Mark Reese v. Murphy Co. Mechanical, Rock Hill Mechanical

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-174908

Employee: Mark Reese

Employers: 1) Murphy Co. Mechanical

2) Rock Hill Mechanical

Insurers: 1) Missouri Property \& Casualty Insurance Guaranty Association

2) ACING Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 8, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued January 8, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Murphy Company did not expose employee to the hazards of contracting his occupational diseases of carpal tunnel syndrome and exercise induced compartment syndrome until after the initial claim for compensation was filed in this matter. Accordingly, the last exposure rule is not applicable in this case. Under § 287.063.3, "[m]ere exposure is not enough to shift liability to a subsequent employer. Instead, the subsequent employer must expose the employee to repetitive motion capable of producing [claimant's ailment]." Maxon v. Leggett \& Platt, 9 S.W.3d 725, 730 (Mo. App. 2000), citing Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 763 (Mo. App. 1997).

Employee's duties at Rock Hill were sufficiently repetitive as to create a risk that employee might develop repetitive use injuries. At Rock Hill, employee was constantly using his hands in repetitive motion. Employee had to use a torquer to install couplings. This activity involved repetitive twisting and grinding with his hands. Employee also drilled anchors into concrete. This activity exposed employee to constant vibration forces.

By contrast, at Murphy Company, employee did not perform any hand activities with sufficient frequency that the activities created a risk of developing the repetitive use injuries. For the first six months he was with Murphy Company - through May 1999 - employee was working on a project requiring the installation of push joint cast iron pipes. This activity only required that employee push the pipe together with a tool. The activity did not expose employee to the constant hand twisting and vibration to which he was exposed at Rock Hill. The hand involvement used to make the push joint pipe connection was not repetitive motion capable of producing employee's bilateral carpal tunnel syndrome and compartment syndrome.

Employee underwent right carpal tunnel release on May 21, 1999, and left carpal tunnel release on June 14, 1999. Employee was off work for 3 months, meaning he returned to work around August 21, 1999. It was not until after employee returned to Murphy Company after August 21, 1999, that employee engaged in repetitive activities capable of producing carpal tunnel syndrome and compartment syndrome.

Employee's initial claim was filed on August 12, 1999. Rock Hill was the last employer to expose employee to the hazards of developing carpal tunnel syndrome and compartment syndrome before the filing of the claim for compensation. Rock Hill is liable to employee for compensation for his bilateral carpal tunnel syndrome and compartment syndrome and their resultant disabilities.

For the foregoing reasons, I respectfully dissent from the majority's award denying employee's claim for benefits from Rock Hill.

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: December 21, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? No
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant developed injuries from repetitive activities as a plumber.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Bi-lateral wrists and forearms
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 9,886.90
16. Value necessary medical aid paid to date by employer/insurer? \$14,606.47 (By Rock Hill)

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for maximum rates of compensation
3. Weekly compensation rate: $\$ 562.67 / \ 294.73
4. Method wages computation: By stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: Open

TOTAL:

NONE

1. Future requirements awarded: None

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael Shelton

Employee: Mark Reese

Injury No.: 98-174908

Dependents: N/A

Employer 1: Murphy Co. Mechanical

Employer 2: Rock Hill Mechanical Corp.

Additional Party: Second Injury Fund (Open)

Insurer1: Missouri Property \& Casualty Insurance Guaranty Association

Insurer 2: ACING Insurance Company

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: SC:

A hearing was held for a final award at the Missouri Division of Workers Compensation ("DWC)" St. Louis office at the request of Mark Reese ("Claimant"), on October 6, 2008, pursuant to Section 287.450 RSMo. Attorney Michael Shelton represented Claimant. Attorney Edward Weiss represented Employer 1 Rock Hill Mechanical Corporation ("Rock Hill") and Missouri Property \& Casualty Insurance Guaranty Association, successor to Reliance Insurance Company, now bankrupt. ("Insurer-1"). Attorney Jennifer Dickerson represented Employer 2 Murphy Company Mechanical ("Murphy") and ACIG Insurance Company, (Insurer-2") ${ }^{1}$. The Second Injury Fund is to remain open and did not participate in the proceeding. Venue is proper and jurisdiction lies with DWC. The record closed after presentation of evidence.

Claimant's Exhibits A-M and Rock Hill's-Exhibits 1-2 were admitted without objection. Murphy offered no Exhibits. Any notations contained in the Exhibits were present when admitted. Any objections contained in the depositions but not expressly ruled on in this award are overruled.

The parties stipulate that on or about December 21, 1998:

1. Claimant sustained an occupational disease in St. Louis County;
2. Claimant was employed by Murphy;
3. ACIG Insurance Company fully insured Murphy;
4. Claimant and Murphy were operating under the provisions of the Missouri Workers' Compensation Law;

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[^0]: ${ }^{1}$ Reference to each employer also refers to their respective Insurers. The named insurer for Rock Hill was changed after the hearing to reflect the Insurer named in Rock Hill's Answer to the Claim for Compensation.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Reese Injury Number: 98-174908

1. Rock Hill's liability was originally insured by Reliance Insurance Company, now an insolvent insurance company;
2. Missouri Property \& Casualty Insurance Guaranty Association stepped into the shoes of Reliance Insurance Company and is deemed the insurer as provided in Sections 375.771 to 375.779 RSMo (2000);
3. Missouri Property \& Casualty Insurance Guaranty Association paid Temporary Total Disability ("TTD") benefits totaling $\ 9,886.90 for $174 / 7 weeks and medical benefits totaling \ 14,606.47;
4. Claimant's average weekly wage was sufficient for maximum TTD rates of $\ 562.67 and permanent partial disability ("PPD") of $\ 294.73; and
5. Zurich North America Insurance Company is dismissed.

The parties identified the following issues for disposition:

1. Did Claimant's occupational disease arise out of and in the course of employment?'
2. What is the medical cause of Claimant's occupational disease?
3. Which Employer is liable for benefits?
4. Was the claim timely filed against Murphy?
5. What is the nature and extent of permanent partial disability?
6. If Murphy is liable, is Rock Hill entitled to a credit for medical and TTD benefits paid? Or in the alternative, is Murphy entitled to an order stating Rock Hill is liable for compensation?

Claimant met his burden to show Murphy and Insurer 2 are liable based on the entire record, including expert testimony, Claimant's testimony, demeanor, medical reports, and the applicable law of the State of Missouri. However, Murphy met its burden to establish the claim against it is barred by the statute of limitations.

All evidence was reviewed, but only evidence supporting this award is considered to establish the following facts based upon competent and substantial evidence.

1. Claimant became a union plumber in 1984. He has worked as a plumber for twenty-four years with various employers. Claimant worked with his hands and forearms performing plumbing all duties. Claimant continues to work as a plumber for another company.
2. Prior to working for Rock Hill, Claimant complained of wrist and arm fatigue, but did not seek treatment. He did not have numbness, tingling or pain of the hand, wrist or forearm.
3. Claimant worked for Rock Hill from May 1994 to November 1998. Claimant performed hand intensive work as a plumber/foreman. Claimant used a vibrating hammer drill to drill concrete and a T-torque, placing a socket in a nut and turning until it torqued. Claimant performed twisting wrist movements daily with tools that vibrated. He

performed overhead work. After two years with Rock Hill, Claimant's hands began to fall asleep and tingle at night.

1. During the last six months of employment with Rock Hill, Claimant worked three projects which caused his symptoms to increase. He twisted his hands,