Issue 2: Did the accident and/or occupational disease arise out of and in the course of employment?
Issue 3: Are Claimant's injuries and continuing complaints medically causally connected to his alleged accident and/or occupational disease at work?
Issue 4: What is the appropriate date of injury?
Issue 5: What is the effect, if any, of the application of the Last Exposure Rule to this Claim?
Considering the alleged date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. $\S \mathbf{2 8 7 . 8 0 8}$ (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."
Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection,
121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. Id. at 199.
I find that there is really no dispute in this case, and the evidence clearly shows, that Claimant has bilateral carpal tunnel syndrome, based on the physical examinations and the diagnostic evidence in the record. I further find that there is really no dispute that Claimant is in need of surgical treatment to address his severe bilateral carpal tunnel syndrome. Both of the medical experts in the record, Drs. Schlafly and Rotman, agree on these two points. The real disputes have to do with causation, the connection of this condition to his work for the employers, and which of the two competing employers, if either, should be responsible for providing benefits to Claimant for this condition.
As a preliminary matter, I should also note that while the parties put at issue whether Claimant suffered an accident and/or occupational disease that arose out of and in the course of his employment for Employer, in reality, I found no evidence in the record to substantiate an accident theory in this case. Neither Claimant's testimony, nor the opinions or testimony of the medical experts, nor any other evidence for that matter, supports a finding that Claimant's bilateral carpal tunnel syndrome came from an accident, suffered by Claimant in the course and scope of his employment. Therefore, any issues suggesting an accident theory in this case are denied and I will focus on the occupational disease theory of the case that is really at issue in this matter.
Under Mo. Rev. Stat. § 287.067.1 (2005), occupational disease is defined as "an identifiable disease arising with or without human fault out of and in the course of the employment." Additionally, under Mo. Rev. Stat. § 287.067.3 (2005), "An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." That section then defines "prevailing factor" as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." It continues, "Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable."
The Court in Kelley v. Banta \& Stude Construction Co., Inc., 1 S.W.3d 43 (Mo. App. E.D. 1999), provided guidance on the proof the employee must provide in order to make an occupational disease claim compensable under the statute. The Court held that first, the employee must provide substantial and competent evidence that he contracted an occupationallyinduced disease rather than an ordinary disease of life. There are two considerations to that inquiry: (1) Whether there was an exposure to the disease greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. The Court then held that the employee must also establish, usually with expert testimony, the probability that the claimed occupational disease was caused by the conditions in the workplace. More specifically, employee must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." Id. at 48. Finally, the Court noted, "where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible." Id.
In a case such as this one, where Claimant worked for multiple employers over the course of many years, and where competing employers are disputing their responsibility for the alleged condition, I find that it is necessary to first determine whether Claimant suffered from a compensable occupational disease that arose out of and in the course of his employment, and which was medically casually related to it (irrespective of which employer may be responsible for it), and only after making that determination, to then decide which of the competing employers, if either, is responsible for the payment of benefits for the condition.
Based on Claimant's credible testimony and the competent, credible and persuasive testimony of Dr. Bruce Schlafly, I find that Claimant has met his burden of proving the presence of an occupational disease that arose out of and in the course of his employment. I further find that he has met his burden of proof to show that his bilateral carpal tunnel syndrome is medically causally related to his employment as a laborer.
I find that the undisputed evidence in the record shows that Claimant has worked as a laborer out of the union hall for over 26 years. I find that his work as a laborer routinely required repetitive, extensive use of his hands for operating vibratory hand tools, such as compression hammers for chipping floors or tile, and even larger and heavier jackhammers, which required extensive gripping and which shook his whole body as he operated them. His job duties as a laborer also required the extensive use of his hands for grasping, lifting and moving objects, while performing demolition and cleanup duties. I find that his job duties as a laborer were hand intensive and regularly required the extensive, repetitive use of his hands to perform his work for the various employers for whom he was employed.
