Mark Lee v. Anheuser Busch Companies Inc.

Injury No.: 00-173668

Employee: Mark Lee

Employer: Anheuser Busch Companies Inc.

Insurer: Self Insured c/o ACE USA/ESIS

Date of Accident: January 1, 2000

Place and County of Accident: City of St. Louis, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties, heard oral argument, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated December 22, 2004. The award and decision of Administrative Law Judge Joseph E. Denigan is attached hereto solely for reference.

I. The condition of employee's bilateral upper extremities, i.e., bilateral carpal tunnel syndrome, right wrist ganglion cyst and left ulnar nerve irritation at the elbow is an occupational disease arising out of and in the course of employment.

In the instant case, the employee seeks workers' compensation benefits for bilateral upper extremity complaints, alleging his medical condition is attributable to an occupational disease arising out of and in the course of his employment. The applicable statutes are section 287.063 RSMo 2000 and section 287.067 RSMo 2000.

An informative legal analysis of occupational diseases pursuant to these Missouri statutes is found in Kelley v. Banta and Stude Const. Co., Inc., 1 S.W.3d 43 (Mo. App. E.D. 1999), from which the following legal principles are cited:

[1,2] In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 299-300 (Mo. App. 1991). The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Polavarapu v. General Motors Corp., 897 S.W.2d 63, 65 (Mo. App. E.D. 1995); Dawson v. Associated Electric, 885 S.W.2d 712, 716 (Mo. App. W.D. 1994); Hayes, 818 S.W.2d at 300; Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 415 (Mo. App. 1988); Jackson v. Risby Pallet and Lumber Co., 736 S.W.2d 575, 578 (Mo. App. 1987).

[3-6] Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson 885 S.W.2d at 716; Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 223 (Mo. App. W.D. 1992); Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo. App. 1991). Claimant must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo. App. 1992); Sellers, 752 S.W.2d at 416; Estes v. Noranda Aluminum, Inc., 574 S.W.2d 34, 38 (Mo. App. 1978). However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. Hayes, 818 S.W.2d at 299; Sheehan v. Springfield Seed \& Floral, 733 S.W.2d 795, 797-8 (Mo. App. 1987). A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate. Dawson, 885 S.W.2d at 716; Sellers, 776 S.W.2d at 504; Sheehan, 733 S.W.2d at 797. The opinion may be based on a doctor's written report alone. Prater v. Thorngate, Ltd., 761 S.W.2d 226, 230 (Mo. App. 1988). Where the opinions of medical experts are in conflict, the fact-finding body determines whose opinion is the

most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop 'N Save Warehouse Foods, Inc., 855 S.W.2d 460, 462 (Mo. App. E.D. 1993); Webber, 826 S.W.2d at 54; Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo. App. 1986).

In conformity with the above-cited case law, the instant case is controlled by the "last exposure rule", sometimes referred to as the "rule of convenience" which has been the law in Missouri for many years. In a workers' compensation case in Missouri, based upon occupational disease, liability accrues and attaches to the employer as of the date of the disability. The test for determining when compensation accrues, is the time when incapacity from occupational disease occurs, and not when the exposure commences or the disease begins and continues to develop. It is disability after exposure in the employer's business that creates the obligation to compensation. Because the development of occupational diseases is characteristically gradual, but variable in different diseases and with different persons, the earlier stages being frequently undetectable, the only rule which ensures the benevolent legislative objective of recovery in every meritorious case is one which fixes liability at the single and easily determinable point when there is inability to work.

The great preponderance of judicial opinions supports the rule that in workers' compensation cases, based upon occupational disease, liability accrues and attaches to the employer as of the date of the employee's disability.

In the instant case the employee testified in significant detail as to his employment history with the employer, which has been continuous in nature since October 9, 1978, through the present date. Employee thoroughly described his job activities and job duties while employed with employer since 1978, which were repetitive in nature, convincing the Commission that employee contracted an occupationally induced disease rather than an ordinary disease of life as there was an exposure to the disease which was greater than or different from that which affects the public generally, and there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Furthermore the medical expert evidence extracted from both the opinions of Dr. Haueisen and Dr. Schlafly, convinces the Commission of the greater probability than not that employee's resultant occupational disease was caused by conditions in the work place at Anheuser Busch.

The Commission determines that the employee has met his burden of proof that he has contracted an occupationally induced disease due to repetitive trauma to which he was exposed to at the workplace as thoroughly described in his testimony. The Commission also finds the medical opinions of Dr. Haueisen and Dr. Schlafly more credible and persuasive of belief than the medical expert testimony proffered in behalf of the employer. Both Dr. Haueisen and Dr. Schlafly testified that employee's exposure to the occupational disease was greater than and different from that which affects the public generally, and both described a necessary link between the disease and employee's work activities. Both physicians associated employee's repetitive motions with the contraction of the resultant medical condition or disease. The Commission finds extremely persuasive the testimony of Dr. Haueisen the initial treating medical expert and operating physician, who clearly was of the opinion that more likely than not there was a casual relationship of employee's work activities to the development of his bilateral upper extremity conditions which he treated.

Employee credibly testified as to the insidious and gradual onset of his disease, i.e., beginning in the mid 1990's, employee experienced pain in his bilateral wrists, fingers and elbows, as well as tingling and numbness, etc. He testified his right arm would go to sleep; he had difficulty sleeping at nights; and he did not report these problems to his supervisors or employer because as with most occupational diseases, and their insidious nature, he did not know what was causing his problems and the problems were not preventing him from continuing to work.

Eventually by January 2001, employee's problems were at a stage that medical care and treatment became a necessity. Employee's medical problems culminated with the following surgical procedures: (1) on August 13, 2001, employee underwent a right carpal tunnel syndrome release performed by Dr. Haueisen; (2) on November 11, 2002, employee underwent a left carpal tunnel syndrome release and left elbow surgery also performed by Dr. Haueisen. The medical diagnosis were bilateral carpal tunnel syndrome, left ulnar nerve irritation at the elbow and right wrist ganglion cyst. The right wrist ganglion cyst was treated conservatively.

Based on the foregoing the Commission concludes that the above-described medical conditions are attributable to an occupational disease arising out of and in the course of employee's employment pursuant to the Workers' Compensation Act.