Lynch v. Treasurer of State

• Decision Date: 19 October 2021
• Docket Number: No. ED 109502,ED 109502
• Citation: 635 S.W.3d 573
• Parties: Mark LYNCH, Claimant/Appellant, v. TREASURER OF the STATE of Missouri, Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

635 S.W.3d 573

Mark LYNCH, Claimant/Appellant,

v.TREASURER OF the STATE of Missouri, Custodian of the Second Injury Fund, Respondent.

No. ED 109502

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: October 19, 2021

Philip A. Tatlow, 10525 Big Bend Blvd, St. Louis, Mo. 63122, for appellant.

Madalyn J. Campbell, 815 Olive Street, Suite 200, St. Louis, Mo. 63101, Mary J. Sommers, Co-Counsel, P.O. Box 861, St. Louis, Mo. 63188, for respondent.

Angela T. Quigless, J.

The claimant, Mark Lynch, appeals from the final award of the Labor and Industrial Relations Commission denying his claim against the Second Injury Fund ("the Fund") for permanent total disability benefits. We find the Commission ignored the uncontradicted and unimpeached evidence, including the only qualified expert medical opinion in the record, without explanation and without a reasonable basis for finding the witnesses not credible, and instead substituted its own theory of the cause of Claimant's permanent total disability. We find the Commission's award concluding the Fund is not liable for Claimant's permanent and total disability is not supported by sufficient competent evidence and is against the overwhelming weight of the evidence. We reverse and remand the decision of the Commission.

Factual and Procedural Background

Claimant worked for Anheuser-Busch Companies, Inc. ("the employer") as a brewery worker from 1974 until his retirement in January 2009. During his 35 years with the employer, Claimant worked in the draft beer and kettle departments, performing physically demanding and often repetitive tasks such as driving a forklift to move and stack pallets and barrels; cleaning kettles measuring 15 to 20 feet high; carrying 10-gallon buckets of ingredients from another floor to the kettles and dumping the buckets into the kettles at least 50 times per day; breaking up large bales of compressed hops so the hops could be crumbled and weighed; dumping 100-pound containers of hops into kettles 13 times per day; and pushing 1,000-pound containers filled with used beechwood chips through the brewery. Claimant estimated that when he worked as a brewer with the kettles, he had to pull open and push closed the kettles’ vacuum-sealed doors, which weigh about 100 pounds, as many as 100 times per day. He filled and sealed kegs of beer, which required using a mallet to pound a stopper into the keg opening some 1,200 times a day. Claimant also had to regularly hand-loosen and hand-tighten large hinges on the doors of the mash cookers, and he had to repeatedly adjust steam valves, often by using a heavy mallet to strike a stuck valve handle.

Claimant sustained numerous injuries over the course of his career. He injured his neck and low back in a boating accident in 1990, and experienced ongoing pain thereafter, obtaining treatment from Dr. Al Vellinga both before and after retirement. Claimant later sustained two work-related injuries to his low back, the claims for which he settled with his employer. He underwent surgery on his left shoulder in 1991, and later settled a claim with the Fund. He sustained a work-related injury to his right shoulder in 1995, and underwent his first right shoulder surgery. Claimant settled the claim for his right shoulder injury with his employer. Claimant sought treatment for pain in his right shoulder shortly before his retirement, and underwent a second surgery on his right shoulder immediately after his January 2009 retirement. In 2003, Claimant sought treatment for increasing pain and stiffness in his hips, and underwent total replacement of both hips. Claimant was diagnosed with osteoarthritis

in both knees the year before he retired, and x-rays also revealed progression of arthritis around his right hip.

Claimant sought treatment from Dr. Vellinga with primary complaints of neck and low back pain one month after his retirement and right shoulder surgery. Although not acknowledged in the Commission's decision, Dr. Vellinga's records dated February 11, 2009 report Claimant also complained of weakness of the right upper extremity along with numbness and paresthesia of his right hand.¹ Throughout the spring of 2009, Claimant continued to report numbness and paresthesia in his right hand. Dr. Vellinga found Claimant's right hand grasp was weak, and referred him to neurologist Dr. Robert Margolis. Claimant consulted Dr. Margolis five months after retiring for numbness and tingling in his hands and feet, underwent EMGs and nerve conduction studies

ordered by Dr. Margolis, and received a diagnosis of carpal tunnel syndrome. Claimant sought treatment for his carpal tunnel syndrome from Dr. Vic Glogovac in September 2009, and filed workers’ compensation claims for injury to his hands and ears in December 2009. In the fall of 2010, Claimant underwent a carpal tunnel release on each wrist performed by Dr. Glogovac. In 2011, Claimant was examined by Dr. Mitchell Rotman, a physician hired by the employer. Claimant reported to Dr. Rotman that the surgery had not alleviated the symptoms in his hands. Claimant settled with the employer in 2015 for 20% permanent partial disability of each wrist with a 10% loading factor. He continued with his claim for permanent total disability benefits against the Fund. Claimant alleged he is permanently and totally disabled as a result of a combination of his carpal tunnel syndrome

and his preexisting conditions.

