Kevin Young v. Linmark Machine Products, Inc.

^{1} The Second Injury Fund’s application for review incorrectly referenced Dr. Wagner’s deposition as its Exhibit VII. Second Injury Fund Exhibit VII consists of Dr. Wagner’s January 12, 2004, independent medical examination report, addressed to the employer/insurer. See Transcript, Index of Exhibits and page 2687. ^{2} Claimant’s Exhibit 26, Transcript, 2240-2243.

Injury No. 03-051173

Employee: Kevin G. Young

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recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee, or his dependents in case of death, or their attorney, within thirty days after written request for it by the injured employee, his dependents in case of death, or by their attorney. The request shall be directed to the employer or its insurer by certified mail. The term "statement" as used in this section shall not include a videotape, motion picture, or visual reproduction of an image of an employee. [emphasis added]

The Second Injury Fund argues that plain language of Section 287.215 does not provide for its application to the Fund and that because Workers' Compensation law is entirely a creature of statute, one cannot presume that the legislature intended such an application. The Second Injury Fund further contends it is "absurd to conclude, as the ALJ did, that 287.215 would apply to exclude statements based on requests made solely on [sic] the employer and not the Fund." 3 Citing *Fischer v. Waste Management*, 58 S.W.3d 523 (Mo. Banc 2001) the Second Injury Fund argues that exclusion of employee's statement in this case does not promote the purpose of § 287.215 to avoid surprises in that "a letter written by the Claimant in 2001 and produced at a deposition in 2003 was not a surprise to Claimant when offered at the hearing in 2020." 4 We disagree with the Second Injury Fund's reasoning.

We find the plain meaning of the words in § 287.215 clearly mandate that any statement by an employee that is not furnished by the employer or its insurer within thirty days of a written request on the behalf of employee, his or her dependents, or their attorney by certified mail to the employer or its insurer may not be used against the employee in any hearing or action to recover benefits. The statute does not specify or limit which party or parties are prohibited from using the alleged statements, only that such statements may not be used against the employee.

We therefore affirm the ALJ's evidentiary rulings relating to the Second Injury Fund's Exhibits II, VI, and IX.

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

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 10, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

3 Brief of Appellant Treasurer of Missouri Custodian of the Second Injury Fund, filed March 8, 2021, p. 28.

4 Id., p. 29. We note that the ALJ's hearing in this case occurred on June 19-21, 2019.

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Given at Jefferson City, State of Missouri, this ____ 7th ____ day of June 2021.


Attest:

*Reid K. Forrester*

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Dependents: Patricia Young

Employer: Linmark Machine Products, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Sentry Insurance A Mutual Company (Settled)

Hearing Date: June 19-21, 2019

Injury No.: 03-051173

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

1. Are any benefits awarded herein? Yes

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: May 9, 2003

1. State location where accident occurred or occupational disease was contracted: Franklin 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 employee, a machinist, suffered repetitive trauma to his elbows and developed cubital tunnel syndrome.

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

1. Part(s) of body injured by accident or occupational disease: Both elbows

1. Nature and extent of any permanent disability: 17 ½% Permanent partial disability to each elbow

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

1. Value necessary medical aid paid to date by employer/insurer: None

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

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

1. Employee's average weekly wages: 800.00

1. Weekly compensation rate: 533.33/$340.12

1. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

Previously Settled

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential ($193.21) payable by SIF for 73.5 weeks beginning December 30, 2003, and, thereafter, $533.33 for Claimant's lifetime

TOTAL:

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: Ronald D. Edelman, Esq.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

This Workers' Compensation case raises several issues arising out of an alleged work related occupational disease in which the claimant, a machinist, suffered repetitive trauma to his elbows and developed cubital tunnel syndrome. The issues for determination are (1) Medical Causation, (2) Arising out of and in the course of Employment, (3) Notice, (4) Statute of Limitations, (5) Second Injury Fund Liability, and (6) Dependency of Spouse. The evidence compels an award for permanent total disability benefits from the Second Injury Fund.

At the hearing, the claimant testified in person and offered depositions of the claimant, Dr. Robert P. Poetz D.O., and James M. England, Jr., records from the Missouri Division of Workers' Compensation and the Social Security Administration, medical treatment records, lists of the claimant's prescriptions and medications, photos of equipment, and a copy of the claimant's marriage license. The Second Injury Fund offered depositions of the claimant, Russell C. Cantrell, M.D., John R. Wagner, M.D., and Gary Weimholt, and medical reports from Patrick A. Hogan, M.D., and John R. Wagner, M.D., and statements from the claimant. Claimant's Exhibit 3 and Defense Exhibits II and III are compacted copies of the original depositions, and counsel asserted that no other copies were available. Counsel represented that the ability to produce normal copies is no longer available due to the age of the documents. At this level, the Exhibits are legible, probative, and bear the endorsement of an officer of the court as genuine. The Commission and the Court may revisit the receipt of these Exhibits into the evidentiary records based on the rules applicable in those forums.

The claimant's objections, based on section 287.215 RSMo. 2000, to the admission of statements from the claimant, Exhibit IX, and references to those statements in Dr. Wagner's deposition and the claimant's 2003 deposition, Exhibits VII and VI, are sustained. The documents will be included in the record as an offer of proof.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

In May 2003, this then 42-year-old claimant, a machinist, suffered repetitive trauma to his elbows and developed cubital tunnel syndrome. The claimant testified his job duties required repetitive movement of his hands and arms and upper