Judy Zeschke v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 09-022905**

**Employee:** Judy Zeschke

**Employer:** Missouri Department of Corrections (Settled)

**Insurer:** Missouri Office of Administration (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 26, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Amy L. Young, issued March 26, 2020, is attached and incorporated by this reference.

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

I would find Second Injury Fund to be liable for employee's permanent partial disability, because I believe that employee has proven that her pre-existing carpal tunnel syndrome (CTS) was a hindrance or obstacle to her employment, due to the problems she had while performing her jobs as a waitress and silk screener in addition to Dr. Raymond Cohen's testimony. Employee settled her March 31, 2009 primary injury at 25 % permanent partial disability at her left ankle. Employee testified as to the synergistic effect of her CTS and the ankle injury when she stated that "It's hard for me grip onto stuff, hold stuff, and catch myself if I start to go down." Dr. Cohen believed that employee's pre-existing disabilities combined with employee's March 31, 2009 injury to create a greater overall disability than their simple sum, and are a hindrance or obstacle to her employment or reemployment. Dr. Cohen also opined that because of the synergistic effect from the disability in her left ankle and preexisting disability of the breast cancer "she would have difficulty working in any occupation in which she may have her chest hit or struck by either an individual or by having some piece or type of equipment hit her in the chest area." Dr. Cohen believed that because of the synergistic effect of her left ankle and preexisting disability of her right wrist, "she would have difficulty working in jobs requiring repetitive bending or gripping with her right hand, and should avoid using her right hand with tools that vibrate."

Dr. Cohen rated employee's CTS at 20\% permanent partial disability at her right wrist. Employee testified that at the time of her March 31, 2009 injury, she had tingling and numbness in her right hand, and that she could not carry big trays at her family restaurant prior to the accident. She also had problems with her wrist while she was doing silk screening before she worked at employer. Employee's treatment for CTS was nine years after her March 31, 2009 injury, and 20 years after she had been diagnosed with CTS. Employee was not under active treatment for her CTS, and it was static at the time of her March 31, 2009 injury. Therefore, I believe that she was at maximum medical improvement for her CTS at the time of her March 31, 2009 injury.

I also believe that the Commission should have determined that employee's breast cancer was at maximum medical improvement at the time of the ankle injury, and that the Second Injury Fund was liable for employee's permanent partial disability. Dr. Cohen rated her pre-existing disability for breast cancer at 25 % permanent partial disability to the body a whole. Employee and Dr. Cohen testified regarding the synergy between the breast cancer and her March 31, 2009 injury. Employee had a hysterectomy in September 2009. After her hysterectomy, employee's condition was static. I do not believe that any further treatment would make her any better. According to Dr. Keith Odegard, employee's treating physician for her ankle, employee reached maximum medical improvement on January 19, 2011 for the March 31, 2009 injury. Since employee's breast cancer occurred before her March 31, 2009 injury, and its treatment ended before the treatment of the March 31, 2009 injury, employee's breast cancer meets the requirement that it pre-existed the ankle injury, and she was at maximum medical improvement for her breast cancer before her March 31, 2009 injury.

For these reasons, I would find Second Injury Fund to be liable for employee's permanent partial disability. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls Member

Employee: Judy Zeschke

Injury No. 09-022905

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

Employer: Missouri Department of Corrections (settled)

Additional Party: Treasurer of the State of Missouri as custodian of the Second Injury Fund

Insurer: Missouri Office of Administration (settled)

Appearances: Michael Moroni, attorney for the employee.

Crystal Williams, attorney for the Second Injury Fund.

Hearing Date: January 29, 2020

Checked by: ALY/kg

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? March 31, 2009.
5. State location where accident occurred or occupational disease contracted: Mississippi County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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 the employer insured by above insurer? Yes.

Employee: Judy Zeschke

Injury No. 09-022905

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee was taking out trash, stepped in a hole and twisted her left ankle.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Left ankle.

