Issued by THE LABOR AND INDUSTRIAL RELATIONS … · wrist, as well as numbness and pain in his left hand. Employee settled his claim against the employer/insurer for the primary injury

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge)

Injury No.: 16-029680 Employee: Michael Lexow

Employer: Boeing Company (settled)

Insurer: Self-Insured (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to§ 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

Introduction

The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability.

The administrative law judge determined that the Second Injury Fund is liable for permanent total disability benefits.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge misapplied§ 287.220.3 RSMo by including preexisting conditions within her analysis that do not satisfy the criteria for permanent total disability claims against the Second Injury Fund.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Findings of Fact

At the outset, we defer to, and hereby adopt as our own, the administrative law judge's assessment that employee was a credible witness. From employee's credible testimony, we derive the following facts regarding employee's vocational history.

After graduating high school, employee attended a technical college and earned a certificate in aircraft maintenance. This training and certification allowed him to inspect, repair, and maintain aircraft. From 1976 through 1979, employee served in the United States Air Force performing aircraft and jet engine maintenance. Following an honorable discharge, employee continued to perform jobs in the private sector involving aircraft and aircraft simulator maintenance, inspections, service, and repair.

Employee last worked as an aircraft simulation technician for the employer named in this claim. This position was physically demanding, and required heavy lifting, hand intensive activities, extended kneeling and squatting, use of numerous hand tools, and


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overhead work. Employee stopped working for employer in early 2016 in order to undergo left knee and right shoulder surgeries. Although he had intended to return to work, employee was ultimately unable to do so owing to ongoing medical restrictions from his surgeries.

Employee brings this claim against the Second Injury Fund alleging he is permanently and totally disabled as a result of the combination of left carpal tunnel syndrome sustained while working for employer, and his numerous preexisting conditions of ill-being.

Preexisting conditions of ill-being

Right Shoulder. In 1998, employee injured his right shoulder in a skiing accident. This injury required surgery. In 2002, after employee suffered a new falling injury, treating physicians diagnosed him with chronic dislocation of the right shoulder. Employee underwent physical therapy and received injections. In 2015, an MRI revealed significant degenerative changes, mild instability, and a superior labral tear. In January 2016, employee underwent a right shoulder capsular release, biceps tenodesis, and AC resection. The treating surgeon, Dr. Peter Anderson, believes employee may need a shoulder replacement in the future.

Leading up to the primary injury, employee suffered considerable difficulty with his right shoulder, including frequent dislocation. As a result, he tried to keep his arm as close to his side as he could while working, and asked for help doing any type of overhead or heavy lifting.

Employee's medical expert, Dr. David Volarich, rated employee's preexisting disability referable to the right shoulder at 60% permanent partial disability. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the right shoulder was equal to 50%, or 116 weeks.

Left shoulder. In January 2010, employee suffered a left shoulder injury. He received treatment in the form of physical therapy and injections. Employee continues to experience pain and limitations in his left shoulder.

Dr. Volarich rated employee's preexisting disability referable to the left shoulder at 20% permanent partial disability. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the left shoulder was equal to 15%, or 34.8 weeks.

Left biceps. In January 2006, employee suffered an injury to his left arm. Treating physicians diagnosed a ruptured biceps. Employee underwent a distal biceps tendon repair surgery, but continued to have some weakness in his arm.

Dr. Volarich rated employee's preexisting disability referable to this condition at 20% permanent partial disability. We find that, at the time of the April 2016 primary injury,


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employee's permanent partial disability with respect to this condition was equal to 15%, or 33.3 weeks.

Preexisting bilateral carpal tunnel syndrome. In 2003, employee developed bilateral carpal tunnel syndrome (CTS) as a result of repetitive work for his employer. Employee underwent bilateral carpal tunnel release surgeries in 2004. Employee suffered a loss of endurance and dexterity, and needed to take more breaks at work.

On September 9, 2005, employee settled a workers' compensation claim for the 2003 bilateral CTS consistent with permanent partial disability ratings of 17 .5% of the left wrist and 18.6% of the right wrist, plus a 10% load or multiplicity factor. On December 12, 2005, employee settled a related claim against the Second Injury Fund consistent with a permanent partial disability rating of 25% for the preexisting right shoulder condition.

Dr. Volarich rated employee's preexisting permanent partial disability referable to bilateral CTS at 35% of each wrist. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to bilateral CTS was equal to 18.6% of the right wrist, or 32.55 weeks, and 17.5% of the left wrist, or 30.625 weeks.

Left knee. In 2002, employee suffered an injury to his left knee in the same fall referenced above that injured his right shoulder. In 2004, after an MRI revealed a torn medial meniscus in the left knee, Dr. Anderson performed a surgical repair. Employee experienced some improvement from this surgery, but continued to suffer left knee pain, as well as difficulty squatting, running, jumping, kneeling, and walking long distances.

In 2014, employee sustained a new injury to his left knee while hurrying to cross a street; employee's course of treatment culminated with a second surgical meniscus repair in January 2016. Following the surgery, employee continued to suffer from swelling, difficulty with stairs, and difficulty with squatting or kneeling at work. Following a September 2016 partial meniscectomy and chondroplasty, employee ultimately underwent a total knee replacement in February 2017.

