Decision date: March 15, 200710 pages
Summary
The Commission reversed the administrative law judge's denial of workers' compensation benefits, finding that the employer was the last employer to expose the employee to the hazard causing bilateral carpal tunnel syndrome. Under the last exposure rule, the employer is liable for benefits for this occupational disease that arose out of and in the course of the employee's employment as a material handler.
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| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION | |
| TEMPORARY AWARD ALLOWING COMPENSATION | |
| (Reversing Award and Decision of Administrative Law Judge) | |
| Injury No.: 01-153936 | |
| Employee: | Richard Johnston |
| Employer: | Hussmann Corporation |
| Insurer: | Ace USA/ESIS |
| Date of Accident: | November 1, 2001 |
| Place and County of Accident: | St. Louis County, 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, and considered the entire record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated May 26, 2006. | |
| I. Preliminary Matters | |
| The stipulations of the parties, issues in dispute and summary of the evidence were accurately recounted in the May 26, 2006, award issued by Administrative Law Judge Kathleen M. Hart and will not be repeated by the Commission unless special emphasis necessitates. That award and decision is attached and incorporated to the extent it is not inconsistent with this temporary award.The administrative law judge denied employee compensation for his injuries because employee failed to satisfy his burden of proof that his bilateral carpal tunnel syndrome was substantially caused by his work as a material handler. The administrative law judge then concluded that, based on her ruling above, the remaining issues were moot.Employee filed an Application for Review with the Commission alleging the administrative law judge erred in that the administrative law judge incorrectly applied case law and the statutory law of section 287.020(2) and section 287.067(2), RSMo 2000, concerning whether or not employee had an occupational disease arising out of and in the course of his employment.The Commission, as discussed below, finds that pursuant to the last exposure rule, employer was the last employer to expose employee to the hazard of the occupational disease of bilateral carpal tunnel syndrome, and therefore, is liable to employee for benefits. Consequently, the administrative law judge’s denial of benefits to employee is reversed. | |
| II. Findings of Fact | |
| Employee is a 43 year-old male who worked as a material handler for employer from May 2000 until he was laid off in November 2001. He worked five days a week, in eight-hour shifts, with some occasional overtime. Employee’s primary job duty was to fill orders of approximately 100 tickets each night. Each ticket consisted of orders for multiple parts. Employee would retrieve the parts to fill the orders on each ticket. By filling the orders, employee would handle approximately 1000 parts each night. The parts ranged in size from small nuts and bolts to parts that weighed between 50 and 60 pounds. Employee spent about seven-hours of each shift filling orders and one-hour using a forklift.Prior to working for employer, employee worked as a landscaper for several years. Employee returned to this line of work some time after being laid off by employer and after he filed this claim. During his prior work in landscaping, employee used mowers, chainsaws and occasionally a weed eater.Employee testified that he had a gradual onset of hand and wrist complaints starting around October 2001. He testified that he experienced numbness in his hands and that they would fall asleep and that he felt his right hand was worse than his left hand. Employee did not miss work during 2000 or 2001 due to hand complaints. Employee had never been treated for the above described hand complaints prior to working for employer. |
Employee went to see his family physician, Dr. Ross, for his hand complaints on October 29, 2001. Dr. Ross referred employee to Dr. Albanna, a hand specialist. Dr. Albanna saw employee on November 16, 2001. Dr. Albanna diagnosed employee with bilateral carpal tunnel syndrome and recommended surgery. Employee spoke with his health insurance company about coverage for his injury. The insurance company denied employee's claim and informed him that his injury was a workers' compensation matter, and therefore, not covered by his policy. Employee then approached employer about his injury and his need for surgery. By this time, employee had already been laid off. Employer refused treatment and employee filed this claim.
Employee saw Dr. Schlafly on March 14, 2005. Dr. Schlafly's records indicate that employee performed a significant amount of repetitive work with his hands for employer. Dr. Schlafly diagnosed employee with bilateral carpal tunnel syndrome. Dr. Schlafly opined that since employee's symptoms appeared while he was working for employer, employee's repetitive work as a material handler for employer was the substantial and prevailing factor in causing his bilateral carpal tunnel syndrome. Dr. Schlafly recommended that employee have carpal tunnel release surgery performed to alleviate his bilateral carpal tunnel syndrome.
