Ronald Lamy v. Stahl Specialty Company

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-105467**

**Employee:** Ronald B. Lamy

**Employer:** Stahl Specialty Company

**Insurer:** Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 8, 2021, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Mark S. Siedlik, issued July 8, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this _21st_ day of January 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

The issue before the Commission is whether the employee's claim for a work-related occupational disease injury to his left wrist is barred by the employee's prior settlement with the employer for disability to the employee's left upper extremity.

The administrative law judge (ALJ) denied compensation based on a finding that the employee's claim in this matter was resolved by a prior settlement in Injury No. 16064651. The employee's prior settlement consisted of a lump sum payment based on 12.5\% permanent partial disability of the employee's left shoulder. Employee's prior settlement was proper in form and legal effect. It bound the parties with no indication of any consideration being paid for a wrist injury. The settlement established that the parties only intended to settle the left shoulder injury.

Dr. Gerald McNamara's letter to the employer's insurance adjustor, dated August 19, 2019, is key to understanding the issues in this case. Dr. McNamara clearly stated from the initial appointment with the injured employee that the employee was complaining of left shoulder pain, as well as tingling and numbness in his left hand. The doctor decided to put off treatment for the employee's left hand until the employee recovered from left shoulder surgery. After the employee's shoulder surgery, at Dr. McNamara's request, the employer's insurance adjuster authorized EMB/NCS studies. The adjuster could have refused authorization for this objective medical test if she intended to deny any treatment for the employee's wrist. Dr. McNamara's statement that "Treatment for the left hand was put on hold while [the employee] recovered from shoulder surgery [emphasis added]"1 further indicated that Dr. McNamara understood and that the employer's insurer considered treatment for the employee's carpal tunnel condition as compensable. Subsequently, the adjuster declined payment for treatment to the employee's wrist. She attempted to justify this decision by requesting a medical opinion that the wrist injury was related to the employee's "origin[al] work injury of 08/25/2016."2 Dr. McNamara's opinion that the employee's wrist injury related to his original work injury was a legal opinion that he was not qualified to make.

The instant claim for injury to the employee's left wrist was not filed until June 26, 2018. It was not until after this second claim was filed that the adjuster decided to contact Dr. McNamara for his legal opinion that the last injury was not compensable.

The ALJ incorrectly relied on four cases to support his legal analysis and denial of compensation. An examination of those cases shows that they are not on point in this case.

Krysl v. Treasurer, 591 S.W.3d 13 (Mo. App. 2019) concerned the issue of attaching the date for compensability of an occupational disease claim. In this case, no party contested compensability of the previously settled shoulder injury. Here, the ALJ denied compensability of the carpal tunnel claim on the grounds that that injury was

[^0]

[^0]: ${ }^{1} Transcript, p. 557.

{ }^{2} \mathrm{Id}$.

barred by the settlement of the employee's shoulder injury. The date employee's wrist injury may have become compensable was not in issue and never reached.

The ALJ cited Miller v. U. S. Airways Group, Inc., 316 S.W.3d 462 (Mo. App. 2010) as similar to the case at bar. However, in Miller, the employee filed two claims involving the same body part, the wrist. Because the Commission found the 2007 wrist claim to be duplicative of the 2004 claim for the same wrist, the two claims were not allowed. The Commission's decision was sustained on appeal.

In Shockley v. Laclede Electric Cooperative, 825 S.W.2d 44 (Mo. App. 1992), the employee settled a case using the standard language that all issues were settled. He then filed a claim entitled "First Amended-Previously Closed File,"3 seeking more benefits after the settlement of the same injury. The court denied this theory and would not allow the second claim. The facts of Shockley bear no similarity to this case.

Finally, the ALJ cited Ritch v. Professional Transportation, Inc., 599 S.W.3d 492 (Mo. App. 2020). In that case, the employee tried to reopen a prior settlement on the grounds that his medical condition had worsened. The court denied that argument. The facts in the case at bar are not similar to Ritch.

The court expressed the clearest explanation of the legal effect of a settlement stipulation in State of Missouri-Custodian of the Second Injury Fund v. Steck, 341 S.W.3d 869 (Mo. App. 2011). Steck involved the impact of the employee's settlement with the employer on his still-open case against the Second Injury Fund. The court stated, " . . .such an agreement does not bind the Commission but does serve as relevant evidence of the nature and extent of the employee's permanent disability attributable to the primary injury."4

In conclusion, there was not sufficient competent evidence in the record to warrant the making of the ALJ's award because the Stipulation settling the employee's prior left shoulder claim did not mention a wrist injury, and the employer/insurer paid no consideration to settle the employee's left wrist injury. The employer paid for an EMG to the wrist, then canceled the surgery the day before it was scheduled without informing the employee. This conduct violates the spirit of The Workers' Compensation Law and should not be condoned.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{3} Shockley v. Laclede Electric Cooperative, 825 S.W.2d 44 (Mo. App. 1992).

