Martha Satterfield v. Timken SMO, LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-011298

**Employee:** Martha Satterfield

**Employer:** Timken SMO, LLC

**Insurer:** Travelers Indemnity Company of America

**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 January 8, 2020. The award and decision of Administrative Law Judge Victorine R. Mahon, issued January 8, 2020, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this _______ 22nd _______ 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

These two matters involve injuries to employee's abdomen and right foot. Employee also had several other work-related injuries, as noted by the awards of the administrative law judge. Employee also has several preexisting medical conditions. The administrative law judge concluded that employee failed to meet her burden to establish liability against the Second Injury Fund because employee did not establish that any particular work-related injury in either of these matters combined with a single preexisting injury (as if in a vacuum) to render claimant unable to compete in the open labor market. I disagree with this limited interpretation of the law.

Section 287.220.3(2) reads, in pertinent part:

Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

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

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

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

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

b. Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]

(emphasis added).

It has long been held that under the Missouri Workers' Compensation Law other factors, such as an employee's physical condition, age, education, job skills, and work experience, should be considered in determining whether the employee is permanently and totally disabled and eligible to receive Second Injury Fund benefits. Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493 (Mo. App. 2001).

While the purpose of the amendments to $\S 287.220$, RSMo, may have been enacted to create stricter standards for Second Injury Fund liability, the amendments did not change the Second Injury Fund's purpose. The General Assembly created the Second Injury Fund in 1947 to "encourage the employment of individuals who [were] already disabled from a pre-existing injury, regardless of the type of cause of that injury. . . It encourages such employment by ensuring that the employer is only liable for the disability caused by the work injury. Any disability attributable to the combination of the work injury with pre-existing disabilities [was] compensated, if at all, by the fund." Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013) (citation omitted).

Without the Second Injury Fund, the employer and its insurer are responsible for paying lifetime benefits to injured workers whose last injury, in combination with preexisting conditions, causes them to become permanently and totally disabled. See § 287.120.1 and 287.200, RSMo, and Federal Mutual Insurance Co. v. Carpenter, 371 S.W.2d 955,957 (1963). This naturally discourages employers from hiring workers with preexisting disabilities. In post-World War II America, veterans and labor organizations lobbied for the creation of the Second Injury Fund to relieve prospective employers of the fear of hiring workers with preexisting disabilities. Wuebbeling v. West County Drywall, 898 S.W.2d 615, 621, n. 1 (Mo. App. 1995).

An interpretation of the 2014 amendments to § 287.220.2, RSMo, excluding consideration of multiple preexisting disabilities suggests that our legislature intended to shift the burden of compensating the most severely disabled workers upon the public as a whole. After all, if the employer or the Second Injury Fund are not liable, dramatically increased Social Security Disability claims and payments will inevitably result, the cost of which will be borne by taxpayers. This option would subvert not just the underlying purpose of the Second Injury Fund, but that of the Missouri Workers' Compensation Law as a whole, because " $[t]$ he purpose of workers' compensation is to make industry bear the burden of compensating employees for injuries arising out of the scope and course of employment." Gaston v. J.H. Ware Trucking, Inc., 849 S.W.2d 70, 74 (Mo. App. 1993). I reject this proposition.

The recent decision of Treasurer of State v. Parker, WD83030 (July 14, 2020), currently on transfer to the Missouri Supreme Court (SC98704), enunciated that the proper interpretation of $\S 287.220 .3$, RSMo, requires that once an employee has a preexisting disability that satisfied one of the subsections that exceeds the fiftyweek minimum, then the Commission may consider other preexisting injuries and

Injury No.: 15-104637

Injury No.: 17-011298

Employee: Martha Satterfield

-3-

disabilities as well as all other characteristics (e.g., age, education, employment history, etc.) to determine in the employee is permanently and totally disabled.

In conclusion, the administrative law judge erred in interpreting § 287.220, RSMo, and denying Second Injury Fund liability for these claims. Employee sustained compensable injuries that combined with qualified preexisting disabilities and other relevant factors to render employee permanently and totally disabled.

