 12: Photographs; and

Exhibit 13: Dr. Martin, Orthopedic Center of St. Louis operative report dated

Second Injury Fund Exhibits:

None

Note: Unless otherwise specifically noted below, any objections contained in the deposition exhibits, but not ruled on in this award, are overruled and the testimony is fully admitted into evidence in this case. Any notations made on the exhibits were not placed there by the undersigned Administrative Law Judge.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

Claimant is a 68-year-old man. He graduated from Cleveland high school in South St. Louis, Missouri. After graduating high school, Claimant attended some community college, but did not finish a program or obtain a degree. During this time, Claimant maintained a variety of odd jobs, including working as a stocker and an usher at Busch Stadium and working as a laborer in construction and asphalt work. Claimant did not serve in the Armed Forces. In 1974, Claimant obtained a position with Employer in the Draft Beer Department. Claimant maintained this position for 35 years, until he ultimately retired. Claimant has not sought employment or been employed since working for Employer.

Claimant worked full time, full duty, and unrestricted work for his entire career with Employer. Claimant worked between 40 and 96 hours in a typical week. Claimant testified at great length to the job duties required of him by Employer. He gave expansive discussion of all duties and day to day job activities. Generally, Claimant worked as a brewery worker. This included work for the Draft Beer Department and the Kettle Department. Both departments required Claimant to make beer, which included placing ingredients in beer kettles, processing the beer as it fermented, and cleaning the beer kettles. Claimant described his job duties as physically demanding. At times, Claimant unloaded 55 gallons of materials used to make the beer from trucks. Claimant maintained the kegs and kettles that stored the processing beer. This required hammering of keg doors, up to 1,200 times a day. Claimant also stacked pallets and drove barrels with the forklift. While working for the Kettle Department, Claimant cleaned the kettles that were 15-20 feet tall. Claimant testified cleaning the kettles with both a steel brush and a sponge were difficult. When working in the Kettle Department, Claimant dumped buckets of ingredients into the kettles at least 54 times per day. Claimant also dumped 100 pounds of

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

hops into the kettles 13 times per day. Claimant testified the physical demands of his job duties eventually decreased due to the advent of technology.

**Alleged Preexisting Conditions:**

**Low Back:**

Claimant testified, and records reflect, in 1990 Claimant was involved in a boating accident, after which he sustained an injury to his low back. Claimant had symptoms of pain in his low back from that time until his primary injury. In 1995, Claimant sustained an injury to his low back at work. There are no treatment records available for review. Claimant's settled his claim with Employer for 2.5% PPD of the BAW. (Ex. 10) In 1998, Claimant sustained another injury to his low back at work. Claimant received conservative treatment for this injury, and was released to work full time, full duty without any restrictions. Claimant settled a claim for compensation with Employer for 5% PPD of the BAW - Lumbar Spine. (Ex. 9) Six months later, Claimant sought treatment for low back pain, but an MRI of his lumbar spine did not show significant abnormalities. (Ex. 9) At that time, Claimant was permitted to work full duty. (Ex. 9) In 2003, Claimant again sought treatment for low back pain. (Ex. 6) Claimant testified he believes he received ESIs during this time period, but no medical records regarding these ESIs were admitted into evidence. In March of 2008, less than a year before Claimant retired, he sought treatment with Dr. Martin, which resulted in X-Rays. (Ex. 6) The x-rays revealed bilateral facet joint arthritis in the lower lumbar spine, worst at L5-S1. (Ex. 6) After retiring, Claimant continued to seek treatment, including ESIs, for low back pain. (Ex. 6)

1 The evidence before this Court shows the bilateral tinnitus/hearing loss alleged in injury #09-039485 is not a preexisting condition to this claim because the date of injury alleged for the hearing loss is the same date of injury for this claim. The tinnitus/hearing loss did not preexist this claim, and fails to state a claim upon which relief can be granted, thus fails as a matter of law.

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Claimant testified while working for Employer, he experienced difficulties performing some of his job duties, particularly with heavy lifting, due to low back pain. Claimant testified low back pain made it difficult to bend down. Claimant indicated he occasionally missed work due to low back pain.

Neck:

Claimant testified, and records reflect, in 1990 Claimant was involved in a boating accident, after which he sustained an injury to his neck. At the time, Claimant described the pain being worse in the morning, and specifically when he would bend down at work. (Ex. 7). Claimant also experienced constant dullness in his neck, with sharp exacerbations of pain. (Ex. 7). Claimant underwent an MRI, which revealed degenerative changes at two levels in the neck. (Ex. 7). Claimant was prescribed an ESI. (Ex. 7). At hearing, Claimant testified he thought he was diagnosed with degenerative joint disease in his neck, and he was "not sure" when or if that was the actual diagnosis. At hearing, Claimant admitted he did not have any restrictions or accommodations for his neck while working for Employer. Claimant testified he had neck pain before his primary injury, which made it difficult to turn his head. Claimant testified this impacted his ability to perform his job, especially when cleaning the beer kettles and driving the fork lift.

A month after he retired, Claimant described a constant burning sensation, which radiated into his right arm. (Ex. 7). Claimant was diagnosed with cervicalgia, radiculitis, cervical spinal stenosis, spondylosis, and degenerative joint disease, and given an ESI. (Ex. 7). Claimant continued to treat with ESIs. (Ex. 7).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

In 1995, Claimant sustained an injury to his right shoulder at work. There are no treatment records available for review. Claimant settled this claim with Employer for 25% PPD of the right shoulder. (Ex. 10). At hearing, Claimant testified he had surgery to his right shoulder while working for Employer. Claimant did not know when the surgery occurred. Records reflect Claimant underwent a right shoulder surgery in 2003. (Ex. 6). Claimant testified following this surgery, he relied on others to help him with the extremely heavy lifting he was required to perform on a daily basis. Claimant testified he had weakness in his right shoulder and switched arms frequently while working. Claimant also indicated repetitive heavy lifting caused a lot of pain in his shoulders. Claimant testified, although he did not have any permanent restrictions for his right shoulder, he forced himself to continue to perform his duties, because he would be fired if he could not. Some records reflect Claimant switched to a less physically demanding job in the control room due to the problems with his right shoulder. (Ex. 4).

