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

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[^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 Exhibits of both parties were offered without objection and accepted by the Administrative Law Judge into evidence.

The employee, who is aged 59 years old, continues to work as supervisor for the employer at their facility in Warrensburg, Missouri. The employee, who is right-hand dominant, served in the Coast Guard from 1980 through 1985. He then went to work at Stahl Specialty Company in 1987. He first started working as a production worke, and then in 2016 became a working supervisor.

The employee has returned to work without restrictions since April of 2017.

The employer, who is involved in the manufacturer of various aluminum casting used in manufacturing, required the employer to supervise five (5) to twenty-five (25) people since 2016.

Although the employee is right-hand dominant, he would use his left hand during the scope and course of his employment since 1987 at Stahl Specialty Company.

The employee developed problems with his left arm and was referred by the employer to Dr. Gerald McNamara in August 2016. At that time, the employee acknowledged telling Dr. McNamara that he had issues with his shoulder and his left hand.

As a result of the issues with his left upper extremity, the employee filed a Claim for Compensation with the Missouri Division of Workers' Compensation (Employer's Exhibit A). In that claim which was identified as Injury Number 16-064651, the employee referenced a date of injury of August 26, 2016. In said Claim for Compensation, the employee identified the body part injured as the left upper extremity. The allegations of the injury was an occupational disease which was pled as follows:

"employee, while in the course and scope of his employment suffered an accident, series of accidents or occupational disease while performing foundry processes of repetitive lifting and throwing of aluminum which were the prevailing factors in his resulting injuries and disability. Employee is entitled to receive and make demand for such medical care and treatment as will cure and relieve him from the effects of the injuries pursuant to $\S 287.140$ R.S.Mo. Employee is further entitled to receive and makes demand for temporary total disability benefits pursuant to $\S 287.160 and \S 287.170$ R.S.Mo." (Exhibit A pages 2-3)

It should be noted that the alleged date of injury for the 2016 claim of August 26, 2016 was five (5) days before he saw Dr. Gerald McNamara on August 31, 2016.

At the time of the first appointment with Dr. McNamara, the employee was complaining of left shoulder pain and numbness and tingling in his left hand. (Exhibit D page 53) After conservative care and radiological testing, it was ultimately decided for the employee to undergo surgery on October 11, 2016. At that time, Dr. McNamara performed an arthroscopic decompression acromioplasty with repair rotator cuff full-

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald B. Lamy

Injury No: 17-105467

thickness tear and excision distal clavicle, left shoulder. (Exhibit D page 41) Following the surgery, the employee was off work until October 24, 2016. Thereafter, he was allowed to return to work effective October 24, 2016 with right-handed work only, with no lifting more than ten (10) pounds with the right hand and no left-handed work. (Exhibit D page 38) After the January 16, 2017 appointment, the employee was allowed to use the left arm up to five (5) pounds below the shoulder and no lifting above the shoulder. (Exhibit D page 25)

At the next appointment on February 13, 2017, Dr. McNamara believed that the employee was ready to begin work conditioning to prepare him to return to work. The doctor also noted that the employee still had the carpal tunnel syndrome that may need to be addressed in the future. The work restrictions at that time remained at five (5) pounds below the shoulder and no lifting above the shoulder with the employee to return for an evaluation in four (4) weeks. (Exhibit D page 22)

At the next appointment on March 13, 2017, the employee was released to return to work without restrictions and to be seen for a repeat evaluation in four (4) to six (6) weeks. (Exhibit D page 16) At that next appointment on April 10, 2017, the employee was placed at maximum medical improvement with a determination that there was no need for follow-up care. (Exhibit D page 13) Following the release from care, Dr. McNamara rated the employee at 4% to the left upper extremity without the need for further medical care. (Exhibit D page 9) It was after the rating from Dr. McNamara was issued that the above-mentioned Claim for Compensation was filed by the employee and his attorney.