Dr. Volarich rated employee's preexisting disability referable to the left knee at 65% permanent partial disability. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the left knee was equal to 55%, or 88 weeks.

Low back. Employee began suffering from low back pain in 2004. Treating physicians diagnosed degenerative disc disease and recommended medications, injections, and physical therapy. Employee's symptoms continued to increase, and when conservative treatments were ineffective in addressing his pain, employee underwent a radiofrequency ablation from L3 to L5 in 2015. Employee continued to suffer with constant low back pain which increased with sitting or any activities. Employee required help from coworkers to lift heavier items at work.

Dr. Volarich rated employee's preexisting disability referable to the low back at 25% permanent partial disability of the body as a whole. We find that, at the time of the April


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2016 primary injury, employee's permanent partial disability with respect to the low back was equal to 20%, or 80 weeks.

Neck. In December 2013, employee was lifting a canopy at work when he felt a pop in his neck, followed by radiating pain from his neck into his shoulder and hand. In May 2014, employee underwent an anterior cervical discectomy, decompression, and fusion at C4-5, C5-6, and C6-7. Employee missed nearly two months of work following the surgery. While the surgery relieved the radiating pain into employee's shoulder and hand, employee continues to suffer from pain, stiffness, and limited motion in his neck.

Dr. Volarich rated employee's preexisting disability referable to the neck at 40% permanent partial disability of the body as a whole. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to the neck was equal to 30%, or 120 weeks.

Heels. In 2006, employee developed pain in both of his heels. Treating physicians diagnosed bilateral plantar fasciitis, and a bone spur in the left heel. Employee received treatment in the form of orthotics and injections. Employee continued to suffer pain and fatigue in his feet while working.

Dr. Volarich rated employee's preexisting disability referable to the heels at 5% permanent partial disability of each foot. We find that, at the time of the April 2016 primary injury, employee's permanent partial disability with respect to plantar fasciitis was equal to 3.5% of each foot at the 150-week level, or 5.25 weeks.

Eyesight. In 2005, treating physicians diagnosed employee with pattern dystrophy, a congenital visual condition which caused employee difficulty when looking at wiring and reading schematics at work. However, we note that Dr. Volarich did not rate any preexisting permanent partial disability referable to employee's eyesight. Nor did employee provide any other evidence that would permit us to apply the regulatory provisions for evaluation of visual disabilities.1 For this reason, we find that employee did not suffer any preexisting permanent partial disability referable to his vision.

Primary iniury - left carpal tunnel syndrome

In November 2015, employee developed increasing numbness and tingling in his dominant left arm and hand. In April 2016, Dr. Anderson diagnosed left carpal tunnel syndrome (CTS). The parties stipulated that April 13, 2016, was the appropriate date of injury for employee's left CTS, and also that employee reached maximum medical improvement from the effects of the primary left CTS on December 9, 2016. At that time, employee continued to experience an ongoing dull ache at the base of his left wrist, as well as numbness and pain in his left hand.

Employee settled his claim against the employer/insurer for the primary injury consistent with a rating of 17.5% permanent partial disability of the left wrist. We find this rating to

1 See 8 CSR 50-5.020.


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be persuasive. We find that employee suffered 17.5% permanent partial disability referable to the left wrist as a result of the primary injury of left CTS.

As of December 9, 2016, employee was 58 years of age, and had not worked for nearly a year. Employee believes he remains incapable of returning to or sustaining work in the open labor market owing to his bilateral shoulder problems (which hinder overhead work), bilateral hand problems (which hinder hand intensive work), back problems (which prevent prolonged sitting), neck problems (which prevent him from holding his head in one position for extended periods), left knee problems (which hinder squatting, kneeling, or high impact activities), and his feet problems, which impact his ability to endure prolonged standing and walking.

Expert opinion evidence regarding permanent total disability

In support of his claim against the Second Injury Fund, employee relies on the opinion of Dr. Volarich with respect to permanent total disability. Dr. Volarich believes employee is permanently and totally disabled as a result of the primary injury in combination with employee's preexisting disability referable to the 2003 bilateral CTS, right shoulder, left shoulder, left knee, left bicep, bilateral heels, low back, and neck conditions. At his deposition, on cross-examination, Dr. Volarich made clear that his opinion that employee is permanently and totally disabled includes consideration of each of these enumerated conditions. See Transcript, page 490.

Employee also presents the expert vocational opinion of Ms. Delores Gonzalez, who believes employee is not currently capable of any competitive work for which there is a reasonably stable job market, because of the combination of the effects of the primary injury with all of his claimed preexisting disabling conditions. As with Dr. Volarich, Ms. Gonzalez made clear that she factored each of the conditions enumerated above into her ultimate vocational opinion. See Transcript, pages 597-98.

