Bruce Krysl v. Veiled Prophets of St. Louis

Pursuant to this express directive and mandate from the court, we issue the following award:

Missouri statute § 287.220 creates the Second Injury Fund. Section 287.220.2 applies to injuries occurring prior to January 1, 2014, and provides when and what compensation will be paid by the Fund in "all cases of permanent disability where there has been previous disability." Id. This section provides, in pertinent part:

. . If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and 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, . . . receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury, or if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of the employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. . .

Administrative Law Judge John K. Ottenad found that employee met the threshold of a minimum of fifty weeks of compensation based on Dr. David Volarich's assessment of permanent partial disability related to employee's preexisting insulin-dependent diabetes mellitus, causing diabetic peripheral neuropathy, retinopathy and Charcot foot formation. Based on the totality of the evidence, the administrative law judge found that employee had preexisting permanent partial disability of 37.5 % of the body as a whole (150 weeks) referable to his diabetes and related conditions. Adding a loading factor of

12.5 %, the administrative law judge awarded 23.398 weeks of permanent partial disability against the Second Injury Fund.

The administrative law judge rejected the Second Injury Fund's argument that employee's diabetes-his only alleged preexisting disability-failed to meet the threshold set out in $\S 287.220 .2$ because the condition had not reached maximum medical improvement prior to employee's January 1, 2013, primary injury and therefore did not constitute a permanent preexisting condition as required by the statute.

A permanent partial disability claim pursuant to $\S 287.220 .2$ requires an employee to prove:

1. That he incurred a compensable injury that resulted in a permanent partial disability;
2. When employee's compensable injury occurred he had a preexisting permanent partial disability of such seriousness as to constitute a potential hindrance or obstacle to employment or re-employment;
3. That employee's preexisting disability meets statutory thresholds;
4. That the compensable injury and the preexisting disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently.

Winingear v. Treasurer of State - Custodian 2d Injury Fund, 474 S.W.3d 203,208 (Mo. App. 2015).

"Permanent partial disability" means a disability that is permanent in nature and partial in degree. See § 287.190.6. A disability is permanent when further medical improvement is no longer expected, also known as MMI. Cardwell v. Treasurer, 249 S.W.3d 902,910 (Mo. App. 2008); see also Hoven v. Treasurer, 414 S.W.3d 676 (Mo. App. 2013); Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. 2014).

The employee herein failed to establish that his preexisting condition of diabetes was permanent in degree prior to his January 1, 2013, primary injury because he underwent significant treatment for his diabetic condition after that date. Dr. Victoria Jansen characterized employee's diabetes as "uncontrolled" at numerous appointments, including May 18, 2012, July 6, 2012, and August 28, 2012. Dr. Jansen did not identify employee's diabetes as "controlled" until after the primary injury, on February 22, 2013. Thus, employee's diabetic condition did not reach a point of stability until after his primary injury. Furthermore, employee was not diagnosed with Charcot foot in his left foot, due to peripheral neuropathy, until May 13, 2013. This condition raised the prospect, discussed by Dr. Nicholas Martin, of future surgery to remove parts of bone in employee's left foot and even potential amputation. Because employee's left Charcot foot condition was not even diagnosed at the time of employee's primary injury and progress was expected for years following, his diabetic condition was not at MMI on the date of his primary injury.

Employee also began treatment for his diabetic retinopathy after his primary occupational disease. Employee's diabetic retinopathy was not diagnosed until July 19, 2013. The medical evidence demonstrates that employee experienced substantial improvement in his vision from Lucentis injections resulting from significant treatment after his primary injury.

All of the conditions associated with employee's diabetes eventually reached a point of stability where treatment to maintain his condition was required, but this did not occur prior to employee's primary injury.

The administrative law judge ruled that Hoven and Miller, supra, are not controlling because 1) employee's primary injury was an occupational disease and his preexisting disability was a condition rather than an injury; and 2) employee's preexisting disability was not an open workers' compensation claim.

In Hoven, supra, the court held that a preexisting condition can only be considered for Second Injury Fund liability in a permanent partial disability claim if it is at MMI prior to the date of an employee's primary injury. Hoven, at 681. The issue in Hoven was whether the employee had a preexisting permanent partial disability that was permanent when the primary injury was sustained. Id., at 678. Hoven relied on the holding in Cardwell that the level of permanent disability associated with an injury cannot be determined until it reaches a point of MMI, that is, the point at which further medical improvement cannot be reached. Hoven denied Second Injury Fund benefits because employee's preexisting disability was not at MMI. In Miller, supra, the court applied the same principle to a similar set of facts and again denied Second Injury Fund benefits for a preexisting disability that was not at MMI.

We hold that the administrative law judge improperly found both Hoven and Miller distinguishable and not determinative of the outcome of the case at hand. The administrative law judge urges that imposing the Hoven and Miller standard on a preexisting condition that was not an injury did not make sense. He reasoned that a condition such as diabetes may become a disability at the onset of symptoms or the diagnosis of the condition and that a condition like diabetes often does not have a "definitive end" to treatment. Award, p. 14.

But, permanency can be found even if the preexisting disability is not an injury. In Hoven, the employee's preexisting disability was carpal tunnel syndrome. An expert testified that the employee's preexisting carpal tunnel syndrome was not at MMI prior to the primary injury and that it "might benefit from further treatment, including possibly more surgery." Id., at 679. Another expert also testified that the employee's carpal tunnel syndrome was not at MMI and would need further evaluation and surgery. This same expert performed bilateral carpal tunnel releases years after employee's primary injury. The Hoven court upheld the Commission's finding that employee's preexisting carpal tunnel syndrome was not at MMI cased on the testimony of the experts. The court ultimately held that because the preexisting condition was not at MMI at the time of the employee's primary injury that the preexisting carpal tunnel syndrome could not

be considered in calculating Second Injury Fund liability for the permanent partial disability claim.