Following the filing of the Claim for Compensation, the employee was then evaluated by Dr. James Stuckmeyer at the request of his attorney. Dr. Stuckmeyer evaluated the employee on November 9, 2017. His report from that examination is located in Exhibit 1, pages 476 through 481. Dr. Stuckmeyer rated the employee at 35% permanent partial disability to the left shoulder. (Exhibit 1 page 480) In addition to providing a rating for the left shoulder, Dr. Stuckmeyer also was of the opinion that the employee still had evidence of left carpal tunnel syndrome. Dr. Stuckmeyer related that condition to the employee's work activity and that surgical intervention might be appropriate. Dr. Stuckmeyer did not assign any particular time period for when this left carpal tunnel syndrome arose. (Exhibit 1 page 480)

Following the ratings from Dr. McNamara and Dr. Stuckmeyer, the matter was ultimately resolved for 12.5% to the left shoulder. The Settlement Stipulation further provided that the employee was settling all issues between the parties. That settlement was finalized on May 2, 2018. Nothing in the Settlement Stipulation excluded any particular claims that were still open that existed at that time and clearly represented an intention to resolve all pending issues between the parties.

Fifty-five (55) days later, the incident claim in question was filed by the employee and his attorney on June 26, 2018. (Exhibit C) In that Claim for Compensation, they identified the left wrist as the body part injured. Like the earlier claim, the allegations of injury are as follows:

Page 6

"Impolyee, while in the course and scope of his employment suffered an accident, series of accidents or occupational disease while performing foundry processes of repetitive lifting and throwing of aluminum which were the prevailing factors in his resulting injuries and disability. Employee is entitled to receive and make demand for such medical care and treatment as will cure and relieve him from the effects of the injuries pursuant to $\S 287.140$ R.S.Mo.. Employee is further entitled to receive and makes demand for temporary total disability benefits pursuant to $\S 287.160 and \S 287.170 R.S.Mo." (Exhibit C pages 1-2)$

Following that Claim for Compensation, the employee was ultimately referred to Dr. McNamara for evaluation of his condition. On August 19, 2019, Dr. McNamara referenced the fact that the employee was tentatively scheduled for left carpal tunnel release on August 23, 2019. However, Dr. McNamara also indicated that on the date of initial evaluation in 2016 the employee complained of left shoulder as well as numbness and tingling in his left hand. He noted that the treatment for the left hand was put on hold and did not take place before the settlement. Nevertheless, Dr. McNamara was of the opinion that the employee's hand complaints are related to the original work injury dated August 25, 2016. (Exhibit D page 6)

Subsequently on March 17, 2020, Dr. McNamara further indicated that it was his opinion that the original work injury from August 2016 was the cause of the left carpal tunnel syndrome. Based upon this opinion, the treatment scheduled by Dr. McNamara was denied as being precluded by the earlier settlement.

In addition to Dr. McNamara, the employee was also referred to Dr. Anne Rosenthal by his attorney. Dr. Rosenthal saw the employee on/or about July 20, 2020 from which she generated a report. (Exhibit 2) That examination was conducted virtually due to the ongoing Covid 19 pandemic. Dr. Rosenthal noted that the employee's left hand numbness was noticed by the employee years ago at work. Contrary to Dr. McNamara, Dr. Rosenthal opined that the employee's left carpal tunnel syndrome arose from an alleged injury of February 13, 2017 based upon the later reference by Dr. McNamara in the office notes from that date. Dr. Rosenthal did not know that the employee was not using his left hand from the date of surgery in October of 2016 until March of 2017. (Exhibit 2, page 4-5)

Based upon the limited contact between the employee and Dr. Rosenthal, as well as the records of Dr. McNamara I find that the opinions expressed by Dr. McNamara to be more credible and find those to be accepted by this Court. I find that February 13, 2017 was not the prevailing factor for the claimed injury.

The first issue to address is did the employee have the alleged carpal tunnel syndrome prior to the settlement that was approved in May of 2018. Furthermore, it is

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald B. Lamy

Injury No: 17-105467

needed to be determined as to where the occupational disease came from and what

activity was the prevailing factor. In this case, the treating physician, Dr. McNamara,

clearly states that the prevailing factor for the left carpal tunnel syndrome was the same as

the shoulder existed in August of 2016 when he first saw the employee. That claim was

resolved and closed in May of 2018 and cannot now be reopened as this Court lacks

jurisdiction to amend a prior final settlement.