In October of 2008, three months before Claimant retired, Claimant sought treatment with Dr. Martin for pain in his right shoulder. (Ex. 6). An x-ray taken at this time revealed mild osteoarthritis in the right shoulder. (Ex. 6). Dr. Martin recommended proceeding with surgery to the right shoulder, and Claimant indicated he would like to proceed. (Ex. 6). Claimant scheduled a right rotator cuff repair on January 15, 2009, two days after his last day of work. (Ex. 6).

Records reflect that in 1991, Claimant underwent an open decompression to his left shoulder. (Ex. 6). Records of that surgery were not entered into evidence. A settlement for a 1995 PPD claim with the Fund reflects Claimant sustained a 20% PPD of the left shoulder. (Ex. 10). In October of 2008, three months before Claimant retired, he told Dr. Martin he did not experience

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"any problems" with his left shoulder following the 1991 surgery. At hearing, Claimant admitted he did not have any restrictions or accommodations for his left shoulder while working for Employer. Claimant testified he had problems with his upper extremities, especially when repeatedly performing heavy lifting or lifting overhead.

**Bilateral Hips & Lower Extremities:**

In 2003, Claimant sought treatment for pain in both his hips. (Ex. 6). Records reflect Claimant experienced increasing pain and stiffness in both hips. (Ex. 6). At the time, Claimant had difficulty walking, standing, climbing stairs, tying shoes, and with agility. (Ex. 6). Before proceeding to surgery, Claimant underwent a stress test and was cleared to proceed with the surgery. (Ex. 6). Claimant relayed to the administrator of the stress test that he had been cardioverted three times, and when he experiences atrial fibrillation he becomes very tired and experiences shortness of breath. (Ex. 6). In June of 2003, Claimant underwent a bilateral total hip replacement. (Ex. 6). Claimant was prescribed pain medications and placed at full weight bearing status. (Ex. 6).

At his one year follow up appointment, Claimant reported to Dr. Martin he had no problems, pain, irritation, or swelling in his hips. (Ex. 6). Claimant reported to Dr. Martin he did not need assistance ambulating, was capable of driving, and used stairs normally. (Ex. 6). At his two and a half year follow up, Claimant reported the same condition, but with some mild pain. Dr. Martin noted satisfactory progress (Ex. 6). At his four year follow up, Claimant reported no problems or pain in his hips, and he was able to ambulate and use stairs normally. (Ex. 6). In March of 2008, five years after the bilateral hip replacements, Claimant underwent x-rays, which revealed progression of arthritis around the right hip. (Ex. 6). X-rays of the bilateral knees revealed osteoarthritis in both knees. (Ex. 6).

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Claimant testified the problems with his hips resulted in decreased strength in his legs. Claimant acknowledged he did not have any restrictions or accommodations for his hips while working for Employer. But, Claimant felt the decreased strength in his lower extremities due to the weakness in his hips caused problems in performing his job duties, particularly with heavy lifting.

**Alleged Primary Injury**

Five months after retiring, Claimant sought treatment with Dr. Margolis for numbness and tingling in his extremities. (Ex.8). Dr. Margolis ordered an EMG of all four extremities, which, among other things, revealed right carpal tunnel syndrome. (Ex. 8). Claimant filed a claim for compensation for his alleged bilateral carpal tunnel syndrome in late December 2009, almost a year after he retired. Records reflect in September of 2010, almost two years after retiring, Claimant underwent a left carpal tunnel release. (Ex. 9). Two months later, Claimant underwent a right carpal tunnel release. (Ex. 9).

Claimant testified prior to retiring he never saw a doctor, through Employer or on his own, about carpal tunnel syndrome. In fact, Claimant testified he did not know he had bilateral carpal tunnel syndrome until late 2009, nor did he know what carpal tunnel syndrome was until after he retired. Employer provided no medical treatment, and since Claimant was retired, no TTD. In January of 2015, Claimant settled with Employer for 20% PPD of each wrist with a 10% loading factor. (Ex. 1).

In 2011, Claimant sought treatment with Dr. Rotman, because the symptoms he experienced in his hands did not dissipate after surgery. (Ex. 4). Dr. Rotman ultimately opined Claimant's complaints in his extremities were not related to carpal tunnel syndrome or his work duties. (Ex. 4). Dr. Rotman noted Claimant retired due to a heart condition, along with problems

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with his right shoulder. (Ex. 4). Dr. Rotman felt Claimant's complaints in his wrists were the result of peripheral neuropathy. (Ex. 4). Finally, Dr. Rotman felt Claimant's wrists did not restrict him from working. (Ex. 4).

Claimant retained Dr. Woiteshek to perform an independent medical examination in relation to his workers' compensation claim, and Dr. Woiteshek provided a report containing his opinions in August of 2011, two years after Claimant retired. Dr. Woiteshek provided a diagnosis and ratings for the primary injury of bilateral carpal tunnel syndrome. Dr. Woiteshek also provided diagnoses and ratings for the preexisting low back, neck, right shoulder, left shoulder, and bilateral hip injuries. Dr. Woiteshek provided permanent restrictions for Claimant's alleged bilateral carpal tunnel syndrome. Ultimately Dr. Woiteshek opined Claimant is permanently and totally disabled because of the "repetitious traumatic injuries leading up to and including 1/15/09 [sic] and his pre-existing conditions..." (Ex. 3).

Claimant retained Mr. Terry Cordray to perform a vocational assessment. (Ex. 5). Mr. Cordray evaluated Claimant in December of 2017, eight years after Claimant retired. (Ex. 5). Mr. Cordray also evaluated Mr. Lynch's job with the Job Browser Pro by SkillTRAN. Mr. Lynch's job description code was 522.685-014: Brewery Cellar Worker. The job of brewery cellar worker is considered unskilled, required less than 30 days of on-the-job training. This job is defined as medium in strength demand, however this job can be substantially heavier as the job requires stooping, crouching, reaching, and handling.