I would reverse the decision of administrative law judge and award employee permanent total disability benefits from the Second Injury Fund. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 8, 2019, together with four companion cases. ${ }^{1}$ Martha Satterfield appeared personally and through her attorney John Newman. Employer and its insurer appeared through Attorney Greg Pearman. Assistant Attorney General Skyler Burks appeared on behalf of the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (SIF). The parties agreed to certain facts and narrowed the issues, as follows:

1. On March 31, 2015, Carlisle Transportation Products, LLC, (Employer) was a Missouri employer subject to the Missouri Workers’ Compensation Law, and fully insured with American Zurich Insurance Company (Insurer).
2. On March 31, 2015, Claimant Martha Satterfield was an employee of Carlisle Transportation Products, LLC, and was protected by the Missouri Workers’ Compensation Law.
3. On January 4, 2016, February 4, 2016, October 14, 2016, and February 16, 2017, Timken SMO, LLC, was a Missouri employer fully insured with Travelers Indemnity Company of America.
4. On January 4, 2016, February 4, 2016, October 14, 2016, and February 16, 2017, Claimant Martha Satterfield was an employee of Timken SMO, LLC, and was protected by the Missouri Workers’ Compensation Law.
5. On March 31, 2015, February 4, 2016, October 14, 2016, and February 16, 2017, Claimant sustained accidents, which arose out of and in the course of her employment with her employer(s).
6. Claimant’s employment and all alleged accidents occurred in Springfield, Greene County, Missouri. Jurisdiction and venue is proper in each of Claimant’s five pending claims for compensation. [^0] [^0]: ${ }^{1}$ The following cases were tried simultaneous: Injury No. 15-104637 (Date of Injury - March 31, 2015); Injury No. 16-021774 (Alleged Date of Injury - January 4, 2016); Injury No. 16-024755 (Date of Injury - February 4, 2016); Injury No. 16-081934 (Date of Injury - October 14, 2016); and 17-011298 (Date of Injury - February 16, 2017).

1. Claimant notified her employer(s) of each of her injuries as required by $\S 287.420 RSMo.
2. The Claims for Compensation were filed within the time prescribed by \S 287.430$ RSMo.
3. Claimant's average weekly wage (AWW) and rates for permanent partial disability and permanent total disability in each case, are as follows :

Wage | Permanent Partial

Disability | Permanent

Total Disability |

1. Employer/Insurer paid temporary total disability and medical bills in the following amounts:

Disability | Medical Benefits |

1. As to Injury No. 17-011298, Claimant reached maximum medical improvement on April 24, 2017.

The issues to be resolved by hearing in each case:

1. What is the nature and extent of disability for which Employer/Insurer is liable?
2. Is there liability for future medical treatment?
3. What is the liability of the Second Injury Fund, if any?
4. Is Claimant's attorney entitled to a lien equal to 25 percent of any awarded benefits?

The parties submitted the following exhibits which were admitted:

1. Medical Records - Various Providers (enumerated as A through N)
2. Deposition - Dr. David Volarich, with exhibits
3. Curriculum Vitae of Phillip Eldred
4. Vocational Report - Phillip Eldred
5. Stipulation for Compromise Settlement - Injury Number 03-033925
6. Stipulation for Compromise Settlement - Injury Number 13-098713 (Employer/Insurer only)

Both evaluating medical experts - Dr. Ted Lennard and Dr. David Volarich - opined that the March 2015 lifting incident at work was the prevailing factor in causing the umbilical and inguinal hernias that required surgical repair. Neither doctor found a separate work injury on January 4, 2016. Dr. Volarich rated this injury as resulting in a 20-percent permanent partial disability to the body as a whole. Dr. Lennard rated the injury as resulting in a permanent partial disability of 10 percent to the whole body.

Right Knee Injury - Injury No. 16-024755

Claimant was struck in the right knee by a pallet that was being moved by another worker on a forklift on February 4, 2016. She had conservative treatment, but ongoing pain was made worse with walking, bending and getting up from any position where her knee has been bent. She has some difficulty navigating steps and uneven ground.

Both medical experts found that the work incident was the prevailing factor in causing the injury and disability. Dr. Volarich rated the injury as resulting in a 20 percent permanent partial disability to the right knee. Dr. Lennard rated Claimant has having a five-percent permanent partial disability to the knee. He noted that Claimant also had a five percent permanent partial disability to the same knee as a result of 2013 work-related knee injury when Claimant had struck her knee on a cabinet.

Right Foot Injury - Injury No. 16-081934

While walking in the warehouse on October 14, 2016, Claimant stepped on a stock divider. She experienced immediate pain. When Dr. Lorette examined her on October 25, 2016, Claimant had soreness and tenderness on the outside of her foot and into her ankle. Dr. Lorette diagnosed a sprain of the right calcaneofibular ligament, ordered physical therapy, prescribed a brace, and limited Claimant's lifting and carrying to 10 pounds and pushing or pulling to 25 pounds. Subsequent diagnostic testing revealed a fracture of the $5^{\text {th }}$ metatarsal. After conservative treatment, Claimant was released to return to work without restrictions effective January 18, 2017, with no discernible limp.

