Deborah Reale v. Ameristar Casino

Injury No.: 06-072434

Employee: Deborah Reale

Employer: Ameristar Casino

Insurer: Hartford 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. We have reviewed the evidence, read the briefs, heard oral arguments and considered the entire record. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the Administrative Law Judge Kevin Dinwiddie dated August 3, 2009. We adopt the administrative law judge's findings, conclusions, award and decision, except as modified herein. The August 3, 2009, award and decision is attached and incorporated to the extent it is not inconsistent with our reasoning and conclusions herein.

The Commission affirms all findings of fact and rulings of law concerning the instant claim other than the conclusion of the administrative law judge that employee failed to comply with the statutory notice provisions of section 287.420 RSMo. The administrative law judge ultimately resolved the notice issue in favor of the employee, due to a finding that the employer did not suffer prejudice for the alleged failure to receive the requisite notice of injury in satisfaction of section 287.420 RSMo.

The Commission in the instant award finds that the employee did satisfy the notice provision of section 287.420 RSMo in addition to affirming all remaining aspects of the award issued by the administrative law judge.

Employee was employed by employer from August, 2002, up to the date of separation, June 17, 2006. Employee's last day at work for employer was June 8, 2006. On June 10, 2006, employee was suspended for personnel reasons, and was eventually discharged by employer June 17, 2006, thus employee's date of separation from employment.

Employee filed a claim for compensation on July 24, 2006, alleging the date of an occupational disease/injury, to be June 13, 2006.

The evidence is clear that employee was not diagnosed with the condition of an occupational disease due to repetitive trauma until June 30, 2008.

Improve: Deborah Reale

- 2 -

Section 287.420 RSMo has six requirements that must be satisfied by an employee notifying an employer of an occupational disease or repetitive trauma: (1) written notice; (2) of the time; (3) place; (4) nature of the injury; (5) the name and address of the person injured; and (6) given to the employer no later than 30 days after the diagnosis of the condition. Allcorn v. Tap Enterprises, Inc., et. al., 277 S.W.3d 823 (Mo.App. S.D. 2009).

The Commission finds the Claim for Compensation filed July 24, 2006, satisfies all notice requirements of section 287.420 RSMo. In its Application for Review, employer/insurer principally contends there was non-compliance with the statutory notice requirements contained in section 287.420 RSMo, in that the time of injury listed as being June 13, 2006, was insufficient to satisfy the statutory requisite.

Employer/insurer cites the Commission to the recent case of Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823 (Mo.App. S.D. 2009), in which the appellate court determined that the initial claim for compensation did not meet the time requirement contained in the statute. In that particular case, the employee's first day of employment was February 1, 2004. However, the employee's initial claim for compensation listed January 31, 2004, as the time of the injury. The employee's medical expert opined and the court concluded, that the work exposure with the employer, from February 1, 2004 through April, 2006, was the prevailing factor resulting in employee's complained of condition. Accordingly, the appellate court found that the employee failed to satisfy the time requirement since the allegation in the claim for compensation preceded the employee's initial date of employment and subsequent work exposure.

In fact, employee's separation date is June 17, 2006. The date of injury, listed as June 13, 2006, is a date during employee's period of employment and exposure to her resultant occupational disease. Occupational diseases are insidious in their development and may well pass through a number of years before the disease manifests itself. Accordingly, there is no reason to search for any one period of exposure when the disease commenced or developed or to pin point an exact date of accident. The time of injury for an occupational disease relates to the relevant period of exposure within which the employee was injured due to the employment, not to an exact date.

The instant case is distinguishable from the Allcorn case, supra, as unlike the employee in Allcorn, supra, the employee in the instant case notified the employer of the time of injury that fell within the dates of her employment and occupational exposure. The employee's allegation in her claim for compensation placed employer on notice that the employee's time of injury occurred within her relevant period within which she was employed and exposed to the alleged injury.

The Allcorn, case supra, is distinguishable because the employee alleged a date of injury prior to employee's employment and exposure to the contraction of any deleterious occupational disease.