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After review of the assessments of Claimant, the evidence supports a finding the opinion of Mr. Cordray is not credible in this instance. In his reports and thus the facts upon which his opinions are based, the Court notes Mr. Cordray maintains he does not consider the subjective complaints of Claimant, despite the inclusion of significant subjective complaints of Claimant in his report. Further, Mr. Cordray cites to these subjective complaints when asked to identify Claimant's limitations before the primary injury. The Court, consequently, finds the report of Mr. Cordray not persuasive and not credible in this instance.

Burden of Proof

Under Missouri Workers' Compensation law, the claimant bears the burden of proving all essential elements of his or her Workers' Compensation claim. *Fischer v. Archdiocese of St. Louis*, 793 S.W.2d 195, 198 (Mo. Ct. App. 1990); *Grime v. Altec Indus.*, 83 S.W.3d 581, 583 (Mo. CT. App. 2002). Proof is made only by competent and substantial evidence, and may not rest on speculation. *Griggs v. A.B. Chance Company*, 503 S.W.2d 697, 703 (Mo. Ct. App. 1974). Medical causation not within lay understanding or experience requires expert medical evidence. *Wright v. Sports Associated, Inc.*, 887 S.W.2d 596, 600 (Mo. banc 1994).

Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony that it does consider credible and accept as true the contrary testimony given by the other litigant's expert. *Webber v. Chrysler Corp.*, 826 S.W.2d 51, 54 (Mo. Ct. App. 1992); *Hutchison v. Tri State Motor Transit Co.*, 721 S.W.2d 158, 163 (Mo. Ct. App. 1986).

In order to find liability for permanent total disability §287.020.7 RSMo provides that "total disability" is the inability to return to any employment, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. See also *Houston v. Roadway Express, Inc.*, 133 S.W.3d 173, 178 (Mo. Ct. App. 2004). The main factor in this determination is whether, in the ordinary course of business, any employer would

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reasonably be expected to employ the employee in this present physical condition and reasonably expect him to perform the duties of the work for which he was hired. *Reiner v. Treasurer of the State of Missouri* 837 S.W.2d 363, 367 (Mo. Ct. App. 1992).

When the claimant is disabled by a combination of the work-related event and pre-existing disabilities, the responsibility for benefits lies with the Second Injury Fund. §287.200.1 RSMo. If the last injury in and of itself renders a claimant permanently and totally disabled, the Second Injury Fund has no liability, and the employer is responsible for the entire compensation. *Nance v. Treasurer of Missouri*, 85 S.W.3d 767 (Mo. Ct. App. 2003). 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 the result of the last compensable injury, and that the disability has combined with a prior permanent partial disability to result in total disability §287.200.1 RSMo.

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund*, 352 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation marks and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if a claimant proves that under §287.220.1 RSMo. he is entitled to such benefits.

To prevail against the Second Injury Fund for permanent total disability, the employee must show: (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, the employee had a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the pre-existing permanent partial disability

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combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. § 287.220.1.

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo.App. E.D. 1999). "Probable" means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo.App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*, 222 S.W.3d 322, 331 (Mo.App. S.D. 2007). Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo.App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo.App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

In order for the Second Injury Fund to be liable for permanent total disability benefits, claimant must establish his total disability is due to the combination of primary injury with his then pre-existing disabilities. See *Boeing v. Treasurer of Mo., Custodian of the Second Injury Fund*, 947 S.W.2d 483, 489-490 (Mo.App. E.D. 1997) [emphasis added by the Court]

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I. Claimant's date of injury for his primary carpal tunnel syndrome is his date of last exposure, January 13, 2009.

The date of injury for an occupational disease is not necessarily medically apparent. See *Arbeiter v. national Super Makets, Inc.*, 990 S.W.2d 142 (Mo. App. E.D. 1999) (overruled on other grounds). Thus, the "last exposure rule" exists in Missouri Workers' Compensation Law. *Id*; See § 287.063 RSMO (2005). The last exposure rule dictates that an occupational disease occurs when a claimant is last exposed to the industrial hazard that caused the disease. *Id*.

Here, Claimant pleaded his primary occupational disease of bilateral carpal tunnel syndrome occurred on January 30, 2009. Claimant's last paycheck occurred on this date. But, Claimant retired from employment, and thus was last exposed to repetitive trauma, on January 13, 2009. Thus, if Claimant's date of his primary occupational disease is based on the date of last exposure, then the proper date is January 13, 2009 - his last date of work - and not January 30, 2009 - his last date of payment.

II. Issue of Notice - Waived.

The Second Injury Fund argues Claimant failed to give proper notice to the Employer. Neither Employer nor the Second Injury Fund ever raised a notice defense and it has therefore been waived. The Employer settled the case for full value and admitted notice of the injury by settling the claim. Even if a notice defense was not waived, the Fund failed to submit any evidence supporting its purported notice defense and therefore, the SIF has not refuted Claimant's position he provided proper notice to Employer. Claimant did not know his injuries were work-related until Dr. Woiteshek concluded that work was the prevailing factor in causing his injuries on August 1, 2011. Claimant filed his claim well before this date on December 28, 2009 and the original claim form is adequate notice of an injury including all details of such injury.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

Claimant has failed to establish he is permanently and totally disabled because of a combination of his primary carpal tunnel syndrome and his preexisting disabilities. The evidence supports a finding Claimant's primary injury does not contribute to his overall permanent and total disability. Rather, Claimant retired and removed himself from the open labor market due to his many preexisting disabilities. Claimant is not entitled to permanent and total disability benefits from the Fund because he failed to meet his burden of proof.

In order for the Second Injury Fund to be liable for total disability benefits, claimant must establish that his total disability is due to the combination of primary injury with his then preexisting disabilities. See *Boring v. Treasurer of Mo., Custodian of the Second Injury Fund*, 947 S.W.2d 483, 489-90 (Mo. App. E.D. 1997). A claimant is not entitled to benefits from the Fund if his permanent disability is the result of anything other than a combination of his primary injury and preexisting conditions. See *Schussler v. Treasurer*, 393 S.W.3d 90, 92 (Mo. Ct. App. W.D. 2012) (Holding that the Fund is not liable where a claimant is permanently and totally disabled from the preexisting disabilities alone); *Lammert v. Vess Beverages, Inc.*, 968 S.W.2d 152 (Mo. App. 1994) (Holding that the Fund is not liable where a claimant is permanently and totally disabled from a subsequent condition); *Lewis v. Treasurer*, 435 S.W.3d 144, 155-56 (Mo. App. E.D. 2014) (Stating that the Fund is not liable where a claimant is permanently and totally disabled from the primary injury standing alone).