Drs. Lennard and Volarich agreed that the work accident was the prevailing factor in causing Claimant's injury and disability. Dr. Lennard rated the disability of the right foot at 30 percent at the 150 -week level, noting that 10 percent was attributable to the incident on October 14, 2016, 10 percent was attributable to the subsequent injury of February 16, 2017, and 10 percent was attributable to Claimant's preexisting plantar fasciitis (2005) and preexisting first metatarsal right foot fracture (2013). Dr. Volarich rated the disability from the October 14, 2016 injury at 25 percent at the 110 -week level.

Right Foot Injury - Injury No. 17-011298

On February 16, 2017, Claimant's left foot became stuck on a floor mat, causing her to lose her balance and strike her right heel on the concrete floor as she attempted to regain her balance. This caused immediate right heel pain and swelling. When she finally reported the incident, she was treated by Dr. Lorette who diagnosed a nondisplaced fracture of the right calcaneus. She received conservative treatment and was released to return to work on May 9, 2017.

During her treatment with Dr. Lorette on March 27, 2017, Claimant reported she was missing no work, had no more gait disturbance or pain with walking or standing and reported a 40 percent improvement. Dr. Lorette noted, however, that there are times when she sat down at work and was allowed to do so. About one month later on April 24, 2017, Dr. Lorette's exam revealed a normal range of motion and gait and a 90 -percent improvement. She reported to Dr. Lorette only minimal heel pain when she would lie down or prop her foot on an ottoman.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Martha Satterfield

Injury No. 17-011298

the undersigned Administrative Law Judge accepted 16.5 percent (24.7 weeks) as an accurate assessment of the

degree of disability from the foot injury on December 20, 2013.

Bilateral Hands

On or about February 5, 2003, Claimant suffered an occupational disease to her wrists. She settled her 2003 claim

(Injury No. 03-033925) for 10 percent of the right wrist (17.5 weeks) and 5 percent of the left wrist (8.75 weeks).

In 2005, Claimant fractured her left small finger which was treated conservatively.

Claimant also had developed bilateral degenerative arthritis and significant deformities in the middle and index

fingers of her right hand and the middle and ring fingers on her left hand. Dr. Volarich examined Employee on

November 25, 2015, and found a 25 percent permanent partial disability to each hand (43.75 weeks each) due to

advanced arthritic changes causing pain and weakness. In an Award against the Second Injury Fund issued in

Injury No. 13-098713, the undersigned Administrative Law Judge adopted Dr. Volarich's rating of 25 percent to

each wrist (Ex. 7, p. 8).

Other Medical Conditions

In addition to the aforementioned injuries, Claimant also has a medical history of an injury to her shoulders, and

diagnoses of hypertension, COPD, and the osteoporosis. She had been taking Tramadol, prescribed by her

primary care physician for her back, since 2005.

Additional Medical Opinions

Dr. Ted Lennard

When Dr. Ted Lennard evaluated Claimant on April 12, 2019, at the request of Employer/Insurer, he determined

that Claimant would have no work restrictions as a result of her umbilical and left inguinal hernia surgeries. He

imposed restrictions for combined right foot conditions. These included avoiding tasks requiring prolonged

standing or walking, climbing stairs, walking on uneven surfaces, and no lifting greater than 20 pounds. As noted

previously, he did not suggest that Claimant was permanently and totally disabled from the last injury or in

combination with preexisting injuries. He gave no additional restrictions for the right knee.

Dr. David Volarich

Dr. Volarich issued an initial report on December 14, 2017, and an addendum report October 16, 2018. He gave

testimony by deposition on May 24, 2019. Dr. Volarich gave restrictions associated with the hernias, stating that

Claimant should limit vigorous pushing, pulling, lifting, carrying and similar tasks, and handle weight to tolerance

or less than 15-20 pounds, assuming proper lifting techniques. He also advised Claimant to avoid Valsalva type

maneuvers and pursue an abdominal wall exercise program. He recommended only over-the-counter analgesics

as needed for discomfort.

With respect to the lower extremities after the work injuries on February 4, 2016, October 14, 2016 and February

16, 2017, Dr. Volarich said claimant should avoid stooping, squatting, crawling, kneeling, pivoting, climbing,

and all impact maneuvers. She should avoid navigating uneven terrain, slopes, steps, and ladders. She should limit

prolonged weight bearing including standing or walking to 45 to 60 minutes, or to tolerance. He recommended

that Claimant pursue an appropriate exercise programs in addition to nonimpact aerobic conditioning.

