James Saller v. Willert Home Products, Inc.

and section 287.067 RSMo 2000.

The alleged occupational disease is right bilateral carpal tunnel syndrome.

The Commission ultimately concludes as discussed below that the condition of employee's right upper extremity, carpal tunnel syndrome, is not attributable to an occupational disease arising out of and in the course of his employment with employer.

Under the "last exposure rule", workers' compensation liability for occupational disease of carpal tunnel syndrome fell on employer in whose employment employee was last exposed to hazard of the disease prior to the filing of the claim, and not on subsequent employer. Johnson v. Denton Const. Co., 911 S.W.2d 286 (Mo. 1995).

An informative legal analysis of occupational diseases pursuant to the Missouri statutes is found in Kelley v. Banta and Stude Construction 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).

Although workers' compensation is a creature of statute, many common law pleading principles apply, such as the rule that whenever a claim asserted in an amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. Holaus v. William J. Zickell Co., 958 S.W.2d 72 (Mo. App. E.D. 1997).

The test of whether an amended claim relates back to the date of filing of the original claim is whether the

amendment amplifies the claim in the original pleading or sets up a new cause of action. Ford v. American Break Shoe Company, 252 S.W.2d 649 (Mo. App. 1952).

Our courts have repeatedly held that procedural rights are considered as subsidiary and substantive rights are to be enforced at the sacrifice of procedural formality. If a second claim filed is for the same injury, the second claim is tantamount in legal effect to the filing of an amended claim which supersedes the original claim. Silas v. ACF Industries, Inc., 440 S.W.2d 189 (Mo. App. 1969).

Employee testified as to his employment history with employer. Employee described his job activities and job duties in summary fashion as follows: employment relationship began January 1, 2001; employee initially was hired as a division manager; the first two years of employment he principally worked on establishing a standard operating procedure (SOP) manual; this job duty entailed computer type entry work and employee testified he typed approximately five to six hours per day using his right upper extremity; the SOP manual was completed at the end of calendar year 2002, at which time employee became a supervisor; as a supervisor employee's computer time decreased although employee alleged his work was still somewhat repetitious in movement concerning his right upper extremity; on January 1, 2004, employee was demoted to production supervisor and worked in that capacity until August 10, 2004, when he separated from employment with employer. Employee remained unemployed until March 21, 2005.

Employee acknowledged that he did not experience any right hand symptoms until two months after his separation of employment; and employee did not seek medical attention for his right upper extremity complaints until January, 2005. During his tenure of employment with employer, employee was diagnosed as being diabetic and was morbidly obese.

Employee filed an initial claim for compensation on March 16, 2005, alleging an injury date of January 24, 2005. Employee filed a second claim for compensation on October 17, 2005, alleging an injury date of August 10, 2004, the date of his separation from employment. The second claim for compensation was not styled as an amended claim and the Division of Workers' Compensation set up two separate files assigning two separate injury numbers for the two distinct injury dates. The only difference in the two claims for compensation were the dates of injury.

Joe Adamo testified in behalf of the employer; Mr. Adamo was the plant manager during the employee's employment tenure with employer; Mr. Adamo testified that employee worked on the SOP manual in calendar years 2001 and 2002; Mr. Adamo testified that employee prepared approximately one page per day concerning the SOP manual; after employee was demoted to supervisor on January 1, 2004, 95-98\% of employee's time was spent on the floor; in the opinion of Mr. Adamo there is no way employee worked five to six hours per day on a computer; and in his opinion the work did not entail more than one-half hour per day concerning computer type entries.

Dr. Shuter, a board certified neurologist, testified in behalf of the employee; Dr. Shuter was of the opinion that employee's job activities exposed employee to the contraction of right carpal tunnel syndrome and in the opinion of Dr. Shuter the employment was a substantial factor in the resulting injury and disability.

Dr. Shuter assumed that employee's work duties consisted of repetitive activity for "most of the day", and Dr. Shuter assumed that employee was employed in the same capacity throughout his employment; on crossexamination Dr. Shuter acknowledged that obesity is a risk factor for contraction of carpal tunnel syndrome; that diabetes is a risk factor for the contraction of carpal tunnel syndrome; and age can also be a risk factor for the contraction of carpal tunnel syndrome especially being above the age of 30.

On further cross-examination, Dr. Shuter admitted that employee's time spent doing computer data entry was not considered in his report and Dr. Shuter did not do an analysis concerning the number of keystrokes per minute made by employee; and Dr. Shuter assumed that employee's manner of typing was a one-handed method with

one finger and corresponding wrist movement.

Dr. Shuter also admitted that employee's symptoms appeared after his separation from employment and coincided with additional weight gain by employee.

Dr. Ollinger, a board certified plastic surgeon, testified in behalf of employer; Dr. Ollinger testified that he reviewed employee's treating medical records, obtained employee's history from employee as to his job duties and reviewed employee's essential jobs function; Dr. Ollinger had three impressions: (1) employee is diabetic; (2) employee is morbidly obese; and (3) employee has right carpal tunnel syndrome, onset date October, 2004.

Dr. Ollinger was of the opinion that employee