Opinion
No. 24157 and 24165
Handdown Date: September 28, 2001
Appeal From: Labor and Industrial Relations Commission.
AFFIRMED. Montgomery, J., and Barney, C.J., concur.
Counsel for Appellant: Michael L. Wilson and Clinton D. Collier.
Counsel for Respondent: Doros J. House, Eric T. Lanham and William C. Love.
Opinion:
This is a workers' compensation case in which the Labor and Industrial Commission ("Commission") ordered Display Technologies, Inc. ("Display"), and Graphic Technologies, Inc. ("Graphic"), to provide Norman Endicott ("Claimant") with the medical care necessary to cure and relieve Claimant of his repetitive-motion occupational diseases. Commission found Display, a previous employer, responsible for two of Claimant's three diseases. This resulted because Commission concluded it should use the date of diagnosis in assigning liability among various employers for Claimant's injuries.
In No. 24157, Display charges Commission erred and misapplied the law when it used the date of diagnosis and not the claim-filing date in its employer-liability analysis. We disagree; Commission did not err as charged.
In No. 24165, Graphic (Claimant's last employer) raises a "notice" issue, i.e., did Commission err in entering an award against Graphic due to the fact that "Claimant failed to give any notice to [Graphic] that his condition was work-related[?]" We answer, "No."
We affirm Commission's award.
BACKGROUND FACTS, PROCEDURAL HISTORY, AND COMMISSION FINDINGS
Factual disputes are minimal in this case. From 1981 through January 31, 1998, Claimant worked for Display (originally known as Motorola). When Display ceased operations, Claimant found employment with ASAP Services ("ASAP"), a temporary job services agency. He worked for ASAP from February 10, 1998, through March 30, 1998. On April 22, 1998, Claimant went to work for ADECCO Employment Services, Inc. ("ADECCO"). ADECCO was a temporary employment service that placed employees for Graphic. Claimant's employment by ADECCO ended July 17, 1998, when his probationary period ended and he then became an employee of Graphic.
Claimant was still employed by Graphic when he filed his original claim for workers' compensation benefits on November 2, 1998. Via his claim, Claimant sought benefits from his current employer, Graphic, and from former employers, Display, ASAP, and ADECCO. Display filed an answer that affirmatively pleaded Claimant never gave Display a written notice of his occupational injury per section 287.420.
Pertinent parts of section 287.420 are reproduced in n. 10.
The case was tried before an Administrative Law Judge ("ALJ") on May 12, 2000. The ALJ, after considering and reviewing all the evidence, found, inter alia, that Claimant suffered "from carpal tunnel syndrome on the left, cubital tunnel syndrome on the right, and mild bilateral thoracic outlet syndrome." He found Claimant's condition "is in the nature of an occupational disease and is causally related to his employment." Continuing, the ALJ ruled that Graphic "was the last employer to expose Claimant to the hazards of the aforementioned occupational diseases . . ., [that Graphic] was [Claimant's] last employer prior to and at the time of the filing of the claim[,] . . . [and] the [C]laimant's employment at Graphic . . . involved exposure to the hazards of the aforementioned occupational diseases for a period greater than three months." Based on these findings and relying on Maxon v. Leggett Platt, 9 S.W.3d 725, 729-30 (Mo.App. 2000), the ALJ concluded that Graphic was "responsible for all of the [C]laimant's bilateral arm problems[ ]" and ordered Graphic to provide medical care to cure and relieve Claimant from his injuries.
The ALJ found there was evidence to a finding that each of Claimant's employments involved "repetitious minor trauma to his upper extremities" and as a consequence, Claimant "suffered an injury in the nature of an occupational disease." Such finding was adopted by the Commission and is unchallenged on appeal. Because there is no challenge to the sufficiency of the evidence to support the "disease" and "causation" findings, we need not and do not include a detailed description of Claimant's duties and activities at each employment.
In making his award, the ALJ rejected Graphic's "lack-of-notice" defense by observing "[s]ection 287.420 RSMo, requiring notice of an injury, has been held not to apply to occupational diseases. Elgersma v. DePaul Health Center, 829 S.W.2d 35, 37 (Mo.App. 1992)."