It is well noted that the distinction between accidental injury and occupational

disease like carpal tunnel is that an occupational disease accrues over time. It does not

become an injury until it causes the employee to become disabled and seek medical

treatment. Krysl v. Treasurer of Missouri Custodian Second Injury Fund,

591S.W.3D13(Mo.CourtApp.E.D.2019).

In a similar situation in Miller v. U.S. Airway Group, Inc., 316S.W.3D462

(MoCourtapp.W.D.2010) An employee who closed out a claim including carpal tunnel

syndrome, attempted to pursue a second claim for carpal tunnel upon worsening of her

conditions. In Miller, the employee resolved a 2004 claim for injuries to her upper

extremity and after that claim had been settled and finalized, the employee filed a new

claim three (3) years later claiming the worsening of her condition. The Labor

Commission and the Court of Appeals affirmed the denial of compensation on the later

claim in that the employee did not suffer a new and distinct injury in 2007 because the

repetitive trauma stemmed from the same carpal tunnel syndrome that was diagnosed and

dealt with in years prior.

Likewise, in this case, the employee had made a claim for injuries to his left upper

extremity for repetitive activity and presented complaints concerning his left shoulder and

left hand to Dr. McNamara in August of 2016. Once the treatment for left shoulder was

ultimately concluded, the employee elected to settle that claim with the knowledge of the

problems with his left hand and the opinions previously expressed by Dr. Stuckmeyer six

(6) months before the first case was settled. It is clear that the employee cannot come

back to try to enhance the value of a prior final settlement because of what is perceived as

a worsening of the condition that exceeds the value of the original settlement.

In Ritch v. Professional Transport, Inc., 599S.W.3D492 (Mo.CourtApp.S.D.2020)

the Court of Appeals affirmed the Labor Commission's rejection of an employee's

attempt to enhance the value of a settlement. The employee in the Ritch case settled the

claim in April of 2017 which was approved by the Administrative Law Judge based upon

31% to the body as a whole. Then in August of 2019, the employee filed a Petition

entitled Petition to Change or Review Award under R.S.Mo. 287.470. The employee

alleged that his condition had worsened and that he should have an enhanced disability.

The Labor Commission as well as the Court of Appeals found that there was no

jurisdiction to review this settlement, and that it was final and could not be altered or

amended. The Court noted the language in the Settlement Stipulation which clearly set

forth the finality of the settlement.

Page 8

Likewise, is in Shockley v. LaClede Electrical Coop 825S.W.2d44 (Mo.CourtApp.S.D.1992), attempts to circumvent an earlier settlement was rejected. In rejecting the attempt, the Court of Appeals noted that the Commission as well as the Division lacks any jurisdiction to review a prior approved final settlement. The Court noted that the impact of R.S.Mo. $\S 287.390$ contemplates the settlement of an entire claim and the discharge of the employer's entire liability and not the splitting up of the claim into components parts some of which are settled and released and other which are left to be adjudicated by the Commission. The Court noted that a Compromised Settlement under $\S 287.390$ is a voluntary act of the parties themselves with the authority of the Commission limited to the mere approval or disapproving of the settlement already made. The employee's only option is a Court of Equity in the case of fraud or mistake. In this case, there is no evidence of fraud or mistake, as the employee was aware of the left carpal tunnel problems prior to the settlement and prior to the filing of the original claim.

I find that the employee's claim in this matter is barred as it was resolved by the prior settlement in Injury Number 16-064651. The employee was aware of the situation when he agreed to the voluntary settlement. He had been advised of the condition by Dr. McNamara, and Dr. Stuckmeyer, and yet he elected to settle the claim. There was not even an attempt to carve out the carpal tunnel condition. Rather, all issues were settled between the parties based upon a payment of 12.5 % to the shoulder. This was a compromised settlement that the parties voluntarily agreed to which now must be upheld.

I certify that on 7-8-21

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.


Made by: Mark Siedlik

Mark S. Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation