Renee Quast v. RPCS, Inc. d/b/a Price Cutter

Assigning a "time" of injury to an occupational disease that develops gradually 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"). The Allcorn court specifically confronted the time of injury requirement under $\S 287.420$ in a case of gradual onset occupational disease, and held that where the employee's claim for compensation alleged a time of injury that was inconsistent with the dates he was actually employed by employer, the claim for compensation could not be deemed to constitute effective notice of the time of injury. See Allcorn, 277 S.W.3d at 830-31. A logical corollary of the court's holding is that if an employee's claim for compensation in a gradual onset occupational disease case does allege a time of injury consistent with the dates the employee was actually employed by employer, the claim for compensation may be deemed effective notice of the time of injury under $\S 287.420$.

Because employee claims (and her evidence supports) a gradual onset theory of injury, it follows (and we so find) that she sustained injury during the entire period of time that she was employed by and performed her repetitive duties for employer. The evidence reveals that employee worked for employer from August 2006 until employer discharged her on February 1, 2012. It follows that on May 1, 2011, employee was employed by employer. We conclude that employee's claim for compensation constitutes effective written notice of the "time" of her injury for purposes of $\S 287.420$.

In awarding employee's claimed past medical expenses, the administrative law judge cited the court's decision in Meyers v. Wildcat, Inc., 258 S.W.3d 77 (Mo. App. 2008). Employer's application for review herein does not challenge this aspect of the administrative law judge's award. We note, however, that the Meyers court specifically relied upon a liberal construction of Chapter 287 in reaching its holding.

As the parties are undoubtedly aware, the legislature in 2005 replaced liberal construction with the mandate under $\S 287.800$ RSMo that we must strictly construe the provisions of Chapter 287. As a result, we cannot adopt the administrative law judge's (implicit) conclusion that the Meyers decision is controlling in this case, which involves an injury sustained after the effective date of the 2005 amendments to the Missouri Workers' Compensation Law. Having said that, we deem the remainder of the administrative law judge's analysis of this issue to be persuasive, and hereby adopt it as our own with regard to employee's claim for past medical expenses.

We affirm and adopt the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued July 8, 2014, is attached and incorporated by this reference.

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.

Given at Jefferson City, State of Missouri, this 15^{\text {th }}$ day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Renee Quast

Injury No. 11-104621

Dependents: N/A

Employer: RPCS, Inc. d/b/a Price Cutter

Insurer: Fuel Marketers Insurance Trust

Additional Party: N/A

Hearing Date: April 7, 2014

Checked by: LTW

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 accident or onset of occupational disease: May 1, 2011
5. State location where accident occurred or occupational disease was contracted: Christian 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? Yes
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 occurred or occupational disease contracted: Employee engaged in employment with Employer for approximately 6 years, and while working as an employee of Employer, Employee was required to stand and walk repetitively and cumulatively on concrete or other hard surfaces in her employment with Employer. As a consequence of suffering repetitive and cumulative trauma to her feet Employee sustained an incident of occupational disease involving an injury in the nature of tendinitis and Morton's neuroma in the left foot.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left Foot
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Renee Quast

1. Value necessary medical aid not furnished by employer/insurer? $\ 1,133.10
2. Employee's average weekly wages: $\ 406.00
3. Weekly compensation rate: $\ 270.67 (TTD / PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 1,133.10

Weeks of temporary total disability (or temporary partial disability) N/A

Medical Care: Employer and Insurer are ordered to provide Employee with additional medical care consistent with the recommendations of Dr. Koprivica, and which is reasonable, necessary, and casually related to the incident of occupational disease of May 1, 2011.

TOTAL: $\qquad$ TBD

Each of said payments to begin immediately and be subject to modification and review as provided by law. 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.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Darren Morrison, Esq.

Employee: Renee Quast

Injury No. 11-104621

Dependents: N/A

Employer: RPCS, Inc. d/b/a Price Cutter

Insurer: Fuel Marketers Insurance Trust

Additional Party: N/A

The above-referenced workers' compensation claim, which involved the joining of two workers' compensation cases, was heard before the undersigned Administrative Law Judge on April 7, 2014. ${ }^{1}$ Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on May 7, 2014.

The employee appeared personally and through her attorney Darren J. Morrison, Esq. The employer and insurer appeared through their attorney, Steven Marsh, Esq.

The parties entered into a stipulation of facts in Injury No. 11-104621. The stipulation is as follows:

(1) On or about May 1, 2011, and at all times relevant to this case, RPCS, Inc. $\mathrm{d} / \mathrm{b} / \mathrm{a}$ Price Cutter, was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Fuel Marketers Insurance Trust.

(2) On the alleged injury date of May 1, 2011, Renee Quast was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The claimed incident of occupational disease of May 1, 2011 occurred in Christian County, Missouri, and the contract of employment between the employee and employer was made in Missouri. Similarly, the employment was principally localized in Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(4) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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[^0]: ${ }^{1}$ The workers' compensation cases that were joined for hearing include Injury Nos. 12-000968 and 11-104621.

(5) At the time of the claimed incident of occupational disease the employee's average weekly wage