Beverly Carney v. Wal-Mart Associates, Inc.

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the denial of the administrative law judge should be affirmed, but for very different reasons.

In denying compensation for employee's alleged occupational disease, the administrative law judge concluded "claimant failed to persuade that her employment at Wal-Mart is the prevailing or primary factor causing her bilateral carpal tunnel syndrome." Unfortunately, I believe denial of this claim is mandated for a much more fundamental reason. I deny compensation because the Missouri Workers' Compensation Law (Law) does not describe any benefits to be paid on account of occupational diseases. Having said that, I hope the Missouri courts and others smarter than me find authority in the plain language of the Law for the payment of benefits to occupational disease claimants. Strictly construing the statute, I found none.

Section 287.800.1 RSMo (2005)[1] provides that,"[a]dministrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly."

Section 287.020.10 RSMo provides:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident", "occupational disease", "arising out of", and "in the course of the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

"The language in section 287.020.10...serves as clarification of the fact that any construction of the previous definitions by the courts was rejected by the amended definitions contained in section 287.020...[I]t appears from the plain language of the statute, the legislature...intended to clarify its intent to amend the definitions and apply those definitions prospectively." Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo. App. 2007). Of particular interest in the instant case is the legislature's specific abrogation of all earlier case law interpretations of the phrases "accident" and "occupational disease."

As to the phrases appearing in $\S 287.020 .10$, the legislature has given us a blank slate. "The primary role of courts in construing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense. §1.090. That meaning is generally derived from the dictionary. There is no room for construction where words are plain and admit to but one meaning. Where no ambiguity exists, there is no need to resort to rules of construction." Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991) (citations omitted).

In light of the directives of $\S 287.800$ and the Missouri Supreme Court, our primary role is to strictly construe the Law giving the words and phrases their ordinary and usual meaning.

"The fundamental question in all compensation cases is whether the claimant is entitled to compensation..." Harris v. Pine Cleaners, Inc., 296 S.W.2d 27, 29 (Mo. 1956). "In a workers' compensation proceeding, liability is not fixed until it is determined from whom the employee is entitled to recover." Mikel v. Pott Indus., 896 S.W.2d 624, 626 (Mo. 1995) (citation omitted). "[L]iability is not fixed until it is determined who is entitled to what from whom." Highley v. Martin, 784 S.W.2d 612, 617 (Mo. App. 1989) (citations omitted). The "who" is the employee. The "whom" is the employer/insurer or the Second Injury Fund. See §§287.063.2, 287.067.8 and 287.220.1 RSMo. The "what" poses greater difficulties.

History of Occupational Disease Coverage under the Workers' Compensation Law At the heart of the Law is "the bargain" found in $\S 287.120$ RSMo, which provides, in relevant part:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

In exchange for a speedy and sure remedy for work-related injuries, employees gave up the right (in most instances) to sue their employers in civil suits. Employers, on the other hand, gave up their traditional defenses against such injury claims in exchange for certain liability under the Law and a release from all other liability. Section 287.120 .1 imposes upon all employers the obligation to provide the benefits spelled out in Chapter 287. As will be shown, Chapter 287 spells out no benefits for occupational disease claimants.

When the Missouri Workman's Compensation Law was originally adopted by referendum by the citizens of Missouri, occupational diseases were explicitly excluded from its coverage. Section 3301 RSMo (1929) provided for compensation only for personal injuries by accident.[2] Section 3305(b) RSMo (1929) specifically excluded occupational diseases from the definition of "injury" and "personal injuries." Section 3305(b) provided, in relevant part:

The term "injury" and "personal injuries" shall mean violence to the physical structure of the body and such disease or infection as naturally results therefrom. The said terms shall in no case be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the workman is at work... Provided, that nothing in this chapter contained shall be construed to deprive employees of their rights under the laws of this state pertaining to occupational diseases.

In 1931, the legislature amended section 3305(b) of the Law to allow employers and employees to elect coverage for occupational diseases:

Provided, that nothing in this chapter contained shall be construed to deprive employees of their rights under the laws of this state pertaining to occupational diseases, unless the employer shall file with the commission a written notice that he elects to bring himself with respect to occupational disease within the provisions of this act and by keeping posted in a conspicuous place on his premises a notice thereof to be furnished by the commission, and any employee entering the services of such employer and any employee remaining in such service thirty days after the posting of such notice shall be conclusively

presumed to have elected to accept this section unless he shall have filed with the commission and his employer a written notice that he elects to reject this act. (Bold emphasis added). [3]

Notwithstanding the addition of language to $\S 3305$ (b) to add optional coverage for occupational diseases, the legislature did not modify $\S 3301$ to expressly provide that employers were liable to pay compensation for occupational diseases irrespective of negligence or that employers were released from other liability arising from occupational diseases.

Before addressing the merits of employee's claim, I must consider 1) whether the Law, as amended, applies to occupational diseases; 2) the meaning of "occupational disease" under the Law, as amended; 3) whether occupational diseases are compensable under the Law, as amended; and, 4) if so, what amount of compensation is due on account of occupational disease.

1) Does the Law apply to occupational diseases? It clearly does. Section 287.110 RSMo provides:

1. This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law.
2. This chapter shall apply to all injuries received and occupational diseases contracted in this state, regardless of where the contract of employment was made, and also to all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide, and also to all injuries received and occupational diseases contracted outside of this state where the employee's employment was principally localized in this state within thirteen calendar weeks of the injury or diagnosis of the occupational disease.

2) What is the meaning of "occupational disease" under the Law? Section 287.067.1 RSMo defines "occupational disease."

In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section.[4] The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

It is worthy of note, by definition, occupational diseases are causally connected to work.

3) Are occupational diseases compensable under the Law? By the express language of $\S 287.067$, injuries sustained by occupational disease or repetitive motion are compensable subject to the restrictions set forth in the