Robert March v. Milbank Manufacturing Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 15-088007

**Employee:** Robert March

**Employer:** Milbank Manufacturing Company (Settled)

**Insurer:** Safety National Casualty (Settled)

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

This 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, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Due to various grammatical errors and confusing language, we correct and supplement the facts and conclusions from the Administrative Law Judge, as follows:

The Administrative Law Judge heard this matter on January 9, 2020, pursuant to 287.110, RSMo. Robert March (employee) appeared with counsel, Jerry Kenter, and Assistant Attorney General Alexandria Wilson, counsel for the Second Injury Fund, also appeared at the hearing.

The sole issue before the administrative law judge was the liability of the Second Injury Fund. Employee and the employer/insurer previously settled their disputes in this matter.

The evidence at the hearing before the administrative law judge consisted of employee's live testimony, employee's Exhibits 1 through 15, and Exhibit A offered by the Second Injury Fund. No party objected to any exhibits.

Employee graduated from high school in 1981 and never attended college. He worked as a meat cutter from 1982 through sometime in 1996. As a meat cutter, employee used an electrical knife that caused "a lot of vibration" and pain in his hands. Transcription, p. 1002. Employee also had to push 1800-pound racks.

On November 8, 2016, Dr. William Hopkins, an orthopedic surgeon, performed an independent medical examination of employee and reviewed employee's medical records. In his report, Dr. Hopkins summarized employee's preexisting conditions.

In 1989, employee had surgery on his right hand to address trigger finger and carpal tunnel syndrome. After his surgery, employee had difficulty forming his right hand into a fist. Dr. Hopkins rated that preexisting condition at 5% permanent partial disability to the right hand.

In 1996, employee had thyroid surgery. Employee had no permanent restrictions due to that surgery.

Injury No.: 15-088007

Employee: Robert March

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Quoting from his report, Dr. Hopkins summarized other medical issues as follows:

I reviewed a series of medical records from the Western Missouri Medical Center in Warrensburg, Missouri, where he was evaluated for general medical problems. On a medical report, which appears to be on May 10, 2001, it was reported that he had stasis edema, in addition to other medical problems including thyroid deficiency. He was found to have a thyroid goiter, requiring a surgical removal. A series of medical records through the year 2001 were also reviewed and he was evaluated for hypothyroidism and hypertension and fluid retention and was treated medically. He subsequently had two brief medical records for 2002 and 2003, unrelated to his work.

June 28, 2005: His medical record reflects continued swelling and tenderness in his legs down to the foot with ankle pain. It was felt that his pain was secondary to stasis changes in his lower extremities, with the complication of venous varicosities in association with obesity. Additional medical records were reviewed into 2010, at which time he was found to have atrial fibrillation. In addition, he was evaluated medically into 2010 and 2011, again for medical problems, primarily treated for atrial fibrillation, hypothyroidism and hypertension and being overweight.

February 20, 2007: A medical record indicates that Mr. March reported that he was struggling with pain in his ankles and feet and that he had chronic brawny edema of his lower extremities below the knees on both sides with satisfactory pulses. He was felt to have a pes planus with eversion of the feet as a separate entity. He was placed into arch supports and was given diuretic medications.

In 2011, employee suffered a stroke. In his testimony at the hearing, employee indicated that he did not have lasting effects from the stroke. However, at his deposition on February 25, 2019, employee testified that he had memory issues stemming from his stroke. Dr. Hopkins did not rate this condition.

In December 2012, employee suffered an injury to his left leg while climbing over a fence; employee cut his left leg. The wound became ulcerated and required treatment. Dr. Hopkins stated, "treatment for that condition continued into 2013, and on September 17, 2013, [employee's] medical record noted a stasis ulcer of the left leg treated topically." Transcript, p. 695.

In 2014, employee received treatment for chronic ankle swelling that Dr. Hopkins stated was unrelated to employee's previous medical history.

In November 2014, employee tore his left rotator cuff and underwent surgery. Dr. Hopkins rated this preexisting condition at 10% permanent partial disability to the left shoulder.