Given our findings set forth above with respect to the nature and extent of employee's preexisting disabling conditions, and as further discussed below, employee's only qualifying preexisting disabilities for purposes of establishing Second Injury Fund liability in this claim are the disability referable to the right shoulder, neck, low back, and left knee. There is no evidence on this record that would suggest (let alone persuasively demonstrate) that employee is unable to compete for work in the open labor market owing to the effects of the primary left CTS injury in combination with only his preexisting disabling right shoulder, neck, low back, or left knee conditions. Accordingly, we find that employee is not permanently and totally disabled based on a combination of the effects of the primary injury and his preexisting disability referable to the right shoulder, neck, low back, or left knee.

Employee: Michael Lexow

Conclusions of Law

Second lniury Fund liabilitv

Injury No.: 16-029680

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Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's claim for the primary injury involves an occupational disease, and because both the stipulated date of injury and the date that he filed his claim2 are subsequent to January 1, 2014, we must apply the new criteria set forth under§ 287.220.3 RSMo for establishing a compensable claim against the Second Injury Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. 2019) and Krysl v. Treasurer of Mo. as Custodian of the Second Injury Fund, No. ED107591 (Mo. App. Oct 1, 2019).3

In relevant part, the statute provides as follows:

Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

2 Employee filed his claim for compensation with the Division of Workers' Compensation on May 4, 2016. 3 We note that the hearing in this matter took place on March 14, 2019, prior to the issuance of the decision in Cosby on June 25, 2019, and the decision in Krysl on October 1, 2019. Given these circumstances, we invited the parties to address, in their briefs, the effect of the new criteria set forth under§ 287.220.3 RSMo upon the issues presented in this appeal. Both parties have done so. Neither party requested an opportunity to submit additional evidence to the Commission.


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b. Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]

§ 287.220.3(2) RSMo.

We have found that employee's preexisting right shoulder, left knee, low back, and neck conditions resulted in over 50 weeks of permanent partial disability.4 However, with regard to each of employee's other claimed preexisting conditions, in light of our findings of fact set forth above, we must conclude that none of these satisfy the criteria under§ 287.220.3(a)a, because none of these conditions involved preexisting permanent partial disability equal to a minimum of fifty weeks of compensation.

The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and a single preexisting disabling condition that satisfies the enumerated criteria under§ 287.220.3(a)a, but rather from the combination of his primary injury and a// of his claimed preexisting disabling conditions, including those conditions that do not satisfy§ 287.220.3(a)a. After careful consideration, we must conclude employee is not entitled to permanent total disability benefits from the Second Injury Fund, for the following reasons.

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

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

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

4 We acknowledge employee's argument that we should combine our separate permanent partial disability findings referable to employee's 2003 right and left CTS in order to satisfy the 50-week threshold. However, because this injury was claimed to have resulted from an occupational disease, we conclude the disability referable to the 2003 CTS would not, in any event, satisfy§ 287.220.3(2}(a)a(ii), because this disability was not the "direct result of a compensable injury as defined in section 287.020," but rather the result of an occupational disease as defined in § 287.067 RSMo. Accordingly, we need not consider or decide, at this time, whether§ 287.220.3 permits us to combine individual permanent partial disabilities where they are part of a single workers' compensation claim for purposes of meeting the 50-week threshold.


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Employee, in his brief, argues that there is no requirement in the Missouri Workers' Compensation Law that his experts (or the fact finder) delineate which of his multiple claimed disabilities contributed to cause his claimed permanent and total disability. We disagree. Owing to the requirements of the amended test for permanent total disability claims against the Second Injury Fund, we conclude it is necessary to identify, with specificity, which of an employee's identified preexisting disabling conditions are claimed to combine with the primary injury to render the employee permanently and totally disabled.

If this were not the case, we would be permitted to include all identified preexisting disabilities in our analysis, without regard to whether they individually satisfy the enumerated criteria under§ 287.220.3(a)a. Such an analysis would require us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply§ 287.220.3(a)b as if it read as follows:

Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, and all other disability existing at the time the last injury was sustained, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

Pursuant to the strict construction mandate, we cannot read the foregoing additional words into the language of§ 287.220.3(a)b. Rather, we conclude that the language of the statute requires that an employee prove that his or her permanent total disability results from a combination of the primary injury and a preexisting disability that meets the 50-week and categorical criteria under§ 287.220.3(a)a.

We also acknowledge employee's argument that we should credit the testimony from Dr. Volarich describing an interaction, or synergism, between the effects of his primary injury and all of his preexisting disabling conditions. Employee argues this evidence is sufficient to support a finding that employee's preexisting conditions "directly and significantly aggravate or accelerate" the effects of the primary injury, for purposes of satisfying the criteria under§ 287.220.3(a)a(iii). We deem employee's argument to be unavailing, however, because it once again assumes that we can include all preexisting conditions in a combination permanent total disability claim against the Second Injury Fund. As stated above, we are of the opinion that the employee must prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test.

Again, there is no evidence on this record that suggests employee is permanently and totally disabled as a result of the combination of the primary injury with his preexisting disability referable to the right shoulder, left knee, low back, or neck. Accordingly, we have found that employee is not permanently and totally disabled as a result of a


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combination of the primary injury and his preexisting right shoulder, left knee, low back, or neck conditions. It follows, and we so conclude, that employee has failed to satisfy the requirements of§ 287.220.3.

