James Oswald, Respondent, v. National Fabco Manufacturing, et al., Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: James Oswald, Respondent, v. National Fabco Manufacturing, et al., Appellant. Case Number: ED79229 Handdown Date: 10/09/2001 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Stephen A. McManus and Clinton S. Simon Counsel for Respondent: Dean L. Christianson and John P. Kafoury Opinion Summary: National Fabco Manufacturing appeals the Labor and Industrial Relations Commission's final decision awarding James Oswald with disability benefits to be paid solely by Fabco. The commission modified the award of the administrative law judge who had apportioned payment of Oswald's disability benefits between Fabco and Southern Equipment Company. AFFIRMED. Division Three holds: The commission did not err in refusing to apply the three-month exception to the last exposure rule set out in section 287.067.7 RSMo 1994,(FN1) because Fabco was presumed to be liable for Oswald's claim under the last exposure rule set out in section 287.063 due to the fact that Oswald was not diagnosed during the three months covered by section 287.067.7. Footnotes: FN1. All statutory references are to RSMo 1994, unless otherwise indicated. Citation: Opinion Author: Gary M. Gaertner, Sr. Judge Opinion Vote: AFFIRMED. Teitelman, P.J., and Ahrens, J., concur. Opinion:

Appellant, National Fabco Manufacturing, ("Fabco"), appeals the final award of the Labor and Industrial Relations Commission in favor of respondent, James Oswald, ("claimant") awarding disability benefits to claimant to be paid solely by Fabco. The Commission modified the award of the Administrative Law Judge who had apportioned payment of claimant's disability benefits between Fabco and respondent, Southern Equipment Company, ("Southern"). We affirm. Claimant began working at Southern in 1952. Claimant worked full-time as a sheet metal worker and layout assembler. During claimant's tenure with Southern his duties included: 1) preparing drawings using pens, pencils and rulers for sheet metal work; 2) transferring these drawings onto metal using a scribe and a T-square; and 3) occasional lifting of sheet metal. During the late 1980s or early 1990s, claimant began developing symptoms of hand pain and numbness. In February 1990, while at Southern, claimant suffered an injury to his right shoulder while lifting a heavy die with a co-worker. Claimant saw his primary physician, Dr. Carey Declau, regarding this injury. Dr. Declau referred him to Dr. Frank Petkovich, an orthopedic surgeon. On November 5, 1990, Dr. Petkovich evaluated claimant for both his hand pain and his right shoulder injury. Dr. Petkovich referred claimant to Dr. Daniel Phillips, a neurologist. On November 17, 1990, Dr. Phillips evaluated claimant and performed an EMG and nerve conduction study. The results of these tests were consistent with bilateral carpal tunnel syndrome, worse on the right side. Dr. Phillips recommended claimant wear splints. On November 30, 1990, claimant returned to Dr. Petkovich who diagnosed claimant with bilateral carpal tunnel syndrome, worse on the right side, and a right rotator cuff tear. Dr. Petkovich indicated to claimant that he might require surgery to repair his right shoulder. However, claimant did not have surgery, nor did he seek further medical assistance. Claimant did not file a claim against Southern, nor did he miss any work due to his injuries. In March of 1995, claimant left Southern when it closed. In April 1995, claimant went to work in Illinois for Quipco Products, ("Quipco"). Claimant was employed full-time with Quipco and did the same type of work as he had done previously with Southern. On August 7, 1995, claimant left Quipco and on August 8, 1995, returned to Missouri to work for Fabco. Claimant was employed full-time with Fabco and did the same type of work as he had done previously with both Southern and Quipco. Between 1990 and 1996 claimant's hands' condition worsened and in 1995 claimant began developing symptoms of pain in his left shoulder when lifting or doing overhead activities.

On December 13, 1996, claimant, while employed at Fabco, returned to Dr. Phillips because of his worsened condition. Once again, Dr. Phillips evaluated claimant and performed an EMG and nerve conduction study. The results showed a worsening of claimant's condition. Dr. Phillips again recommended splints and referred claimant to an orthopedic surgeon. Claimant spoke with his supervisor at Fabco regarding the recommendation of Dr. Phillips and told his supervisor his condition was related to employment. Claimant's supervisor sent claimant to Dr. Petkovich. On December 30, 1996, Dr. Petkovich evaluated claimant. Dr. Petkovich reviewed the findings of Dr. Phillips and after hearing complaints of numbness in both hands and aching in both shoulders from claimant, Dr. Petkovich diagnosed claimant with bilateral carpal tunnel syndrome and bilateral shoulder rotator cuff tendonitis. Dr. Petkovich recommended claimant undergo carpal tunnel surgery and cortisone injections in each shoulder. On March 3, 1997, claimant was terminated from Fabco three weeks prior to his planned retirement. Prior to March 3, 1997, claimant had missed no time from work due to the symptoms in his hands, wrists and shoulders. On March 12, 1997, claimant filed a claim for compensation against Southern, Quipco and Fabco for injuries to "both hands, wrists, arms, and body as a whole" due to "repetitive tasks" during the course of his employment through March 3, 1997. Fabco's worker's compensation insurer assigned claimant's medical care to Dr. Stephen Benz, an orthopedic surgeon. On August 20, 1997, Dr. Benz examined claimant and recommended carpal tunnel surgery and an arthrogram of claimant's left shoulder. The arthrogram revealed a rotator's cuff tear of claimant's left shoulder. On October 1, 1997, Dr. Benz performed a right carpal tunnel release and a right Guyon's canal release surgery. On November 19, 1997, claimant underwent surgery for left carpal tunnel syndrome and left Guyon's canal syndrome. On March 19, 1998, claimant underwent surgery on his left shoulder. Fabco, through their insurer, provided for these surgeries. On August 7, 1998, Dr. Benz stated claimant had essentially recovered from all of his injuries. On January 19, 2000, a hearing was held in front of the ALJ in St. Louis. Claimant testified at the hearing. Dr. Petkovich testified by deposition on behalf of claimant. Dr. Petkovich did not give an opinion as to a specific incident or series of incidents which caused claimant's carpal tunnel syndrome. However, Dr. Petkovich did opine that claimant's history of "repetitive heavy work all of his life" resulted in his injuries.

