David Pierce v. BSC, Inc. (Bratton Steel Corp.)

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. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 27, 2005, and awards no compensation in the above-captioned case.

Although employee requested that a temporary or partial award be issued awarding further medical care and the administrative law judge issued a temporary award and decision denying benefits, resolution of the issues against employee based upon the application of sections 287.063 and 287.067.7 RSMo, has the effect of a final award and decision. We therefore correct the title of the administrative law judge’s award and decision to a Final Award and Decision Denying Compensation.

The award and decision of Administrative Law Judge Emily S. Fowler, issued January 27, 2005, are attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 22nd day of July 2005. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member DISSENTING OPINION FILED John J. Hickey, Member

Secretary

DISSENTING OPINION I have reviewed and given consideration to all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers’ Compensation Law, I reverse the administrative law judge’s award and decision and award further medical care. I find employer is responsible for employee’s medical condition.

Section 287.063 RSMo, 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 to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo.
2. 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.
3. The statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that a compensable injury has been sustained, ...

Section 287.067 RSMo, 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.

Sections 287.063 and 287.067.7 RSMo are clear that the liable employer must have exposed the employee to the hazard found to be a causative factor of the disease. The last exposure rule is a rule of convenience and not one of causation when an employee is exposed to the same hazard through subsequent employments; however, exposure to an occupational disease through subsequent employment is required. There is an element of causation involved in the last exposure rule. If the employment did not expose the employee to the hazard, then the claim should be denied for lack of a causal connection. See Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo. App. 1997) and Maynard v. Lester E. Cox Medical Ctr., 111 S.W.3d 487 (Mo. App. 2003). If employee's subsequent employment had been as a security officer who sits and watches a monitor all day, there would be no question that that employment did not expose him to the hazard of the occupational disease sustained to his shoulder. I agree that the issue is more clouded in the facts before us; however, I do not find that employee's employment with Ford Motor Company or any of his other subsequent employers exposed him to the hazard of the occupational disease for which his claim is made. The liable employer is the one who last exposed the employee to the hazard of the occupational disease. I find the last employer to expose him to the hazard of the occupational disease was Bratton Steel Corp.

Employee credibly testified as to his duties for employer and his subsequent employers. While working for this employer, his job duties were extremely labor intensive. He frequently had to lift 100 or more pounds. He wore a tool belt that weighed 30-40 pounds when he had his tools in the belt. The tool belt also functioned as a safety harness. He was required to carry a sledgehammer in his tool belt that added an additional eight pounds of weight. The first job he worked for employer was at the Nebraska Furniture Mart, which is when employee's shoulder began to hurt. This particular job involved floor and roof decking. Employee had to drag 20-25 feet long by 3 feet wide steel plates weighing 40-50 pounds and bolt them into place. He reported to his supervisor that this job was causing him pain. This job lasted approximately three months. Employee was then placed at a different job site, which involved building an overpass over U.S. 71. The job involved working on 12-15 inch girders located 40-50 feet in the air. His function was to secure bolts into holes to secure steel beams which involved repeated slinging of the sledge hammer with the right arm because the left arm was used to hang on. He had to swing the sledgehammer as hard as he physically could repeatedly during this job, which lasted approximately one month. He estimated that he had to secure 200 bolts at each point of connection, with 50 points of connection, for a total of slamming his sledge hammer approximately 10,000 times during this 30 day job. His right shoulder continued to worsen and he concluded that he should probably find another line of work because of the pain. Employee was then laid off from this job.

His subsequent employment was with Builders Steel Corporation; however, he worked as a working foreman. Although he returned to the Nebraska Furniture Mart, the work was not nearly as labor intensive and he was not exposed to the same hazard as he had been with employer. This job involved some supervisory work and mostly welding. He then worked one to two weeks on a school doing welding and x-bracing. None of his work with Builders Steel Corporation involved wearing the tool belt/safety harness or swinging a sledgehammer. His next job involved working as a swapper, which he described as a traffic cop for cranes. There was no evidence that this job involved repetitive arm activity. After this job ended, employee was hired at Ford Motor Company. Employee had been looking for work outside of the ironworker industry and was able to secure this job with Ford on his own.

Employee basically worked as a floater for Ford. He was assigned to different jobs, but with the exception of one assignment, none of the jobs involved overhead work or bothered his shoulder. The one job that did involve overhead work consisted of lifting a 2-3 pound " Y " pipe and installing it underneath a transmission. The vehicles came down an assembly line over employee's head and employee installed the pipe. On September 3, 2003, employee was trying to install a pipe and pushed against the pipe to install it. When he did so, the pipe wedged and he felt the sensation that his right shoulder had given way. He reported the accident and was sent to Ford's medical department, which referred him for an MRI and prescribed physical therapy. He returned to work with Ford and was not given any overhead work. With the exception of being laid off from February 13, 2004, until the third week in July 2004, employee has continued to work at Ford and none of the jobs that he has been assigned involve overhead work. He further explained that his duties at Ford have never involved lifting 100 or more pounds, wearing a tool belt, or swinging a sledge hammer.

The facts of this claim are similar to those presented in Coloney, 952 S.W.2d 755. Mr. Coloney began working for Accurate in August 1988. Employer calibrated large truck and forklift scales that weighed from ten to several hundred thousand pounds. Mr. Coloney's duties consisted of repeated placement and removal of weights from scales to judge accuracy. He lifted between 50,000 and 100,000 pounds of weights on a "light" day. Other days, the weights increased to between 300,000 to 500,000 pounds per day. Sometime in 1990, he noticed symptoms in his hands and shoulders and sought medical treatment. Accurate changed his job duties to that of a salesman. He filed a claim for compensation in February 1992 alleging an injury to his left shoulder. In April 1992, Mr. Coloney went to work for Bugs Away. His duties there included spraying residences with insecticides. The sprayer he used was strapped to his shoulder and weighted 11-12 pounds. He had to depress a trigger on a wand in order to spray the insecticide. He also started up his own "handyman" business during this time frame. He continued to experience problems with his shoulders and hands and sought additional medical treatment in May 1992. He quit Bugs Away in September 1992, and continued to operate his own business. On September 23, 2002, he amended his claim for compensation against Accurate to allege an injury to his right shoulder. He sought additional medical treatment in December 1992, and was diagnosed with bilateral carpal tunnel syndrome. He again amended his claim against Accurate to add injuries to his hands. Mr. Coloney was successful with his claim before the administrative law judge and the Commission and Accurate appealed to the Court of Appeals, Western District. Accurate argued that Mr. Coloney was working for Bugs Away and was self-employed when he filed his claim for compensation alleging injury to his right shoulder and for bilateral carpal tunnel syndrome; thus, it should not be held liable because employee was working elsewhere when the claims were filed.

The Court, in affirming the Commission's award and decision, stated, in part:

Mr. Coloney's work at Accurate clearly exposed him to conditions causing his carpal tunnel syndrome. Mr. Coloney was required to lift fifty pound weights repeated thousands of times over the course of his employment. The lifting of these weights required Mr. Coloney to utilize his shoulders and hands extensively. During his employment at Accurate, Mr. Coloney first noticed pain and weakness in his hands and shoulders. Thus, the injuries to his hands and his shoulders that Mr. Coloney asserted in his claim for compensation related directly to his work activities at Accurate.

In contrast, Mr. Coloney was not exposed to repetitive action capable of producing carpal tunnel syndrome while employed at "Bugs Away". At "Bugs Away", Mr. Coloney was not required to lift any heavy objects; the vacuum pump sprayer M