The administrative law judge contends that the standard of permanency developed in Hoven and Miller cannot be applied to preexisting conditions or diseases because they do not always have a "definitive end." But, Miller rejects this notion. Although the preexisting disability in Miller was an injury and not a disease or condition, the employee argued that his preexisting injury was permanent at the time of his primary injury despite having a later surgery. The employee's preexisting injury at issue was an injury to the cervical spine. A year after employee's primary injury he underwent surgery for his preexisting cervical spine injury. The employee argued that the preexisting injury was permanent at the date of his primary injury because there was no evidence of further decline of his condition, but had merely changed his mind about surgical intervention. The employee further alleged that an injury can be permanent, but not at MMI, because future treatment is always possible. The Miller court rejected the employee's arguments and held Hoven's precedent bound their ruling. Miller further held that the surgical intervention the employee underwent following his primary injury established that his preexisting injury was not at MMI and thus not permanent on that date.

Based on the holdings of Hoven and Miller, there is no reason to treat a preexisting condition differently than a preexisting injury. Therefore, we find Hoven and Miller directly on point for this issue and controlling.

The administrative law judge's second reason for not following Hoven and Miller was that those cases involved multiple workers' compensation claims. The administrative law judge reasoned that workers' compensation cases typically provide a clear beginning and end date. The beginning date is typically the date of injury and the end date is typically the release by a doctor at MMI. The administrative law judge felt that in a workers' compensation case a doctor would assess permanency following the conclusion of care and the release of the patient.

However, permanency can be found in a preexisting injury whether or not it was a workers' compensation claim. Neither Hoven nor Miller held that permanency can only be found in a workers' compensation claim. The statute also does not require a preexisting disability to be a workers' compensation claim, only that the preexisting disability be permanent at the time of the primary injury. In fact, the claims in both Hoven and Miller included more preexisting disabilities than the ones at issue. The Hoven, claim involved numerous preexisting disabilities that were not workers' compensation claims, including hearing loss, tinnitus, vertigo, a hernia, the low back, and the left shoulder. The Miller claim also involved a preexisting disability that was not a workers' compensation claim, but resulted from a motor cycle accident. Thus, there is no basis to require a preexisting disability to be a workers' compensation claim in order to apply the Hoven and Miller precedents. The administrative law judge improperly found that Hoven and Miller are not determinative in the case at bar.

-6-

Because we find that the employee had no permanent partial preexisting disability in this case, we deny his claim for permanent partial disability against the Second Injury Fund.

We reverse the award of the administrative law judge.

Employee's claim for permanent partial disability against the Second Injury Fund is denied because it is barred by § 287.220.2.

The award and decision of Administrative Law Judge John K. Ottenad, issued May 18, 2018, is attached solely for reference.

Given at Jefferson City, State of Missouri, this ______ 10th ______ day of March 2021.

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

Attest:

**Secretary**

The pivotal issue in this case is whether employee's insulin dependent diabetes mellitus with peripheral neuropathy and retinopathy qualifies as a preexisting permanent partial disability for purposes of Second Injury Fund liability for permanent partial disability pursuant to $\S 287.220 .2$

A review of the testimony, medical evidence and applicable law demonstrates that employee had in fact reached maximum medical improvement (MMI) with respect to his preexisting diabetes and diabetic peripheral neuropathy prior to January 1, 2013, the date of his primary injury.

Dr. David Volarich examined the employee and testified that employee's preexisting disability wholly related to his diabetes and complications stemming from that condition. Dr. Volarich reported that employee advised him that starting in early 2012, he began to develop some blurry vision as well as numbness and tingling in his feet and legs, but that the symptoms were not painful and did not distract him at work. Employee's symptoms persisted and gradually increased, and he developed increased pain and swelling in his right foot and ankle. Employee visited the emergency room on April 8, 2012, for complaints of weakness, neck pain, shortness of breath, right lower extremity swelling and erythema and fever. At that time, employee was diagnosed with type II diabetes and hyperglycemia, and his right ankle wound was infected. He was hospitalized and on April 11, 2012, he had a right ankle joint debridement by Dr. Matthew Collard.

Employee testified that he was an inpatient at St. Anthony's Medical Center from April 8, 2012, through April 19, 2012, and then entered a rehabilitation facility from April 19, 2012, until April 26, 2012, where he had IV antibiotics for staph infection, learned how to cope with his diabetes, underwent occupational therapy, and learned to use a walker. Employee testified that he returned to his primary care physician, who took over monitoring his diabetic medications, which employee continues to take to this day and will need to take for the rest of his life. Employee noted that he consulted an eye doctor in 2012, who recommended he see a retina specialist. He was not able to get in to the retina specialist until 2013, who he has consulted ever since for Lucentis injections to help improve his vision.

The employee further testified regarding his diagnosis of Charcot joint formation and surgery on his right foot during the course of his St. Anthony's hospitalization from April 8, 2012, until April 19, 2012.

Employee testified that when he left the hospital in April of 2012, he required either a walker or crutches to ambulate because of his Charcot foot problem and that he has needed an assistive device to walk since that time. He indicated that Charcot issues with his left foot started in June of 2012 after he went back to work. Employee indicated that he was off work from the date of his initial hospitalization for a diabetic condition on April 8, 2012, and he returned to his regular job on June 7, 2012. Employee further testified that his diabetes and related conditions caused him to have difficulty walking,

standing, squatting, and stooping, and that even with custom-made orthotics he has lost his ability to balance.

The medical evidence is uncontroverted, therefore, as to the fact that employee received a diagnosis of diabetic peripheral neuropathy in his hands and feet prior to January 1, 2013, Charcot foot formation in both feet prior to January of 2013, and diabetic retinopathy prior to January 1, 2013.

The mere fact that employee requires lifelong treatment for these conditions does not mean that he had not reached maximum medical improvement prior to January of 2013. A further review of the medical records in evidence clearly indicates that employee had, in fact, reached maximum medical improvement prior to January 1, 2013, with respect to his diabetic condition. The office notes of employee's primary care physician, Dr. Victoria Jansen, indicate that as of his August 28, 2012, office visit, he followed up for diabetes mellitus and his blood sugars were much improved on insulin. At the next visit to Dr. Jansen on February 22, 2013, the doctor again indicated that employee's diabetes was well controlled with insulin. This indicates that employee's diabetes remained well controlled since August of 2012.

Even at the visit prior to the August 28, 2012, visit, on July 6, 2012, Dr. Jansen indicated that employee's blood sugars were better controlled on insulin and he had no hyperglycemic episodes. Therefore, the medical evidence establishes that employee's diabetes was well controlled as of August 28, 2012, four months prior to January 1, 2013, which indicates that employee had, in fact, reached MMI with respect to that condition and any further treatment was the ongoing lifetime care that would be expected to maintain and control this condition.

Dr. Volarich testified that employee had reached MMI from his diabetic condition and assigned a rating of permanent partial disability. Employee's counsel specifically addressed the Second Injury Fund's defense with Dr. Volarich in his deposition, and Dr. Volarich confirmed that these diabetic conditions are lifelong and will need active treatment for the duration of employee's whole life. The fact that lifelong treatment for a condition is required does not mean that the employee was not at MMI in view of the evidence that employee returned to his regular job on June 7, 2012, six months before the primary injury, and the record from employee's treating physician, Dr. Jansen, that employee's diabetes was well-controlled on insulin on August 28, 2012, four months prior to January 1, 2013. The employee's diabetes had plateaued, was specifically reported to be under control with treatment by his treating physicians, and employee was back working at his regular job. The employee required ongoing treatment to maintain that level of control simply because of the nature of the disease process.

As the administrative law judge found, in this case the employee met the challenge of proving he has a preexisting permanent partial disability that had reached MMI prior to January 1, 2013, by: 1) The uncontroverted opinion of Dr. Volarich, who testified that employee reached MMI prior to January 1, 2013, and who assigned a rating of permanent partial disability relating to employee's diabetic condition; 2) Employee's unimpeached testimony that he had been released to work by his treating doctor and

was back to his regular job in June 2012, some six months prior to January 2013; 3) Medical records from employee's primary care physician from August 2012 which report that employee's diabetes was well-controlled four months prior to January 1, 2013.

The Commission should affirm the administrative law judge's well-reasoned award, which found the case law cited by the Second Injury Fund does not apply where, as here, the employee's preexisting disability involves a systemic condition that, because of its nature, will require lifelong treatment.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Issued by DIVISION OF ORKERS' COMPENSATION

**Employee:** Bruce Krysl

**Dependents:** N/A

**Employer:** Veiled Prophets of St. Louis (Settled)

**Additional Party:** Second Injury Fund

**Insurer:** New Hampshire Insurance Company

C/O AIG Claims, Inc. (Settled)

**Hearing Date:** February 13, 2018

**Injury No.:** 13-104992

**Before the Division of Workers' Compensation**

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

**Jefferson City, Missouri**

**Checked by:** JKO

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 1, 2013
5. State location where accident occurred or occupational disease was contracted: St. Louis City
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was employed as a sculptor for Employer and after his years of performing hand-intensive, repetitive work with his right hand, he developed right wrist carpal tunnel syndrome.
12. Did accident or occupational disease cause death? No

- Date of death: N/A

1. Part(s) of body injured by accident or occupational disease: Right Wrist
2. Nature and extent of any permanent disability: 21.25% of the Right Wrist
3. Compensation paid to-date for temporary disability: $3,120.00
4. Value necessary medical aid paid to date by employer/insurer? $13,872.84

WC-32-R1 (6-01)

Page 1

Issued by DIVISION OF ORKERS' COMPENSATION

Injury No. 13-104992

Employee: Bruce Krysl

Injury No.: 13-104992

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

1. Employee's average weekly wages: Sufficient to result in applicable rates of compensation

1. Weekly compensation rate: $433.58 for TTD/$433.58 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer previously settled its risk of liability

1. Second Injury Fund liability:

23.398 weeks of permanent partial disability

10,144.90

TOTAL: 10,144.90

1. Future requirements awarded: None.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Thomas J. Gregory

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF ORKERS' COMPENSATION

Employee: Bruce Krysl

Dependents: N/A

Employer: Veiled Prophets of St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company

C/O AIG Claims, Inc. (Settled)

Injury Number: 13-104992

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On February 13, 2018, the employee, Bruce Krysl, appeared in person and by his

attorney, Mr. Thomas J. Gregory, for a hearing for a final award on his claim against the Second

Injury Fund. The employer, Veiled Prophets of St. Louis, and its insurer, New Hampshire

Insurance Company C/O AIG Claims, Inc., were not present or represented at the hearing since

they had previously settled their risk of liability in this case. The Second Injury Fund was

represented at the hearing by Assistant Attorney General Madalyn Enzmann. At the time of the

hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These

stipulations and the disputed issues, together with the findings of fact and rulings of law, are set

forth below as follows:

STIPULATIONS:

1) On or about January 1, 2013, Bruce Krysl (Claimant) sustained an occupational disease

arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of Veiled Prophets of St. Louis (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in

applicable rates of compensation of 433.58 for total disability benefits and 433.58

for permanent partial disability benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $3,120.00,

representing a period of time of 7 weeks.

8) Employer paid medical benefits totaling $13,872.84.

WC-32-01 (5-81)

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Issued by DIVISION OF JERKERS' COMPENSATION

Injury No. 13-104992

9) Claimant sustained permanent partial disability of 21.25% of the right wrist, as a result of the January 1, 2013 (primary) injury.

ISSUES:

1) What is the nature and extent of Claimant's permanent partial disability?

2) What is the liability of the Second Injury Fund?

EXHIBITS:

The following exhibits were admitted into evidence:

**Employee Exhibits:**

1. Stipulation for Compromise Settlement in Injury Number 13-104992 (Date of Injury of January 1, 2013) between Claimant and Employer
2. Report of Injury for Injury Number 13-104992
3. Medical treatment records of St. Anthony's Medical Center
4. Medical treatment records of Dr. Victoria Jansen at St. Anthony's Physician Organization
5. Medical treatment records of The Retina Institute
6. Medical treatment records of Dr. Nicholas Martin at Premier Care Orthopedics and Sports Medicine
7. Medical treatment records of Dr. George Thampy
8. Certified medical treatment records of Dr. David Brown
9. Deposition of Dr. David Volarich, with attachments, dated October 6, 2017

**Second Injury Fund Exhibits:**

Nothing offered or admitted into evidence at the time of hearing

**Notes:**

1) If any of the records submitted at hearing contain handwritten comments or other marks, these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on February 13, 2018.