In an "Application for Review" filed by Graphic with Commission, Graphic charged the ALJ erred because, inter alia, Claimant's occupational diseases had been diagnosed before Claimant ever started working for Graphic, "thereby shifting liability for Claimant's award to a prior employer as a matter of law." Also, Graphic charged Commission erred in assigning liability to Graphic because Claimant, despite actual knowledge that his condition was related to work with a prior employer, failed to notify Graphic about his work-related disease until he filed his claim. Graphic alleged it was prejudiced by the lack of notice as it was deprived of the chance to reassign Claimant to a nonrepetitive motion position and thereby perfect its ninety-day defense under section 287.067.7.
After hearing oral arguments, the Commission modified the award by assigning to Display responsibility for providing Claimant the treatment necessary to cure and relieve him from bilateral carpal tunnel syndrome and right elbow bursitis. It left intact that part of the ALJ's award that assigned responsibility to Graphic for furnishing Claimant the treatment necessary to cure and relieve his bilateral thoracic outlet syndrome.
The Commission ruled Claimant's other employers, ADECCO and ASAP were not "liable because [C]laimant did not work at either place for over three months."
The facts found by Commission to support its award, included the following: (1) Claimant was first diagnosed with bilateral carpal tunnel syndrome while working for Display; (2) Claimant was first diagnosed with bursitis of the right elbow on March 2, 1998, while working for ASAP; (3) Claimant had not worked for ASAP for three months at the time of the right elbow bursitis diagnosis; and (4) Claimant was first diagnosed with bilateral thoracic outlet syndrome on January 25, 1999, more than three months after he went to work for Graphic.
No argument is advanced on appeal that these findings of facts were unsupported by sufficient, competent evidence.
In its conclusions of law, Commission adopted and used interpretations of sections 287.063 and 287.067.7 found in Arbeiter v. National Super Markets, Inc., 990 S.W.2d 142 (Mo.App. 1999), and Cuba v. Jon Thomas Salons, Inc., 33 S.W.2d 542 (Mo.App. 2000), namely, that section " 287.067.7 refers to the date of diagnosis and not the date of the claim for purposes of assessing liability for both the last exposure rule under Section 287.063 and the three-month rule under Section 287.067.7." Id. at 546.
In the award, Commission declared that Maxon, 9 S.W.3d 725, is "difficult to reconcile with Arbeiter, 990 S.W.2d 142 and Cuba, 33 S.W.2d 542." Commission resolved what it perceived as inconsistency in these cases by the expediency of finding that Cuba was "the latest case interpreting sections 287.063 and 287.067.7" and would be followed for that reason.
Regarding the "lack of notice" argument, Commission made no specific finding concerning it but simply adopted the ALJ's analysis and decision on that issue.
Both Display and Graphic appeal from Commission's award.
Because this award determined liability, an appeal lies, even though it was a temporary award. Maxon, 9 S.W.3d at 729 (citing Crabill v. Hannicon, 963 S.W.2d 440, 442 n. 1 (Mo.App. 1998), and Walker v. Klaric Masonry, Inc., 937 S.W.2d 219, 220 (Mo.App. 1996)).
STANDARD OF REVIEW
To the extent that the issues here call for interpretation of workers' compensation statutes, our review of Commission's award is essentially de novo. Bunker v. Rural Elec. Co-op., 46 S.W.3d 641, 643 (Mo.App. 2001). Decisions of the Commission that are clearly interpretations or applications of law, rather than resolution of conflicting facts, are viewed for correctness without deference to the Commission's decision about the facts. Id. at 643[2].
APPLICABLE STATUTES IN NO. 24157
In No. 24157, this court must decide whether the Commission properly interpreted and applied the last exposure rule for occupational diseases set forth in section 287.063 and an exception to this rule set forth in section 287.067.
All statutory references herein are to RSMo 2000 unless otherwise indicated.
Section 287.063 provides:
"1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject only to the provisions . . . set forth in [section 287.067.7].
"2. The employer liable for the compensation in this section shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease for which claim is made regardless of the length of time of such last exposure."
The three-month exception to the last exposure rule found in section 287.067.7, provides:
"7. With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with a prior employer was the substantial contributing factor to the injury, the prior employer shall be liable for such occupational disease."
