Opinion
No. WD 65802
February 28, 2006
Appeal from the Labor and Industrial Relations Commission.
Before Edwin H. Smith, C.J., James M. Smart, and Thomas H. Newton, JJ.
Mr. David Pierce appeals a decision of the Labor and Industrial Relations Commission (Commission) denying his request for a temporary award of medical benefits for evaluation and treatment of his right shoulder. At issue is whether there was sufficient competent and substantial evidence to support the Commission's finding that one of Mr. Pierce's former employers was not responsible for the repetitive use injury he sustained to his right shoulder. We reverse.
Described as an individual with a "complicated orthopedic" history due to a few unfortunate accidents, Mr. Pierce was diagnosed with degenerative joint disease of the shoulder in 2000. For nearly four months in 2002, Mr. Pierce, a union ironworker, was employed by Bratton Steel Corp. (BSC Steel). As a BSC Steel employee, he helped construct the steel floor and roof decking on the Nebraska Furniture Mart in Kansas City, Kansas, and pounded thousands of bolts into steel girders for the "Grandview triangle" road-reconstruction project in Kansas City, Missouri. While he was working on these jobsites, Mr. Pierce was required to wear a tool belt and safety harness that weighed some thirty to forty pounds when fully loaded with his equipment.
The steel plates that Mr. Pierce used for the floor- and roof-decking job, which lasted for about three months, were twenty to twenty-five-feet long and three-feet wide. They weighed forty to fifty pounds apiece and would have to be lifted off a pile and dragged across four-inch joists before Mr. Pierce could fasten them into place. The welding required significant bending, which was awkward and difficult because of the tool belt. The work was so physically challenging and caused so much pain to his shoulder that Mr. Pierce told his supervisor he was having difficulty doing it. Because there were no other jobs available on the jobsite, he continued doing the decking work until it was completed.
While building an overhead pass above U.S. 71 Highway on the Grandview triangle project, Mr. Pierce had to swing a ten-pound sledgehammer to pound bolts into holes to align and secure the steel beams. He estimated that he secured 200 bolts at each of about fifty points of connection, which required approximately 10,000 swings with his right arm over a period of about one month. Because he was balancing on fifteen-inch steel beams and working over traffic, he was required to secure his position with his left arm as he swung his right arm with all the force he could muster. He also had to carry as many bolts with him as possible to avoid disrupting traffic, thereby adding to the weight of his tool belt.
When this job ended, Mr. Pierce decided he could no longer work at this particular occupation. He was examined by Dr. Mary Brothers, to whom he had been referred by a vocational service. She examined him a few weeks after the Grandview triangle job had ceased, and while his pain was not severe then, she did find that his right shoulder was "slightly loose on passive manipulation." Dr. Brothers recommended that he "avoid repetitive bending at the waist or frequent lifting in excess of 20 pounds," and further avoid "[s]ustained or aggressive heavy lifting with the right arm in a solo fashion." She also indicated that "he should be cautious with pushing, pulling, and shoving heavy objects above the mid chest level." While Dr. Brothers recommended that he "limit repetitive or high speed tasks with the hands," this recommendation was linked to problems he had with his fingers from other old injuries and not to his right shoulder.
In subsequent months, Mr. Pierce worked at a number of different jobs for different employers, including another steel company (Builders Steel). While working for Builders Steel, he returned to Nebraska Furniture Mart as a "working supervisor," a job that involved mostly welding stairwells and handrails. He also did some welding and X-bracing at an elementary school project for Builders Steel. These projects, which together lasted for a period greater than three months, did not involve the heavy lifting, overhead, or repetitious pounding work that he had done for BSC Steel. Nor did any of these jobs involve injury to his shoulder.
Thereafter, in March 2003 Mr. Pierce secured a position with Ford Motor Co. on its assembly line. He experienced a few lay offs with Ford, but otherwise worked continuously for that company through the time of trial in December 2004. Mr. Pierce worked as a "floater" at Ford and was employed in several different positions where he did typical repetitive, assembly-line work, none of which involved the strenuous or overhead activity that he had experienced with BSC Steel and that had involved injury to his shoulder. He filed his workers' compensation claim for his shoulder injury in August 2003. Later, he was moved to a workstation at Ford that involved lifting two- to three-pound pipes overhead. Mr. Pierce suffered acute shoulder pain doing this work. He reported the pain to his employer and was examined and placed on restricted duty. Subsequent work at Ford has not involved overhead or strenuous activity.