For the foregoing reasons, we deny employee's claim against the Second Injury Fund.

Decision We reverse the award of the adm.inistrative law judge.

Employee's claim against the Second Injury Fund is denied because his evidence fails to satisfy the standard set forth under§ 287.220.3.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued June 16, 2019, is attached solely for reference.

Given at Jefferson City, State of Missouri, this :zo+!' day of March 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

.··f-~ Robert W. Cornejo, airman

(R~~ Reid K. Forrester, Member

DISSENTING OPINION FILED Shalonn K. Curls, Member

Secretary


DISSENTING OPINION

After a review of the evidence, I am convinced that employee has met his burden of proving his entitlement to permanent total disability benefits from the Second Injury Fund. The facts of this case amply demonstrate that the Commission majority's reading of the statute is unworkable from the standpoint of protecting Missouri employers and encouraging the employment of the partially disabled.

History and purpose of the Second lniury Fund The Commission majority's analysis is remarkably devoid of context. I disagree with the unstated premise that the strict construction mandate requires that we ignore history, or consider statutory language in a vacuum. As the courts of our state have long recognized, it is crucial that we consider whether the result, in any case involving the Second Injury Fund, will vindicate the beneficent purposes for which the Fund was created:

The purpose of the Second Injury Fund is twofold: to encourage the employment of individuals who are already disabled; and to relieve an employer or his insurer of liability for the previously disabled employee's total and permanent disability where that disability is not specifically attributable to an injury suffered during the period of employment with that employer.

Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987).

Of course, having been a member of the General Assembly that approved the 2013 amendments to§ 287.220 RSMo, I recognize that these changes represent an effort to preserve the solvency of the Second Injury Fund, and its ability to properly compensate injured workers rendered unable to compete in the open labor market: "[A]t the time section 287.220 was amended, the fund was insolvent. Under such circumstances, the legislature justifiably sought to limit the number of workers eligible for fund benefits." Cosby v. Treasurer, 579 S.W.3d 202, 210 (Mo. 2019). I disagree, however, that these amendments require that we deny the claim of this permanently and totally disabled worker.

The courts of this state have long held that the fact-finder in a workers' compensation claim is permitted to consider factors such as an employee's age, work history, and potential for retraining, in claims against the Second Injury Fund for permanent total disability benefits. Tiller v. 166 Auto Auction, 941 S.W.2d 863, 866 (Mo. App. 1997). I conclude that where an employee has multiple preexisting disabling conditions that satisfy the new 50-week threshold and categorical criteria under§ 287.220.3(a)a, I am not prevented from considering the employee's other, less serious preexisting disabling conditions in assessing whether the employee is permanently and totally disabled, no more than I am prevented from considering these other factors that bear upon their ability to compete for and secure work in the open labor market.


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Employee has satisfied§ 287.220.3 RSMo Employee has presented uncontested expert testimony from a physician and a vocational expert. Both agree that, after suffering the primary injury, employee is unable to compete for work in the open labor market. Both agree that this condition of permanent total disability is not the product of the last injury considered in isolation, but that it instead results from the combination of employee's primary injury and his preexisting disabling conditions, including his significant disability affecting the right shoulder, left knee, low back, and neck. The Second Injury Fund presented no evidence in its defense.

The question is whether employee has met his burden of proving Second Injury Fund liability for permanent total disability benefits under the following test:

Claims for permanent total disability under section 287 .200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:


(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]

Based on the wholly uncontested expert opinion evidence, I find that employee 1) had a medically documented preexisting disability with respect to his right shoulder, left knee,


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low back, and neck individually equaling more than 50 weeks of disability compensation, 2) that such disabling conditions were either a direct result of a compensable workers' compensation injury or otherwise (as described in Dr. Volarich's opinion) directly and significantly accelerated and aggravated the disability resulting from the primary injury, 3) that employee sustained a subsequent compensable workrelated injury affecting his left wrist, 4) that the prior right shoulder, left knee, low back, and neck conditions and the primary left wrist injury combine, and 5) that the result of this combination is to render employee unable to compete for work in the open labor market, when I consider his overall presentation as of December 9, 2016, the date of maximum medical improvement. I conclude that the Second Injury Fund is liable for permanent total disability benefits.

I recognize that the majority purports to apply the mandate of strict construction as support for its choice to exclude several of employee's preexisting disabling conditions from its assessment of Second Injury Fund liability. I am convinced, however, that the majority's analysis impermissibly adds language to the statutory test that is not present. Specifically, the majority applies § 287.220.3(a)b as if it read as follows:

Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined only with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, and no other preexisting disability, results in a permanent total disability as defined under this chapter[.]

As further discussed immediately below, I do not believe we are permitted to deny Second Injury Fund liability where an employee (as here) has proven preexisting disability that 1) satisfies the criteria, 2) combines with the primary injury, and 3) where the employee is permanently and totally disabled upon reaching maximum medical improvement from the effects of the work injury. If this were the meaning and intended application of§ 287.220.3, the statute itself would have specifically so stated.