8

Claimant: Martha Satterfield

Injury No. 17-011298

For her preexisting conditions to her lower extremities and hands, Dr. Volarich said he would have advised Claimant to work full duty to tolerance with the normal work precautions. Dr. Volarich provided an extensive discussion in his report as to why he believed Claimant's injuries combined synergistically, ultimately concluding that Claimant "is permanently and totally disabled as a direct result of her current work-related injuries in combination with her preexisting injuries and medical condition prior to 3/31/15." (Ex. 1, p. 15; Ex. 2, p. 32). Dr. Volarich recommended that Claimant continue a home exercise program and take over-the-counter analgesics as needed for discomfort.

Phillip Eldred evaluated Claimant on March 13, 2018, and issued a report dated April 2, 2018. Mr. Eldred concluded that Claimant did have current and preexisting conditions which were vocationally disabling such as to constitute a hindrance or obstacle to employment. He further concluded that Claimant was permanently and totally disabled as a result of her injury on February 16, 2017, "combined with all of her preexisting injuries and medical conditions." (Ex 4, p. 44). Mr. Eldred did not find Claimant to be permanently totally disabled as a result of the last work injury, nor as a result of any one of the other work injuries in isolation.

Mr. Eldred found that Claimant scored better than most people in her age group on the Wide Range Achievement Test (WRAT):

In word reading she is functioning at the 55th percentile, which means she scored greater than 55 % of those persons in her age group. In spelling she is functioning at the 53 rd percentile which means that she scored greater than 53 % of those persons in her age group. She scored at the 50 th percentile in math computation which means that she scored greater than 50 % of those persons in her age group.

(Ex. 4, p. 38). Despite her mental aptitude, Mr. Eldred found that Claimant was relegated to less than sedentary work because of the restrictions he obtained from Dr. David Volarich's report. In addition, he found that Claimant had no transferable job skills, could not perform her last work, and could not be retrained due to her pain and use of narcotic medication. Mr. Eldred's analysis also focused heavily on Claimant's age:

Martie is right hand dominant and is most similar to those who were not successful returning to work because she is seventy-three years of age, she has low scores on the Purdue and has physical restrictions at less than the sedentary work level.

(Ex. 4, pp. 38-39).

I find Claimant credible in many respects, but I do not accept as credible any testimony from her or the expert opinions suggesting that Claimant was incapable of working on the open labor market at the time she voluntarily quit her job in June 2017.

Claimant bears the burden of proving she is entitled to workers' compensation. § 287.808 RSMo. An Administrative Law Judge shall weigh the evidence impartially without giving the benefit of the doubt to any one party. All provisions of the Workers' Compensation Law are to be construed strictly. § 287.800 RSMo.

Claimant does not allege that she is permanently and totally disabled as a result of any one of the five cases in isolation. Rather, Claimant asserts that she is permanently and totally disabled as a result of the combination of all of her preexisting with her current medical conditions.

The test for permanent total disability is whether the injured employee can compete for employment in the open labor market. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. E.D. 2007). "The critical question is whether an employer could reasonably be expected to hire the claimant, considering his present physical condition, and reasonably expect him to successfully perform the work." Forshee v. Landmark Excavating and Equip., 165 S.W. 3d 533, 537 (Mo. App. E.D. 2005). It is not necessary that an injured Claimant be rendered completely inactive or inert in order to receive compensation for permanent and total disability. Julian v. Consumers Market, Inc., 882 S.W.2d 274 (Mo. App. S.D. 1994).

Where a claimant seeks liability as against the Second Injury Fund, "the first determination is the degree of disability from the last injury." Hughey v. Chrysler Corp. 34 S.W.3d 845, 847 (Mo. App. E.D. 2000). "If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount." Id. No expert found Claimant permanently and totally disabled from the last injury alone. No expert opined that Claimant was permanently and totally disabled from any other medical condition or injury in isolation. As noted previously, after each work injury Claimant eventually returned to work. While Claimant may have worn a brace or occasionally sat, or reduced her lifting from 55-60 pounds to 50 pounds, she remained employed full time, full duty, up to the date of her retirement in June 2017. I find and conclude that Claimant suffered the following permanent and partial disabilities in relation to the claims tried on October 8, 2019:

Hernias - Injury Nos. 15-104637 \& 16-021774

After suffering the hernia injuries on March 31, 2015, Claimant continued to perform her regular job duties until she underwent surgery with Dr. Larson on April 13, 2015. She returned to regular duty work in July 2016, and was capable of performing her regular work, despite some discomfort and the use of a girdle to apply some pressure to her abdomen.