Also, Dr. David Volarich testified by deposition on behalf of claimant. Dr. Volarich had evaluated claimant, at the request of claimant's attorney, in September of 1998. Dr. Volarich diagnosed claimant with carpal tunnel syndrome, Guyon's canal stenosis, and a left shoulder rotator cuff tear. At the time of Dr. Volarich's examination, claimant's injuries had the status of post-surgical decompression and repair. Dr. Volarich testified claimant's work, as a sheet-metal worker was a substantial contributing factor in the cause of claimant's injuries. Based upon the evidence presented at the hearing the ALJ found that claimant sustained thirty percent permanent partial disability of each wrist and thirty-five percent permanent partial disability of the left shoulder. The ALJ attributed ten percent of the total thirty percent permanent and partial disability of the right wrist to Southern. All of the other disabilities assessed were attributed to Fabco. The ALJ found that claimant's claim against Southern as to his right shoulder was time-barred. The Commission, by a two-to-nothing vote, modified the award of the ALJ. The Commission attributed all of claimant's disability to Fabco, including the ten percent disability of the right wrist previously attributed to Southern by the ALJ. Fabco appeals. In determining the sufficiency of the evidence in a workers' compensation case, we review the evidence and inferences in the light most favorable to the Commission's award. Cuba v. Jon Thomas Salons, Inc., 33 S.W.3d 542, 545 (Mo.App.E.D. 2000). We will disregard any evidence that might support a different finding than the Commission's even though the evidence may have been sufficient to support contrary findings. Id. The decisions of the Commission that are clearly interpretations or applications of law are reviewed for correctness without deference to the Commission's judgment. Id. Fabco's first point on appeal contends the Commission erred in finding Fabco responsible for all benefits related to claimant's bilateral carpal tunnel syndrome because claimant was in Southern's employ when he was first diagnosed with carpal tunnel syndrome in 1990. We disagree. Carpal tunnel syndrome is known as an occupational disease which is covered by the Missouri Worker's Compensation Act. Weniger v. Pulitzer Pub. Co., 860 S.W.2d 359, 360 (Mo.App.E.D. 1993). Section 287.063, RSMo 1994,(FN1) also known as the last exposure rule, applies to occupational diseases and states as follows:

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.

1. The employer liable for the compensation in this section provided 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 last exposure rule is a rule of convenience in its application. Anderson v. Noel T. Adams Ambulance Dist., 931 S.W.2d 850, 853 (Mo.App.W.D. 1996). According to the Missouri Supreme Court, "[t]he starting point in applying the last exposure rule is that the employer liable for compensation is the last employer to expose the employee to the occupational hazard prior to the filing of the claim." Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo.banc 1995). However, there is an exception to the last exposure rule. The exception is commonly known as the three- month exception and is set out in section 287.067.7. The exception states the following: 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. In order to determine whether section 287.067.7 applies, we must determine whether there was a diagnosis of the occupational disease within the statutorily prescribed three-month period stated in the exception. See Arbeiter v. National Super Markets, Inc., 990 S.W.2d 142, 145-46 (Mo.App. E.D.). If it is determined no diagnosis or claim was made during this statutorily mandated three-month period, the exception does not apply and the date the claim was filed is controlling pursuant to the last exposure rule. Section 287.063. In this case, claimant did not file a claim until after he had worked for Fabco for almost two years. Fabco, the last employer before the claim was filed, is presumed to be liable for claimant's claim pursuant to section 287.063. There is no evidence claimant was diagnosed with carpal tunnel syndrome during the statutorily mandated three-month period set forth in section 287.067.7. Thus, section 287.067.7 does not apply and Fabco is responsible for claimant's claim pursuant to section 287.063. Fabco's first point is denied. We find that Fabco's remaining points are without merit and affirm pursuant to Rule 84.16(b). Based on the foregoing, we affirm the award of the Commission. Footnotes: FN1. All statutory references are to RSMo 1994, unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.