Cheryl Tauvar v. City of Gladstone

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

(3) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

The courts have provided some guidance as to how we are to analyze the question of causation in an occupational disease case:

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was 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.

Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Claimant must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate...

Kelley v. Banta \& Stude Constr. Co., 1 S.W.3d 43, 49 (Mo. App. 1999).

More recently, the courts have clarified that employee is not required to prove by "medical certainty" that work caused an occupational disease, but rather must show "a probability" that working conditions caused the disease. Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009)(citations omitted).

Employee provides expert medical opinions from Drs. Edward Prostic and Daniel Zimmerman. We have carefully reviewed their reports. As detailed in the administrative law judge's award, both of these doctors lacked (or appear to have overlooked) significant information regarding employee's preexisting medical history, as well as the timing and onset of her symptoms. We additionally note that each rendered their findings in purely conclusory fashion, and failed to persuasively explain any purported causal connection between the conditions under which employee performed her work and the claimed injuries by occupational disease. They do not discuss whether employee's work for employer involved an exposure to the claimed injuries which was greater than or different from that which affects the public generally, or whether there was a recognizable link between the claimed injuries and some distinctive feature of the employee's job which is common to all jobs of that sort. Nor do they identify a probability that employee's working conditions caused her claimed injuries. Rather, both merely recite employee's history of developing pain and discomfort while performing her work, and then leap to the conclusion that employee's work caused her injuries.

For the foregoing reasons, we find the opinions from Drs. Prostic and Zimmerman in this matter lacking persuasive force. We conclude that employee's work for employer was not a substantial factor causing her to suffer the claimed injuries by occupational disease.

Because employee has failed to meet her burden of proof on the issue of medical causation of her claimed injuries by occupational disease, the other issues are moot, and the claim is denied.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Mark Siedlik, issued June 6, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $12^{\text {th }}$ day of March 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Cheryl E. Tauvar

Injury No: 01-169053

Employer: City of Gladstone

Insurer: Midwest Public Risk of Missouri

Additional Party: N/A

Hearing Date: March 25, 2014

Checked by: MSS/lh

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged September 4, 2001
5. State location where accident occurred or occupational disease was contracted: Gladstone, Jackson 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? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
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 alleges that her work duties as a clerk for the City of Gladstone were repetitive and that those work duties caused her injury to her arms, shoulders and low back.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right Hand, Right Elbow, Right Shoulder, Left Hand, Left Shoulder, Low Back
2. Nature and extent of any permanent disability: none found
3. Compensation paid to-date for temporary disability: -0 -
4. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Cheryl E. Tauvar

Injury No: 01-169053

Employer: City of Gladstone

Insurer: Midwest Public Risk of Missouri

Additional Party: N/A

Hearing Date: March 25, 2014

Checked by: MSS/lh

On March 25, 2014, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Ms. Cheryl Tauvar appeared in person and with counsel, David Slocum. The employer appeared through Kip A. Kubin. The primary issues the parties requested the Division to determine was whether or not Ms. Tauvar sustained an injury by accident arising out of her employment with the City of Gladstone on September 4, 2001, whether the employer received notice of the injury in a timely matter, the nature and extent of the injury and whether the employer is responsible for past medical bills. For the reasons noted below, I find that Ms. Tauvar failed to prove the elements necessary to entitle her to an award under the Missouri Workers Compensation Statutes.

The parties stipulated that:

1. On or about September 4, 2001 ("the injury date"), City of Gladstone ("City") was an employer operating subject to