The Administrative Law Judge (ALJ), whose decision was incorporated into the Commission's ruling, failed to note that Mr. Pierce's claim in this case was filed after he worked for BSC Steel and before he reported any difficulty with his shoulder at Ford. At Ford, he did general assembly line work, which had the potential to aggravate or cause carpal tunnel in his hands and wrists. There is no substantial evidence, however, that anything he did at Ford was of a nature to aggravate his shoulder condition before he filed his claim. It was only after he filed his claim that he attempted some overhead work at Ford that aggravated his injury.
Applying sections 287.063 and 287.067 and the Missouri Supreme Court's decision in Endicott v. Display Technologies, Inc., 77 S.W.3d 612 (Mo. banc 2002), the ALJ concluded that BSC Steel should not be responsible for Mr. Pierce's evaluation and treatment for shoulder complaints because (i) he had worked for another employer (Ford) for longer than three months after leaving BSC Steel, and (ii) the repetitive activities at Ford were the same as the repetitive activities at BSC Steel from the standpoint of placing responsibility for a repetitive use occupational disease. The Commission found that the ALJ's denial of Mr. Pierce's claim was supported by competent and substantial evidence and made in accordance with the Missouri Workers' Compensation Act. One Commission member disagreed, finding that Mr. Pierce's shoulder was not exposed to the same hazard for which he seeks compensation when he was working for employers other than BSC Steel. Mr. Pierce brings one point on appeal, claiming that BSC Steel should have been held responsible for his occupational disease because none of his subsequent employers exposed him to the hazard of the occupational disease (involving his shoulder) that caused his injury.
Statutory references are to RSMo. (2000), unless otherwise indicated.
We review Commission rulings under constitutional and statutory standards that require us to "examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We review questions of law de novo. Endicott, 77 S.W.3d at 615.
Section 287.063 provides that the employer who is liable to pay compensation for an occupational disease "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." § 287.063.2. Under this section, employees are "conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, [they are] employed in an occupation or process in which the hazard of the disease exists." § 287.063.1. Subsection 287.067.7 provides:
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.
As the court in Endicott recognized, "the statutes do not require an employee to notify the employer of occupational diseases." 77 S.W.3d at 616.
We mention this aspect of occupational disease under our workers' compensation law because the ALJ appeared to consider Mr. Pierce's failure to inform BSC Steel that he was having problems with his shoulder, before he began working for another employer, as a factor in the case. In this regard, the ALJ stated, "it would be unjust to hold BSC Steel responsible for repetitive use injuries, ongoing treatment, and ultimate disability when during his short employment the claimant never specifically complained of right shoulder problems; he never sought treatment and never made a claim for compensation."
The Commission found that because Mr. Pierce had been exposed to a repetitive use hazard for longer than three months when he was working for two employers subsequent to his exposure at BSC Steel, the "last exposure" rule applied to insulate BSC Steel from responsibility for his occupational disease. According to the court in Endicott, the "last exposure" rule of section 287.063 is not a rule of causation, but is instead a starting point, stating "the last employer before the date of claim is liable if that employer exposed the employee to the hazard of the occupational disease." 77 S.W.3d at 615 (emphasis added).
The Commission appeared to believe that Mr. Pierce's work at Ford involved activities that were linked to his shoulder condition, but a careful review of the record indicates that this is not the case. While the ALJ concluded that Mr. Pierce did not seek compensation until after he sought treatment for his shoulder, the evidence does not support her conclusion. His claim for compensation was filed in August 2003, a month before he was transferred to a workstation at Ford that involved overhead work and caused him to complain about an acute injury to his shoulder.
The last employer before the date of claim is Ford, and Mr. Pierce worked at Ford longer than three months. If the hazard to which he was exposed at Ford before he filed his claim was a substantial contributing factor to his shoulder injury, then BSC Steel cannot be responsible for his injury under section 287.067.7. There are medical reports from two doctors in the record. Dr. James Stuckmeyer, who is a board certified orthopedic surgeon, stated that there was "no question" that Mr. Pierce's work as an ironworker with BSC Steel aggravated and exacerbated his right shoulder condition. The doctor was familiar with Mr. Pierce's job duties at BSC Steel and for each of his subsequent employers. According to Dr. Stuckmeyer, Mr. Pierce has a 35% permanent partial disability to the right shoulder. He assigned 15% to his preexisting condition and 20% "directly" to the occupational duties at BSC Steel "since this appears to be when the patient's symptoms were markedly exacerbated to the point where he is now considering surgical intervention." Dr. Stuckmeyer opined that Mr. Pierce would benefit from an arthroscopic evaluation and referral to an expert for further evaluation and consideration of surgical intervention.
