Mark Lynch v. Anheuser Busch Companies, Inc.

Decision date: February 2, 2021Injury #09-03948509-10118842 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Mark Lynch for his January 15, 2009 occupational disease claim, finding no permanent and total disability despite the employee's carpal tunnel and tinnitus injuries. One commissioner dissented, arguing the evidence supported a finding of permanent and total disability based on the synergistic combination of the work-related occupational disease and pre-existing conditions, and that the Second Injury Fund should be liable.

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Caption

FINAL AWARD DENYING COMPENSATION

(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

DISSENTING OPINION

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

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

09-039485 #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

Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division's records.

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.

AMENDED AWARD

**Employee:** Mark Lynch

**Dependents:** N/A

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

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

**Before the Division of Workers' Compensation**

July 27, 2022#17-013765

affirmed

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's Temporary or Partial Award in a workers' compensation case for employee Cynthia Porter, finding the award supported by competent and substantial evidence. The Commission upheld the ALJ's determination that the claimant's diabetes was well-controlled, rejecting the employer/insurer's challenge to this medical finding.

occupational disease7,008 words

Workers' Compensation