In the case at bar, there is no evidence of a causation opinion until the evaluation of Dr. Schlafly on June 30, 2008. Therefore, employee was not diagnosed with a condition of an occupational disease or repetitive trauma until June 30, 2008. At that time, as in the Allcorn case, supra, employee had previously filed a claim for compensation. Consequently, under the Allcorn analysis, employee gave notice to the employer within the time requirements of section 287.420 .

Accordingly, the Commission finds employee met all six notice requirements pursuant to section 287.420 RSMo, and consequently her claim for compensation is not barred due to a lack of notice.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Deborah Reale

Injury No.: 06-072434

Dependents: N/A

Employer: Ameristar Casino

Additional Party: State Treasurer, as Custodian of the Second Injury Fund

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Hartford Insurance Company

Hearing Date: Tuesday, May 19, 2009

Checked by: KD/lsn

1. Are any benefits awarded herein? Yes
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 alleged accident or onset of occupational disease: last date of exposure on or about 6/10/06
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? See award.
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? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident is alleged to have occurred: Claimant sustained a bilateral carpal tunnel syndrome as the result of the repetitive use of her upper extremities at work
12. Did accident or occupational disease cause death? No Date of death: N/A
13. Part(s) of body alleged to be injured by accident or occupational disease: right and left upper extremities at the wrists
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A
17. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $\ 334.20
2. Weekly compensation rate: $\$ 222.80 / \ 222.80
3. Method wages computation: by agreement of the parties

1. Amount of compensation payable: The issues as to notice, medical causation, injury by occupational disease arising out of and in the course of employment, and future medical care are found in favor of the employee. The employer is to provide medical treatment as necessary to cure and relieve of the effects of the injury. See award.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Employee: Deborah Reale

Injury No: $\quad 06-072434

Dependents: \quad \mathrm{N} / \mathrm{A}$

Employer: Ameristar Casino

Additional Party State Treasurer, as Custodian of the Second Injury Fund

Insurer: Hartford Insurance Company

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KD/lsn

The claimant, Ms. Deborah Reale, appeared at hearing in person and by her counsel, Dawn Marlow. The employer, Ameristar Casino and its insurer, Hartford Insurance Company,

appeared by its counsel, J. Bradley Young. The claimant seeks a temporary or partial award for benefits due after an injury by occupational disease alleged to have occurred on or about 6/13/06. The employer and insurer dispute whether the claimant suffered a compensable injury, and seek a final award denying any benefits. The parties stipulated at hearing that the issues to be resolved in the matter are as follows:

Injury by occupational disease arising out of and in the course of employment

Notice:

Medical causation; and

Future medical care.

The employer also specifically disputes whether there was an exposure to the hazard of injury at work on 6/13/06, believing that the proof will indicate that the claimant was suspended from her employment a matter of days prior to 6/13/06, and had her employment subsequently terminated on $6 / 13 / 06$.

Ms. Reale appeared at hearing and testified on her own behalf. Ms. Reale also submitted the deposition testimony of Dr. Bruce Schlafly. The employer and insurer solicited the testimony of Ms. Debra Wojtulski, and also submitted the deposition testimony of Dr. David Brown.

The following exhibits are in evidence:

A. Certified medical records of Dave A. Rengachary, M.D.

B. Certified medical records of Hand Surgery Associates, Inc. (Dr. Bruce Schlafly)

C. Deposition of Dr. Bruce Schlafly, taken on January 15, 2009

D. Letter dated 6/13/06 from Margaret Reiker, MD, BJC Medical Group

1. Ameristar Casino Suspension pending Management Review, with attachments
2. Two page narrative by William Nelson, Team Member Relations Manager
3. Ameristar Casino Personnel Action Form
4. Ameristar Casino Coaching Summary
5. Deposition of Dr. David Brown taken on October 13, 2008
6. Claim for Compensation in Injury Number 06-072434 date stamp 7/24/06

The claimant, Ms. Deborah Reale, 55 years old as of the date of hearing in this matter, was employed by Ameristar Casino (hereinafter referred to as "employer") for approximately four years as a waitress. From August of 2002 to June o