Dr. Lennard's rating of 10 percent to the body for the umbilical and inguinal hernia, and Dr. Volarich's rating of 20 percent with a 15 to 20 pound lifting restriction, in no way suggests that Claimant was permanently and totally disabled from the hernias. Moreover, Claimant indicated that following her release to full duty work post-hernia surgery, she was lifting at least 50 pounds. I find Claimant credible in this regard.

I find and conclude that Claimant sustained a work injury on March 31, 2015, suffering an umbilical hernia and a left inguinal hernia, which required surgical repair on April 13, 2016. I find and conclude that the work injury on March 31, 2015, resulted in a disability of 10 percent ( 40 weeks) to the body as a whole. At the rate of $\ 451.02, Employer/Insurer are responsible for $\ 18,040.08 in permanent partial disability for Injury No. 15-204637.

Based on the credible opinions of Dr. Volarich and Dr. Lennard in relation to Injury No. 16-021774, there was no new hernia injury in January 2016. No benefits are awarded as to that injury number.

On February 4, 2016, a pallet on a forklift swung and hit Claimant on the lateral side of her right knee. Dr. Lorette's physical examination revealed no signs of injury and a normal range of motion. The doctor diagnosed a right knee strain. After the visit to Dr. Lorette on February 9, 2016, Claimant continued doing her regular job duties and missed no work. Dr. Lennard diagnosed a right knee contusion, and gave a disability rating of five percent of the right knee for the February 4, 2016 work injury. Dr. Volarich diagnosed a right knee contusion with residual patellofemoral syndrome. He gave a disability rating of 20 percent of the right knee. I find and conclude that Claimant suffered a 12.5 -percent permanent partial disability to the right knee at the 160 -week level ( 20 weeks). At the rate of $\ 427.86, Employer/Insurer owe Claimant $\ 8,557.20 in permanent partial disability for the right knee injury.

Claimant stepped on a stock divider at work, and suffered a fifth metatarsal fracture on October 14, 2016. She had conservative treatment, which included a CAM walker boot for several weeks. By January 4, 2017, Claimant was 95 percent better. On January 18, 2017, Dr. Lorette did not note a limp or persistent pain in Claimant's right foot. She had only minimal tenderness at the fifth metatarsal. Dr. Lorette released Claimant from care, and she returned to her full-duty job. For the October 14, 2016 injury, Dr. Lennard gave a rating of 10 percent permanent partial disability of the right lower extremity at the 150 -week level ( 15 weeks). For the same injury, Dr. Volarich rated 25 -percent permanent partial disability of the right foot at the 110 -week level ( 27.5 weeks). I find that the injury should be rated at the 110 -week level, but further find that Dr. Volarich's rating is excessive. I find and conclude that Claimant suffered a 20 percent permanent partial disability at the 110 -week level ( 22 weeks). At the rate of $\ 477.33, Employer/Insurer owe Claimant $\ 10,501.26 for Injury No. 16-081934.

On February 16, 2017, Claimant's left foot became stuck on a floor mat, causing her to lose her balance and strike her right heel on the concrete floor resulting in a non-displaced fracture of the right calcaneus. Claimant received conservative treatment and was released to return to work on May 9, 2017. Dr. Volarich and Dr. Lennard rated the disability at the knee ( 150 -week level) at 25 and 10 percent respectively. I find and conclude that this last injury resulted in a 17.5 -percent permanent partial disability to the right lower extremity at the 150 -week level ( 26.25 weeks). At the rate of $\ 475.65, Employer/Insurer owe Claimant $\ 12,485.81 in permanent partial disability for Injury No. 17-011298.

Section 287.140 RSMo, requires Employer/Insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). Employer shall provide medical treatment to cure and relieve the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 512 (Mo. App. W.D. 2011).

Claimant had been taking Tramadol and over-the-counter medications for her preexisting low back injury, preexisting conditions, but no physician has recommended prescription medications or professional treatment for any of Claimant's injuries which are the subject of the hearing in this case. Dr. Volarich only recommended over-the-counter analgesics and home exercises. Dr. Lennard recommended nothing. Claimant failed in sustaining her burden of proof on the issue of future medical treatment and no such treatment is awarded.