Permanent total disability is the "inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident." Mo. Rev. Stat. § 287.020.7 (2000). Permanent total disability is measured by "a claimant's ability to compete in the open labor market." *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173, 178 (Mo. App. E.D. 1995) (citing *Carron v. Ste. Genevieve School Dist.*,

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800 S.W.2d 64, 67 (Mo. App. 1990)). The fact finder must determine whether "any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition." *Id.* Claimant must prove that his permanent and total disability is the result of a combination of his primary and preexisting disabilities. *See Fischer,* 739 S.W.2d 195.

The fact finder does not have to make his decision only upon testimony from physicians, but can make his findings from the entire evidence. *Julian v. Consumers Markets, Inc.,* 882 S.W.2d 274, 257 (Mo. App. 1994). The fact finder is free to accept or reject uncontradicted and unimpeached testimony. *Alexander v. D.L. Sitton Motor Lines,* 851 S.W.2d 525, 527 (Mo. banc 1993) (superseded by statute on other grounds).

The evidence of this case demonstrates Claimant's permanent and total disability is not a result of a combination of the primary injury and the preexisting disabilities. The evidence suggests that Claimant chose to retire due to the limitations of his preexisting low back, neck, bilateral shoulder, and bilateral hip disabilities. Claimant, thus, fails to meet his burden of proof and is not entitled to benefits from the Fund.

The records and testimony of Claimant in this case reflect Claimant had significant disabilities to most of his body prior to retiring in January of 2009. Claimant testified although he did not have any restrictions for his neck, low back, bilateral hips, or bilateral shoulders leading up to his primary injury, these disabilities interfered substantially with his ability to perform his job. Claimant testified he needed help from others, relied on the advancement of technology, and struggled with the required heavy lifting when performing his job duties. Claimant testified he believed if he asked for accommodations from Employer for his low back, neck, bilateral shoulders, and bilateral hips, he would have been fired.

In mid-2008, about six months before Claimant retired, he sought more rigorous treatment for his right shoulder, neck, and low back. Imaging revealed that more aggressive

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medical treatment was necessary, including surgery to the right shoulder. Claimant testified at some point he decided he needed to retire. Claimant eventually provided notice to Employer he was going to retire. Claimant's last day of work was January 13, 2009. He scheduled shoulder surgery to occur two days after his retirement, and testified this was done with the intention of never returning to work. In order to support himself, Claimant testified he applied for both his pension and Social Security Disability ("SSD"). While he waited for those benefits, Claimant testified he received short-term disability as his income. Claimant stated he ultimately was awarded SSD and receives income from his pension as well.

Claimant admitted he retired before he knew he had carpal tunnel syndrome. Although Claimant testified he had "problems with [his] upper extremities," he did not seek treatment for carpal tunnel syndrome from any doctor before his retirement. Claimant agreed he decided to retire from work before he was aware he had carpal tunnel syndrome. Two years after retirement, Claimant sought additional treatment for carpal tunnel syndrome, and indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome.

The totality of the evidence demonstrates Claimant's plan to retire was based on his low back, neck, bilateral shoulder, and bilateral hip conditions. The evidence suggests Claimant made the decision to retire after understanding his need for additional medical treatment for his preexisting conditions. The evidence supports a finding Claimant's decision to retire did not include a consideration of his carpal tunnel syndrome. Claimant acknowledged he has not sought any employment since his retirement and subsequent medical treatment. The Fund does not have liability where a claimant's inability to compete in the open labor market is the result of anything but a combination of his primary injury and preexisting disabilities. Here, Claimant has not met his burden of proving his permanent total disability results from a combination of his primary injury and preexisting disabilities. Claimant's attempt to bootstrap his primary injury (his carpal

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tunnel syndrome) with his preexisting injuries, as the basis for his inability to work, when he clearly intended to retire for reasons unrelated to his primary injury, run contrary to both the spirit and strict application of the law. Claimant, therefore, is not entitled to benefits from the

Fund.

I certify that on 12-13-19 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 __________________________


Made by:

Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012

www.labor.mo.gov/DWC

DECEMBER 13, 2019

09-101188

Scan Copy

*Employee : MARK A LYNCH* Employee Attorney: PHILLIP A TATLOW 1250 EMERALD GARDENS DR ST PETERS, MO 63376-4305 10525 BIG BEND BLVD #Asst Atty General: ATTY GENERAL ERIC SCHMITT 815 OLIVE ST STE 200 ST LOUIS, MO 63101 KIRKWOOD, MO 63122

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

MESSOURI

WE-142 (06-15) AWARD ON HEARING

DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS

MIS

Relay Missouri: 800-735-2966

Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Mark Lynch

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Anheuser Busch Companies, Inc. (Settled)

Additional Party: Second Injury Fund

Injury No.: 09-101188 \& 09-39485

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Indemnity Insurance Co. of America (Settled)

Hearing Date: August 28, 2019

Checked by: MOT;sh

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 30, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis, Mo
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or 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 occurred or occupational disease contracted: Claimant developed an occupational disease performing repetitive motion tasks
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities, hearing loss.
14. Nature and extent of any permanent disability: 20 % PPD of each wrist.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: In excess of maximum rate for injury date by stipulation
19. Weekly compensation rate: Maximum rate for injury date January 30, 2009.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

1. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable: None

1. Second Injury Fund liability: None

TOTAL: 0.00

1. Future requirements awarded: N/A

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: Philip Tatlow.

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Page 2

A final hearing was held on August 28, 2019, at the Division of Workers’ Compensation in the City of St. Louis, Missouri. Attorneys Phillip Tatlow and Thomas Mihalczo represented Mark Lynch (“Claimant”). Anheuser Busch Companies, Inc. (“Employer”), and its insurer, previously settled their liability. Deputy Attorney General of Civil Litigation Jeremiah Morgan and Assistant Attorney General Madalyn J. Campbell represented the Second Injury Fund (“the Fund”).