I further find, based on the undisputed description of his job duties at Tarlton beginning on August 5, 2013, that his work there for that employer was particularly hand intensive and repetitive. Claimant credibly and consistently described the work he performed for Tarlton during this time, which included jackhammering of 8-18 inches of concrete in a garage in Clayton, mostly using a 90 -pound air-compressed jackhammer, but also occasionally using a 60 pound air-compressed jackhammer as well. He credibly described how he had to hang onto the jackhammer with both hands to operate it and his body shook as he performed this task for ten hours a day, four days a week, minus a lunch break and one other break during each day. He estimated that he was actually jackhammering for approximately nine hours per day, for a month and a half straight that he worked for Tarlton at this site. Finally, he noted that in his 26 years as a laborer, he had never before jackhammered for nine hours a day, all of those days in a row, so this work for Tarlton was different than he had ever performed for any other employer. This description of his work activities for Tarlton was consistently repeated by Claimant in the medical treatment records and examination reports. I find that Tarlton provided no evidence to dispute this description of the work activities or the extent of the vibratory, repetitive, handintensive nature of the work Claimant performed for them beginning on August 5, 2013.
In order to meet his burden of proof in this matter, in addition to credible testimony on his own behalf, Claimant also needed to submit competent, credible and reliable medical evidence to show that he suffered from an occupational disease and also to show that that occupational disease was medically causally related to his work as a laborer. To meet this burden of proof, Claimant offered the opinions and testimony of Dr. Bruce Schlafly, who opined that Claimant's work as a laborer, and, specifically, his work for Tarlton, operating the jackhammer, is the
prevailing factor in the cause of Claimant's bilateral carpal tunnel syndrome and his need for bilateral carpal tunnel releases. To counter this opinion, Employer offered the opinions and testimony of Dr. Mitchell Rotman, who opined that Claimant had idiopathic bilateral carpal tunnel syndrome, which generally comes on slowly over a period of years. He testified that, "work has never been proven as a cause of carpal tunnel." He noted that it is considered workrelated when the work is heavy, repetitive, with vibrating tools and lots of heavy grasping, but it has never been proven to actually cause the ligament to become thick. It is just an aggravating factor that brings on the symptoms to the point where surgery is needed. In that respect, he did believe that jackhammering could cause carpal tunnel symptoms. However, he did not believe that any repetitive use of the upper extremities in a workplace setting could cause carpal tunnel syndrome. Having reviewed both opinions in light of the rest of the extensive medical treatment records and evidence in this case, I find that the opinions and testimony of Dr. Schlafly are more competent, credible and persuasive than the contrary opinions of Dr. Rotman in this case.
While I find that both experts are equally qualified to render opinions in this area of medicine, as both are board certified orthopedic surgeons with added qualifications in surgery of the hand, I find that Dr. Rotman's opinion, that repetitive use of the upper extremities cannot cause carpal tunnel syndrome, runs afoul of years of accepted case law and learned medical literature. Despite his contention that work cannot cause carpal tunnel syndrome, even in his own reports and testimony, in an attempt to shift liability away from Tarlton, he seemingly points to the repetitive, hand-intensive work Claimant was doing prior to September 11, 2012 as the prevailing factor for Claimant's bilateral hand condition. If he truly believes work does not cause carpal tunnel syndrome, then it makes no sense why he would point to activities in 2012 as the prevailing factor, instead of activities in 2013 when he was employed by Tarlton. If work does not cause the condition, then it should not matter what Claimant was doing in 2012 or 2013. Additionally, on further cross-examination, Dr. Rotman tried to explain that date of a test for diagnosis sets the legal date for the alleged injury, but, then he added, only "if he is doing repetitive, heavy activities at the time." It is completely confusing and unclear why it matters what activities a Claimant was doing at the time of a diagnostic test, as far as a date of injury is concerned, if work can never cause the condition anyway.
Dr. Schlafly's opinion on the relationship between Claimant's work as a laborer (specifically his work for Tarlton operating the jackhammer), and the development of the bilateral hand condition (carpal tunnel syndrome) is supported by the other evidence in this case. I find that there was an exposure to the disease, greater than or different from that which affects the public generally, because of the work Claimant was doing with the extensive, repetitive use of his hands and his work with heavy grasping and vibratory tools as a part of his job. I also find that there is a recognizable link between the disease (bilateral carpal tunnel syndrome) and some distinctive feature of the employee's job (hand intensive, repetitive use of vibratory tools involving heavy grasping) which is common to all jobs of that sort. Dr. Schlafly credibly described a recognizable link between a distinctive feature of Claimant's job (the hand intensive, repetitive use of vibratory tools involving heavy grasping) and the bilateral carpal tunnel syndrome. Considering all these things, I find Dr. Schlafly credibly established that Claimant's work was the prevailing factor in causing the bilateral hand condition (carpal tunnel syndrome).