Section 287.220 RSMo, pertaining to claims against the Second Injury Fund, was amended effective January 1, 2014. In Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019), the Missouri Supreme Court emphatically stated that the 2014 amendment, which includes $\S 287.220 .3$ RSMo, "applies to all PTD or PPD claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014." 579 S.W.3d at 207. In footnote 5, the Supreme Court said that to the extent Gattenby v. Treasurer, 516 S.W.3d 859, 862 (Mo. App. 2017), was inconsistent, that case should no longer be followed. In each of her pending cases, Ms. Satterfield claims than she sustained an injury by an accident that occurred after 2014. Therefore, pursuant to Cosby, the liability of the Second Injury Fund in these cases is controlled by $\S 287.220 .3$ RSMo (as amended 2014). The statutory provision reads, as follows:

1. (1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1,2014 , shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

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

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

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

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

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent workrelated injury considered alone and of itself.

Claimant: Martha Satterfield

Injury No. 17-011298

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250 .

Claimant bears the burden of proving Second Injury Fund liability and the Fund has no obligation to present any evidence. Dunn v. Second Injury Fund, 272 S.W.3d 267, 275 (Mo. App. E.D. 2008).

As held in Cosby, 579 S.W.3d at 202, no claim for permanent partial disability occurring after January 1, 2014, shall be filed against the Second Injury Fund. Ms. Satterfield can obtain compensation against the Second Injury Fund only if she can prove she is permanently and totally disabled, using the thresholds and criteria set forth in $\S 287.220 .3(2)$ RSMo.

Following each of the work-related injuries alleged to have occurred on March 31, 2015, January 4, 2016, February 4, 2016, and October 14, 2016, Claimant returned to full-time, full-duty work with little or no selfaccommodation. This was work on the open labor market. Ms. Satterfield even filed a subsequent claim for compensation alleging a work injury on February 16, 2017. Given a review of the whole record, I find and conclude that Claimant was not permanently and totally disabled with respect to any of the following cases: Injury No. 15-104637 (Date of Injury - March 31, 2015); Injury No. 16-021774 (Date of Injury - January 4, 2016); Injury No. 16-024755 (Date of Injury - February 4, 2016); and Injury No. 16-081934 (Date of Injury - October 14, 2016).

Thus, if Claimant is to succeed at all in obtaining an Award against the Second Injury Fund, she must prove that her injury sustained on February 16, 2017 (the last injury), when considered in combination with one of her preexisting disabilities that meets the criteria set forth in $\S 287.220 .3(2) (a)(i) through (iv), { }^{2}$ causes her to be permanently and totally disabled.

The statutory language is quite specific that the (singular) preexisting disability must combine with a (singular) subsequent work injury to create a permanent total disability:

Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter;

$\S 287.220 .3(2)(\mathrm{a}) \mathrm{b}$ (emphasis added).

The first statutory hurdle, which is the 50 -week threshold set forth in $\S 287.220 .3(2)$ (a)a RSMo, refers to a single preexisting disability as opposed to disabilities:

An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation....

(Emphasis added). The word "a" is singular, as is "disability."

Once Claimant identifies a single disability that meets the 50 -week threshold, she then must comply with the additional criteria enumerated in $\S 287.220 .3(2)$ (a)a(i)-(iv) RSMo, which similarly references a singular injury or disability:

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

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

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[^0]: ${ }^{2}$ An alternative exists for obtaining permanent total disability when the employee was employed in a sheltered workshop, but that provision $(\S 287.220 .3(2)(\mathrm{b}))$ is inapplicable here.

Claimant: Martha Satterfield

Injury No. 17-011298

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

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in permanent and total disability as defined under this chapter...

(Emphasis added).

The only time the statute employs a plural term over a singular form is in subsection (iii) which addresses what shall not be included in the analysis. It is apparent that the General Assembly specifically chose words of a singular intent and not words suggestive of a collection of disabilities. This interpretation is reinforced by the Supreme Court's analysis of the predecessor of $\S 287.220$ RSMo Cum Supp. 2014.

In Treasurer v. Witte, 414 S.W.3d 455 (Mo. banc 2013), the Missouri Supreme Court instructed, as follows:

The question of whether section 287.220 .1 allows for combining, or "stacking," of disabilities to meet the thresholds is answered by the statute's plain and unambiguous language. When defining the thresholds for the fund's liability, section 287.220 .1 refers to "any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise" and allows for compensation when "the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability." (Emphasis added). Further, a permanent partial disability is defined as " a disability that is permanent in nature and partial in degree." Section 287.190.6 (emphasis added). Significantly, the statute repeatedly refers to " a disability" and "the disability," as opposed to "disabilities." The statute also uses the singular "injury" rather than the plural "injuries."