1. Nature and extent of any permanent disability: 25% of the left ankle.

1. Compensation paid to date for temporary total disability: None.

1. Value necessary medical aid paid to date by the employer-insurer: $5233.47.

1. Value necessary medical aid not furnished by the employer-insurer: None.

1. Employee's average weekly wage: 523.15.

1. Weekly compensation rate: 348.77 for temporary total and permanent partial disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

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On January 29, 2020, the employee, Judy Zeschke, appeared in person and with her attorney, Michael Moroni, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Crystal Williams. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Missouri Department of Corrections was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Office of Administration-Central Accident Reporting Office.
2. On March 31, 2009, Employee was an employee of Missouri Department of Corrections and was working under the Workers' Compensation Act.
3. On March 31, 2009, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 532.15, resulting in a compensation rate of $\ 348.77 for temporary total disability benefits and permanent partial disability benefits.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 5233.47 in medical aid.
9. The employer-insurer paid $\ 0.00 paid in temporary disability benefits.

1. Liability of the Second Injury Fund for permanent partial disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

Exhibit 1: Stipulation for Compromise Settlement

Exhibit 2: Report Dr. Raymond Cohen 12/8/16

Exhibit 3: CV Dr. Raymond Cohen

Exhibit 4: Medical Records Heartland Regional Medical Center

Exhibit 5: Patient Encounter Reports St. Francis Medical Center

Exhibit 6: Return to Work Records Orthopedic Associates of SEMO

Exhibit 7: Withdrawn

Exhibit 8: Patient Encounter Report St. Francis Medical Center

**Injury No. 09-022905**

**Exhibit 9:** Records Dr. Jimmy Bowen provided by CARO to client

**Exhibit 10:** Records Dr. Odegard provided by Attorney General's office

The Second Injury Fund did not call any witnesses or present any exhibits.

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

Judicial notice was taken of the Division's file contents.

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at hearing, I find:

Judy Zeschke (hereafter "Employee") was fifty-five years old at the time of hearing. She lives in Thebes, Illinois. At the time of accident, she was employed by the Department of Corrections (hereafter "Employer") as a Corrections Officer I.

On March 31, 2009, Employee was taking out trash in the course and scope of her employment when she twisted and injured her left ankle. The injury was accepted as compensable and Employer authorized medical treatment. Employee underwent treatment with Dr. Keith Odegard who ultimately performed a left ankle Brostrom Gould repair and ligament reconstruction on August 19, 2010. Dr. Odegard released Employee at maximum medical improvement without permanent restriction on January 19, 2010. Employee settled her claim with Employer for 25% of the left ankle.

Employee was diagnosed with breast cancer in February of 2009. She underwent a surgical procedure in February of 2009 and two more procedures in April of 2009. She underwent radiation treatment. She underwent a hysterectomy in September of 2009 because of her estrogen levels. She testified that she was undergoing treatment for her breast cancer at the same time she treated for her left ankle injury. Employee testified she has not received treatment for cancer since September of 2009, but that she has undergone additional biopsies.

Employee testified that she was diagnosed with carpal tunnel syndrome of her right wrist in the late 1990s. She did not have any treatment. Employee testified that prior to her March 2009 accident she worked at a family restaurant and her right wrist caused her problems in that she could not carry the big trays. Employee testified that a recommendation was made for surgery prior to March of 2009, but she did not undergo a carpal tunnel release until November of 2019. She testified that her right wrist symptoms improved after surgery.

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Employee was evaluated by Dr. Raymond Cohen on December 8, 2016 for purposes of an Independent Medical Evaluation. Dr. Cohen diagnosed Employee with left ankle recurrent instability status-post left ankle surgery as a result of her primary injury. He states that he is in agreement with "her previous award of twenty-five percent permanent partial disability of the left ankle."