The claim against the Fund was heard before an administrative law judge ("ALJ"). The Fund contested the date of injury and notice to the employer, which are not at issue in this appeal. The parties stipulated that Claimant suffered an occupational disease in the course and scope of his employment with the employer; that his permanent total disability rate was $772.53 per week; and that his permanent partial disability rate was $404.56 per week. The Fund did not contest the amount of permanent partial disability previously reached via settlement with the employer. The parties further stipulated that the only other issue for determination at the hearing was the nature and extent, if any, of the Fund's liability. The ALJ issued an award in favor of the Fund. Claimant appealed to the Commission. In adopting and affirming the ALJ's award, the Commission accordingly found that Claimant developed an occupational disease arising out of and in the course of his employment by performing repetitive motion tasks.

At the hearing before the ALJ, Claimant testified he experienced pain, tingling, and numbness in his hands for over 20 years while working for the employer, including at the time of his retirement. He described how employees were instructed to do a "swimmer's shake" to relieve pain and numbness in their hands. Claimant testified he needed help from other workers to complete his job duties, relied on the advancement of technology, and struggled with the heavy lifting required to perform his job. He stated he was no longer physically able to perform his job duties because of the combination of the ringing in his ears, his carpal tunnel syndrome

, and all of his prior injuries.

Claimant submitted the complete medical report of board-certified orthopedic surgeon Dr. Dwight Woiteshek, pursuant to section 287.210 RSMo. (2016), and the report and deposition testimony of vocational consultant Terry Cordray.² Dr. Woiteshek evaluated Claimant in 2011, and found Claimant permanently and totally disabled. Dr. Woiteshek opined that Claimant's "pre-existing disabilities discussed above [low back, neck, both shoulders, and both hips] synergistically combines with the primary work related repetitious traumatic injuries leading up to and including 1/15/09, also discussed above, to create a substantially greater overall disability than the independent sum of the disabilities." Dr. Woiteshek further articulated several permanent work restrictions for Claimant, namely to minimize repetitive tasks, adopt proper ergonomic use of the upper extremities, avoid impact and vibratory trauma, use appropriate braces and support devices, avoid lifting more than three to five pounds with one hand with arms extended, avoid lifting more than 10 pounds "with the arms dependent," and performance of daily hand exercises. Dr. Woiteshek concluded that Claimant was unable to return to any employment as a result of the combination of his primary repetitious traumatic injuries and his preexisting conditions. Dr. Woiteshek did not rate Claimant's hearing loss.

Mr. Cordray, the vocational consultant, evaluated Claimant, reviewed his education and work history, and reviewed his medical records. He found Claimant "has significant physical limitations that preclude all jobs in the competitive labor market," and "is totally vocationally disabled."³ Mr. Cordray reviewed medical records from nine doctors, including examining physicians Drs. Woiteshek and Rotman. Mr. Cordray included extensive excerpts from Dr. Woiteshek's report, and relied on the significant restrictions recommended therein to reach his conclusion. Mr. Cordray also quoted Dr. Rotman's report wherein Dr. Rotman opined:

He also has quite a bit of health issues which caused him to take early retirement from (sic) mainly his heart. He has issues with chronic problems from his right shoulder as well. ... Considering he had no relief from his carpal tunnel releases

and the fact that his nerve studies were fairly normal would suggest that his continued complaints are not related to carpal tunnel at all but are related to more of a peripheral neuropathy that he had been treated for in the past. Presently, at this time, I do not see any evidence of a work-related injury.

No records, report, or testimony from Dr. Rotman were submitted into evidence pursuant to section 287.210. Mr. Cordray neither testified to nor relied on Dr. Rotman's report. The Fund acknowledged at oral argument that Dr. Rotman's report was not in the record. The Commission's decision states "Dr. Rotman...