2) Unless otherwise noted below, any objections contained in the deposition exhibit are overruled and the testimony fully admitted into evidence in this case.

WC-32-S.1 (6-81)

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Issued by DIVISION OF ORKERS' COMPENSATION

Injury No. 13-104992

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion and deposition testimony, the medical treatment records and the Stipulation for Compromise Settlement between Claimant and Employer in this case, as well as based on my personal observations of Claimant at hearing, I find:

1. **Claimant** is a 65-year-old retired sculptor, who was employed by Veiled Prophets of St. Louis (Employer) for approximately 23 years, from 1994 until October 2017. As a sculptor for Employer, Claimant was responsible for creating the sculptures for the floats in the Veiled Prophet Parade and for use at the Veiled Prophet Ball. He testified that his work required the use of ladders, lifts, crawling and working on his knees, while utilizing handsaws, utility knives, files and other hand tools to create the sculptures out of Styrofoam. He noted that this was a very physical job, and he primarily used his dominant right hand for sculpting with the tools, as he steadied himself with his left hand.

1. **Claimant** testified that after years of performing hand-intensive, repetitive work with his right hand as a sculptor, he developed right hand carpal tunnel syndrome. He said that he would notice pain and burning in the right hand after a day of hard work, soon after he started working for Employer, but the problems got worse over the years as he continued to work. He said that using a knife or files was the worst. By 2015, Claimant said that he requested treatment for his right hand complaints from Employer because he was having constant problems in the hand, even before he started working for the day.

1. **The Report of Injury for Injury Number 13-104992 (Exhibit 2)**, filed by Employer, indicates that Claimant sustained a carpal tunnel injury to his wrist on January 1, 2013, and Employer was notified on that same date. It also indicates that the Workers' Compensation Administrator was notified on July 23, 2015, which is also the same date as Claimant's last work date, as confirmed in this filing.

1. **Claimant** testified that while his boss was aware of the ongoing hand problems he was having, he has no idea why the date of January 1, 2013 was used in the Report of Injury for the Date of Injury or the date Employer was notified. Claimant confirmed that he never requested treatment in 2013, but rather in 2015, when the Report of Injury was, actually, first filed. He testified that he neither missed any time from work, nor had any change in pay or earning capacity, as a result of the right hand carpal tunnel syndrome until 2015.

1. **The medical treatment records of Dr. David Brown (Exhibit 8)** show that Dr. Brown first examined Claimant on September 21, 2015, as a referral from AIG-Work Comp. The New Patient Questionnaire contains a consistent history from Claimant of pain, numbness and tingling in his right forearm, hand and wrist, that started approximately 20 years ago, that he attributed to his repetitive sculpting during that time (up to approximately 7,200 strokes per day). It also contains a prior history of diabetes, macular edema, right foot surgery in 2012 and a Charcot fracture of the left ankle.

WC-32-81 (5-81)

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Issued by DIVISION OF ORKERS' COMPENSATION

Injury No. 13-104992

The records show that Claimant had previously seen Dr. Mitchell Rotman on August 27, 2015, and Dr. Daniel Phillips on that same date for EMG/nerve conduction studies, which showed carpal tunnel syndrome on top of peripheral neuropathy, attributable to his diabetes in both the upper and lower extremities. Dr. Brown diagnosed chronic severe right carpal tunnel syndrome, and recommended surgery to address this condition. He took Claimant to surgery on October 22, 2015, and performed a right carpal tunnel release. When Claimant followed up with Dr. Brown after surgery, he reported marked improvement in the numbness and tingling in the right hand, such that by November 30, 2015, Dr. Brown released Claimant to full-duty work with no restrictions. Finally, on March 25, 2016, Dr. Brown rated Claimant as having 4% permanent partial disability of the right wrist attributable to the surgically treated right carpal tunnel syndrome.

6) Claimant testified that as a result of his surgically treated right carpal tunnel syndrome, he had some continued issues with tingling in his right hand after performing a couple hours of work. However, he returned to basically the same sculptor job he had been performing before the hand surgery and continued to work until his retirement from Employer in October 2017.

7) Claimant and Employer resolved their portion of this January 1, 2013 case (Injury Number 13-104992) by Stipulation for Compromise Settlement (Exhibit 1) for the payment of $16,990.92, or 21.25% permanent partial disability of the right wrist, plus 2 weeks of disfigurement. The Second Injury Fund Claim was left open on the Stipulation. This Stipulation for Compromise Settlement was approved by Administrative Law Judge Margaret D. Landolt on May 5, 2017.

8) Prior to this right wrist carpal tunnel syndrome Claim, Claimant sustained pre-existing disability to his body as a whole, from an underlying, pre-existing diabetic condition.

9) Claimant testified that in the summer of 2011, he started noticing tingling in his toes, primarily on the right, and some vision problems. He was noticing that he had to get closer to the computer screen than normal to see what was on the screen. These complaints kept increasing into 2012, with cloudiness of vision and a small dead spot right in the middle of his field of vision, as well as right foot swelling, which prompted a hospital admission in April 2012. Claimant testified that at the time of his admission, he was basically unconscious and had a staph infection in his right foot.

10) On April 8, 2012, Claimant was admitted to St. Anthony's Medical Center (Exhibit 3) with complaints of right leg swelling for a month, labored breathing, and a blood sugar level in the 800's, among other things. Claimant was transferred to the ICU for sepsis and pneumonia, and was also diagnosed with diabetes mellitus (uncontrolled), cellulitis of the right ankle and edema of the right leg, among other things. While in the hospital, he was found to have diabetic polyneuropathy and retinopathy. On April 11, 2012, Claimant underwent a right ankle joint debridement. A subsequent culture showed a staph infection in the right ankle. Claimant began a course of treatment with Dr. Thampy for his newly diagnosed diabetes.