The parties stipulate as follows:

1. Venue is proper in St. Louis, Missouri
2. The Claim was timely filed
3. Claimant suffered an occupational disease within the course and scope of employment
4. Employer was fully insured in compliance with the requirements of Chapter 287
5. Claimant’s Permanent Total Disability (“PTD”) rate is $772.53
6. Claimant’s Permanent Partial Disability (“PPD”) rate is $404.56
7. Employer paid no medical expenses.
8. Employer paid no temporary and total disability (“TTD”) benefits.

1. The date of Claimant's alleged occupational disease.
2. If proper notice was given to Employer
3. Nature and extent of the Second Injury Fund's ("SIF") liability.

Exhibit 1; Settlement Stipulation for Injury \#: 09-039485

Exhibit 2: Settlement Stipulation for Injury \#: 09-101188

Exhibit 3: Medical Report of Dr. Dwight Woiteshek; August 1, 2011 (12 pages)

Exhibit 3(a): Dr. Dwight Woiteshek's CV (4 pages);

Exhibit 4: Vocational Assessment report of Mr. Terry Cordray, January 22, 2018; (16 pgs)

Exhibit 4(a.): Terry Cordray's CV (5 pages)

Exhibit 5: Deposition of Terry Cordray, August 3, 2018 (108 pages);

Exhibit 6: Certified records of Dr. Jeffrey W. Martin, Orthopedic Center of St. Louis; (39 pages)

Exhibit 7: Certified records of Dr. John Vellinga, Physician's Pain Clinic; (40 pages)

Exhibit 8: Certified records of Dr. Robert Margolis, St. Louis Neurological Institute (16 pgs)

Exhibit 9: Certified records of Dr. S. Vic Glogovac (20 pages);

Exhibit 10: Workers' Compensation file, injury \#'s: 87-121618, 91-025607, 95-016695, and 99-107931 (38 pages);

Exhibit 11: Anheuser Busch Job Description;

Exhibit 12: Photographs; and

Exhibit 13: Dr. Martin, Orthopedic Center of St. Louis operative report dated

Second Injury Fund Exhibits:

None

Note: Unless otherwise specifically noted below, any objections contained in the deposition exhibits, but not ruled on in this award, are overruled and the testimony is fully admitted into evidence in this case. Any notations made on the exhibits were not placed there by the undersigned Administrative Law Judge.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

Claimant is a 68-year-old man. He graduated from Cleveland high school in South St. Louis, Missouri. After graduating high school, Claimant attended some community college, but did not finish a program or obtain a degree. During this time, Claimant maintained a variety of odd jobs, including working as a stocker and an usher at Busch Stadium and working as a laborer in construction and asphalt work. Claimant did not serve in the Armed Forces. In 1974, Claimant obtained a position with Employer in the Draft Beer Department. Claimant maintained this position for 35 years, until he ultimately retired. Claimant has not sought employment or been employed since working for Employer.

Claimant worked full time, full duty, and unrestricted work for his entire career with Employer. Claimant worked between 40 and 96 hours in a typical week. Claimant testified at great length to the job duties required of him by Employer. He gave expansive discussion of all duties and day to day job activities. Generally, Claimant worked as a brewery worker. This included work for the Draft Beer Department and the Kettle Department. Both departments required Claimant to make beer, which included placing ingredients in beer kettles, processing the beer as it fermented, and cleaning the beer kettles. Claimant described his job duties as physically demanding. At times, Claimant unloaded 55 gallons of materials used to make the beer from trucks. Claimant maintained the kegs and kettles that stored the processing beer. This required hammering of keg doors, up to 1,200 times a day. Claimant also stacked pallets and drove barrels with the forklift. While working for the Kettle Department, Claimant cleaned the kettles that were 15-20 feet tall. Claimant testified cleaning the kettles with both a steel brush and a sponge were difficult. When working in the Kettle Department, Claimant dumped buckets of ingredients into the kettles at least 54 times per day. Claimant also dumped 100 pounds of

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

hops into the kettles 13 times per day. Claimant testified the physical demands of his job duties eventually decreased due to the advent of technology.

**Alleged Preexisting Conditions:**

**Low Back:**

Claimant testified, and records reflect, in 1990 Claimant was involved in a boating accident, after which he sustained an injury to his low back. Claimant had symptoms of pain in his low back from that time until his primary injury. In 1995, Claimant sustained an injury to his low back at work. There are no treatment records available for review. Claimant's settled his claim with Employer for 2.5% PPD of the BAW. (Ex. 10) In 1998, Claimant sustained another injury to his low back at work. Claimant received conservative treatment for this injury, and was released to work full time, full duty without any restrictions. Claimant settled a claim for compensation with Employer for 5% PPD of the BAW - Lumbar Spine. (Ex. 9) Six months later, Claimant sought treatment for low back pain, but an MRI of his lumbar spine did not show significant abnormalities. (Ex. 9) At that time, Claimant was permitted to work full duty. (Ex. 9) In 2003, Claimant again sought treatment for low back pain. (Ex. 6) Claimant testified he believes he received ESIs during this time period, but no medical records regarding these ESIs were admitted into evidence. In March of 2008, less than a year before Claimant retired, he sought treatment with Dr. Martin, which resulted in X-Rays. (Ex. 6) The x-rays revealed bilateral facet joint arthritis in the lower lumbar spine, worst at L5-S1. (Ex. 6) After retiring, Claimant continued to seek treatment, including ESIs, for low back pain. (Ex. 6)

1 The evidence before this Court shows the bilateral tinnitus/hearing loss alleged in injury #09-039485 is not a preexisting condition to this claim because the date of injury alleged for the hearing loss is the same date of injury for this claim. The tinnitus/hearing loss did not preexist this claim, and fails to state a claim upon which relief can be granted, thus fails as a matter of law.

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Claimant testified while working for Employer, he experienced difficulties performing some of his job duties, particularly with heavy lifting, due to low back pain. Claimant testified low back pain made it difficult to bend down. Claimant indicated he occasionally missed work due to low back pain.