In February 2015, Dr. Jerry Meyer, from the Meyer Medical Clinic, treated two stasis ulcers² on employee's left leg, one was 2 cm and the other was 4 cm. It appears that Dr. Meyer linked in part the stasis ulcers with employee's hunting injury, stating that employee "continues to struggle with initial trauma and then complicating stasis ulcers in his lower left leg." Transcript, p. 695.

The Administrative Law Judge stated that this occurred on January 1988. However, Dr. Hopkins's evaluation placed this preexisting condition in 2014. Dr. Jerry Meyer's medical records supports the 2014 date as well.

According to the https://medical-dictionary.thefreedictionary.com/stasis-ulcer, a stasis ulcer "occur as a result of venous insufficiency in the lower limb." (accessed on January 27, 2021).

Injury No.: 15-088007

Employee: Robert March

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p. 215. Dr. Meyer continued in his note that employee "is also getting to the point were [sic] he cannot tolerate standing on his legs and feet through an entire work day." *Id.*

Dr. Meyer noted, "The lower legs show chronic stasis changes of the skin below the knees." *Id.* (emphasis added). This agrees with employee's testimony at the hearing that both of his legs leaked fluid. Medical documentation dated October 6, 2015, from the Western Missouri Medical Center, Advanced Wound Center, describes a venous ulcer on employee's right ankle and five separate venous ulcers on employee's left leg, ranging from his left ankle to his left medial upper leg. On October 13, 2015, Dr. Jonathan Wilson assessed employee with venous stasis ulcers in both legs. The recommended treatment was to use compression wraps.

In a note dated March 3, 2016, Dr. Wilson stated,

> I reviewed his vein mapping which demonstrates somewhat tortuous greater saphenous veins bilaterally. They do demonstrate greater than 3 and 4 seconds of reflux. He also has a right lower extremity accessory saphenous vein in the proximal thigh to mid-calf and distal calf perforators which may also need to be addressed.

*Transcript*, p. 561. At that time, Dr. Wilson recommended compression stockings daily and stated that employee "would benefit from greater saphenous vein ablation bilaterally." *Id.*

On April 18, 2016, Dr. Mike Waldschmidt, performed saphenous laser vein ablations on both lower extremities. On May 3, 2016, employee was placed on restrictions to avoid standing or sitting for more than one hour at a time. In September 2016, Dr. Waldschmidt opined that standing for long periods of time exacerbated employee's leg conditions.

Dr. Hopkins opined that at the time of the November 28, 2016 evaluation, employee had a 45% permanent partial disability to each leg at the 160-week level. However, 15% of that 45% for each leg was due to "preexisting medical factors of his right and left lower extremities and the remaining 30% right and left lower extremity as the direct and prevailing factor of his cumulative work-incurred injuries." *Transcript*, p. 703. He also assessed a 15% loading factor due to the bilateral nature of employee's injuries.

Employee testified that because of his legs, he was on restrictions and needed to keep them elevated 90% of the day, keep them wrapped, and to only walk "every once in a while." *Transcript*, p. 30. Since he left employer on April 15, 2016, employee has been unable to go to church, fish, mow grass, perform household chores or repairs, or work on his car.

Employee worked for employer as a welder and a sander from sometime in 1996 to April 15, 2016. Employee fabricated metal electrical boxes through MIG (metal inert gas) welding and stick welding, and then sanding the finished product with a 20-lb grinder. He averaged 300 to 400 boxes a day.³ The boxes ranged in weight from 10 to 500 pounds.

Since the beginning of his employment, employer allowed employee to sit at his work station. However, around 2015, employer no longer allowed employee to sit. Employee then stood up to eleven hours a day. It was more difficult for employee to perform aspects of his work while

3 These statistics came from the report from Dr. Hopkins. Employee testified at the hearing to working on 500-600 boxes per day. We find the figure from Dr. Hopkins's report more persuasive.