WC-32-R1 (6-81)

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Issued by DIVISION OF ORKERS' COMPENSATION

Injury No. 13-104992

11) Claimant testified that he was in the hospital until April 19, 2012, and, then, discharged to a rehab facility, where he stayed until April 26, 2012. He continued to treat for his diabetes and other conditions while in the rehab facility. When he was discharged from the rehab facility, Claimant testified that he had devices to help him with ambulation, including a walker, a cane and a wheelchair. He said that he has used those devices, mostly the cane, to walk, ever since that time. He said that his vision problems also started in 2012. He was diagnosed with retinopathy and has treated with The Retina Institute, receiving injections in both eyes every six weeks since 2013.

12) Claimant testified that he missed work from April 8, 2012 until June 7, 2012, while fighting the right ankle infection with IV antibiotics. After returning to work, Claimant continued working for approximately five more years, until October 2017, when he retired.

13) Claimant followed up with Dr. Victoria Jansen at St. Anthony's Physician Organization (Exhibit 4) after the hospitalization in 2012. He was first examined by Dr. Jansen on May 18, 2012, and noted to have osteomyelitis of the right ankle and uncontrolled diabetes mellitus. At the visit on July 6, 2012, Dr. Jansen noted that Claimant now had left foot swelling that started on June 14, 2012, after he went back to work a week earlier than that following his right foot hospitalization. She also noted that he has had right foot swelling since the infection in the right ankle, and that his swelling is worse by the afternoon in both feet after he is up on them for the day. Dr. Jansen suspected that the swelling was due to venous insufficiency, since it resolved after sleeping at night.

14) Medical treatment records of Dr. George Thampy (Exhibit 7) document a visit on August 13, 2012 for his diabetes. Claimant was noted to have paresthesia to his feet and fingers, symptomatic of the diabetes being a chronic condition. It was noted that he would need long-term use of insulin to control the diabetes, and that the consequences of uncontrolled diabetes included accelerated progression of kidney, eye, nervous system and heart diseases. Dr. Thampy also recommended an ophthalmology consult, as soon as possible, for a dilated eye examination.

15) Claimant testified that after he returned to work following the hospitalization for the right ankle, he noticed that his diabetes made his job more challenging. He had problems with balance and could not stand at work all day anymore. He said that he had to basically sit while he worked, which made his job more difficult. He said that he found it difficult to get into the right position to perform his work, and cut himself a couple times as a result.

16) Claimant continued to see Dr. Jansen (Exhibit 4) into 2013 with reports of his diabetes being well controlled on insulin, but ongoing issues with his ankles swelling and his left ankle cracking, popping and causing pain when walking. On October 21, 2013, Dr. Jansen noted that Claimant had a Charcot fracture of the left foot, for which he was in a CAM walker and treating with Dr. Martin. Regular visits with Dr. Jansen continued into 2016, with reports of ongoing issues in the left foot (pain from Charcot

WC-22-R1 (i-51)

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Issued by DIVISION Oi ORKERS' COMPENSATION

Injury No. 13-104992

fracture) and right foot, as well as treatment for diabetic retinopathy, and treatment for his diabetes mellitus.

17) Medical treatment records of Dr. Nicholas Martin at Premier Care Orthopedics and Sports Medicine (Exhibit 6) document Claimant's treatment for his left foot/ankle issues from May 13, 2013 through July 8, 2016. In his initial visit with Dr. Martin on May 13, 2013, Claimant provided a history of a prior Charcot on the right side, which resulted in Claimant putting extra pressure on the left ankle since April 2012. He complained of swelling and dull aching pain in the left ankle. X-rays taken at that visit showed a consolidated Charcot of the right ankle, with a flattened subtalar joint and ankle joint, as well as an active Charcot arthropathy on the left ankle that has been occurring for the past year. He was placed in a CAM walker boot, was to use crutches as much as possible, and given pain medication. He had regular visits and remained in the walker boot throughout 2013, transitioning into a regular shoe in early 2014. Records into 2016 noted ongoing pain issues and problems associated with periodic ulcerations on the foot/ankle.

18) Medical treatment records from The Retina Institute (Exhibit 5) document the treatment Claimant received there for his eyes from July 19, 2013 through June 9, 2016. The initial note dated July 19, 2013 contains a description from Claimant of a one-year history of gradually decreased vision, as well as insulin-dependent diabetes, and neuropathy and Charcot joints, suggesting the disease may have been more longstanding. Both of Claimant's eyes showed diffuse macular edema due to background retinopathy. Claimant began a course of treatment of intravitreal injections of Lucentis for the management of diabetic macular edema in each eye. The records show that the multiple injections in each eye resulted in improved vision and a stable retina. The records document periods where his vision would become blurry again and a new round of injections would be administered.

19) Claimant testified that his vision improved with the injections, but he must continue to receive the injections to maintain the improved eyesight. He noted a dead spot in the left eye, especially, and blurry vision returns if he does not receive the regular injections in the eyes.

20) Claimant said that his diabetic problems made his right hand worse. Because of his lack of balance from his feet and from having to perform his work sitting, he said that he had to go into positions that were dangerous and caused a progression of his carpal tunnel syndrome complaints in the right hand.

21) The deposition of Dr. David Volarich (Exhibit 9) was taken by Claimant on October 6, 2017 to make his opinions in this case admissible at trial. Dr. Volarich is an osteopathic physician, who is board certified in nuclear medicine, occupational medicine and as an independent medical examiner. He examined Claimant on one occasion, November 16, 2016, for the purpose of an independent medical examination at the request of Claimant's attorney. He provided no treatment. He issued his medical report in this case on that same date, after his review of the medical treatment records and after performing a physical examination of Claimant. Dr. Volarich took a

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consistent history of the injury at work leading up to January 1, 2013, and of Claimant's medical treatment and complaints following that injury, as well as of Claimant's pre-existing conditions/diseases and complaints. His physical examination of Claimant revealed diminished pinprick sensation in both lower extremities in a stocking distribution; decreased/absent reflexes in the lower extremities; difficulty with balance and significant deformities of both feet, left greater than right, because of the Charcot foot joint formations, as well as a 40% loss of power (noted in the motor examination); the retina appeared to be slightly ischemic; positive compression provocative testing over the right carpal tunnel, with negative Phalen's, reverse Phalen's, Tinel's and Finkelstein's testing bilaterally; decreased range of motion in the right wrist; and decreased grip strength in the right hand. Leading up to January 1, 2013, Dr. Volarich diagnosed overuse syndrome of the right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome), status post open carpal tunnel release, medically causally related to his work activities for Employer, for which he rated claimant as having 35% permanent partial disability of the right wrist.