Tarlton suggests that Claimant is not credible and his testimony cannot serve as a basis for an award of compensation in this matter because he did not disclose his prior hand problems
to the treating and examining physicians in this case. For that same reason, Tarlton suggests that the opinions and testimony of Dr. Schlafly should not be relied on in this matter. I disagree. While the prior medical records discuss carpal tunnel syndrome, I believe Claimant when he testified that his understanding was that he had a pinched nerve, not carpal tunnel syndrome. This testimony is further bolstered by the Laborers' Claim Form (Exhibit B), wherein he reported a diagnosis of tendonitis/pinched nerve on September 7, 2012. There was no mention of a carpal tunnel syndrome diagnosis. Therefore, even though Dr. Baak's records contain the diagnosis, as well as a discussion of Claimant's work and potential need for surgery, Claimant's testimony that he was unaware of that and was only aware of a pinched nerve or arthritis diagnosis, seems supported by the contemporaneous filing of the claim form with the Laborers' Union on October 1, 2012. Additionally, while Claimant did not provide a detailed history of his prior hand problems and treatment to Dr. Schlafly when he examined him, I find that Dr. Schlafly did have a complete history, via the additional medical records and reports he reviewed, before issuing his final report and providing his testimony in this case.
Accordingly, on the basis of Claimant's credible testimony and the credible and persuasive testimony of Dr. Bruce Schlafly, I find that Claimant met his burden of proving the presence of an occupational disease of bilateral carpal tunnel syndrome that arose out of and in the course of employment as a laborer, and which was medically causally connected to it. I find that Claimant's hand intensive, repetitive use of vibratory tools involving heavy grasping, during the course of his employment as a laborer, was the prevailing factor in causing this medical condition and any disability Claimant currently has in his hands/wrists as a result of it. I find that his work as a laborer was the primary factor, in relation to any other factor, in causing both the medical condition and disability in his hands/wrists.
Having now determined that Claimant met his burden of proving a compensable occupational disease that arose out of and in the course of his employment, and which was medically casually related to it, it is now appropriate to determine an appropriate date of injury and which, if either, of the two competing employers is responsible for the payment of benefits for this bilateral hand condition.
The determination of these issues begins with Mo. Rev. Stat. § 287.063.2 (2005), which states:
The employer liable for the compensation in this section provided shall be the 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 .
It is, therefore, necessary to determine when there was "evidence of disability" in order to determine whose employment Claimant was in prior to that evidence of disability and if Claimant was exposed to the hazard of the occupational disease in that employment, such that that employer would be liable for compensation in this case. It is also important to note, that this statutory provision, commonly referred to as the last exposure rule, is a rule of convenience and not a rule of causation. Endicott v. Display Technologies, Inc., 77 S.W.3d 612 (Mo. 2002),
citing Johnson v. Denton, 911 S.W.2d 286, 288 (Mo. 1995) and Maxon v. Leggett \& Platt, 9 S.W.3d 725, 730 (Mo. App. S.D. 2000).
In trying to persuade this Court on when there was first "evidence of disability" in this case, Claimant and Rallo argue that the first evidence of disability was in September 2013, when Claimant was employed by Tarlton, because that is when Claimant first missed time from work on account of his occupational disease bilateral hand injury. They cite King v. St. Louis Steel Casting Co., 182 S.W.2d 560, 562 (Mo. 1944) for the proposition that, "The disability from occupational disease, for which compensation is payable, must necessarily occur when the employee is incapacitated for work." Similarly, they point to Simmerly v. Bailey Corporation, 890 S.W.2d 12, 14 (Mo. App. S.D. 1994), which held that disability occurred when the employee suffered a loss of earning power and was unable to do the work that exposed her to the carpal tunnel syndrome, regardless of the fact that it was initially diagnosed at an earlier time.
On the other hand, Tarlton argues that the first evidence of disability in this case actually occurred prior to their employing Claimant in 2013, because that is when Claimant was first diagnosed with the condition and, when, according to the medical records, a physician indicated a potential need for surgery. They cite cases such as Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo. App. W.D. 1997), Rupard v. Kiesendahl, S.W.3d 389 (Mo. App. W.D. 2003) and Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408 (Mo. App. W.D. 1997) which all stand for the proposition that an employee does not need to actually miss time from work to show evidence of disability, but rather, it is harm to the employee's earning capacity on account of the injury that triggers the date of disability. They point to such factors as an employee's inability to perform certain work tasks or limitations on his ability to work that affects his earning ability.
