Karen McCarthy v. Concentra Health Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-055610

Employee: Karen McCarthy

Employer: Concentra Health Services, Inc.

Insurer: Travelers Property Casualty Company

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 May 12, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued May 12, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of October 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

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.

The administrative law judge determined that employee failed to meet her burden of proving that she sustained an occupational disease arising out of and in the course and scope of her employment, and that her work was the cause of her medical condition.

Section 287.067.1 RSMo defines an occupational disease as:

[A]n 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.

Section 287.067.2 RSMo provides that for an occupational disease to be compensable, it must be "the prevailing factor causing both the resulting medical condition and disability." Further, "[t]he '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."

In determining what the medical cause of employee's disability is, there are two issues: 1) the impact of employee's risk factors; and 2) the impact of employee's work activities. It is clear from the record that employee has diabetes, is going through menopause, is obese, and has high blood pressure. The three primary doctors in the case all had differing opinions as to the effect these factors had on employee's development of carpal tunnel. Dr. Haueisen's records indicate that because employee has been diagnosed with these risk factors, he cannot state that work is the major causative factor in her development of carpal tunnel. Dr. Crandall does not believe work is the prevailing factor in her condition based on her risk factors. Lastly, Dr. Cohen opined that employee's work activities were the prevailing factor in her development of carpal tunnel syndrome and subsequent disabilities, not her risk factors.

First of all, I do not find Dr. Haueisen's opinion credible because he did not even have all of employee's medical history or records at the time he provided his opinion. I find Dr. Cohen's testimony the most persuasive. Dr. Cohen acknowledged the risk factors that Dr. Crandall relies upon, yet Dr. Cohen took the extra step in distinguishing the difference between the risk factors and the presence of abnormal pathology that would, if present, indicate that the risk factors, not employee's duties, were the cause of her

carpal tunnel syndrome. By explaining the need for clinical evidence to document the causal relationship between a risk factor and a condition, and in the absence thereof, how employment would be the causative factor, Dr. Cohen's opinion is the most credible with respect to whether employee's work duties were the primary factor in her development of carpal tunnel syndrome.

As for employee's work activities, employee's work included pushing down with her hands and getting letters into envelopes and putting them into the postage machine, folding papers, and typing. Employee credibly testified that she did not experience any symptoms of pain or numbness in her hands prior to her employment with employer. Employee stated that, while employed with employer, her hands would go numb following several hours of folding envelopes. Dr. Cohen testified that employee's employment duties were the prevailing factor in the development of her carpal tunnel disease. There was no evidence of outside activities that would have led to employee's carpal tunnel syndrome. Further, as stated above, Dr. Cohen more credibly testified that employee's risk factors did not medically cause employee's carpal tunnel syndrome, but rather her work activities did. Therefore, it follows that the substantial and competent evidence demonstrates that the employee's carpal tunnel syndrome arose out of and in the course of her employment.

Having stated the above, I still concur with the decision to deny compensation, but not because employee failed to prove that her condition arose out of and in the course of her employment, as the majority concludes. I deny compensation because the Missouri Workers' Compensation Law (Law) does not describe any benefits to be paid on account of occupational diseases. It is my hope that 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) 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 § 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.

At the heart of the Law is "the bargain" found in § 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

Improvee: Karen McCarthy

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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. 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 sta