ANALYSIS AND DECISION IN NO. 24157
In No. 24157, Display complains the trial court erred as a matter of law in finding that Display was liable for medical treatment for Claimant's bilateral carpal tunnel syndrome and right elbow bursitis. Display argues that in a case such as this, i.e., where Claimant suffers from an occupational disease caused by repetitive motion and was exposed to a repetitive motion hazard for more than three months at both Display and Graphic, the claim-filing date must be used in assessing liability. In advancing this proposition Display relies heavily on Maxon, 9 S.W.3d 725, and Johnson v. Denton Constr. Co., 911 S.W.2d 286 (Mo.banc 1995), and says that the approach taken in Arbeiter, 990 S.W.2d 142, and Cuba, 33 S.W.3d 542, i.e., that the date of diagnosis is to be used when applying the three-month rule, "is in direct contradiction to the Maxon case." However, Display's reliance on Johnson is misplaced for the reasons explained in Cuba:
"[I]n Johnson, the Court did not address the issue of whether the date of diagnosis or the date of the claim determines liability. Section 287.067.7 was not in effect when Johnson's claim was filed. The Court found that the claim was filed immediately after Johnson left Denton, and therefore, it did not have to address the issue of whether the date of diagnosis or the date of the claim was the determining factor. Thus, the Court did not apply the last exposure rule as a bright line rule. Although Johnson is often cited in support of using the date of the claim to determine liability, the Court actually avoided answering the question because both the date of diagnosis and the date of the claim were prior to Johnson's subsequent employment, and the Court determined that Denton was the last employer to expose Johnson to the hazard for which the claim was made."33 S.W.3d at 547. We agree with and adopt the Cuba court's analysis of why Johnson lends no support to Display's claim of Commission error.
Display's reliance on Maxon is also misplaced. This follows because the points relied on in Maxon never included, either expressly or implicitly, a contention that the claim-filing date (not the diagnosis date) was the determining date in assigning liability in situations where an employee had been exposed to a repetitive motion hazard for more than 120 days at the last place of employment and at a previous job. The second point relied on in Maxon presented a single issue: Was there sufficient competent evidence to support Commission's finding that employee Maxon's duties in her "tag control" job exposed her to the hazards of repetitive motion? It was while answering that question that Judge Prewitt wrote, "[T]his [Maxon] is indeed a close case, but it turns on a question of fact which is the determination of the Commission and not this Court." 9 S.W.3d at 732. The Maxon opinion continued:
The Maxon opinion explicitly limited its breadth by explaining: "We discuss only the contentions in Appellants' points." 9 S.W.3d at 731.
In its entirely, appellant's second point in Maxon reads:
"The Labor and Industrial Relation's Commission erred in holding that the date of Claimant's accident or occupational disease due to repetitive motion was the dates of employment by Leggett Platt. While working for Leggett Platt, Claimant was not exposed for a period of ninety days to repetitive motion activities causing or aggravating her preexisting medical condition."9 S.W.3d at 730.
"There was sufficient evidence for the Commission to determine that Claimant's duties at Leggett Platt required the same repetitive motion as that which was the cause of her injury for a period of at least three months. There seems to be little doubt but that her `wire bending' job of three weeks did so, and while her `tag control' job did not require as extensive a use of her hands as the `wire bending' duties, it was determined to be repetitive. The Administrative Law Judge found repetitive motion to be present in the `wire bending' job, but less so in the `tag control' job, necessarily determining that both had repetitive motion."9 S.W.3d at 732. Although Maxon was cited by the ALJ and now Display as authority for ruling that the claim-filing date should be used to determine liability, nothing in Maxon supports that view.
Moreover, the three additional cases cited by Display do not support its claim of Commission error. In Crabill, the eastern district held the employer failed to raise section 287.067.7 before the Commission and also failed to offer any evidence that the employee's work for an earlier employer was the "substantial contributing factor" in causing her carpal tunnel syndrome. 963 S.W.2d at 444[4].