Enhanced employer exposure for permanent total disability claims The Commission majority's analysis implicitly presumes that our legislature intended that employers remain liable whenever (as will almost always be the case) an employee has any preexisting condition that contributes to the condition of total disability but does not satisfy the criteria under§ 287.220.3(2)(a)a. This is because, "in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury[.]" Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963). Indeed, as expressly stated under the new statute, employers are only protected from this enhanced liability if the Second Injury Fund is shown to be liable:

When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.


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I reject the assumption that when this measure was passed in 2013, our legislature intended that employers maintain liability for permanent total disability benefits whenever it is shown that any factor which contributes to causing such disability does not meet the criteria set forth in § 287.220.3(2)(a)a. Rather, as the Missouri courts consistently instruct (and as I can uniquely and personally attest) we can safely presume that our legislature was aware of the state of the Missouri case law on the topic of Second Injury Fund liability at the time it enacted the 2013 amendments. Specifically, we were aware of the long line of decisions from our courts declaring the purpose underlying the Second Injury Fund:

The purpose of the Fund is to encourage employers to hire partially disabled applicants. The hiring of such individuals raises the possibility that the partial disability will combine with a later, on-the-job injury to produce a greater (if not total) permanent disability. The legislature wanted to assure employers that, in such cases, they would not be exposed to a greater amount of liability than that which results from the work-related injury. Thus, it limited the employer's liability to that part of the disability that can be attributed to the last injury alone.

Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004)(citations omitted). 1

Given the Commission majority's reading of the statute, this employer should be held liable for employee's condition of permanent and total disability resulting after the April 2016 primary injury, solely because employee suffered from some preexisting disabilities that do not, when they are considered individually, satisfy the requirements under§ 287.220.3(2)(a)a. In other words, according to the analysis adopted by the Commission majority, this employer's commendable willingness to provide work to employee-despite his suffering from numerous preexisting disabilities-has worked the result of exposing employer to liability for weekly disability payments for the rest of employee's lifetime.

This result is so clearly antithetical to the well-established purposes underlying the Second Injury Fund, and constitutes such a drastic departure from the state of the law at the time the 2013 amendments were considered and passed, that one would expect our legislature to have expressly confronted the issue. But we did not. Nor did we abrogate the long line of decisions declaring the purpose of the Second Injury Fund. It stands to reason, then, that the Second Injury Fund should continue to pay claims, like this one, that vindicate its underlying purposes.

1 See also Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963); Meilves v. Morris, 422 S.W.2d 335, 338 (Mo. 1968); Bone v. Daniel Hamm Drayage Co., 449 S.W.2d 169, 171 (Mo. 1970); Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987); Lawrence v. Joplin R-V/11 School Dist., 834 S.W.2d 789, 793 (Mo. App. 1992); Wuebbeling v. West County Drywall, 898 S.W.2d 615,617 (Mo. App. 1995); Boring v. Treasurer of Missouri, 947 S.W.2d 483,488 (Mo. App. 1997); Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund, 126 S.W.3d 386,389 (Mo. 2004); Walls v. Treasurer of Mo., 207 S.W.3d 136, 138 (Mo. App. 2006); Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624,630 (Mo. 2012); and Treasurer of Missouri-Custodian of the Second Injury Fund v. Witte, 414 S.W.3d 455,460 (Mo. 2013).


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The only other possibility is that our legislature intended to shift the burden of compensating the most severely disabled workers upon the public. After all, if the employer or the Second Injury Fund are not liable, all of us will have to pay for the dramatically increased Social Security Disability claims and payments that will inevitably result. Of course, this third option would subvert not just the underlying purpose of the Second Injury Fund, but that of the Missouri Workers' Compensation Law as a whole, because "[t]he purpose of workers' compensation is to make industry bear the burden of compensating employees for injuries arising out of the scope and course of employment." Gaston v. J.H. Ware Trucking, Inc., 849 S.W.2d 70, 74 (Mo. App. 1993). I reject the proposition that a measure intended to promote and protect the solvency of the Second Injury Fund was, in reality, a silent plan to shift the burden of compensating the most severely injured workers to the public as a whole.

For all of the foregoing reasons, I disagree with the Commission majority's reading of the new statutory test. I am convinced that employee's evidence satisfies that test. I would affirm the decision of the administrative law judge and award permanent total disability benefits from the Second Injury Fund.

Because the Commission majority has decided otherwise, I respectfully dissent.

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD


Dependents: Margaret, Christopher and Nathan Lexow

Employer: Boeing Company (previously settled)

Additional Party: Second Injury Fund (SIF)

Injury No.: 16-029680

Before the

Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri Insurer: Self c/o Sedgwick Claims Management Services (previously settled)

Hearing Date: March 14, 2019 Checked by: KMH

FINDINGS OF FACT AND RULINGS OF LAW

I. 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 ofoccupational disease under the Law? Yes

4. Date of accident or onset of occupational disease: April 13, 2016

5. State location where accident occurred or occupational disease was contracted: St. Louis

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

I I. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his left hand and wrist due to repetitive work in the course and scope of his employment.