Injury No.: 15-088007

Employee: Robert March

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standing. It was at this point in time that employee's issues with his legs started to worsen dramatically. At the time of the primary injury, employee weighed around 500 lbs. After employee requested an accommodation in September 2015, employer allowed employee to sit for two hour intervals, followed by two hours of standing.

According to employee's testimony at the hearing, his legs became considerably worse after he was no longer able to sit for his work.

On or around April 17, 2015, employee began complaining to employer of bilateral hand problems and shooting pains in his arm, shoulder, and neck area. Employer sent employee to see Dr. Thomas Winston, at U.S. Health Works. Dr. Winston believed that employee's bilateral upper extremity complaints were work-related. Dr. Winston found:

1. Right shoulder pain probably secondary to muscle strain and/or arthritis.
2. Bilateral knee pain secondary to arthritis.
3. Hand pain secondary to arthritis.
4. Right elbow pain secondary to arthritis.

Transcript, p. 396. Dr. Winston injected employee's shoulder and ordered an EMG for both arms. The tests returned a negative result. Dr. Winston did not authorize any other treatment or place employee on any permanent restrictions regarding his arms or hands.

On November 8, 2016, Dr. Hopkins found that employee "sustained injuries to both upper extremities indicating bilateral carpal tunnel entrapments, culminating on or about 4/09/2015, after the use of a buffer and grinder to weld up to 300-400 electrical wiring boxes daily." Transcript, p. 701. Dr. Hopkins found that employee had a loss of grip strength, especially in the right hand. Dr. Hopkins opined that employee's work duties resulted in a 25% permanent partial disability to the right hand and a 20% permanent partial disability to the left hand, both at the 175 week-level.

As stated earlier, Dr. Hopkins also opined that employee's work was the direct and prevailing factor for 30% of employee's permanent partial disabilities in both of his legs. Dr. Hopkins added a 15% loading factor due to the bilateral nature of employee's injuries.

Dr. Hopkins opined that employee was not at maximum medical improvement. However, at the hearing, the parties stipulated that employee reached maximum medical improvement on May 15, 2015.

As set forth above, employee settled his case in all aspects related to the bilateral upper extremity injuries with the employer and insurer for a lump-sum payment of $48,672.92. The effective date of the primary injury was determined to be May 1, 2015.

Permanent and Total Disability Opinions

Dr. Hopkins concluded,

It is my professional opinion that with his bilateral leg condition [employee] cannot engage in gainful employment. I do not believe any employer in the ordinary course of business could reasonably be expected to hire him given his condition and he is in my opinion permanently totally disabled.

Transcript, p. 703. Dr. Hopkins also took into consideration that employee has bilateral knee pain that is likely caused by "degenerative arthritic changes in both knees." Id.

Injury No.: 15-088007

Employee: Robert March

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Dr. Hopkins agreed with medical restrictions placed by Dr. Meyers and Dr. Waldschmidt for employee to not perform overhead work, not lift over 20 lbs, not perform repetitive tasks with his arms, not use equipment that vibrates, not stand or walk more than 20 minutes at a time, and not sit or stand for more than an hour at a time.

Two vocational experts, Mr. Terry Cordray and Ms. Kristine Skahan, also concluded that employee was unable to compete in the open labor market and was permanently and totally disabled.

**Conclusions of Law**

**Second Injury Fund liability**

Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under § 287.220.3(2), RSMo for establishing a compensable claim against the Second Injury Fund. See *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019).

In relevant part, the statute provides as follows:

> 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 [emphasis added]; 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[.]

§ 287.220.3(2) RSMo.

Pursuant to § 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:

MNKOI 0000811616

Injury No.: 15-088007

Employee: Robert March

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A strict construction of a statute presumes nothing that is not expressed. ... [I]t means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

*Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).*

The administrative law judge concluded that employee was primarily disabled because of a progressive worsening of his preexisting injuries and not because of the combination of the primary injury and the preexisting injuries as of the time of the primary injury. The administrative law judge stated:

> The evidence in this case indicates that the Employee's pre-existing conditions of ill, primarily the lower extremity condition, was actively being treated and disabling at the time of the Employee's work-related accident which involved unoperated bilateral carpal tunnel injuries. The vocational testimony would lead me to conclude it is the Employee's progression of this lower leg condition which currently renders to a large degree the Employee unable to compete in the open labor market. The Second Injury Fund is not responsible for the progression of pre-existing conditions. The determination of the last work accident and preexisting conditions at the time of that work injury, and not the progression is the point at which Second Injury Fund liability is determined.

*Award, p. 6.*

The administrative law judge continued:

> I find the Employee's lower extremity condition which preexisted the work injury was actively being treated and significantly deteriorated after the work-related accident.

*Id.* We disavow these findings. However, we agree that the Second Injury Fund is not liable because employee failed to meet his burden of persuasion.

Employee presented evidence in the record to establish his theory of the case. However, we are not persuaded that the combination of employee's preexisting injuries and the primary injury resulted in employee's permanent and total disability. It was equally likely that employee's preexisting injuries (without the addition of the primary injury) resulted in employee's permanent and total disability.

Employee argues that the administrative law judge's award was not supported by factual evidence because the Second Injury Fund failed to impeach employee's testimony or the medical reports in the record. However, it was not necessary for the Second Injury Fund to set forth factual evidence. "[N]o evidence is needed to find against the party who bore the burden of proof or to uphold that decision on appeal. (*Beaman v. Lowe's Home Ctrs., Inc.*), 601 S.W.3d 330, 331 (Mo. App. 2020) (citing *Taylor v. Taylor*, 585 S.W.3d 390, 395 & n.5 (Mo. App. S.D. 2019)). Accordingly, we reject employee's sole argument on appeal and deny employee's claim against the Second Injury Fund.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Mark S. Siedlik is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

Given at Jefferson City, State of Missouri, this 23rd day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Attest:


Injury No.: 15-088007

Employee: Robert March

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I find that employee met his burden of persuasion to establish that his preexisting leg injuries combined with his primary injury to make employee unable to compete in the open labor market. I also find that employee's leg injuries satisfy the requirements of § 287.220.3(a)a.(ii), RSMo. The statute provides as follows:

> 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[.]

§ 287.220.3(2) RSMo.

Dr. Hopkins rated employee's leg injuries at a 45% permanent partial disability to each leg at the 160-week level. Only 15% of that 45% for each leg was due to "preexisting medical factors of his right and left lower extremities and the remaining 30% right and left lower extremity as the direct and prevailing factor of his cumulative work-incurred injuries." Transcript, p. 703. Dr. Hopkins also assessed a 15% loading factor because the injuries affected both legs.

Therefore, employee's leg conditions for each leg met 30% of 160 weeks (48 weeks), plus a 15% loading factor applied bilaterally (an additional 12 weeks per leg). The undisputed opinion from Dr. Hopkins is that employee's leg injuries were compensable, thus satisfying prong (ii).

Injury No.: 15-088007

Employee: Robert March

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Accordingly, each leg has a permanent partial disability greater than 50 weeks that is the direct result of a compensable injury as defined in § 287.020. Dr. Hopkins also opined that employee was permanently and totally disabled, not solely because of his leg injuries, but "with" his leg injuries combined with the primary injury to render employee unable to compete in the open labor market.4

To cite Dr. Hopkins, as did the majority above,

It is my professional opinion that with his bilateral leg condition [employee] cannot engage in gainful employment. I do not believe any employer in the ordinary course of business could reasonably be expected to hire him given his condition and he is in my opinion permanently totally disabled.

Transcript, p. 703 (emphasis added). It is with the leg injuries, in combination with the primary injury, that employee is permanently and totally disabled.

Similarly, Mr. Cordray opined that employee's medical condition in his legs was the primary reason for his inability to compete in the labor market. He further states that employee's "total vocational disability is primarily due to lower extremity problems as well as his results in vocational testing." Transcript, p. 728.

Accordingly, I conclude that the Second Injury Fund should be liable for employee's permanent and total disability. I would reverse the administrative law judge's award denying benefits from the Second Injury Fund. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

4 I hold the position that statutory construction allows the combination of multiple preexisting injuries and the primary injury to establish liability on the Second Injury Fund. However, even if statutory construction requires the Commission to evaluate only a single preexisting injury, I would still find Second Injury Fund liability. In this case, I find that the effect of the permanent partial disability in employee's left leg imposes a similar effect on employee's ability to compete in the open labor market because of the natural necessity to use both legs to stand for significant periods of time, walk, etc.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert March Injury No. 15-088007

Employee: Robert March Injury No. 15-088007

Dependents: N/A

Employer: Milbank Manufacturing Company (Settled)

Insurer: Safety National Casualty (Settled)

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

Hearing Date: January 9, 2020 Checked by: MSS/lh

1. Are any benefits awarded herein? No.

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

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

1. Date of accident or onset of occupational disease: On or about May 1, 2015.

1. State location where accident occurred or occupational disease was contracted. Lafayette County, Missouri.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: The Claimant was involved in repetitive assembly of electrical equipment boxes.

1. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert March

Injury No. 15-088007

1. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities.

1. Nature and extent of any permanent disability. Permanent partial disability of approximately 27.5% of the whole person, already paid by the employer and insurer.

1. Compensation paid to-date for temporary disability: Zero.

1. Value necessary medical aid paid to date by employer/insurer? $2,563.53.

1. Value necessary medical aid not furnished by employer/insurer? Zero

1. Employee's average weekly wages: 636.00

1. Weekly compensation rate: 424.02.

1. Method wages computation: Agreement of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable: Zero

1. Second Injury Fund liability: Zero

1. Future requirements awarded: N/A

Said payments to begin as of the date of this award 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 all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Jerry Kenter

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert March

Injury No. 15-088007

Employee: Robert March

Injury No. 15-088007

Dependents: N/A

Employer: Milbank Manufacturing Company (Settled)

Insurer: Safety National Casualty (Settled)

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

Hearing Date: January 9, 2020

Checked by: MSS/lh

This case comes on for hearing on January 9, 2020, where the Claimant with counsel and the Second Injury Fund with their counsel appeared for final hearing. The Division has jurisdiction to hear this case pursuant to 287.110 RSMO. Claimant Robert March appeared in person with his counsel Mr. Jerry Kenter, and the Second Injury Fund appeared through their counsel Assistant Attorney General Alexandria Wilson.

The sole issue to be resolved in this matter is the liability of the Second Injury Fund. The case against the employer and insurer had previously settled for approximately 27.5% of the whole body representing 114.8 weeks of disability to the bilateral upper extremities.

The evidence at trial consisted of the testimony of the Claimant in person, together with Claimant's Exhibits 1 through 15, all admitted into evidence. Second Injury Fund offered their Exhibit A which was admitted without objection.

The Claimant testified that his work duties involved tasks as a welder and sander. The Claimant would fabricate metal electrical boxes and use a MIG and stick welding device, and sand the finished product. Claimant testified that for a period of time before his reported work injury, he was allowed to sit at his work station at least for parts of the day to accommodate a pre-existing leg condition. During 2015, the Claimant was required, as others in like positions, to stand at their work station performing their tasks. The Claimant testified that the change in physical posture of his body required more reaching and bending, putting pressure on his hands to operate the necessary tools.

The Claimant requested an accommodation to be able to sit for portions of the day which was denied by his employer. In April 2015, the Claimant began complaining of bilateral hand

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert March

Injury No. 15-088007

problems, and was sent by the employer to U.S. HealthWorks. Claimant was examined by Dr. Winston who believed the Claimant's bilateral upper extremity complaints were related to the Claimant's job. Claimant had EMG diagnostic studies which were deemed to be normal, (Claimant Ex 1, Tab 5) and the Claimant was released from care at U.S. HealthWorks, where Dr. Winston found right shoulder strain, secondary to muscle strains and/or arthritis, bilateral knee pain secondary to arthritis, and pain secondary to arthritis, and right elbow pain secondary to arthritis. (Claimant Ex 1, Tab 2).