Neck:

Claimant testified, and records reflect, in 1990 Claimant was involved in a boating accident, after which he sustained an injury to his neck. At the time, Claimant described the pain being worse in the morning, and specifically when he would bend down at work. (Ex. 7). Claimant also experienced constant dullness in his neck, with sharp exacerbations of pain. (Ex. 7). Claimant underwent an MRI, which revealed degenerative changes at two levels in the neck. (Ex. 7). Claimant was prescribed an ESI. (Ex. 7). At hearing, Claimant testified he thought he was diagnosed with degenerative joint disease in his neck, and he was "not sure" when or if that was the actual diagnosis. At hearing, Claimant admitted he did not have any restrictions or accommodations for his neck while working for Employer. Claimant testified he had neck pain before his primary injury, which made it difficult to turn his head. Claimant testified this impacted his ability to perform his job, especially when cleaning the beer kettles and driving the fork lift.

A month after he retired, Claimant described a constant burning sensation, which radiated into his right arm. (Ex. 7). Claimant was diagnosed with cervicalgia, radiculitis, cervical spinal stenosis, spondylosis, and degenerative joint disease, and given an ESI. (Ex. 7). Claimant continued to treat with ESIs. (Ex. 7).

In 1995, Claimant sustained an injury to his right shoulder at work. There are no treatment records available for review. Claimant settled this claim with Employer for 25% PPD of the right shoulder. (Ex. 10). At hearing, Claimant testified he had surgery to his right shoulder while working for Employer. Claimant did not know when the surgery occurred. Records reflect Claimant underwent a right shoulder surgery in 2003. (Ex. 6). Claimant testified following this surgery, he relied on others to help him with the extremely heavy lifting he was required to perform on a daily basis. Claimant testified he had weakness in his right shoulder and switched arms frequently while working. Claimant also indicated repetitive heavy lifting caused a lot of pain in his shoulders. Claimant testified, although he did not have any permanent restrictions for his right shoulder, he forced himself to continue to perform his duties, because he would be fired if he could not. Some records reflect Claimant switched to a less physically demanding job in the control room due to the problems with his right shoulder. (Ex. 4).

In October of 2008, three months before Claimant retired, Claimant sought treatment with Dr. Martin for pain in his right shoulder. (Ex. 6). An x-ray taken at this time revealed mild osteoarthritis in the right shoulder. (Ex. 6). Dr. Martin recommended proceeding with surgery to the right shoulder, and Claimant indicated he would like to proceed. (Ex. 6). Claimant scheduled a right rotator cuff repair on January 15, 2009, two days after his last day of work. (Ex. 6).

Records reflect that in 1991, Claimant underwent an open decompression to his left shoulder. (Ex. 6). Records of that surgery were not entered into evidence. A settlement for a 1995 PPD claim with the Fund reflects Claimant sustained a 20\% PPD of the left shoulder. (Ex. 10). In October of 2008, three months before Claimant retired, he told Dr. Martin he did not experience

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

"any problems" with his left shoulder following the 1991 surgery. At hearing, Claimant admitted he did not have any restrictions or accommodations for his left shoulder while working for Employer. Claimant testified he had problems with his upper extremities, especially when repeatedly performing heavy lifting or lifting overhead.

**Bilateral Hips & Lower Extremities:**

In 2003, Claimant sought treatment for pain in both his hips. (Ex. 6). Records reflect Claimant experienced increasing pain and stiffness in both hips. (Ex. 6). At the time, Claimant had difficulty walking, standing, climbing stairs, tying shoes, and with agility. (Ex. 6). Before proceeding to surgery, Claimant underwent a stress test and was cleared to proceed with the surgery. (Ex. 6). Claimant relayed to the administrator of the stress test that he had been cardioverted three times, and when he experiences atrial fibrillation he becomes very tired and experiences shortness of breath. (Ex. 6). In June of 2003, Claimant underwent a bilateral total hip replacement. (Ex. 6). Claimant was prescribed pain medications and placed at full weight bearing status. (Ex. 6).

At his one year follow up appointment, Claimant reported to Dr. Martin he had no problems, pain, irritation, or swelling in his hips. (Ex. 6). Claimant reported to Dr. Martin he did not need assistance ambulating, was capable of driving, and used stairs normally. (Ex. 6). At his two and a half year follow up, Claimant reported the same condition, but with some mild pain. Dr. Martin noted satisfactory progress (Ex. 6). At his four year follow up, Claimant reported no problems or pain in his hips, and he was able to ambulate and use stairs normally. (Ex. 6). In March of 2008, five years after the bilateral hip replacements, Claimant underwent x-rays, which revealed progression of arthritis around the right hip. (Ex. 6). X-rays of the bilateral knees revealed osteoarthritis in both knees. (Ex. 6).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

Claimant testified the problems with his hips resulted in decreased strength in his legs. Claimant acknowledged he did not have any restrictions or accommodations for his hips while working for Employer. But, Claimant felt the decreased strength in his lower extremities due to the weakness in his hips caused problems in performing his job duties, particularly with heavy lifting.

**Alleged Primary Injury**

Five months after retiring, Claimant sought treatment with Dr. Margolis for numbness and tingling in his extremities. (Ex.8). Dr. Margolis ordered an EMG of all four extremities, which, among other things, revealed right carpal tunnel syndrome. (Ex. 8). Claimant filed a claim for compensation for his alleged bilateral carpal tunnel syndrome in late December 2009, almost a year after he retired. Records reflect in September of 2010, almost two years after retiring, Claimant underwent a left carpal tunnel release. (Ex. 9). Two months later, Claimant underwent a right carpal tunnel release. (Ex. 9).

Claimant testified prior to retiring he never saw a doctor, through Employer or on his own, about carpal tunnel syndrome. In fact, Claimant testified he did not know he had bilateral carpal tunnel syndrome until late 2009, nor did he know what carpal tunnel syndrome was until after he retired. Employer provided no medical treatment, and since Claimant was retired, no TTD. In January of 2015, Claimant settled with Employer for 20% PPD of each wrist with a 10% loading factor. (Ex. 1).

In 2011, Claimant sought treatment with Dr. Rotman, because the symptoms he experienced in his hands did not dissipate after surgery. (Ex. 4). Dr. Rotman ultimately opined Claimant's complaints in his extremities were not related to carpal tunnel syndrome or his work duties. (Ex. 4). Dr. Rotman noted Claimant retired due to a heart condition, along with problems

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

with his right shoulder. (Ex. 4). Dr. Rotman felt Claimant's complaints in his wrists were the result of peripheral neuropathy. (Ex. 4). Finally, Dr. Rotman felt Claimant's wrists did not restrict him from working. (Ex. 4).

Claimant retained Dr. Woiteshek to perform an independent medical examination in relation to his workers' compensation claim, and Dr. Woiteshek provided a report containing his opinions in August of 2011, two years after Claimant retired. Dr. Woiteshek provided a diagnosis and ratings for the primary injury of bilateral carpal tunnel syndrome. Dr. Woiteshek also provided diagnoses and ratings for the preexisting low back, neck, right shoulder, left shoulder, and bilateral hip injuries. Dr. Woiteshek provided permanent restrictions for Claimant's alleged bilateral carpal tunnel syndrome. Ultimately Dr. Woiteshek opined Claimant is permanently and totally disabled because of the "repetitious traumatic injuries leading up to and including 1/15/09 [sic] and his pre-existing conditions..." (Ex. 3).

Claimant retained Mr. Terry Cordray to perform a vocational assessment. (Ex. 5). Mr. Cordray evaluated Claimant in December of 2017, eight years after Claimant retired. (Ex. 5). Mr. Cordray also evaluated Mr. Lynch's job with the Job Browser Pro by SkillTRAN. Mr. Lynch's job description code was 522.685-014: Brewery Cellar Worker. The job of brewery cellar worker is considered unskilled, required less than 30 days of on-the-job training. This job is defined as medium in strength demand, however this job can be substantially heavier as the job requires stooping, crouching, reaching, and handling.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

After review of the assessments of Claimant, the evidence supports a finding the opinion of Mr. Cordray is not credible in this instance. In his reports and thus the facts upon which his opinions are based, the Court notes Mr. Cordray maintains he does not consider the subjective complaints of Claimant, despite the inclusion of significant subjective complaints of Claimant in his report. Further, Mr. Cordray cites to these subjective complaints when asked to identify Claimant's limitations before the primary injury. The Court, consequently, finds the report of Mr. Cordray not persuasive and not credible in this instance.

**Burden of Proof**

Under Missouri Workers' Compensation law, the claimant bears the burden of proving all essential elements of his or her Workers' Compensation claim. *Fischer v. Archdiocese of St. Louis*, 793 S.W.2d 195, 198 (Mo. Ct. App. 1990); *Grime v. Altec Indus.*, 83 S.W.3d 581, 583 (Mo. Ct. App. 2002). Proof is made only by competent and substantial evidence, and may not rest on speculation. *Griggs v. A.B. Chance Company*, 503 S.W.2d 697, 703 (Mo. Ct. App. 1974). Medical causation not within lay understanding or experience requires expert medical evidence. *Wright v. Sports Associated, Inc.*, 887 S.W.2d 596, 600 (Mo. banc 1994).

Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony that it does consider credible and accept as true the contrary testimony given by the other litigant's expert. *Webber v. Chrysler Corp.*, 826 S.W.2d 51, 54 (Mo. Ct. App. 1992); *Hutchison v. Tri State Motor Transit Co.*, 721 S.W.2d 158, 163 (Mo. Ct. App. 1986).

In order to find liability for permanent total disability §287.020.7 RSMo provides that "total disability" is the inability to return to any employment, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. See also *Houston v. Roadway Express, Inc.*, 133 S.W.3d 173, 178 (Mo. Ct. App. 2004). The main factor in this determination is whether, in the ordinary course of business, any employer would

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

reasonably be expected to employ the employee in this present physical condition and reasonably expect him to perform the duties of the work for which he was hired. *Reiner v. Treasurer of the State of Missouri* 837 S.W.2d 363, 367 (Mo. Ct. App. 1992).

When the claimant is disabled by a combination of the work-related event and pre-existing disabilities, the responsibility for benefits lies with the Second Injury Fund. §287.200.1 RSMo. If the last injury in and of itself renders a claimant permanently and totally disabled, the Second Injury Fund has no liability, and the employer is responsible for the entire compensation. *Nance v. Treasurer of Missouri*, 85 S.W.3d 767 (Mo. Ct. App. 2003). 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 the result of the last compensable injury, and that the disability has combined with a prior permanent partial disability to result in total disability §287.200.1 RSMo.

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund*, 352 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation marks and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if a claimant proves that under §287.220.1 RSMo. he is entitled to such benefits.

To prevail against the Second Injury Fund for permanent total disability, the employee must show: (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, the employee had a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the pre-existing permanent partial disability

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. § 287.220.1.

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo. App. E.D. 1999). "Probable" means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo. App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*, 222 S.W.3d 322, 331 (Mo. App. S.D. 2007). Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo. App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo. App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

In order for the Second Injury Fund to be liable for permanent total disability benefits, claimant must establish his total disability is due to the combination of primary injury with his then pre-existing disabilities. See *Boeing v. Treasurer of Mo., Custodian of the Second Injury Fund*, 947 S.W.2d 483, 489-490 (Mo. App. E.D. 1997) [emphasis added by the Court].

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Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

I. Claimant's date of injury for his primary carpal tunnel syndrome is his date of last exposure, January 13, 2009.

The date of injury for an occupational disease is not necessarily medically apparent. See *Arbeiter v. national Super Makets, Inc.*, 990 S.W.2d 142 (Mo. App. E.D. 1999) (overruled on other grounds). Thus, the "last exposure rule" exists in Missouri Workers' Compensation Law. *Id*; See § 287.063 RSMo (2005). The last exposure rule dictates that an occupational disease occurs when a claimant is last exposed to the industrial hazard that caused the disease. *Id*.

Here, Claimant pleaded his primary occupational disease of bilateral carpal tunnel syndrome occurred on January 30, 2009. Claimant's last paycheck occurred on this date. But, Claimant retired from employment, and thus was last exposed to repetitive trauma, on January 13, 2009. Thus, if Claimant's date of his primary occupational disease is based on the date of last exposure, then the proper date is January 13, 2009 - his last date of work - and not January 30, 2009 - his last date of payment.