12. Did accident or occupational disease cause death? No Date of death? n/a

13. Part(s) of body injured by accident or occupational disease: left hand and wrist

14. Nature and extent of any permanent disability: 17.5% PPD of the left wrist previously paid by Employer, and permanent and total disability benefits payable by the SIF.

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

16. Value necessaiy medical aid paid to date by employer/insurer? None

WC-32-Rl (6-81) Page I

Issued by DIVISION OF WORKERS' COMPENSATION Injury No: 16-029680

Employee: Michael Lexow Injury No.: 16-029680

17. Value necessary medical aid not furnished by employer/insurer? Unknown

18. Employee's average weekly wages: $1,480.00

19. Weekly compensation rate: $886.92/$464.58

20. Method wages computation: Stipulation

COMPENSATION PAYABLE

21. Amount of compensation payable:

30,625 weeks of permanent partial disability from Employer $14,227.76

22. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund: to be determined Weekly differential of$422.34 payable by SIF for 30.625 weeks beginning December 9, 2016, and $886.92 weekly thereafter, for as long as provided by law.

TOT AL: TO BE DETERMINED

23. Future requirements awarded:

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 of25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Thomas Gregory

WC-32-Rl (6-81) Page 2


FINDINGS OF FACT and RULINGS OF LAW:


Dependents: Margaret, Christopher and Nathan Lexow

Employer: Boeing Company (previously settled)

Additional Party: SIF (only)

Insurer: Self c/o Sedgwick (previously settled)

InjuryNo.: 16-029680

Before the Division of Workers'

Compensation Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: KMH .

A hearing was held on the above captioned matter March 14, 2019. Michael Lexow (Claimant) was represented by attorney Tom Gregory. SIF was represented by Assistant Attorney General Madalyn Campbell. Employer/Insurer settled their liability prior to the hearing.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. At the request of the SIF, the Court takes judicial notice of the Division of Workers' Compensation file.

STIPULATIONS

The parties stipulated to the following:

I. Claimant sustained an injury by occupational disease on April 13, 2016, while in the course and scope of his employment for Employer.

2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the date of injury.

3. Employer's liability was self-insured c/o Sedgwick Claims Management Services. 4. Employer had notice of the injury and a Claim for Compensation was timely filed. 5. Claimant's average weekly wage was $1,480.00 yielding a rate of$886.92 for TTD/PTD

and $464.58 for PPD. 6. Employer paid no TTD or medical bills. 7. Claimant and Employer/Insurer settled Employer's liability for this claim for 17.5% PPD

of the left wrist on September 27, 2017. 8. Claimant reached MMI on December 9, 2016.

Poge3

Issued by DIVISION OF WORKERS' COMPENSATION Injury No: I 6-029680

ISSUES

The parties stipulated the sole issue for trial is the nature and extent of SIF liability.

FINDINGS OF FACT

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 61-year-old, left-handed, male who has been married to his wife Margaret for 38 years. Claimant has two dependent children. After graduating from high school, Claimant attended a technical college and earned a certificate in aircraft maintenance. This allows him to inspect, repair and maintain aircraft.

2. Claimant served in the United States Air Force, where he did aircraft and jet engine maintenance, from 1976 through 1979. He was honorably discharged with no service-connected disability.

3. After leaving the Air Force, Claimant worked for four different employers. All of his jobs involved maintenance and repair of aircraft and aircraft equipment. He worked for three years at Walston Aviation Company performing inspections, repairs, service, and upgrades to corporate jets and jet engines.

4. Claimant spent the next two decades working for Northwest Airlines. He worked on the hydraulic crew rebuilding aircraft and worked as an electrician. His duties were physical and hand intensive. Claimant was laid off in 2005 as Northwest Airlines was going out of business. He went to work as a flight simulator technician at Scott Air Force Base.

5. In October 2008, Claimant began working for Employer maintaining the Apache helicopter simulators. This was physically demanding and hand intensive work. Claimant lifted heavy parts, performed overhead work, worked in awkward positions, knelt and squatted for extended periods of time, and used numerous hand tools.

6. Claimant had a number of injuries prior to his 2016 primary injury. In 1998, he injured his right shoulder in a skiing accident. His shoulder was dislocated and required shoulder reconstruction, which was performed in Minnesota. He reinjured his shoulder a number of times and was diagnosed with chronic dislocation of the shoulder in 2002. He had physical therapy and injections at various times over the next several years. His symptoms did not improve, and Dr. Anderson ordered an MRI in 2015. This showed significant degenerative changes, mild instability and a SLAP tear. In January 2016, Claimant had a right shoulder capsular release, biceps tenodesis and AC resection. Dr. Anderson opined Claimant may need a shoulder replacement in the future.

WC-32-Rl (6-81) Page 4


7. Claimant testified he had difficulty using his right arm at work leading up to the primary injury. His arm popped out of socket frequently, and he had difficulty with heavy lifting or overhead work. He frequently had assistance from co-workers.