The legislature's use of the singular form is shown to be intentional when the language of the third sentence is contrasted with the language governing permanent total disability in the fifth sentence. The fifth sentence of section 287.220 .1 discusses compensation for permanent total disability and provides that:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself....

(Emphasis added). In the context of permanent total disability, the legislature used the language "previous disability or disabilities" to provide specifically for consideration of multiple disabilities. Section 287.220.1. The legislature's use of different terminology for permanent partial disability and permanent total disabilities is presumed intentional and for a particular purpose. See State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010). Therefore, in the third sentence, it is presumed the legislature intended to require a single preexisting permanent partial disability, considered in isolation, to meet the thresholds before triggering the fund's liability. The commission's method of combining several lesser injuries to meet the thresholds is a misapplication of section 287.220 .1 .

414 S.W.3d at 463-64.

Using the same analysis as the Missouri Supreme Court in Witte, above, Claimant must demonstrate that she suffers a preexisting disability, that equates to at least 50 weeks of permanent partial disability, and which qualifies under the criteria in $\S 287.220 .3(2)$ (a)a(i), (ii), (iii), or (iv), and which combines with the work-injury on February 16, 2017. While some of Claimant's preexisting disabilities potentially meet the statutory criteria in $\S 287.220 .3(2)$ (a)a(ii), since they are the direct result of a prior work-related injury under $\S 287.020$ RSMo, they fail to singularly meet the threshold criteria of 50 weeks of permanent partial disability. Claimant's alleged preexisting disabilities caused by a prior work-related injury involve the right knee, the hands, abdomen, and right foot.

On February 4, 2016, Dr. Lorette diagnosed a right knee strain. After the visit to Dr. Lorette on February 9, 2016, Employee continued doing her regular job duties, missing no work or experiencing any change in the manner in which she performed her job other than wearing a knee brace that she purchased on her own and not due to any medical prescription. Dr. Lennard diagnosed a right knee contusion, and gave a disability rating of 5 percent. Dr. Volarich diagnosed a right knee contusion with residual patellofemoral syndrome, and gave a disability rating of 20 percent of the right knee. Neither of these ratings, even if adopted by the undersigned Administrative Law Judge, reaches the 50 -week threshold.

Employee filed a workers' compensation claim for bilateral carpal tunnel syndrome with an injury date of February 5, 2003. She underwent carpal tunnel releases, and settled her claim against Employer/Insurer for 10 percent of the right wrist ( 17.5 weeks) and 5 percent of the left wrist ( 8.75 weeks) on January 27, 2005 (Ex. 5). Employee also developed osteoarthritis in her hands. When Dr. Volarich examined Employee on November 25, 2015, he reported that Claimant had a " 25 % permanent partial disability of the right hand due to advanced arthritic changes causing pain and weakness" and "a 25 % permanent partial disability of the left hand due to advanced arthritic changes causing pain and weakness." (Ex. 1, p. 9). In her December 30, 2016 Award pertaining to the Second Injury Fund, this Administrative Law Judge found Claimant to have 25 percent permanent partial disability ( 43.75 weeks) of each hand at the 175 -week level. (Ex. 7, pg. 8). It is significant that the Award rated each extremity as a separate disability rather than the body as a whole. ${ }^{3}$

On March 31, 2015, Employee suffered an umbilical and left inguinal hernia while lifting a box. She kept working her regular job duties until she believed she had an aggravation in her abdomen on January 4, 2016. She ultimately underwent surgery on April 13, 2016. Neither rating physician found a new injury on January 4, 2016. Dr. Lennard rated the hernias (umbilical and inguinal) together as one disability equaling 10 percent to the body as a whole attributable to the March 31, 2015 injury (Ex. D). Dr. Volarich agreed that there was no additional injury on January 4, 2016. He gave a single disability rating of 20 percent to the body as a whole for the March 31, 2015 injury.

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[^0]: ${ }^{3}$ The Second Injury Fund also argues that the February 5, 2003 workers compensation claim for bilateral carpal tunnel does not qualify under $\S 287.220 .3(2) (a)a(ii), because that subsection is solely for "injuries" as defined by \S 287.020$ RSMo, which excludes occupational diseases. I find it unnecessary to address such issue at this time.

Employee filed a workers' compensation claim for an injury to her right foot on December 20, 2013. She suffered a proximal first metatarsal fracture for which she had conservative treatment. Employee settled her claim for 16.5 percent PPD of the right foot at the 150 -week level. (Exhibit 6). The undersigned Administrative Law Judge previously found that Claimant had suffered a 16.5 -percent permanent partial disability of the right foot ( 24.75 weeks) at the 150 -week level for the December 20, 2013 injury (Ex. 7).

