Sheryl Berend v. Fasco Industries, Inc.

Employee: Sheryl Berend

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Employee filed a timely Application for Review alleging the administrative law judge erred in her findings on the issues of notice, past medical expenses, Second Injury Fund liability, and future medical care.

Employer filed a timely Application for Review alleging the administrative law judge erred in her findings on the issues of temporary total disability benefits. While the case was pending before the Commission, employer filed a request to withdraw its Application for Review. The Commission, by order dated July 3, 2012, granted employer's request to withdraw its Application for Review.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact on the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings pertinent to our modifications herein.

We believe the administrative law judge erred as a matter of law in denying employee's left shoulder, bilateral upper extremity, and depression claims for lack of notice, because under relevant Missouri case law, employee unquestionably satisfied the statute's requirements. Section 287.420 RSMo sets forth the requirements for the notice employees must provide employers regarding a work injury, and provides, as follows:

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

Under the foregoing language, in the context of an injury resulting from an accident, the triggering event that begins the thirty-day notice period is the accident itself. But in the context of an injury resulting from occupational disease, the triggering event is "diagnosis of the condition," and the courts have explained this requirement, as follows:

Strictly construing Mo. Rev. Stat. § 287.420 (Cum. Supp. 2005), "the condition" is referring to the previously stated occupational disease or repetitive trauma. Therefore, the question then becomes, at what point is an occupational disease or repetitive trauma diagnosed? Looking to the plain, obvious, and natural import of the language, it follows that a person cannot be diagnosed with an occupational disease or repetitive trauma

April 2008

Employee: Sheryl Berend

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until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure.

*Allcorn v. Tap Enters.,* 277 S.W.3d 823, 829 (Mo. App. 2009).

Pursuant to *Allcorn*, the thirty-day notice period did not begin to run for this employee until a diagnostician made a causal connection between her injuries and her work-related activity or exposure. The administrative law judge overlooked this aspect of the statutory analysis, and the parties have failed in their briefs to identify the date upon which a diagnostician first made a causal connection between employee's injuries and her work, so we turn to the record. Searching the medical evidence, we find no indication that any of employee's treating doctors identified a causal connection between employee's work and her bilateral upper extremity problems. Instead, it appears (and we so find) that the first diagnostician to make a causal connection between employee's underlying medical condition and her work-related activity or exposure was Dr. Volarich, who issued his report on November 17, 2008. We conclude that the thirty-day notice period runs from that date.

Employee filed her claim for compensation on October 10, 2006, more than two years prior to the date Dr. Volarich issued his report. In that filing, employee alleged injury to both shoulders, both upper extremities, and her body as a whole caused by her hand-intensive and repetitive work for employer. Employee's claim for compensation amounts to "written notice of the time, place, and nature of the injury, and the name and address of the person injured," and thus satisfies each element of the notice employee is required to provide employer under the statute. See § 287.420, *supra*. As the *Allcorn* court pointed out, "the statute does not require that the notice be given after the diagnosis, but only that it be given 'no later than thirty days after the diagnosis of the condition.'" 277 S.W.3d at 830 (emphasis in original). Far from failing to provide statutory notice to employer, employee actually provided it more than two years early.

We briefly address employer's argument that employee was required under § 287.420 RSMo to submit "a written request for treatment under workers compensation" to employer in connection with her left shoulder, bilateral upper extremities, and psychiatric conditions. Employer points to employee's testimony acknowledging she never asked employer to send her for treatment. Employer's argument fails because it finds no support in the statute, which, as the parties are undoubtedly aware, we are required to strictly construe. See § 287.800 RSMo.

We conclude that employee's claims for her left shoulder, bilateral upper extremities, and psychiatric (body as a whole) injuries are not barred by § 287.420 RSMo.

The parties advance competing expert medical opinions on the issue of medical causation of employee's injuries. Although she failed to render any affirmative findings as to which medical expert provided the more credible testimony on the issue of medical causation of employee's right shoulder injury, the administrative law judge's award of compensation referable to the right shoulder in the form of permanent partial disability benefits implies she found Dr. Volarich more credible than Dr. Milne. In any event, we

have concluded that employee's claim of left shoulder, bilateral upper extremity, and psychiatric injuries are not barred by $\S 287.420$ RSMo, so the question of medical causation of these conditions must now be resolved.

Dr. Volarich opined that employee's repetitive work with employer was the prevailing factor causing her to develop bilateral shoulder impingement with biceps tendon tear, as well as a labral tear on the right and a rotator cuff tear on the left, and also bilateral forearm and wrist tenosynovitis with symptoms of carpal tunnel syndrome. Dr. Milne, on the other hand, diagnosed employee with impingement syndrome and AC joint arthrosis, and opined that neither of these medical conditions resulted from employee's work, but instead "preexisted the time of the injury." It appears Dr. Milne believed "the time of injury" to be November 16, 2005, although he acknowledged he didn't know the significance of that date other than that employee used it on her intake form and that it was the date that Dr. Acosta examined employee for employer.

In a case where employee is alleging a slow-developing and cumulative injury to her bilateral upper extremities during years of exposure to repetitive hand-intensive work for employer, Dr. Milne's focus on November 16, 2005, as "the time of injury" renders his testimony less useful for our purposes. Dr. Milne also opined that employee's biceps tendon rupture occurred when she turned over in bed in October 2005, but we find this opinion lacking credibility, owing to Dr. Milne's candid admission that he doesn't know how such an injury could occur in bed, and that such an event would be very rare.

Ultimately, we agree with the administrative law judge's implied finding that Dr. Volarich's medical causation opinions are more persuasive, especially when we consider employee's credible testimony about the demanding and repetitive work she performed with her hands and arms for employer.

The parties provided expert medical testimony from Dr. Daniel and Dr. Stillings on the issue whether employee's work injuries caused her to sustain psychiatric injury and permanent disability in the form of depression. Both doctors agree that employee suffered from preexisting depression, but that employee's work