8. Claimant injured his left knee in 2002. He had conservative treatment, but continued to have pain and stiffness in his knee. In 2004, Dr. Anderson ordered an MRI, and performed surgery to repair a torn medial meniscus. Claimant had some improvement from the surgery, but continued to have pain. In 2014, Claimant reinjured his left knee and returned to Dr. Anderson. Claimant had a second meniscus repair in January 2016, but his symptoms continued. Leading up to the primary injury, Claimant had significant problems with his knee. He had swelling, difficulty with stairs, and he had trouble squatting and kneeling at work. His job involved substantial squatting and kneeling. Claimant's symptoms continued, and a June 2016 MRI showed progression of osteoarthritis and degeneration. Dr. Mall performed a partial meniscectomy and . chondroplasty in September 2016, and ultimately Claimant had a total knee replacement in 2017.

9. In 2003, Claimant developed bilateral carpal tunnel syndrome while working for Northwest Airlines. Conservative treatment did not relieve his symptoms, and he had bilateral carpal tunnel releases in 2004. Leading up to the primary injury, he had ongoing hand and wrist weakness. He had limited endurance and needed to take more breaks at work. His dexterity was limited. He continued to perform repetitive work, and developed pain in both wrists again in 2015. Claimant settled the 2003 case for 17 .5% PPD of the left wrist and 18.6% PPD of the right wrist. He also settled with the SIF based on a prior 25% PPD of the right shoulder.

10. Claimant developed low back pain in 2004. The doctor diagnosed degenerative disc disease, and recommended medications, injections, and physical therapy. Claimant's symptoms increased over the next several years. In 2014, he developed pain radiating into his legs. Conservative treatment and injections did not relieve these symptoms, and he had a radio frequency ablation in 2015 in an attempt to reduce his pain. Claimant continued to have constant low back pain that increased with sitting or any activities. This caused him problems at work because he could not lift as well. Many of the parts he worked with were heavy, and he got help lifting from co-workers.

11. In 2005, Claimant was diagnosed with Pattern Dystrophy, a congenital visual condition. This caused him difficulty when looking at wiring and reading schematics at work.

12. In January 2006, Claimant injured his left elbow and was diagnosed with a ruptured biceps. He had a distal biceps tendon repair, but continued to have some weakness in his arm.

13. In 2006, Claimant developed pain in his heels, and he was diagnosed with bilateral plantar fasciitis and a bone spur on his left heel. The doctor recommended orthotics and injections. Claimant continues to wear orthotics. Leading up to the primary injury, he had pain and fatigue in his feet when working.

WC-32-Rl (6-81) Page 5


14. In January 2010, Claimant injured his left shoulder at work. He had physical therapy and injections. He continues to have pain and limitations in his left shoulder, but his right shoulder has always been more limited than the left.

15. In December 2013, Claimant injured his neck at work. He was lifting a canopy and felt a pop in his neck. He developed pain radiating from his neck into his shoulder and hand. In May 2014, Dr. Bailey performed an anterior cervical discectomy, decompression, and fusion at C4-5, C5-6, and C6-7. Claimant missed nearly two months of work. When he returned to work, he had limited motion in his neck and had difficulty performing overhead work. He continued to have pain and stiffuess, but the surgery cleared up his arm radiation. Claimant continues to have daily neck pain and stiffness.

16. Claimant's primary claim involves left carpal tunnel syndrome as a result ofrepetitive work for Employer. In November 2015, Claimant noticed an increase in the numbness and tingling in his left arm and hand. At the same time, Claimant had severe left knee and right shoulder symptoms, and was waiting to schedule those surgeries until Employer closed for Christmas break. He intended to have his surgeries and return to work. While recovering from his knee and shoulder surgeries, he discussed his carpal tunnel symptoms with Dr. Anderson. Dr. Anderson ordered diagnostic studies, which showed left carpal tunnel syndrome on April 13, 2016.

17. Claimant reported the injury to Employer and requested treatment. Employer's injury report indicates Claimant's condition was likely the result of cumulative trauma and is probably work related. Employer's medical expert, Dr. Brown, opined Claimant's condition was not work related, but was due to scarring from his prior carpal tunnel surgery. Employer refused treatment, and Claimant went to Dr. Mall. He performed a left carpal tunnel release in October 2016. After follow-up care, Dr. Mall released him from treatment December 9, 2016.

18. For the first approximately six months of 2016, Claimant took sick time, vacation time, and short-term disability. He intended to return to work. By June 2016, he still had medical restrictions due to his recent surgeries, and Employer transferred him to longterm disability then told him to apply for Social Security disability given his physical limitations. Claimant has not been able to return to work.

19. Claimant continues to have a constant dull ache at the base of his left wrist. He has pain and numbness in his left hand. He has reduced grip strength and endurance, and has to compensate with his right hand. Claimant settled this case with Employer for 17.5% PPD of the left hand.

20. On a typical day, Claimant tries to exercise, and is limited to stretching and non-impact exercise. He is unable to lift more than 15 pounds. He can do light yard work, but has to take breaks. He is able to do some work around the house, but has to sit down frequently.