22) Dr. Volarich also diagnosed insulin-dependent diabetes mellitus, with peripheral neuropathy and retinopathy, as well as Charcot foot formation, left greater than right, secondary to the diabetes, which pre-existed the January 1, 2013 work injury. He testified that he saw a definitive diagnosis of diabetes mellitus with peripheral neuropathy, the Charcot joints and retinopathy made in April 2012, prior to the right wrist carpal tunnel syndrome. He rated Claimant as having 50% permanent partial disability of the body as a whole, pre-existing January 1, 2013, due to his insulin-dependent diabetes mellitus, causing diabetic peripheral neuropathy, retinopathy and Charcot foot formation. Dr. Volarich opined that the pre-existing disability was a hindrance or obstacle to employment or re-employment. He also opined that the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and, so a loading factor should be added. Dr. Volarich explained, in detail, how the pre-existing diabetic condition, and associated peripheral neuropathy, Charcot foot formation and vision problems, combined to accelerate the evolution of the right wrist carpal tunnel, thus, resulting in a synergistic combination of those disabilities to make Claimant more disabled than the simple sum of the disabilities. Finally, Dr. Volarich testified that diabetes is a lifelong condition, that is probably going to deteriorate with time, and will require active treatment his whole life.

23) On cross-examination, Dr. Volarich confirmed that Claimant had the retinopathy diagnosed in 2012, but received the ophthalmologic treatment (injections) first in 2013. He agreed that the injections have provided some improvement in his eye condition. He did not believe that Claimant's diabetes was well controlled after his diagnosis in 2012 and leading up to 2013.

24) On cross-examination by the Second Injury Fund, Claimant confirmed that he was diagnosed with uncontrolled diabetes in 2012, and also had the surgery on the right foot for the staph infection. While he had the right foot problems in 2012, he agreed that he first was diagnosed with the Charcot foot on the left on May 13, 2013. He also

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agreed that Dr. Martin felt the left foot issues were related to the prior right foot problems, as a result of placing extra pressure on the left foot to lessen the pressure on the right, as it was healing. Claimant confirmed that in 2014, and again in 2016, Dr. Martin discussed with him the possibility of needing to amputate the foot because of ongoing issues with the left foot, and his severe mid-foot collapse on the left. He also confirmed that the eye injections helped his vision issues, but he has a need for regular injections, especially on the left, to maintain his vision.

25) Claimant, finally, noted that in July 2012, his diabetes was noted to be controlled with insulin, according to Dr. Jansen and Dr. Thampy.

RULINGS OF LAW:

Based on a comprehensive review of the evidence described above, including Claimant's testimony, the expert medical opinion and deposition testimony, the medical treatment records and the Stipulation for Compromise Settlement between Claimant and Employer in this case, as well as based on my personal observations of Claimant at hearing, and based on the applicable laws of the State of Missouri, I find the following:

I find that there is no dispute in this case, and the evidence clearly shows, that Claimant sustained an occupational disease injury, arising out of and in the course of his employment for Employer, which resulted in an injury to his right wrist. I find that he was working as a sculptor for Employer and that after his years of performing hand-intensive, repetitive work with his right hand, he developed right wrist and hand complaints. I find that Claimant sustained overuse syndrome of the right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome), status post open carpal tunnel release. I find that his right wrist injury was medically causally connected to his job duties as a sculptor for Employer leading up to January 1, 2013. I further find, based on the stipulation of the parties, that Claimant sustained 21.25% permanent partial disability of the right wrist, related to this compensable occupational disease injury at work for Employer, leading up to January 1, 2013.

Despite the parties stipulating at the outset of the hearing to a date of injury of January 1, 2013, presumably based on the evidence in the record and testimony elicited at trial, both parties argued in post-trial briefs about the appropriate date of injury to consider for the case. I would also note that neither party sought on the record to make the date of injury an issue to be decided in this case. Accordingly, since no issue was raised at trial about the date of injury and since the parties stipulated to a date of injury of January 1, 2013 at trial, I find that I am bound by the stipulation of the parties at hearing and will not comment further on this matter first raised in the post-trial briefs.

As both issues in this case are inter-connected, I will address both issues in the same section of the Award.

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Issue 1: What is the nature and extent of Claimant's permanent partial disability?

Issue 2: What is the liability of the Second Injury Fund?

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

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).

Additionally, under the 2005 amendments to the Workers' Compensation Law, the Legislature added further provisions that have an impact on the determination of the nature and extent of permanent partial disability. Mo. Rev. Stat. § 287.190.6 (2) (2005) states,

> Permanent partial disability... shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Therefore, according to the terms of this statute, it is incumbent upon the claimant to have a medical opinion from a physician that demonstrates and certifies claimant's permanent partial disability attributable to a given injury within a reasonable degree of medical certainty. Further,

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if there are conflicting opinions from physicians in a given case, then objective medical findings must prevail over subjective findings.

In awarding permanent partial disability from the Second Injury Fund under these statutory provisions, it is, thus, necessary to deal with each of these sections. Considering the competent and substantial evidence listed above, I find that the medical opinions from Dr. Volarich demonstrate and certify, within a reasonable degree of medical certainty, that Claimant sustained permanent partial disability as a result of the work-related right wrist injury, as well as his pre-existing condition.

In cases such as this one where the Second Injury Fund is involved, we must also look to Mo. Rev. Stat. § 287.220 (2005) for the appropriate apportionment of benefits under the statute. In order to recover from the Fund, Claimant must prove that he had a pre-existing permanent partial disability that existed at the time of the primary injury. Then to have a valid Fund claim, that 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.