In the case at bar, while the medical records show that Claimant was diagnosed with carpal tunnel syndrome prior to his work at Tarlton (prior to 2013), I find that the date of diagnosis is not controlling for the purposes of establishing "evidence of disability." Likewise, I do not believe that a potential surgical recommendation is controlling either. The controlling factor is when Claimant's bilateral hand condition caused harm to Claimant's earning capacity and/or caused Claimant to miss time from work. Claimant credibly testified that he kept working in 2012 and into mid-2013, mostly for Rallo, performing demo work and site cleanup. He said that his hands were good and he had no reason to seek additional treatment because he was working normally without significant complaints. I find that it was not until September 20, 2013, when Claimant was examined by Dr. Baak, that there is any reference to Claimant needing to change or alter his working abilities because of his hand complaints and problems. On that date, Dr. Baak noted, "He is very debilitated and clearly needs to stop running a jackhammer for consecutive shifts and right now should stop it entirely." That statement from Dr. Baak is followed three days later by a visit to Concentra Medical Centers, when Claimant is placed on light-duty work restrictions on account of his bilateral hand problems.
Applying the facts of this case to the statute, as dictated by the relevant case law described above, I find that Claimant showed evidence of disability on account of his bilateral carpal tunnel syndrome occupational disease as of September 20, 2013. That is the first date when a physician issued a work restriction, no use of a jackhammer, which harmed his earning capacity and negatively affected his ability to perform his job as a laborer. I find that as of September 20, 2013, Claimant was incapacitated from any work with a jackhammer, which previously had been
a component of his job as a laborer. Therefore, I find that the appropriate date of injury for this Claim is September 20, 2013. Since Claimant was in the employment of Tarlton when he was last exposed to the hazard of the occupational disease prior to evidence of disability on September 20, 2013, I find that Tarlton is liable for the compensation to be provided under this section on account of the compensable occupational disease of bilateral carpal tunnel syndrome.
I should also note that Tarlton alleges that Dr. Schlafly's testimony, that there would be some disability associated with the probable pre-existing carpal tunnel syndrome, also supports their contention that there was "evidence of disability" prior to Claimant's employment by Tarlton. I am not persuaded by this argument. It is clear to me in reading Dr. Schlafly's testimony in context, that the disability he was referring to is perhaps some amount of permanent partial disability that is normally assessed for milder versus severe cases of carpal tunnel syndrome. I find that all of the cases enumerated above, all focus on "disability" as defined by having a negative impact on an employee's earning capacity. As noted above, the first evidence of that was on September 20, 2013. So, while Dr. Schlafly agreed that Claimant may have had some disability prior to Tarlton as a result of having prior carpal tunnel syndrome, he also clearly stated that Claimant missed no time from work nor was he unable to perform any of his regular job duties prior to August 2013. Therefore, based on the definition of "disability" contemplated by the relevant case law for this statutory provision, I continue to believe that September 20, 2013, is the date on which evidence of disability manifested itself in this case.
The statute does allow for the last employer that exposed Claimant to the hazards of an occupational disease due to repetitive motion to attempt to shift liability for that disease to the prior employer, if the exposure at the last employer was for less than three months. Under Mo. Rev. Stat. § 287.067.8 (2005):
With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with the immediate prior employer was the prevailing factor in causing the injury, the prior employer shall be liable for such occupational disease.
Therefore, according to this provision, in order to shift liability for the repetitive motion occupational disease away from the last employer, it must be shown that Claimant was exposed to the repetitive motion at the last employer for less than three months and that there is evidence demonstrating that the exposure at the immediate prior employer was the prevailing factor in causing the injury.
In the case at bar, it is clear that Claimant was exposed to the repetitive motion that caused the bilateral carpal tunnel syndrome for a period of less than three months at Tarlton prior to the evidence of disability. He began working for Tarlton on August 5, 2013 and demonstrated evidence of disability on account of the bilateral carpal tunnel syndrome on September 20, 2013. However, being exposed for less than three months is not enough to shift liability to the immediate prior employer. It must also be shown that the exposure to the repetitive motion at the immediate prior employer is the prevailing factor in causing the injury. I find that that has not been shown in this case. Claimant's testimony and the credible and persuasive medical opinions of Dr. Schlafly, as well as the medical treatment records of Dr. Baak from September 20, 2013,
all point to the jackhammering activity at Tarlton as the prevailing factor for the occupational disease (bilateral carpal tunnel syndrome) in this case. Quite frankly, there is no credible or persuasive evidence in the record that points to Claimant's exposure at Rallo as the prevailing factor for the bilateral carpal tunnel syndrome occupational disease in this case. Therefore, I find that the liability for this occupational disease cannot be shifted from Tarlton to Rallo on account of this statutory provision.