21. Claimant testified he is not able to work now because of the combination of his multiple injuries. His shoulder problems eliminate his ability to do overhead work. His hand

WC-32-RI (6-81) Page 6


problems keep him from doing any hand intensive work. His neck and back prob}ems keep him from sitting for any length of time. He has limited motion in his neck so is not able to look up for long or hold his head in any one position for an extended period of time, such as looking at a computer screen. His left knee problems prevent him from squatting, kneeling, or performing any impact activities. He is also not able to be on his feet very long.

22. Claimant's medical expert, Dr. Volarich, reviewed the records, examined Claimant, and issued a report in 2005 and in 2017. He explained the synergistic effect of Claimant's injuries and how they combine to make it more difficult for Claimant to function efficiently at home and at work. Dr. Volarich opined that based on his medical assessment alone, Claimant is permanently and totally disabled as a direct result of his primary injury in combination with his pre-existing medical conditions. He recommended continued medication and exercises, and he issued restrictions.

23. Claimant's vocational expert, Delores Gonzalez, reviewed the records, interviewed Claimant, and issued a report in 2017. She considered Claimant's age, education, work history and presentation in formulating her opinions. She opined Claimant has no transferable skills due to his significantly reduced residual functional capacity. She opined Claimant is not a candidate for vocational rehabilitation, as he is not currently capable of any competitive work for which there is a reasonably stable job market due to the combination of his primary injury and his preexisting disabilities and conditions. She noted Claimant's impairments have remained significant despite his treatment, and these impairments have severely compromised his ability to either return to his past relevant job or to perform any job on a sustained basis.

24. Claimant is credible.

RULINGS OF LAW

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Claimant is permanently and totally disabled due to tbe combination of his primary and pre-existing injuries and disabilities.

Section 287.220.3(2) RSMo (2013) provides claims for permanent total disability against the second injury fund shall be compensable only when the following conditions are met:

WC-32•RI (6-81) Page 7


"(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:


(ii) A direct result of a compensable injury as defined in section 287.020; or (iii) Not a compensable injury, but such preexisting disability directly and

significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable workrelated injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter."

To trigger SIF liability, an employee's injuries have to combine. The type of benefits that an employee is entitled to recover from the SIF depends on the resulting combination of the employee's last injury and preexisting disabilities. See Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717-718 (Mo. 2004). For permanent total disability benefits, the employee must prove that his subsequent work injury combined with his preexisting disabilities to cause permanent total disability. Id. The fact finder does not have unbridled discretion to create entitlements not contemplated by the law. Eason v. Treasurer of State, 371, S.W.3d 886, 891 (Mo. App. 2012).

Here, Claimant has a number of medically documented preexisting disabilities and these disabilities meet three of the statutory requirements set forth above. Claimant has compensable and non-compensable preexisting injuries and disabilities. Claimant and his medical expert credibly testified his compensable and noncompensable preexisting injuries significantly aggravated or accelerated his primary injury. Claimant has met his burden showing that the subsequent work injuries combined with his preexisting disabilities to cause permanent total disability.

Claimant's medical expert, Dr. Volarich, is the only physician who considered all of Claimant's restrictions. He had in his possession all of the medical records including the actual films. He opined the combination of Claimant's prior and primary injuries and disabilities renders Claimant petmanently and totally disabled based on his medical assessment alone. Claimant's vocational expert opined Claimant is unable to compete in the open labor market and is unemployable due to the combination of his prior and primary injuries and disabilities.

WC-32-Rl (6-81)


The test for permanent total disability is whether the worker is able to compete in the open labor market. A worker is totally disabled if they are unable to return to any normal or reasonable employment; the worker is not required to be inert or completely inactive. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. Carkeek v. Treasurer of State, 352 S.W.3d 604 (Mo. App. 2011) at 608.

I find the unrebutted opinions of Dr. Volarich and Delores Gonzalez credible. Claimant has met his burden and established he is permanently and totally disabled as a result of the combination of his primary injury and preexisting disabilities. I find Claimant is unable to return to any normal or reasonable employment and that no employer in the ordinary course of business would reasonably be expected to hire Claimant in his current physical condition. It was not the last injury alone or the prior injuries alone that rendered Claimant totally disabled. Accordingly, the SIF is liable for PTD benefits at the differential rate of $422.34 for 30.625 weeks beginning December 9, 2016, and thereafter, $886.92 per week for as long as provided by law.

I certify that on fr,- I q-/ q I delivered a copy of the foregoing award lo !he parlles to !he case. A complete record _of !he nielhod of delive,y and dale of service upon each party is retained wilh !he executed award in !he Oivisioil's case file.

By. _ __,_LVVfl!~~--

WC-32-Rl (6-81)

KATHLEEN M. HART Administrative Law Judge

Division of Workers' Compensation

Documents

Issued by THE LABOR AND INDUSTRIAL RELATIONS … · wrist, as well as numbness and pain in his left hand. Employee settled his claim against the employer/insurer for the primary injury