Amy Walters v. Children's Mercy Hospital; Truman Medical Center

The administrative law judge found CMH liable for benefits in this case. CMH filed an Application for Review alleging, among other things, that the administrative law judge erred in concluding that CMH is liable to employee for workers' compensation benefits because CMH was not the last employer to expose employee to the hazards of the occupational disease.

The administrative law judge ruled that because CMH did not file a timely answer to the April 7, 2005, Claim for Compensation, CMH is deemed to have admitted that the "date of accident" for employee's claimed occupational disease was July 28, 2002, as it appears on the Claim. "Date of accident" has no significance in determining liability in an occupational disease claim. "[T]he date of exposure to an occupational disease forms the basis for a determination of the employer's and insurer's liability." Garrone v. Treasurer of State, 157 S.W.3d 237, 244 (Mo. App. 2004). No doubt, employee was exposed to the hazard of carpal tunnel syndrome on July 28, 2002. But the date of accident is of no consequence in a repetitive motion case, as to the instant case, because it does not figure into the calculation of the period of exposure.

In Missouri, where an employee has been exposed to the hazards of the occupational disease in more than one employment, the last exposure rule determines which of multiple employers is liable for compensation.

Until August 28, 2005, the liable employer was "the last employer in whose employment the employee was last exposed to the hazard of the occupational disease for which the claim is made, regardless of the length of time of such last exposure." Section 287.063 RSMo (2004). "'This last exposure rule is not a rule of causation.' 'Rather, as the starting point, the last employer before the date of claim is liable if that employer exposed the employee to the hazard of the occupational disease.' Section 287.067.7 (less than three months' exposure) has been recognized as a turning point to shift liability away from the last employer." Copeland v. Associated Wholesale Grocers, 207 S.W.3d 189, 192 (Mo. App. 2006), quoting Endicott v. Display Techs., 77 S.W.3d 612, 615 (Mo. 2002).

Undoubtedly, CMH exposed employee to the hazards of carpal tunnel syndrome. However, TMC was the last employer to expose employee to the hazards of carpal tunnel syndrome before the date of the claim. Employee worked exclusively for TMC for more than 3 months at the time the claim was filed, so § 287.067.7 RSMo (2004) does not operate to shift liability back to CMH. As succinctly stated by the appellate court in Copeland, supra, the starting point, the last employer before the date of claim is liable if that employer exposed the employee to the hazard of the occupational disease, becomes the ending point. Accordingly, TMC is the liable employer, pursuant to the last exposure rule.

As of August 28, 2005, the liable employer is the last employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time of such last exposure, subject to the notice provision of section 287.420. Section 287.063 RSMo (2007).

This Commission has not yet been faced with the question of what constitutes "evidence of disability." We note that cases interpreting "disability" were not abrogated by the 2005 amendments to the Law. "Disability" for workers' compensation purposes means, "the inability to do something; the deprivation or lack of physical, intellectual, or emotional capacity or fitness; the inability to pursue an occupation or perform services for wages because of physical or mental impairment." Loven v. Greene County, 63 S.W.3d 278 (Mo. App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Employee was not rendered unable to perform services for wages or otherwise incapacitated from pursuing her occupation at any time before she left her employment with CMH or within the 3 months thereafter.

Applying either the pre-amendment Law or the Law as amended, TMC was the last employer to expose employee to the hazards of the occupational disease for purposes of the last exposure rule. The administrative law judge erred in concluding that CMH is liable for benefits for employee's carpal tunnel syndrome.

Pursuant to § 287.430 RSMo, a claim for occupational disease must be filed within two years after the date of injury or death or within two years of payment of some element of compensation: "[N]o proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death,..."

Until August 28, 2005, the two year period did not begin to run until it became "reasonably discoverable and apparent that a compensable injury has been sustained." § 287.063.3 RSMo (2004). The question as to when a compensable injury becomes reasonably discoverable and apparent is a question of fact to be determined by the Commission. Mann v. Supreme Express, 851 S.W.2d 690, 692 (Mo. App. 1993). Under the law in effect before August 28, 2005, the statute of limitations in an occupational disease case starts to run when: (1) an employee is no longer able to work due to the occupational disease; (2) an employee must seek medical advice and is advised that he can no longer work in the suspected employment; or (3) the employee experiences some type of disability that is compensable. Rupard v. Kiesendahl, 114 S.W.3d 389 (Mo. App. 2003), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Within this context, a disability is the inability to do something; the deprivation or lack of physical, intellectual, or emotional capacity or fitness; the inability to pursue an occupation or perform services for wages because of physical or mental impairment. Loven, 63 S.W.2d at 284. It is not necessary for an employee to miss work before that employee can recover on an occupational disease claim. Coloney v. Accurate Superior Scale, 952 S.W.2d 755 (Mo. App. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Rather, an employee with an occupational disease is compensably injured when the employee suffers a demonstrated loss of earning capacity, such as an inability to perform various vocational tasks. Loven, 63 S.W.3d at 284-285; Coloney, 952 S.W.2d at 760. Requiring that the harm tangibly affect the

employee's earning ability upholds the intent of the Law, which is to provide indemnity for loss of earning power and disability to work. Coloney, 952 S.W.2d at 760.

Generally, such a condition becomes apparent when an employee is medically advised that he or she can no longer physically continue in the work environment. A compensable injury occurs when the disease causes the employee to become disabled and unable to work. Wiele v. National Super Markets, Inc., 948 S.W.2d 142 (Mo. App. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

An employee is not expected to file a workers' compensation claim until the employee has reliable information that his or her condition is the result of his or her employment. The employee is entitled to rely on a physician's diagnosis of the employee's condition rather than his or her own impressions. This rule is not, however, absolute. Under certain circumstances, it can be foreseen the time should begin to run without having an expert's opinion in the employee's hands. The facts of each case will have to be determined on a case-by-case basis in this uncertain area, all under the existing doctrine of construing the workers' compensation law liberally. Rupard, 114 S.W.3d at 396-397.

Applying the analysis described above, we conclude that as of August 27, 2005, employee had sustained no disability triggering the running of the statute of limitations.

The legislature changed the tolling provision for the filing of occupational disease claims with the 2005 amendments to the Workers' Compensation Law. Beginning August 28, 2005, the two year period begins to run when "it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure,..." § 287.063.3 RSMo (2005). The evidence reveals that employee was aware her carpal tunnel syndrome was related to her nursing duties as of August 28, 2005.

"[T]here is no vested right in the maintenance in force of the statute in effect when the claim accrued. It is possible to shorten the statute of limitations applicable to an existing claim. If any such attempt is made, however, those who have pending and unbarred claims at the time the new statute becomes effective must be afforded a reasonable time within which to file suit." Goodman v. St. Louis Children's Hospital, 687 S.W.2d 889, 891 (Mo. 1985)

"No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions [including] those which have accrued o