Claimant stepped on a stock divider at work, and suffered a fifth metatarsal fracture on October 14, 2016. For the October 14, 2016 injury, Dr. Lennard gave a rating of 10 -percent permanent partial disability to the right lower extremity at the 150 -week level ( 15 weeks) and Dr. Volarich rated the same injury at 25 -percent permanent partial disability to the right foot ( 37.5 weeks).

Of all these preexisting disabilities that were work-related injuries, only the claim relating to the abdomen (March 31,2015 ) potentially meets the 50 -week threshold of $\S 287.220 .3(2)$ (a)a RSMo, based on one of the doctors' ratings. None of the ratings for the other alleged preexisting work-related disabilities even approach the 50 -week threshold.

I have not accepted, however, Dr. Volarich's rating as it is excessive considering that Claimant returned to work following surgery and again was lifting a least 50 pounds. And even if the hernias sustained on March 31, 2015, equaled at least 12.5 percent to the body as a whole ( 50 weeks), there still is no credible and persuasive evidence demonstrating that the abdomen injury combined with the February 16, 2017 right heel fracture, to create permanent and total disability, as required by $\S 287.220 .3(2)$ (a)b RSMo.

In his last report in which he rendered the permanent total disability opinion, Dr. Volarich did not give restrictions solely for the February 16, 2017 injury. He gave restrictions, "Regarding work and other activities referable to her lower extremities after 2/4/16, 10/14/16, \& 2/16/17[.]" (Ex. 3, p. 16). Dr. Volarich opined, "Based on my medical assessment alone, it is my opinion that Ms. Satterfield is permanently and totally disabled as a direct result of her current work-related injuries in combination with her preexisting injuries and medical conditions prior to $3 / 31 / 15$." (Ex. 3, p. 15). Similarly, Phil Eldred's opinion was that, "Ms. Satterfield is permanently and totally disabled as a result of her injury on February 16, 2017 combined with all of her pre-existing injuries and medical conditions (Ex. 4, p. 44). Even Dr. Lennard did not give specific restrictions for the February 16, 2017 right heel fracture, stating that for "her combined right foot condition, Ms. Satterfield should..." (Ex. D). Because the physicians' restrictions are intertwined with non-qualifying preexisting conditions, and the ultimate employability opinions rely on the restrictions, it is impossible to discern whether the abdomen injury (umbilical and left inguinal hernias) combined with a right heel fracture, to create permanent and total disability.

Although Claimant forwards the opinion that given all of her conditions and combined restrictions she no longer can work on the open labor market, such argument, does not meet the statutory requisites of $\S 287.220 .3$ RSMo Cum. Supp. 2014, and its progeny. Giving the Second Injury Fund statute the strict interpretation, as mandated by $\S 287.808$ RSMo, I conclude that Claimant has failed in her burden of proving liability against the Second Injury Fund.

Carlisle Transportation Products, LLC, and American Zurich Ins. Co., shall pay to Claimant Martha Satterfield, the sum of $\ 18,040.08 in permanent partial disability ( 10 percent $\times 400=40 weeks; 40 weeks \times \$ 451.02= \ 18,040.08).

Employer/Insurer owe nothing as there was no additional injury on January 4, 2016.

Timken SMO, LLC, and Travelers indemnity Company of America shall pay to Claimant Martha Satterfield the sum of $\ 8,557.20 in permanent partial disability ( 12.5 percent $\times 160 weeks =20 weeks; 20 weeks \times \$ 427.86= \ 8,557.20)

Timken SMO, LLC, and Travelers indemnity Company of America owes Claimant Martha Satterfield the sum of $\ 10,501.26 in permanent partial disability ( 20 percent $\times 110 weeks =22 weeks; 22 weeks \times \$ 477.33=\ 10,501.26.

Timken SMO, LLC, and Travelers indemnity Company of America shall pay to Claimant Martha Satterfield the sum of $\ 12,485.81 in permanent partial disability ( 17.5 percent $\times 150 weeks =26.25 weeks; 26.25 weeks \times \$ 475.65=\ 12,485.81).

This award is subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent favor of the following attorney for necessary legal services rendered to the claimant: Newman Law Firm, LLC.


Made by: $\frac{\text { Victorine R. Mahon }}{\text { Victorine R. Mahon }}$

Chief Administrative Law Judge

Division of Workers' Compensation