As for her pre-existing conditions, Dr. Cohen opines Employee had breast cancer and right carpal tunnel syndrome. For the breast cancer, Dr. Cohen rated this condition as twenty-five percent permanent partial disability of the body as a whole. Dr. Cohen provides a twenty percent permanent partial disability rating for the right wrist.

Dr. Cohen opines that because of the synergistic effect from the disability in her left ankle and preexisting disability of the breast cancer "she would have difficulty working in any occupation in which she may have her chest hit or struck by either an individual or by having some piece or type of equipment hit her in the chest area." He further opines that because of the synergistic effect of her left ankle and preexisting disability of her right wrist, "she would have difficulty working in any occupation in which she has to do any repetitive bending or gripping with her right hand as well as no use of the right hand in any awkward type of position. She also needs to avoid use of the right hand in which vibration would be a factor or vibrating type tools."

Under Mo. Rev. Stat. § 287.190.6 (1) (2005), "'permanent partial disability' means a disability that is permanent in nature and partial in degree. ..." The claimant bears the burden of proving the nature and extent of any disability. Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975) (citations omitted).

To have a valid claim against the Second Injury Fund, a pre-existing permanent partial disability must combine with the primary disability in one of two ways. First, the disabilities combine to create permanent total disability, or second, the disabilities combine to create a greater overall disability than the simple sum of the disabilities when added together. Section 287.220 RSMo 2005. In this case, Employee seeks permanent partial disability benefits under the second scenario.

To qualify for permanent partial disability benefits against the Second Injury Fund, pursuant to Section 287.220.1 RSMo (2005), the pre-existing disability must also meet certain thresholds before liability is triggered and they must be of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment should employee become unemployed. Messex v. Sachs Electric Co., 989 S.W.2d 206 (Mo. App. E.D. 1999) overruled on other grounds

**Injury No. 09-022905**

*by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).* The pre-existing disability must result in a minimum of 12.5% permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity.

The first step in the analysis is to determine the extent of Employer's liability for the primary injury. I find Employee's medical records, testimony, and settlement with Employer is persuasive evidence that she sustained a 25% permanent partial disability to the left ankle as a result of the March 31, 2009 work accident.

The second step is to determine whether or not Employee met her burden of proving Second Injury Fund liability for permanent partial disability based on the combination of her primary injury and any pre-existing permanent partial disabilities. To calculate Fund liability, the fact-finder must "determine what percent of the disability can be attributed solely to the pre-existing condition at the time of the last injury." *Hoven v. Treasurer of State, Custodian of Second Injury Fund, 414 S.W.3d 676 (Mo. App. E.D. 2013).* The preexisting condition must be an "actual and measurable disability" at the time of the primary injury. *Portwood v. Treasurer of State of Missouri-Custodian of the Second Injury Fund, 219 S.W.3d 289, 292 (Mo. App. W.D. 2007).* "The level of permanent disability associated with an injury cannot be determined until it reaches the point of maximum medical improvement ("MMI")." *Hoven v. Treasurer of State, Custodian of Second Injury Fund, 414 S.W.3d at 678.*

I find Employee failed to establish that she was at maximum medical improvement for her breast cancer and right sided carpal tunnel syndrome at the time of her March 31, 2009 work injury. There are no records in evidence showing when she completed or was released from treatment for these conditions. At the time of the primary injury, Employee had not received any treatment for carpal tunnel syndrome and was actively undergoing treatment for breast cancer. Dr. Cohen did not address in his report when Employee reached maximum medical improvement for these conditions, therefore I do not find his opinions regarding preexisting disability to be credible. Because Employee failed to establish that she was at MMI for her right carpal tunnel syndrome and breast cancer, the percentage of permanent partial disability at the time of the last injury cannot be determined.

I find Employee did not meet her burden of proof for Second Injury Fund liability.

Made by:

I certify that on **3-26-20** 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 **Amy L. Young**, Administrative Law Judge

**DIVISION of Workers' Compensation**

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