Decision date: January 19, 200617 pages
Summary
The Missouri LIRC modified the ALJ's award and reversed the determination of employer liability, concluding that Station Casino, not Ameristar Casino, is responsible for workers' compensation benefits for the employee's occupational disease. Under the 'last exposure rule,' the employee's bilateral carpal tunnel and cubital tunnel syndrome arising from her dealership work at Station Casino between May 1998 and December 2000 makes Station Casino the liable employer.
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| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION | |
| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) | |
| Injury No.: 00-164824 | |
| Employee: | Marlene O’Donnell |
| Employer: | 1) Station Casino |
| 2) Ameristar Casino | |
| Insurer: | 1) Zurich North America Insurance Co.; Legion Insurance |
| 2) Self-Insured adjusted by Specialty Risks Services | |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund (Open) |
| Date of Accident: | November 30, 2000 |
| Place and County of Accident: | St. Charles County, Missouri |
| The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided bysection 287.480 RSMo. Pursuant to section 286.090 RSMo, subsequent to reviewing the evidence and considering the entire record, the Commission modifies the award and decision of the administrative law judge dated August 23, 2005. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued August 23, 2005, is attached and incorporated by this reference.The sole and determinative issue in this case is which of two consecutive employers of employee is responsible for workers’ compensation benefits due the employee for her contraction of an occupational disease arising out of and in the course of her employment. The controlling statutes aresection 287.063 RSMo and section 287.067 RSMo, generically referred to as the “last exposure rule.”The administrative law judge determined and concluded that the employer liable for the workers’ compensation benefits to employee and in whose employment the employee was last exposed to the hazard of the occupational disease for which claim was made, was employer Ameristar Casino (Ameristar). The Commission disagrees with that conclusion, reverses that determination, and in lieu thereof, concludes thatemployer Station Casino (Station) is the employer liable for the workers’ compensation benefits and in whose employment the employee was last exposed to the hazard of the occupational disease for which claim was made.The findings of fact and stipulations of the parties were accurately recounted in the award of the administrative law judge, and will merely be summarized below.The pertinent facts are as follows: between May 21, 1998 and December 20, 2000, employee was continuously employed with Station in the capacity of a dealer; employee had no other employment during this time frame; between December 20, 2000 and the date of trial employee was continuously employed by Ameristar, initially as a dealer, and as a dual rate supervisor as of July, 2002; and as relevant to the instant case, employee has had no additional employment. | |
| In approximately January, 2000, employee developed symptoms of numbness and tingling in her bilateral upper extremities; due to these symptoms during the calendar year 2000, the employee was seen, treated and or evaluated by several medical experts and received conservative treatment in order to cure and relieve her from the effects of these symptoms; ultimately, employee was referred to a hand surgeon, Dr. Sudekum, on December 4, 2000, and Dr. Sudekum diagnosed bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome; Dr. Sudekum commenced active medical treatment of the employee; culminating with surgeries performed January 5, 2001, consisting of a right carpal tunnel release and a right cubital tunnel release, and a second surgery performed |
on January 19, 2001, consisting of a left carpal tunnel release and left cubital tunnel release.
On December 11, 2000, Dr. Sudekum imposed a light duty work restriction removing employee from her capacity as a dealer as Dr. Sudekum was unequivocally of the opinion that her occupation was exposing her to the contraction of her occupational disease, i.e., bilateral carpal tunnel syndrome as well as bilateral cubital tunnel syndrome.
Due to the imposition of Dr. Sudekum's light duty work restriction, the employee was removed from her injurious work exposure between December 11, 2000 and her initial surgery occurring January 5, 2001, followed up by her second surgery January 19, 2001, and her post operative recovery; the employee did eventually return to her occupation as a dealer in approximately June, 2001, and continued in such capacity until approximately July, 2002, when she became a supervisor at Ameristar.
Employee's initial claim for compensation was filed January 3, 2002; and employee's amended claim for compensation was filed August 15, 2002. Station paid employee's medical expenses for her treatment rendered on account of her occupational injuries, and also tendered employee temporary total disability benefits through her applicable healing period.
Sections 287.063.1 and 287.063.2 address liability for occupational disease. It provides:
Subsection 7 of section 287.067, to which 287.063.1 refers, states:
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.
It is undisputed that employee was an employee with Ameristar for a period greater than three months at the time the claim for compensation was filed as well as the amended claim for compensation was filed. The administrative law judge held in her award that she was constrained to follow the reasoning in Endicott v. Display Technologies, Inc., 77 S.W.3d 612 (Mo. banc 2002), in applying the last exposure rule pursuant to section 287.063 and section 287.067, and concluded that in so doing, the responsible employer was Ameristar and not Station. The administrative law judge concluded that she must look to the date the employee filed her claim and whether more than three months had passed since working for Ameristar. Then, if so, there must be a determination that there was extremity intensive employment for a greater period of three months during the subsequent period of employment and if the employment were repetitive in nature liability should attach and be imposed on the last employer.