The Claimant was provided no other treatment authorized by the employer and insurer.

Claimant was examined by Dr. William Hopkins, an orthopedic surgeon who found that the Claimant had a loss of grip strength, most particularly on the right, and opined the work activities of grinding and buffing electrical boxes at a rate of 300 to 400 a day was the prevailing factor in the loss of intrinsic muscle strength, loss of grip, and 2 point discrimination in both upper extremities resulting in a 30% permanent partial disability to the right hand and a 20% permanent partial disability to the left hand, with a 5% reduction in disability to the right hand due to a prior carpal tunnel condition. Dr. Hopkins recommended an evaluation by an upper extremity specialist.

As set forth above the Claimant settled his case with the employer and insurer for a lumpsum payment of 48,672.92. (Exhibit 8, page 2). At the Claimant's compensation rate of 424.02 the settlement represents 114.8 weeks of compensation, approximately 27.5% of the whole body, and further represents compromised issues of disputed temporary total disability and future medical bills. At trial the parties stipulated that the Claimant had reached maximum medical improvement on May 15, 2015.

PRE-EXISTING MEDICAL CONDITIONS

The Claimant had prior to his alleged work-related injury pre-existing medical conditions including a left shoulder surgery performed by Dr. Stuckmeyer, which Dr. Hopkins opined represented a 10% disability to the left shoulder. Claimant in 2011 suffered a stroke which resulted in lasting effects of poor memory and diminished reading capacity. There was no medical evidence or expert opinions regarding any degree of permanent disability for that condition. Claimant also had surgery to his right hand in 1989 by Dr. Moore which the Claimant believed to have been a carpal tunnel release, resulting in diminished strength in the right hand. Dr. Hopkins was of the opinion that that condition resulted in a 5% permanent partial disability to the left hand.

The Claimant in 2012 suffered an injury to his left leg in a hunting accident which resulted in a stasis ulceration of the left leg. The Claimant continued with bilateral lower leg issues compounded by his morbid obesity and the Claimant came under the care of Dr. Jonathan

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert March

Injury No. 15-088007

Wilson, for the treatment of bilateral venous stasis ulcers. The Claimant was prescribed compression stockings which resulted to no benefit.

Dr. Waldschmidt, performed a bilateral greater saphenous vein ablation on both lower extremities, to relieve the chronic ulceration difficulties for the Claimant.

There is medical evidence from Dr. Winston, Dr. Meyer, and Dr. Waldschmidt regarding the venous condition of the Claimant's legs bilaterally which were present and treated extensively before this work-related incident. Dr. Hopkins was of the opinion the Claimant had a 45% disability to each leg at the 160-week level with 15% of each leg pre-existing the work-related accident and 30% due to the requirement that the Claimant stand at work, where previously the Claimant was allowed to sit at a work station.

The Claimant, through counsel is of the opinion that the Claimant's work accident represents a 10% permanent partial disability of the left shoulder and the Claimant had a 30% permanent partial disability to each lower extremity at of the 160-week level as a result of his work-related incident. The Claimant's bilateral leg condition which predated the claimed work-related accident is alleged to have additional disability to the left lower extremity, attributable to the work-related incident, as well as further disability which predated the work-related incident. The Claimant further alleges the pre-existing conditions have significantly aggravated or accelerated the work related injury to be compensable under the current interpretation of 287.220.3 as set forth in *Cosby v. Treasurer of the State of Missouri*, 579 SW. 3d 202 (Mo 2019).