Accordingly, on the basis of Claimant's credible testimony and the credible and persuasive testimony of Dr. Bruce Schlafly, I find that Claimant met his burden of proving the presence of an occupational disease of bilateral carpal tunnel syndrome that arose out of and in the course of his employment as a laborer, and which was medically causally connected to it. I find that as of September 20, 2013, Claimant was incapacitated from any work with a jackhammer, which previously had been a component of his job as a laborer. Therefore, I find that the appropriate date of injury for this Claim is September 20, 2013. Since Claimant was in the employment of Tarlton when he was last exposed to the hazard of the occupational disease prior to evidence of disability on September 20, 2013, I find that Tarlton is liable for the compensation to be provided under this section on account of the compensable occupational disease of bilateral carpal tunnel syndrome.
Issue 6: Did Claimant provide Employer with proper notice of the injury under the statute?
Under Mo. Rev. Stat. § 287.420 (2005), "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."
When considering this notice provision for occupational diseases, and specifically interpreting the phrase "after the diagnosis of the condition," Courts have held that "a person cannot be diagnosed with an 'occupational disease or repetitive trauma' until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure." Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823 (Mo. App. S.D. 2009). In other words, a mere diagnosis of a condition is not enough. It is only after a diagnosis is made and a medical causal connection between that diagnosis and the work exposure is given, that the 30-day notice time frame begins to run.
Case law has held that the purpose of this section is to give an employer the timely opportunity to investigate the facts surrounding an injury, and if the injury occurred, the chance to provide the employee with medical treatment in order to minimize the disability. Willis $\boldsymbol{v}$. Jewish Hospital, 854 S.W.2d 82 (Mo. App. E.D. 1993) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). However, if the employee failed to give timely written notice of the injury, that failure may be circumvented if the failure to give timely written notice did not prejudice the employer.
In the case at bar, Claimant testified that going into his fourth week working for Tarlton in August/September 2013, he told Eric Gilmore, the superintendent at Tarlton, that his hands were hurting and the jackhammering was "killing" him. Mr. Gilmore responded that they were going to have three more years of this kind of work. He did not offer to send Claimant anywhere for medical treatment to address his hand complaints, but, admittedly, Claimant did not ask for medical treatment at that time either. Then, on September 23, 2013, he asked Scooter, another superintendent, for medical care for his hands/wrists. Claimant told him that he could not jackhammer anymore and he needed to see the safety guy, because his hands were killing him and his fingers were numb. At that point, Tarlton sent him to Concentra for medical care for his wrists. Given the information contained in the Court file for this case, I find that Tarlton filed a Report of Injury on September 30, 2013, admitting that they were notified of the injury on September 23, 2013. I further find that the Claim for Compensation was filed by Claimant on November 1, 2013.
Much like in Allcorn, the resolution of this issue in the case at bar turns on when "the diagnosis of the condition" occurred. As discussed in detail above, an important benchmark in this determination is when the condition reached the point of showing evidence of disability, which in this case was on September 20, 2013, because up to that point, though he may have had the condition, it was not a compensable condition until reaching the point of showing evidence of disability. Having reviewed the medical treatment records and expert reports in detail, I find that the first "diagnosis of the condition" occurred on September 20, 2013, when Dr. Steven Baak wrote his note, in which he both, offered a diagnosis and related it to the jackhammering Claimant had been performing for Tarlton. Claimant verbally notified Tarlton on September 23, 2013 and was sent by Tarlton for medical treatment. Even if there would be a dispute about Dr. Baak offering a clear medical causation opinion at that time, then certainly by the time Dr. Schlafly offered such an opinion on December 18, 2013, Claimant had already verbally notified Tarlton and filed his written Claim for Compensation to provide notice to Tarlton in this matter.
To the extent that Claimant verbally notified Tarlton three days after his visit to Dr. Baak on September 20, 2013, to the extent that Tarlton admitted receiving notice of the injury on September 23, 2013, and, further, to the extent that Tarlton had the opportunity to provide medical care at Concentra, which they later terminated on their own, I find that Claimant appropriately provided timely notice of his occupational disease to Employer pursuant to the statute and/or showed that Tarlton was not prejudiced by the lack of written notice in this case.