In the second (permanent partial disability) combination scenario, pursuant to Mo. Rev. Stat. § 287.220.1 (2005), the pre-existing disability must also meet certain thresholds before liability against the Second Injury Fund is invoked 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 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. These thresholds are not applicable in permanent total disability cases.

It is first necessary to determine the nature and extent of the permanent partial disability against Employer. I find, pursuant to the stipulation of the parties at the outset of this hearing, that Claimant sustained 21.25% permanent partial disability of the right wrist, on account of the January 1, 2013 (primary) injury.

Having now established the nature and extent of the permanent partial disability attributable to the primary injury against Employer, it is now appropriate to determine whether or not Claimant has successfully met his burden of proving Second Injury Fund liability for permanent partial disability based on the combination of his primary (January 1, 2013) injury and any pre-existing permanent partial disabilities. Having thoroughly considered all of the competent and credible evidence in the record, I find that Claimant has met his burden of proof to show an entitlement to a permanent partial disability award against the Second Injury Fund.

Claimant has alleged pre-existing disability to the body as a whole referable to his diabetes mellitus and associated conditions of peripheral neuropathy, retinopathy and Charcot foot formations that potentially combine with the disability from the primary 2013 right wrist injury to trigger Second Injury Fund liability. In order for the alleged pre-existing disability to actually trigger Second Injury Fund liability, it must meet the appropriate threshold of 12.5%

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permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity and it must be found to have been a hindrance or obstacle to employment or re-employment, should Claimant become unemployed.

With regard to Claimant's pre-existing condition, I find Claimant's testimony and his statements in the medical reports credible regarding the continued complaints and problems he had, and the effect the pre-existing condition had on his ability to work, prior to January 1, 2013. I also found medical treatment records and/or reports in evidence documenting the treatment Claimant received for his diabetes mellitus, and other associated conditions, prior to the January 1, 2013 work injury.

I further find Dr. Volarich's diagnoses and opinions on the pre-existing condition to be competent, credible and reliable evidence. Dr. Volarich rated Claimant as having pre-existing permanent partial disability on account of the pre-existing condition. Dr. Volarich further credibly opined that the combination of the disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. Finally, Dr. Volarich opined that the disabilities represented a hindrance or obstacle to employment or re-employment.

The Second Injury Fund argues that because Claimant continued to receive medical treatment for his diabetes mellitus and related conditions (peripheral neuropathy, retinopathy and Charcot foot formations) following the January 1, 2013 right wrist carpal tunnel syndrome injury, then, the condition had not reached a point of maximum medical improvement, and, therefore, cannot be included in any calculation of Second Injury Fund benefits in this case. As support for this proposition, the Second Injury Fund cites to cases such as Cardwell v. Treasurer, 249 S.W.3d 902 (Mo. App. E.D. 2008), Hoven v. Treasurer, 414 S.W.3d 676 (Mo. App. E.D. 2013) and Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. E.D. 2014). I find, after a thorough review of each of these cases, that they are distinguishable from the facts at issue in the case at bar, and, thus, are not determinative on the outcome of this case.

First and foremost, I find that all of the cases cited by the Second Injury Fund are premised on multiple workers' compensation injuries and when those injuries reach the point of maximum medical improvement for the purposes of assessing permanent partial disability for those injuries. The Cardwell court noted, "One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment." Cardwell at 910. Citing Cardwell, the Hoven court held, "The level of permanent disability associated with an injury cannot be determined until it reaches the point of maximum medical improvement." Hoven at 678. Similarly, the Miller court, cited this same holding from Hoven on the inability to determine permanent disability for an injury until maximum medical improvement is reached. Miller at 220.

I also find it important to note at this juncture, since all of these holdings effectively relate back to the Cardwell decision, that Cardwell did not even truly deal with maximum medical improvement being a precursor to determining pre-existing permanent partial disability. As was noted by the court in Lewis v. Treasurer, 435 S.W.3d 144, 154 (Mo. App. E.D. 2014), "Cardwell, which Hoven and Miller relied upon, was not only dealing with PPD benefits, but the timing of payment for such benefits. Cardwell, was, first and foremost, clarifying the point at

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which various disability benefits in workers' compensation cases begin and end." A close reading of Cardwell shows that maximum medical improvement was used by the court, not for determining access or entitlement to permanent partial disability benefits, but rather as the point in time at which the payment of temporary disability benefits ends and the payment of permanent disability benefits begins. In that respect, even though the term "maximum medical improvement" is not contained anywhere in the statute, it makes sense in the context of a workers' compensation injury case, that there must be some point at which the timing of certain workers' compensation benefits begin and end.

It is clear to me in reading Hoven and Miller that the courts, there, expanded the use of "maximum medical improvement" beyond just the timing of the payment of benefits, to determining access or entitlement to permanent partial disability in Second Injury Fund cases. However, this expansion was only done in the context of multiple injury cases, and determining if a pre-existing injury case had reached the point of maximum medical improvement prior to a subsequent injury case for the purpose of assessing Second Injury Fund liability. None of these cases dealt with a pre-existing, disabling, systemic condition, like diabetes mellitus, and the determination of, at what point permanent partial disability can be assessed for calculating Second Injury Fund permanent partial disability benefits for that condition.

While it certainly makes sense, in the context of an injury case, especially a workers' compensation injury case, to use the point of maximum medical improvement to determine when permanent partial disability can be assessed, I find that it makes much less sense to try to impose such a standard on a pre-existing, disabling, systemic condition, like diabetes mellitus. In treatment for a workers' compensation injury case, there is generally a beginning (the date of injury) and an end (the release by a doctor at maximum medical improvement). In this context, it only makes sense that permanent disability would be assessed following the conclusion of care and the release by the doctor. However, in the case of a disabling, systemic condition, the beginning may be the onset of symptoms and the diagnosis of the condition, but there may well not be a definitive end to the treatment, as treatment may be needed for the rest of the person's life. I find that merely because treatment continues for such a systemic condition, that does not make it any less disabling, or less of an impact on that person's ability to work or compete in the open labor market. It may make it more of a challenge to assess disability or provide competent, credible medical proof of permanent partial disability for such a condition at a given point in time, but that is up to the employee to obtain and submit such evidence to meet his burden of proof.