MEDICAL AND VOCATIONAL EVIDENCE

The Claimant was examined by Dr. Hopkins, an orthopedic surgeon, and his report is in evidence. (Claimant's Exhibit 2). As previously set forth, Dr. Hopkins performed his examination and found that for the upper extremities involved in the Claimant's last work injury, Claimant had a 20% permanent partial disability to the left-hand and a 30% permanent partial disability to the right hand. Dr. Hopkins opined of the 20% apportioned to the left-hand, 5% preexisted the work-related incident. Dr. Hopkins took into consideration pre-existing conditions of ill involving the prior left shoulder injury, the prior right carpal tunnel injury, as well as the injury to the Claimant's lower extremities, ultimately concluding the Claimant was permanently and totally disabled from gainful employment as a combination of the last and pre-existing injuries.

The Claimant was seen by two vocational experts, Mr. Terry Cordray and Ms. Kristine Skahan, who performed various tests of aptitude. The consensus of the vocational testing indicated that the Claimant read at the third-grade level (Cordray), eighth to ninth grade level (Skahan), and a math aptitude measuring in the fourth grade, and the ability to spell in the second grade. The conclusions of both vocational experts, one hired by the employer and insurer and the

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert March

Injury No. 15-088007

other by the Claimant, relying on the physical limitations, taken with their own vocational assessment of the Claimant's skills and abilities lead them to conclude the Claimant was permanently and totally vocationally disabled.

To impose liability on the Second Injury Fund the Claimant must have a pre-existing permanent partial disability that existed at the time of the work-related injury, which constitutes a hindrance or obstacle to employment. *Concepción v. Lear Corporation*, 173 SW. 3d 368 (Mo App W.D. 2005). The pre-existing condition and disability must combine with a disability from the subsequent work injury either resulting in a greater overall disability than that which would have resulted from the new injury alone or by creating permanent and total disability. To determine the extent of liability attributable to the Second Injury Fund, the extent of the compensable last work injury from the employer must first be determined. The Second Injury Fund is not responsible for progression of pre-existing conditions or new conditions that develop after, and unrelated to the work injury. *Lewis v. Kansas University Medical Center*, 356 S.W.3d 796 (Mo App W.D. 2011).

The evidence in this case indicates that the Claimant's pre-existing conditions of ill, primarily the lower extremity condition, was actively being treated and disabling at the time of the Claimant's work-related accident which involved unoperated bilateral carpal tunnel injuries. The vocational testimony would lead me to conclude it is the Claimant's progression of this lower leg condition which currently renders to a large degree the Claimant unable to compete in the open labor market. The Second Injury Fund is not responsible for the progression of pre-existing conditions. The determination of the last work accident and pre-existing conditions at the time of that work injury, and not the progression is the point at which Second Injury Fund liability is determined.

The law which applies to the Claimant's injury is 287.220.3 as dictated by the Missouri Supreme Court finding in *Cosby v. Treasurer of the State of Missouri*, 579 SW. 3d (Mo 2019). In that case the court found claim against the Second Injury Fund for it to be compensable, the Claimant must have a medically documented pre-existing disability equaling a minimum of 50 weeks. 287.220.3 (2) (a) (a). Once pre-existing disability meets 50 weeks, it must also fall within one of the following categories: a direct result of active military duty; a direct result of the compensable work injury; a disability which directly and significantly aggravates or accelerates the subsequent work-related injury; or a disability to opposite extremity, eyesight, or hearing loss is in the primary injury. 287.220.3 (2) (a) (i-iv).

I find greater weight of the testimony leads me to conclude the Claimant has not met his burden of proof to establish Second Injury Fund liability under the current pronouncement of Chapter 287. I find the Claimant's lower extremity condition which preexisted the work injury was actively being treated and significantly deteriorated after the work-related accident. I also

find there was no aggravation or acceleration of the work-related accident to combine to lead the Claimant to be permanent and totally disabled. For the reasons set forth above, I find the Claimant is entitled to no compensation from the Second Injury Fund.

I find Claimant's counsel Mr. Jerry Kenter entitled to attorney's fees of 25 % of sums recovered from this award.

I certily that on 5-1-2D

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 $\qquad MOL \qquad$


Made by: $\qquad$ Mark S. Siedlik Chief Administrative Law Judge Division of Workers' Compensation