{ }^{4}$ State of Missouri-Custodian of the Second Injury Fund v. Steck, 341 S.W.3d 869, 873 (Mo. App. 2011).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Lamy

Employee: Ronald B. Lamy

Injury No: 17-105467

Dependents: N/A

Employer: Stahl Specialty Company

Additional Party: N/A

Insurer: Self c/o Constitutional States Services, LLC

Hearing Date: May 4, 2021

Briefs Filed: June 4, 2021

Checked by: MSS/pe

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: 08/26/2016
5. State location where accident occurred or occupational disease was contracted: Johnson County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? Not on date claimed
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: No new accident occurred on February 13, 2017
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: N/A
2. Nature and extent of any permanent disability: None
3. Compensation paid to-date for temporary disability: $\-0-
4. Value necessary medical aid paid to date by employer/insurer? $\-0-

WC-32-R1 (6-81) mele/w/s/sample

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald B. Lamy

1. Value necessary medical aid not furnished by employer/insurer? Request for medical treatment denied.
2. Employee's average weekly wages: $\ 1,108.93 per week
3. Weekly compensation rate $\$ 726.32 / \ 477.33
4. Method wages computation: by stipulation

1. Amount of compensation payable: None
2. Second Injury Fund liability: N/A
3. Future requirements awarded: None

Employee: Ronald B. Lamy

Injury No: 17-105467

Dependents: N/A

Employer: Stahl Specialty Company

Additional Party: N/A

Insurer: Self c/o Constitutional States Services, LLC

Hearing Date: May 4, 2021

Briefs Filed: June 4, 2021

Checked by: MSS/pe

On May 4, 2021, the employee and employer appeared for a temporary hearing by way of Zoom technology. The Division had jurisdiction to hear this case pursuant to Section 287.110. The employee, Ronald B. Lamy, appeared in person and by Attorney Jerry Kenter. The employer appeared through Counsel Joseph R. Ebbert.

1. The parties stipulated that there was an employee and employer relationship between the parties on February 13, 2017.
2. The parties were covered by Missouri Workers' Compensation Act at that date.
3. The employer was self-insured which was administered by a Third Party Administrator, Constitutional States Services, LLC.
4. The employee's average weekly wage was $\ 1,108.93. The employee's compensation rate for the date of claimed injury was $\ 726.32 for temporary total disability an $\ 477.33 for permanent partial disability.

The parties requested the Division to determine:

1. Did the accident arise out of the scope and course of employment by the employee with the employer on February 13, 2017?
2. Was proper notice of the alleged injury given by the employee to the employer in a timely fashion?

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald B. Lamy

Injury No: 17-105467

1. Was the complained incident the prevailing factor of the employee's resulting disability and need for medical treatment on February 13, 2017?
2. Are medical benefits owed for said alleged accident date pursuant to the revisions of R.S.Mo. 287.140 ?
3. Does the Missouri Division of Workers' Compensation have jurisdiction in order to review the terms of the prior settlement that took place May 2, 2018?
4. Is the employee entitled to any benefits for alleged accident or occupational disease from February 13, 2017?
5. Is the employee's request for medical benefits and compensation barred by the prior settlement of the August 26, 2016 date of injury/

Claimant's evidence existed of the testimony of the Claimant, as well as the following Exhibits:

Claimant's Exhibit No. 1 -- Medical records pages 1 through 494

Claimant's Exhibit No. 2 -- Anne Rosenthal, M.D., report dated 07/20/2020 (5 pages)

Claimant's Exhibit No. 3 -- Job description (3 pages)

Claimant's Exhibit No. 4 -- 60-day Pleading of Dr. Anne Rosenthal's report dated 07/23/2020 (2 pages).

Employer's evidence consisted of no testimony and the following exhibits:

Employer/Insurer's Exhibit A - June 27, 2017 Claim for Compensation, Inj. \# 16-064651

Employer/Insurer's Exhibit B -- May 2, 2018, settlement Stipulation for Inj. \# 16-064651

Employer/Insurer's Exhibit C -- June 26, 2018 Claim for Compensation for Inj. \# 17-105467

Employer/Insurer's Exhibit D -- Medical records and reports of Dr. Gerald McNamara

All of the above Exhibit