In the case at bar, Claimant submitted into evidence medical treatment records noting diagnosis and treatment for diabetes mellitus prior to the January 1, 2013 primary injury. On April 8, 2012, Claimant was admitted to St. Anthony's Medical Center with complaints of right leg swelling for a month, labored breathing, and a blood sugar level in the 800's, among other things. Claimant was diagnosed with diabetes mellitus (uncontrolled), cellulitis of the right ankle and edema of the right leg, and was also found to have diabetic polyneuropathy and retinopathy. The right foot and ankle issues were eventually characterized as a Charcot foot formation, a result of the uncontrolled diabetes. Throughout the rest of 2012, Claimant treated with Drs. Victoria Jansen and George Thampy, whose records show diagnoses of diabetes mellitus, and complaints involving both feet and his eyes. Finally, in the medical treatment records of Dr. Nicholas Martin from 2013, I found x-ray evidence of a consolidated Charcot of the right ankle

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from the prior year, with a flattened subtalar joint and ankle joint, as well as an active Charcot arthropathy on the left ankle that has been occurring for the past year. These medical treatment records were bolstered by the credible testimony of Claimant, who confirmed that he not only was diagnosed with diabetes mellitus prior to 2013, but also had associated complaints and diagnoses referable to his eyes and bilateral feet/legs prior to 2013. So even though treatment continued for the diabetes mellitus and the associated conditions (peripheral neuropathy, retinopathy and bilateral Charcot foot formations) after 2013, I find that these conditions were both symptomatic and disabling prior to 2013.

The question, then, becomes Claimant's ability to meet his burden of proof on the extent of the disability Claimant had referable to these systemic conditions, pre-existing and leading up to the January 1, 2013 work injury. I find Claimant met his burden of proof, in this regard, with the competent, credible and reliable medical opinion of Dr. David Volarich. Dr. Volarich quite clearly opined that Claimant had disability referable to insulin-dependent diabetes mellitus, with peripheral neuropathy and retinopathy, as well as Charcot foot formation, left greater than right, secondary to the diabetes, which pre-existed the January 1, 2013 work injury. While I may not ultimately agree with the exact percentage of disability that he assessed, there is no question that he credibly assessed pre-existing permanent partial disability in this case.

There is also no question that the record is devoid of any contrary opinions on the presence of pre-existing permanent partial disability, nor any indications from a physician that they would be unable to quantify the amount of permanency within a reasonable degree of medical certainty because of the ongoing nature of Claimant's treatment for diabetes mellitus, and the associated conditions. Therefore, I find that the record contains a credible assessment of the presence of pre-existing permanent partial disability on account of the pre-existing diabetes mellitus (and associated conditions), with no contrary medical opinions whatsoever in the record on the presence of that disability.

Based on the totality of the evidence in the record, as described above, I find that Claimant had pre-existing permanent partial disability of 37.5% of the body as a whole referable to insulin-dependent diabetes mellitus, with associated conditions of peripheral neuropathy, retinopathy and bilateral Charcot foot formation, which pre-existed the January 1, 2013 work injury.

Given the applicable statutory thresholds of 15% of a major extremity or 12.5% of the body as a whole (50 weeks), I find that the pre-existing body as a whole disability referable to the diabetes mellitus meets the statutory threshold to trigger Second Injury Fund liability. I further find that the pre-existing body as a whole disability referable to the diabetes mellitus and the associated conditions were of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. Finally, consistent with Dr. Volarich's opinion on combination, I find that the combination of the pre-existing and primary injury disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. I, therefore, find that Claimant is entitled to receive 23.398 weeks of compensation from the Second Injury Fund.

In order to calculate the amount of this award from the Second Injury Fund, I added together all of the qualifying disabilities and assessed a loading factor of 12.5% [21.25% of the

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right wrist (37.1875 weeks) + 37.5% of the body as a whole referable to the diabetes mellitus (150 weeks) = 187.1875 total weeks of compensation times the 12.5% loading factor = 23.398 weeks from the Fund]. I arrived at the 12.5% loading factor based on the credible evidence submitted at trial, the severity of the disabilities that combined to create the Second Injury Fund liability in this case, and the impact the disabilities had on Claimant's ability to work or compete for work in the open labor market.

Accordingly, the Second Injury Fund is responsible for the payment of 23.398 weeks of permanent partial disability pursuant to this award.

Claimant sustained an occupational disease injury, arising out of and in the course of his employment for Employer, which resulted in an injury to his right wrist. He was working as a sculptor for Employer and after his years of performing hand-intensive, repetitive work with his right hand, he developed right wrist and hand complaints. Claimant sustained overuse syndrome of the right upper extremity causing median nerve entrapment at the wrist (carpal tunnel syndrome), status post open carpal tunnel release. His right wrist injury was medically causally connected to his job duties as a sculptor for Employer leading up to January 1, 2013. Claimant sustained 21.25% permanent partial disability of the right wrist, related to this compensable occupational disease injury at work for Employer, leading up to January 1, 2013. Claimant had pre-existing permanent partial disability of 37.5% of the body as a whole referable to insulin-dependent diabetes mellitus, with associated conditions of peripheral neuropathy, retinopathy and bilateral Charcot foot formation, which pre-existed the January 1, 2013 work injury. Based on the applicable thresholds, the pre-existing body as a whole disability referable to the diabetes mellitus meets the statutory threshold to trigger Second Injury Fund liability. Claimant also met his burden of proof to show that the pre-existing body as a whole disability referable to the diabetes mellitus and the associated conditions were of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. The Second Injury Fund is to pay 23.398 weeks of permanent partial disability benefits, or $10,144.90. Compensation awarded is subject to a lien in the amount of 25% of all payments in favor of Mr. Thomas J. Gregory for necessary legal services.

I certify that on **May 18, 2018** 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: __________________________

Mme by: __________________________

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation

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