Similarly, section 287.067.7 was not implicated in Kelley v. Banta Stude Const. Co., Inc., 1 S.W.3d 43 (Mo.App. 1999). There, an employer changed insurance carriers during the pendency of a claim, thus giving rise to a dispute between the two carriers about their respective liabilities. Commission assigned responsibility to American States, the second insurer, to provide medical care to cure and relieve for the employee's diseased left hip. On appeal, Commission's award was reversed based on this analysis:
"Diagnosis of the [disease of both hips] and the resulting disability were existing facts before the change of carriers.
. . . .
"Accordingly, we hold that the Commission erred in finding Travelers [the initial insurer] not liable for medical care for a diseased left hip and in holding that American States was liable for that case. Traveler's was the carrier at the time of last exposure before diagnosis and disability of osteoarthritis of both hips."
Id. at 51-2 (emphasis supplied). Not only was section 287.067.7 absent from the Kelley court's analysis, the court found the left-hip diagnosis date was a factor in deciding Travelers [first insurer] had to cover the employee's left hip disease. This conclusion was reached despite the fact the allegation of left hip disease was not in the claims filed while Travelers was the insurer. The left hip allegation first surfaced in an amended claim after American States became the employer's insurer.
In Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 762-63 (Mo.App. 1997), section 287.067.7 was not implicated because the employee was found not to have been exposed to carpel tunnel syndrome-producing conditions at his last employment with a firm called "Bugs-Away" or while he was self-employed. Accordingly, liability for the employee's occupational diseases fell on the employee's earlier employer ("ACCURATE") where he had been exposed to the occupational hazard of repetitive motion. As with the other cases cited by Display, the Coloney court did not have to decide whether the claim-filing date or diagnosis date should be used in assigning liability among employers.
On the other hand, the section 287.067.7 three-month exception to the last exposure rule (section 287.063) was an issue in Arbeiter, 990 S.W.2d 142, and Cuba, 33 S.W.3d 542. There, the eastern district interpreted the statutes to mean that the diagnosis date — not the claim date — should be used to assign liability between different employers when an employee suffered an occupational disease due to repetitive motion, and the employee was exposed to the repetitive motion hazard for three months at two or more employers.
Believing that the interpretations and analysis of sections 287.063 and 287.067.7 made in Arbeiter and Cuba are correct, this court adopts the views expressed therein without further elaboration. Applying the rule prescribed by Arbeiter and Cuba, we find Commission did not err by following these cases and ruling that here, the diagnosis date — not the claim filling date — was properly used to assign liability to Display for providing Claimant the treatment necessary to cure and relieve from bilateral carpal tunnel syndrome and right elbow bursitis. Point denied.
ANALYSIS AND DECISION IN NO. 24165
Graphic's single point on appeal maintains that Commission erred in finding it liable for any part of Claimant's award because Claimant "failed to give any notice to [Graphic] that his condition was work-related, despite his actual knowledge of that fact within one . . . week of commencing work for [Graphic]." Graphic insists it was prejudiced by the lack of such notice as it had no opportunity to transfer Claimant to another position to accommodate his condition in accordance with its established policy and was thus effectively prevented from perfecting its defense under section 287.067.7.
Missouri courts have held, as a matter of law, that the notice requirement of section 287.420 does not apply to cases of occupational disease. Maxon, 9 S.W.3d at 733; Elgersma, 829 S.W.2d at 37[1]. In part, this stems from the fact that section 287.420 "does not facially apply to occupational disease claims." Bryant v. Ireco, Inc., 963 S.W.2d 346, 348 (Mo.App. 1997). Courts also recognize that occupational diseases do not fit "under the purpose of that section" which is to give "the employer an opportunity to investigate the facts of an accident and to promptly furnish medical attention to minimize a resulting injury." Id. at 348. Further, courts realize that "[t]he characteristic of a job-related injury without an identified traumatic event is that the employee does not have knowledge of causation without an expert's diagnosis." Kintz v. Schnucks Markets, Inc., 889 S.W.2d 121, 124 (Mo.App. 1994). As Kintz explains it,
In pertinent part, section 287.420 provides: "No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injuried, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident unless . . . there was good cause for failure to give the notice, or . . . the employer was not prejudiced by failure to receive the notice."
"An employee cannot give `written notice of the time, place and nature of the injury' where he does not know and could not know facts which the notice requires. Thus, the statute is inapplicable to the facts of a repetitive trauma case such as this one, at least until the claimant has knowledge of those facts which must be in timely notice."
