The appropriate date of injury of employee's occupational disease is a determinative issue in this matter, as it controls whether we apply the 2005 amendments to the Missouri Workers' Compensation Law to the facts of this case, see Tillman v. Cam's Trucking, Inc., 20 S.W.3d 579, 585-86 (Mo. App. 2000), and, by extension, whether employee may recover any benefits for her pulmonary condition, as it is apparent from the record that employee's expert medical evidence does not meet the "prevailing factor" standard for medical causation applicable after August 28, 2005, the effective date of the amendments. It appears that the administrative law judge found June 1, 2004, to be the date of injury, but did not specifically treat the issue in his award or provide any analysis. Accordingly, we write this supplemental opinion to explain why we believe that June 1, 2004, is the correct date of injury for this occupational disease claim.
Assigning a "date of injury" to an occupational disease that develops gradually over time can be a counterintuitive task, and the courts have acknowledged this difficulty. See Miller v. U.S. Airways Group, Inc., 316 S.W.3d 462, 468 (Mo. App. 2010) (Smart, J., concurring) (pointing out that "[u]nlike an injury due to accident, an occupational disease develops over a period of time and is not caused by an event on a single day").
Employer argues the date of injury is the same date that the statute of limitations begins to run under § 287.063.3 RSMo, or whenever it becomes reasonably discoverable and apparent to an employee that they have suffered a work injury. For purposes of this case, employer suggests this occurred on November 1, 2006, the date of a treatment note from Dr. Bower indicating the doctor's suspicion that there was a connection between employee's work environment and her pulmonary disease. Employer argues that McGhee v. W.R. Grace \& Co., 312 S.W.3d 447 (Mo. App. 2010) supports such an analysis. We believe employer misreads McGhee.
A review of the relevant case law reveals that the courts have consistently linked the "date of injury" in occupational disease cases to the date the disease first becomes "compensable," which typically has been interpreted to mean the date an employee first experiences some disability from the disease. See Garrone v. Treasurer of State, 157 S.W.3d 237, 242 (Mo. App. 2004) (holding that an employee's carpal tunnel syndrome did not become a compensable injury until the date he missed work for surgery, as he worked without restriction up until that date), and Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 759 (Mo. App. 1997) (noting that "Missouri courts have interpreted section 287.063 to provide that an employee with an occupational disease is 'injured' ... when the disease causes a 'compensable injury'). McGhee is consistent with this trend. Although the McGhee court looked at the date of an employee's diagnosis of asbestosis (rather than the date of last exposure) to determine what compensation rates to apply, the actual holding in McGhee states that "the date of injury for purposes of determining which compensation rate cap should be applied under section 287.200 is the date on which the injury becomes 'compensable' -- the date on
http://www.guidetopharmacology.org/1998/10/01/guidetopharmacology.org
injury No.: 04-148856
Employee: Louetta K. Elwell
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which the claimant becomes disabled." McGhee, 312 S.W.3d at 450. Clearly, the McGhee court equated a diagnosis of asbestosis with the employee's experiencing some disability from that condition: "[I]f Claimant's occupational disease 'injury' for purposes of section 287.200 'occurred' at the time he became disabled and unable to work, the applicable date of injury was in 2001, when he was diagnosed as having asbestosis ..." Id. at 455 (emphasis added). Notably, the McGhee court did not discuss whether the 2001 diagnosis of asbestosis involved a doctor's belief that there was a work connection.
Applying the principles espoused in the foregoing cases, we believe the appropriate date of injury for this claim is June 1, 2004, when employee first missed work (and thus experienced disability) as a result of her pulmonary condition. For these reasons we adopt the finding of the administrative law judge that the date of injury is June 1, 2004. As a result, the 2005 amendments are not applicable to this claim.
**Unauthorized past medical treatment**
At oral arguments in this matter, employer raised the contention that employee is not entitled to her past medical expenses because employer did not authorize that treatment. We disagree.
> [I]f an employee seeks necessary medical treatment for a work-related condition without knowledge at the time of that treatment that the condition was work related and the employer is not prejudiced by such treatment, then a liberal construction of 287.140 requires the employer to reimburse the employee for such medical treatment under section 287.140.1 even though the employer did not have the opportunity to select the treatment providers as granted by section 287.140.10.
Meyers v. Wildcat, Inc., 258 S.W.3d 77, 82 (Mo. App. 2008).
Here, the employee's occupational disease is a pulmonary condition that developed over time, the nature and symptoms of which were not immediately manifest to her. Employee was not aware that there might be a work connection behind her pulmonary issues until November 2006, when Dr. Bower suggested it. It follows that she could not have had the requisite "desire" to select her own physicians under § 287.140.1 RSMo (and thereby have voluntarily waived her right to medical expenses), because she was unaware that she had a workers' compensation claim for her pulmonary disease at the time she sought the treatment in question. See Meyers at 80: "A desire to choose one's own medical provider can only arise when an employee has knowledge of the existence of a work-related injury needing medical treatment and can, thus, voluntarily elect to forego the employer's obligation to provide medical treatment."
Given these circumstances, and the binding precedent of Meyers, we are not persuaded by employer's arguments regarding unauthorized treatment and we affirm the award of the administrative law judge that employee is entitled to her past medical expenses.