However, the Commission is convinced that a closer reading of Endicott, supra, requires, as a matter of law, that the liability and responsibility for workers' compensation benefits in this case be imposed on Station, in lieu of Ameristar. Endicott states the last exposure rule is not a rule of causation. "Rather, as the starting point, the last employer before the date of claim is liable if that employer exposed the employee to the hazard of the occupational disease." Id. at 615. The Commission is of the opinion that for the holding in Endicott to apply to the instant case, employee must have had employment with Ameristar for more than three months before her claim was filed and
employee must have been exposed to the hazard of the occupational disease she contracted, i.e. bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome.
The evidence is uncontradicted that employee's employment and exposure to repetitive motion while an employee with Station, was the substantial contributing factor to the injury contracted. Prior to her employment with Ameristar, which began December 20, 2000, the employee was diagnosed with both bilateral carpal tunnel syndrome and bilateral cubital syndrome, and Dr. Sudekum was of the opinion that she had contracted these diseases due to her occupation as a dealer at Station. On December 11, 2000, Dr. Sudekum removed her from her work capacity as a dealer, and imposed light duty restrictions, removing her from her injurious exposure. When Ameristar became her employer on December 20, 2000, her light duty restrictions were still in effect, and she did not expose herself to the hazards of the disease between December 20, 2000 and her surgeries undergone in January, 2001. Thus, there was no substantial, competent or credible evidence that employee, while employed with Ameristar between December 20, 2000 and her initial surgery of January 5, 2001, was exposed to the hazard of the occupational disease she contracted. It is the opinion of the Commission that for the liability for the employee's occupational disease to be the responsibility of the subsequent employer, Ameristar, the employee would have to have been employed in an occupation or process at Ameristar in which the hazard of the disease exists.
Emphasizing paragraph 7 of section 287.067 RSMo, it is clear that "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 the instant case the evidence clearly indicates that employee was not exposed to the hazard of the occupational disease she contracted between December 20, 2000 and January 5, 2001, and even if there were exposures, they were not for a period greater than three months; and, it is unequivocal that the employee's prior employment with Station was the substantial contributing factor to her injuries.
As of January 5, 2001, the employee became incapacitated for work due to her occupational injuries, and it is disability after exposure in the employer's business that creates the obligation to compensation and the employer's liability is fixed as of that time. King v. St. Louis Steel Casting Co., 182 S.W.2d 560 (Mo. 1944).
It is true that employee eventually returned to employment as a dealer with Ameristar, commencing full time approximately June 2001. It is true that, at the time the claim for compensation was filed on January 3, 2002, employee had served in that work capacity for a time period greater than three months. It is also true that employee's work for Ameristar exposed employee to a hazard (repetitive motion) capable of causing carpal tunnel syndrome and cubital tunnel syndrome. However, the hazard to which Ameristar exposed employee did not cause employee's conditions of carpal tunnel syndrome and cubital tunnel syndrome that are the subject of this claim.
Before she was ever exposed to any hazard of her disease with Ameristar, employee had completed medical treatment for the disease, had achieved maximum medical improvement from the disease, had been released by her physician to full duty work without restrictions, and had actually returned to performing full duty work. Common sense convinces us that it is not possible that employee's later employment activities with Ameristar caused a disease from which employee had already maximally recovered. Not coincidentally, there is no medical opinion before us that supports a finding or conclusion that employee's later work for Ameristar involved repetitive motion capable of retroactively causing the injuries from which employee had already maximally recovered before she began repe
Full decision text continues in the plain-text archive copy.
January 17, 2023#19-108693
The Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Brian Cox, finding no compensable occupational disease or accident under Missouri law. The case involved disputed causation regarding whether Cox's carpal tunnel syndrome arose from his employment duties at the smelter or loading dock positions.
February 9, 2022#09-015610
The Missouri Court of Appeals reversed the Commission's December 2020 award and remanded for reconsideration of whether the employee achieved permanent total disability status when combining her primary bilateral carpal tunnel injury with preexisting disabilities, including newly admitted vocational expert testimony and complete medical evaluation evidence. The Commission reconsidered the case on remand, admitting previously excluded vocational expert testimony documenting the employee's preexisting psychiatric disabilities (depression, PTSD, anxiety disorder) and modified its award accordingly.
January 21, 2022#17-105467
The Labor and Industrial Relations Commission affirmed the administrative law judge's decision denying compensation for a work-related occupational disease injury to the employee's left wrist, finding the claim was barred by a prior settlement for left shoulder disability. A dissenting opinion argued the prior settlement only covered the shoulder injury and that the employer's authorization of medical testing suggested the wrist injury was compensable, but the majority affirmed the denial.
August 25, 2021#14-105395
The Commission affirmed the Administrative Law Judge's award allowing permanent total disability compensation to Clifford Wolf against the Second Injury Fund, finding his primary carpal tunnel syndrome injury combined with preexisting disabilities from a prior back injury and polio rendered him permanently and totally disabled. The employee settled his primary claim for $35,500 based on 22.5% permanent partial disability of the right wrist and 20% of the left wrist.
June 7, 2021#03-051173
The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award of workers' compensation to Kevin G. Young for carpal tunnel injuries, finding the award supported by competent and substantial evidence. The Commission upheld the ALJ's evidentiary rulings excluding certain statements that were not provided to the employee's attorney within the statutory thirty-day period required by Missouri law.