On May 9, 2005, employer sent employee to see Dr. Sudekum. Dr. Sudekum agreed that employee had bilateral carpal tunnel syndrome, but disagreed that employee's work for employer was a substantial causal factor. In his letter of November 23, 2005, Dr. Sudekum indicated that he felt employee's work for employer was only a minor precipitating or triggering factor in the causation of employee's bilateral carpal tunnel syndrome. He believed that employee's prior landscaping work, in conjunction with employee's history of smoking half a pack of cigarettes every day for the last twenty years, being moderately over weight and having prior injuries to his hands, were all risk factors to the development of employee's bilateral carpal tunnel syndrome. He noted that claimant's prior landscaping work involved the use of vibratory tools and heavy gripping and grasping of equipment.
"An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020." Section 287.067 RSMo 2000. The employee must establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson v. Associated Elec., 885 S.W.2d 712, 716 (Mo.App. 1994). The employee bears the burden of proving a direct causal relationship between the conditions of his employment and the occupational disease. Jacobs v. City of Jefferson, 991 S.W.2d 693, 696 (Mo.App. 1999).
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. 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.
Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W3d 43, 48 (Mo.App. 1999) (citations omitted).
The Last Exposure Rule is applicable to this case. "Th[e] last exposure rule is not a rule of causation." Endicott v. Display Technologies, Inc., 77 S.W.2d 612, 615 (Mo. banc 2002). "Rather, as the starting point, the last employer before the date of the claim is liable if that employer exposed the employee to the hazard of the occupational disease." Id.
The Last Exposure Rule is set forth in section 287.063 RSMo. as follows:
The first issue is whether or not employee has a compensable occupational disease. There is competent and substantial evidence to show that employee's job duties as a material handler for employer, and his prior work as a landscaper, exposed him to the hazard of the occupational disease of bilateral carpal tunnel syndrome.
As a material handler, claimant was constantly using his hands to pick-up and grasp parts and pieces of varying sizes and weights for seven hours each night. The expert medical evidence proffered by employee, through the testimony of Dr. Schlafly, indicates that the repetitive work employee performed as a material handler was the substantial factor in causing his occupational disease. Additionally, in his November 23, 2005, report, Dr. Sudekum set forth his belief that employee's work as a material handler was a minor precipitating or triggering factor in the causation of employee's occupational disease. Based on these reports, it is clear that employee's and employer's doctors both believe that employee's work as a material handler exposed employee to the hazard of bilateral carpal tunnel syndrome.
As a landscaper, employee used tools and machinery that required heavy gripping and grasping with his hands. In his May 9, 2005, report, Dr. Sudekum set forth that he believed that employee's work as a landscaper, along with non-work related risk factors, were the primary and substantial causal factors of employee's occupational disease.
Based on both doctors' reports, it is reasonable to infer that employee was exposed to the hazard of bilateral carpal tunnel disease at both jobs and that his exposure to that hazard was greater than the exposure to the general public. Furthermore, it is apparent that there is a recognizable link between employee's work as a landscaper and material handler and his carpal tunnel syndrome. Therefore, employee has a compensable occupational disease.
Since employee's work as a material handler and prior work as landscaper both exposed him to the hazard of his occupational disease, we must next apply the last exposure rule to his claim. In applying the last exposure rule to this matter, it is employer's expert medical evidence that is of the greatest interest to the Commission. As set forth above, Dr. Sudekum's medical report clearly sets forth that employee's work for employer was a minor precipitating or triggering factor of the disease. His opinion supports a finding that employer exposed employee to the hazard of bilateral carpal tunnel syndrome. Since employer was the last employer to expose employee to the hazard of the occupational disease of bilateral carpal tunnel syndrome, it is presumptively liable for employee's compensation and causation is not an issue. Jaycox v. General American Life Insurance Co., 992 S.W.2d 240, 245 (Mo.App. 1999). The 90-day rule, which could place liability on the prior employer, is not applicable here because employee worked for employer for approximately eighteen months prior to filing his claim.
Finally, the fact that employee no longer worked for employer at the time he filed his claim is not an issue. Employee had no
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