Allen Allcorn v. Tap Enterprises, Inc.

Injury No.: 06-110840

Employee: Allen Allcorn

Employer: Tap Enterprises, Inc.

Insurer: Travelers Commercial Casualty Co.

On February 26, 2009, the Missouri Court of Appeals, Southern District, issued an opinion that reversed the July 25, 2008, Final Award of the Labor and Industrial Relations Commission (Commission) in the abovereferenced case. Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823 (Mo. App. S.D. 2009). The Court determined that employee satisfied the 30-day notice timing requirement under § 287.420 RSMo by giving employer notice of his occupational disease not later than 30 days after "a diagnostician ma[de] a causal connection between the underlying medical condition and some work-related activity or exposure." Allcorn, 277 S.W.3d at 829 .

On the other hand, the Court held that employee's notice to employer was deficient under the statute because it did not provide the correct "time of injury" -- it was one day off. Accordingly, the Court remanded this matter to the Commission "to reconsider its prejudice analysis." Id. at 831.

By Mandate issued March 16, 2009, the Court reversed and remanded this matter to the Commission for further proceedings consistent with its February 26, 2009, opinion.

After having reviewed the whole record, we reverse the decision of the administrative law judge dated September 12, 2007. The award and decision of Administrative Law Judge Margaret Ellis Holden is attached and incorporated by this reference to the extent it is not inconsistent with the findings, conclusions, award, and decision herein.

Pursuant to the Court's opinion and Mandate, we have reconsidered our prejudice analysis under § 287.420, which reads in relevant part as follows:

No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice. (Emphasis added.)

Employee's initial claim for compensation set forth January 31, 2004, as his date of accident or occupational

disease. But his actual first day of work for employer was February 1, 2004. We have no evidence that this notice, which otherwise properly included the place; nature of injury; and name and address of employee, caused any prejudice to employer because of the one-day error with respect to the beginning date of his occupational disease (the beginning dates of which, due to their insidious nature, are usually difficult to pinpoint). Therefore, we conclude that $\S 287.420$ does not bar employee's claim for compensation.

Section 287.067 RSMo. states as follows:

1. 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. 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.
2. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Employee contended that his repetitive lifting and moving of heavy tools in connection with his duties for employer caused him to develop an occupational disease -- herniated disks in his low back. Concerning a claim of occupational disease, Townser v. First Data Corp., 215 S.W.3d 237, 241-242 (Mo. App. E.D. 2007), states as follows:

In order to support a finding of occupational disease, the employee must provide substantial and competent evidence that he 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.

It was employee's burden to prove his claim by substantial and competent evidence. Id. at 241. As indicated above in $\S 287.420 .1$, 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."

In order to meet his burden, "[t]he claimant must establish, generally through expert testimony, the probability that the occupational disease was caused by conditions in the work place. . . . A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate. . . . The opinion may be based on a written report alone." Townser, 215 S.W.3d at 242.

After careful review, the Commission is persuaded that employee has met his burden of proof. Dr. David

Paff reported and testified that employee suffered the gradual onset of back pain without a specific triggering event; that employee's exposure to heavy lifting in his work environment through his last day of work for employer in April 2006 was the prevailing factor in causing his two-level disk herniation; that his initial work exposure from February 1, 2004, through February 17, 2004, was a sufficient amount of time to cause a repetitive trauma to his back; and that it would have been highly unusual for his multi-level herniations to have been the result of vomiting (since he experienced no immediate pain in connection with his illness and vomiting on January 26, 2004). We found Dr. Paff's testimony more compelling than that of Dr. Jeffery Woodward, who believed that vomiting could have caused employee's herniations but that, in any event, employee did not work sufficient time in February 2004 to cause repetitive motion injury.

Furthermore, the testimony of employee and Dr. Paff was sufficient to persuade this Commission that employee's long hours and successive days of extremely heavy lifting at work caused a link to the contraction of and an exposure to low back injury that was greater than that which affects the public generally.

In cases involving the award of future medical benefits, the medical care must flow from the accident in order for the employer to be held responsible. Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo. App. E.D. 1997). For an award of temporary disability and future medical aid, proof of cause of injury is sufficiently made on reasonable probability, while proof of a permanent injury requires reasonable certainty. Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. W.D. 1995) (overruled in part on other grounds in Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)).

The reports and testimony of Drs. Paff and Green verified that claimant needed and needs on-going medical treatment for his two-level disk herniations. Accordingly, the Commission finds that employee is entitled to, and employer/insurer shall provide, such future medical benefits as may be determined to be necessary to cure and relieve such herniations.

Employee is also entitled to temporary total disability benefits to cover healing periods to be paid prior to the time when the employee can return to work, his condition stabilizes, or his condition has reached a point of maximum medical progress. Schuster v. Division of Employment Security, 972 S.W.2d 377, 381 (Mo. App. E.D. 1998).

Employee testified that in April 2006, he "got to where [he] was hurting enough that [he] called the office and told them [he] needed to take a medical leave" in connection with his back. He "wasn't able to stand up for any length of time, sit down for any length of time at all. [He] almost could not bend over." He had pain and weakness in his legs. His last day of work was approximately April 14, 2006. Shortly thereafter, employer discharged him.

On September 26, 2006, Dr. Paff examined employee. In addition to recommending certain future treatments for employee, Dr. Paff restricted employee from lifting over 20 pounds and indicated that employee was not yet at maximum medical improvement. Employee's back surgery took place on April 3, 2007. After surgery, Dr. Green took employee off work for six weeks and then placed light duty restrictions on him. Employee testified that as of his appointment with Dr. Green on May 30, 2007, the doctor told employee he could work. Employee testified that he, too, felt (as of the time of the hearing) that he had improved to a point where he might be able to again do certain kinds of work.

Based on this evidence, we conclude that employer and insurer are liable for temporary total disability

benefits from April 14, 2006, through May 30, 2007, a total of 58 5/7th weeks.

Section 287.250.1(4) RSMo. requires the Commission to use the 13 weeks immediately preceding the date of injury to calculate his rate of compensation. Employee's undisputed testimony indicated that he had earned $\ 13,000.00 from employer from January 1, 2006, through his last day of work on April 14, 2006. Thus, his average weekly wage during the 13 weeks prior to April 14, 2006, was $\ 866.67. His corresponding compensation rate for temporary total benefits under $\S 287.170 .1(4) RSMo was \ 577.81. Accordingly, after multiplying this rate times $585 / 7$ th, employer and insurer shall pay to employee temporary total disability benefits in the amount of $\ 33,925.70.

Based on the foregoing, the Commission concludes and determines that employee's notice to employer under $\S 287.420$, while technically deficient, did not prejudice employer and did not bar employee's right to claim compensation. Accordingly, we hereby reverse the award of the administrative law judge denying employee's claim for compensation.

Furthermore, employee sustained an occupational disease arising out of and in the course of his employment for employer. We find that employee is entitled to future medical benefits as may be determined necessary to cure and relieve his work-related condition, as well as temporary total disability benefits in the amount of $\ 33,925.70.

This case is remanded to the Division of Workers' Compensation with the employer being responsible to provide workers' compensation benefits as appropriate pursuant to the provisions of the Workers' Compensation Act due to this compensable accident.

Because this award is only temporary or partial, we need not