II. Issue of Notice - Waived.

The Second Injury Fund argues Claimant failed to give proper notice to the Employer. Neither Employer nor the Second Injury Fund ever raised a notice defense and it has therefore been waived. The Employer settled the case for full value and admitted notice of the injury by settling the claim. Even if a notice defense was not waived, the Fund failed to submit any evidence supporting its purported notice defense and therefore, the SIF has not refuted Claimant's position he provided proper notice to Employer. Claimant did not know his injuries were work-related until Dr. Woiteshek concluded that work was the prevailing factor in causing his injuries on August 1, 2011. Claimant filed his claim well before this date on December 28, 2009 and the original claim form is adequate notice of an injury including all details of such injury.

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Claimant has failed to establish he is permanently and totally disabled because of a combination of his primary carpal tunnel syndrome and his preexisting disabilities. The evidence supports a finding Claimant's primary injury does not contribute to his overall permanent and total disability. Rather, Claimant retired and removed himself from the open labor market due to his many preexisting disabilities. Claimant is not entitled to permanent and total disability benefits from the Fund because he failed to meet his burden of proof.

In order for the Second Injury Fund to be liable for total disability benefits, claimant must establish that his total disability is due to the combination of primary injury with his then preexisting disabilities. See Boring v. Treasurer of Mo., Custodian of the Second Injury Fund, 947 S.W.2d 483, 489-90 (Mo. App. E.D. 1997). A claimant is not entitled to benefits from the Fund if his permanent disability is the result of anything other than a combination of his primary injury and preexisting conditions. See Schussler v. Treasurer, 393 S.W.3d 90, 92 (Mo. Ct. App. W.D. 2012) (Holding that the Fund is not liable where a claimant is permanently and totally disabled from the preexisting disabilities alone); Lammert v. Vess Beverages, Inc., 968 S.W.2d 152 (Mo. App. 1994) (Holding that the Fund is not liable where a claimant is permanently and totally disabled from a subsequent condition); Lewis v. Treasurer, 435 S.W.3d 144, 155-56 (Mo. App. E.D. 2014) (Stating that the Fund is not liable where a claimant is permanently and totally disabled from the primary injury standing alone).

Permanent total disability is the "inability to return to any employment and not merely ... inability to return to the employment in which the employee was engaged at the time of the accident." Mo. Rev. Stat. § 287.020.7 (2000). Permanent total disability is measured by "a claimant's ability to compete in the open labor market." Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo. App. E.D. 1995) (citing Carron v. Ste. Genevieve School Dist.,

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 09-101188 & 09-039485

800 S.W.2d 64, 67 (Mo. App. 1990)). The fact finder must determine whether "any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition." *Id.* Claimant must prove that his permanent and total disability is the result of a combination of his primary and preexisting disabilities. *See Fischer,* 739 S.W.2d 195.

The fact finder does not have to make his decision only upon testimony from physicians, but can make his findings from the entire evidence. *Julian v. Consumers Markets, Inc.,* 882 S.W.2d 274, 257 (Mo. App. 1994). The fact finder is free to accept or reject uncontradicted and unimpeached testimony. *Alexander v. D.L. Sitton Motor Lines,* 851 S.W.2d 525, 527 (Mo. banc 1993) (superseded by statute on other grounds).

The evidence of this case demonstrates Claimant's permanent and total disability is not a result of a combination of the primary injury and the preexisting disabilities. The evidence suggests that Claimant chose to retire due to the limitations of his preexisting low back, neck, bilateral shoulder, and bilateral hip disabilities. Claimant, thus, fails to meet his burden of proof and is not entitled to benefits from the Fund.

The records and testimony of Claimant in this case reflect Claimant had significant disabilities to most of his body prior to retiring in January of 2009. Claimant testified although he did not have any restrictions for his neck, low back, bilateral hips, or bilateral shoulders leading up to his primary injury, these disabilities interfered substantially with his ability to perform his job. Claimant testified he needed help from others, relied on the advancement of technology, and struggled with the required heavy lifting when performing his job duties. Claimant testified he believed if he asked for accommodations from Employer for his low back, neck, bilateral shoulders, and bilateral hips, he would have been fired.

In mid-2008, about six months before Claimant retired, he sought more rigorous treatment for his right shoulder, neck, and low back. Imaging revealed that more aggressive

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-101188 & 09-039485

medical treatment was necessary, including surgery to the right shoulder. Claimant testified at some point he decided he needed to retire. Claimant eventually provided notice to Employer he was going to retire. Claimant's last day of work was January 13, 2009. He scheduled shoulder surgery to occur two days after his retirement, and testified this was done with the intention of never returning to work. In order to support himself, Claimant testified he applied for both his pension and Social Security Disability ("SSD"). While he waited for those benefits, Claimant testified he received short-term disability as his income. Claimant stated he ultimately was awarded SSD and receives income from his pension as well.

Claimant admitted he retired before he knew he had carpal tunnel syndrome. Although Claimant testified he had "problems with [his] upper extremities," he did not seek treatment for carpal tunnel syndrome from any doctor before his retirement. Claimant agreed he decided to retire from work before he was aware he had carpal tunnel syndrome. Two years after retirement, Claimant sought additional treatment for carpal tunnel syndrome, and indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome.

The totality of the evidence demonstrates Claimant's plan to retire was based on his low back, neck, bilateral shoulder, and bilateral hip conditions. The evidence suggests Claimant made the decision to retire after understanding his need for additional medical treatment for his preexisting conditions. The evidence supports a finding Claimant's decision to retire did not include a consideration of his carpal tunnel syndrome. Claimant acknowledged he has not sought any employment since his retirement and subsequent medical treatment. The Fund does not have liability where a claimant's inability to compete in the open labor market is the result of anything but a combination of his primary injury and preexisting disabilities. Here, Claimant has not met his burden of proving his permanent total disability results from a combination of his primary injury and preexisting disabilities. Claimant's attempt to bootstrap his primary injury (his carpal

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tunnel syndrome ) with his preexisting injuries, as the basis for his inability to work, when he clearly intended to retire for reasons unrelated to his primary injury, run contrary to both the spirit and strict application of the law. Claimant, therefore, is not entitled to benefits from the Fund.

I certily Dont on 12-1319

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 $\qquad 11 p \qquad$