Thomas Smalley v. Landmark Erectors

degree by his occupational disease. Here, employee did not suffer any disability until September 6, 2006, when Dr. Ollinger informed employee that he needed bilateral carpal tunnel surgery. It was also at this time that employee was experiencing constant numbness, tingling and pain in his fingers and hands, and that he was told his medical issues were work related. As such, employee was last exposed to the hazard of his occupational disease on September 6, 2006.

We also agree with the administrative law judge that the exception to the Last Exposure Rule contained in $\S 287.067 .8$ is not applicable here. That section sets forth that:

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 the immediate prior employer was the prevailing factor in causing the injury, the prior employer shall be liable for such occupational disease.

Employee began working for Landmark at the beginning of April 2006. His disability began on September 6, 2006. At that time, employee had been working for Landmark for just over five months. Clearly this is outside of the three-month time period under the exception. As such, since Landmark was the last employer to expose employee to the hazard of his occupational disease, and because the exception is not applicable in this instance, Landmark is liable to employee for benefits.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued January 22, 2008, is affirmed, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 19th day of August 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: September 6, 2006

- State location where accident occurred or occupational disease was contracted: St. Louis County

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Developed carpal tunnel syndrome while performing iron work.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Both upper extremities.

- Nature and extent of any permanent disability: Not yet determined

1. Compensation paid to-date for temporary disability: -0 -
2. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Thomas Smalley

Injury No.: 06-113799

1. Value necessary medical aid not furnished by employer/insurer? Unknown

- Employee's average weekly wages: \1,142.40

1. Weekly compensation rate: \$ 718.87 / 376.55$

1. Amount of compensation payable:

Medical expenses: *

Temporary total disability (or temporary partial disability) **

1. Second Injury Fund liability: Open

(use of an asterisk (*) denotes a contingent benefit) Total: * **

1. Future requirements awarded: See Award

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: John J. Larsen, Jr.

The Issues presented for resolution by way of this hearing are notice and whether Landmark Erectors is the proper employer liable for Workers' Compensation benefits for this admittedly work related carpal tunnel syndrome. The parties agree Claimant has a work related injury. They differ over the responsible Employer. Employers' brief indicates "medical causation" is an issue, but it was not indicated at trial and will not be addressed.

- Claimant was born October 2, 1952, and has worked as an iron worker since 1975 out of The Local 396 Union Hall. Claimant has worked for thirty-five continuous years in this employment.

- From November of 1999 to September of 2003 Claimant worked for Alberici. From September 3, 2003 to March 2004 Claimant worked for Acme Erectors. From April 4, 2004 to October 2005 Claimant again worked for Alberici. From October 2005 to March 2006 Claimant worked for ClayCo. From April 1, 2006 to mid January 2007 Claimant worked for Landmark Erectors, the employer herein. From January 7, 2007 to the present Claimant has worked for McCarthy Brothers.

- Claimant began experiencing numbness and tingling in his fingers in 2005. It was not specific, but it was pain in his wrist going into his forearms and would occur when he was sleeping. Sometimes it would wake him up as many as three times a night. Claimant neither requested nor received treatment from Alberici for whom he was working at the time. He did not discuss these complaints with Alberici, and he did not lose any time from work with Alberici as a result of these symptoms.

- On October 25, 2005, work was slowing with Alberici and a new project was beginning with ClayCo, so Claimant went to work for ClayCo Construction on October 26, 2005. Claimant was the foreman in charge of setting steel on that project. In that capacity he was responsible for unloading steel, hooking and hoisting it to the proper building levels. He would "up right" beams by hand, weld with an "auto wire", feed the welding machine using a trigger gun, and generally perform all the tasks of the trade of an iron worker.

- Claimant's duties were no different at ClayCo than they were at Alberici in terms of hand intensity. The symptoms have been steadily progressing.

- Claimant first mentioned his hand problems to Dr. Goldstein, his family physician on February 14, 2006, when he complained of numbness in his fingers at night, particularly the fourth and fifth digit, or the ring and little finger. There is no diagnosis in Dr. Goldstein's records and none was provided to Claimant verbally. Claimant was working for ClayCo at that time.

- In March 2006, one month later, Claimant left the ClayCo job because it was winding down and he was

laid off.

- Three weeks later he went to work for Landmark. His hand complaints did not get any better during the time he was not working. Claimant went to work for Landmark in the first week of April 2006, and again performed all facets of the iron working business, setting steel, laying welds, laying roof deck, welding joints, moving structural steel, core drilling concrete, hammer drilling anchors, cutting, torch welding, setting siding and sheet metal.

- The hand intensity was the same as all the prior jobs. Work at Landmark was the same as it was at Alberici and ClayCo, performing all facets of the iron working trade in the usual hand intensive matter.

- On May 2, 2006 Claimant went to see Dr. Enad with a variety of complaints, including numbness and tingling in his hands which the doctor thought might be carpal tunnel syndrome. Therefore, on May 12, 2006, Dr. Enad performed a nerve conduction test in order to "rule out" carpal tunnel syndrome. Claimant was diagnosed with carpal tunnel syndrome on that date.

- Claimant purchased splints for his hands which he used at work for a while but then discontinued using. No prescriptions were provided and he was eventually referred to Dr. DeFillipo who contacted the employer to verify payment before performing surgery.

- Claimant told Landmark on June 5, 2006, that they needed to contact Dr. DeFillipo so that carpal tunnel surgery could be performed. This was three weeks after the nerve conduction study. Landmark contacted their Workers' Compensation insurance company, American Family, which said it was not obligated to pay.

- Cl