Id. at 124[9].
In the argument part of its brief, Graphic concedes the existence of this well-established rule. Even so, Graphic argues "it is equally well settled that an employer is entitled to notice of some sort that an employee is claiming an occupational disease[,]" citing Elgersma, Weniger v. Pulitzer Pub. Co., 860 S.W.2d 359 (Mo.App. 1993), and Bryant as authority for such argument. These cases, however, must be read in context and in light of the outcome for each.
First, in Elgersma the court found, "on undisputed facts, employer had notice of a potentially compensable work-related occupational disease . . . in time to defend the claim without any prejudice attributable to untimely notice." 829 S.W.2d at 38. The appellate court found Commission erred "as a matter of fact" when it denied compensation on the "basis of lack of notice" and reversed the award. Consequently, it was obiter dicta when the Elgersma court declared, "[i]t seems clear an employer [in an occupational disease case] is entitled to a notice." 829 S.W.2d at 37.
In Weniger, the Commission ruled that the employee's claim was barred by the statute of limitations. On appeal, the employee argued the Commission erred because the statute of limitations was extended from two years to three years per section 287.430 due to the employer's alleged failure to file a report of injury as required by section 287.380. 860 S.W.2d at 361. It was in this context, i.e., deciding if the employer had knowledge of the occupational disease, thereby triggering a duty to file the report of injury form required by section 287.380, that the Weniger court held that the Commission "must look to whether an employer had any knowledge of an injury or accident." 860 S.W.2d at 361. Those are neither the facts nor the issues presented here.
In Bryant, the Commission denied the employee's work-related carpal tunnel disease claim because of lack of notice to the employer. The Commission cited Elgersma as authority for the proposition that a reasonable notice to an employer regarding the existence of a work-related occupational disease was required. On appeal, however, the eastern district reversed the Commission's award after noting, inter alia, "there is no evidentiary support for a finding [employer] was in anyway prejudiced by the lack of `notice,'" and "prior to consulting an attorney and filing the claim for compensation, claimant's conduct was wholly consistent with a lack of knowledge that his condition was work-related." 963 S.W.2d at 348.
To decide this case, it is not necessary to comment on the efficacy of the dicta in Elgersma, i.e., "[i]t seems clear an employer [in an occupational disease case] is entitled to a notice." 829 S.W.2d at 37. There are two reasons why this is so. First, we have already concluded that Commission correctly assigned responsibility for furnishing Claimant the treatment necessary to cure and relieve him from bilateral carpal tunnel syndrome and right elbow bursitis. Since Graphic is not liable for these occupational diseases, it cannot be prejudiced by Claimant's failure to give Graphic notice of such conditions before filing his claim.
Second, undisputed evidence shows that Claimant's bilateral thoracic outlet syndrome was first diagnosed by Dr. Edward Prostic on January 25, 1999, approximately 84 days after Claimant filed his claim. Graphic simply misstates what the record shows if it intends to assert that Claimant knew he suffered from work-related bilateral thoracic outlet disease "within one . . . week of commencing work for [Graphic]." Claimant's testimony was that "within about a week" after going to work for Graphic he "was reminded of . . . old symptoms" and did not think that his work for Graphic "in anyway caused . . . any new problems." The only evidence from which it could be inferred Claimant knew he had "new problems," i.e., bilateral thoracic outlet syndrome, is found in Dr. Prostic's report in January 1999. As noted in Kintz, it is characteristic of a job-related injury without an identified traumatic event that an employee would not know the cause of his symptoms without an expert's diagnosis. 889 S.W.2d at 124. The expert's diagnosis here was not made until after Claimant had consulted with a lawyer and had filed a claim. Just as section 287.420 "presupposes knowledge of a work-related injury[,]" Kintz, 889 S.W.2d at 124, it follows by analogy that Claimant did not have to give "some notice" to Graphic (as espoused by Elgersma, 829 S.W.2d at 37) regarding an occupational disease that he did not know he had until after his claim was filed. Commission did not err in ordering Graphic to provide treatment for Claimant to cure and relieve him of his occupational disease of bilateral thoracic outlet syndrome. Graphic's point has no merit and is denied.
The Commission's award is affirmed.