It is puzzling that Dr. Edward Prostic, who examined Mr. Pierce at BSC Steel's request, was "unable to attribute any significant amount of his impairment to the employment at BSC Steel." Dr. Prostic could not recall when asked, however, whether he had been given a job description of Mr. Pierce's duties with any of the employers for whom he worked. When deposed, Dr. Prostic did testify that Mr. Pierce's shoulder condition would be easy to aggravate by forceful use of his arm, "especially heavy lifting or overhead activities," (which was exactly what he did at BSC Steel). He also testified that Mr. Pierce's left arm was larger in circumference than his right arm, and agreed this was evidence that he was using his right arm less. Mr. Pierce had testified that although he is right-handed he was able to perform many of the repetitive tasks at Ford with his left arm. Because Dr. Prostic lacked the appropriate information needed to form an opinion, we must discount his opinion as unsubstantiated.
The facts in this case are similar in some respects to those in Maynard v. Lester E. Cox Medical Center/Oxford Healthcare, 111 S.W.3d 487, 492 (Mo.App.S.D. 2003), where the court determined that there was "no medical opinion" in the record "that states the subsequent employment exposed claimant to repetitive motions capable of producing the injuries for which she sought benefits." There is no competent medical opinion in our record linking Mr. Pierce's shoulder injuries to the type of work he was doing at Ford before he filed his claim for compensation. Dr. Stuckmeyer was aware of Mr. Pierce's specific job duties for each of his employers and categorically attributed a portion of his disability to the work that he did for BSC Steel. Dr. Prostic did not know specifically about the kind of work Mr. Pierce was doing for his employers and simply assumed that any repetitive activity exposed him to the hazard of his occupational disease, although he did caution Mr. Pierce not to aggravate his condition with heavy lifting, forceful use of his arm, and overhead work, activities that took place at BSC Steel and not at Ford (until after the claim was filed).
According to the ALJ, "Grading of the level of activity is simply not a factor once the three month threshold has passed prior to any claim and the employee is exposed to repetitive activities." Grading, however, is simply not at issue here. Had Mr. Pierce made a generalized claim for upper extremity injury, e.g., carpal tunnel syndrome of the hands or wrists, BSC Steel would clearly not be liable because he did repetitive motion involving the upper extremities on the assembly line at Ford for longer than three months. Subsection 287.067.7 provides an exception to the "last exposure" rule and "shifts liability to a prior employer only if the employee's exposure at a later employer is less than three months and exposure with a prior employer was the substantial contributing factor to the injury." Endicott, 77 S.W.3d at 615. In this case, Mr. Pierce's claim for compensation was for an injury to his shoulder. Dr. Brothers cautioned Mr. Pierce not to engage in repetitive or high speed activity with his hands, which is essentially what he was doing at Ford, not because of the potential for aggravating his shoulder injury, but due to injuries he had sustained in the past to his fingers. It goes without saying that there is a difference between the physiological effect on the shoulder of swinging a ten-pound sledgehammer hundreds of times a day and tightening screws on an assembly line.
See also Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo.App.W.D. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). While Coloney was decided before Endicott and involved application of the "last exposure" rule, its interpretation of the rule is consistent with that case. Mr. Coloney had been employed at a job that required him to repeatedly lift fifty-pound weights onto scales throughout his workday. It was determined that subsequent employment for a residential pesticide company, where he had an eleven-pound pump sprayer over his shoulder and repeatedly depressed a trigger, and as a handyman, did not expose him to the hazards of the occupational disease for which his claim for compensation was made. Id. at 762-63. The court recognized that it would have to take a different approach to the case if Mr. Coloney's later employment "exposed him to repetitive activities capable of producing carpel [sic] tunnel syndrome." Id. at 763.
Because the Commission's decision is contrary to the overwhelming weight of the evidence and, thus, is not supported by competent and substantial evidence, it cannot stand. Hampton 121 S.W.3d at 223. Accordingly, we reverse the Commission and remand for the entry of an order requiring that BSC Steel provide the necessary medical treatment as recommended by Dr. Stuckmeyer and any temporary total disability benefits to which Mr. Pierce may be entitled while undergoing such treatment.
Edwin H. Smith, C.J., and James M. Smart, J. concur.