Lisa Cook v. Missouri Highway and Transportation Commission

consideration, we agree with the administrative law judge's choice to credit the opinions from Dr. Schlafly as to this question. Dr. Schlafly persuasively testified (and we so find) that employee's typing duties involved repetitive flexor tendon movements from repetitive motion of the fingers, which in turn created a process of gradual inflammation around the flexor tendons in the area of the median nerve and the carpal tunnel. We find that employee's occupational exposure to this gradual inflammation process is the prevailing factor causing employee to suffer the resulting medical condition of right carpal tunnel syndrome and attendant permanent partial disability.

Section 287.430 RSMo provides, as follows:

Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death.

Section 287.063.3 RSMo additionally provides, as follows:

The statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, except that in cases of loss of hearing due to industrial noise said limitation shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197.

The plain language of the foregoing sections makes clear that the statute of limitations does not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an "injury" has been sustained related to the exposure. Section 287.020.3(1) RSMo provides that "[i]n this chapter, the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment." It follows that the 2-year statute of limitations period did not begin to run for employee until it was reasonably discoverable and apparent to her that her right carpal tunnel syndrome amounted to an injury arising out of and in the course of employment related to her exposure to repetitive duties while working for employer. The determination of when this information became reasonably discoverable and apparent to employee is a factual one. Lawrence v. Anheuser Busch Cos., 310 S.W.3d 248, 252 (Mo. App. 2010).

Employer argues that the 2005 legislative changes to $\S 287.063 .3$, by deleting the word "compensable," created a higher standard for employees than the prior language. Employer suggests we should focus on when employee's "condition" was reasonably discoverable and apparent, without regard to whether employee had the benefit of a diagnostician's opinion that she had carpal tunnel syndrome related to her work

exposures. Employer's argument asks us to ignore both the definition of "injury" under $\S 287.020 .3(1)$ as well as the legislative addition, in 2005, of the qualifier "related to such exposure" in § 287.063.3.

We presume that the legislature was aware of the pre-2005 case law suggesting that an occupational disease does not become "compensable" until an employee suffers some loss in earning capacity, e.g., Garrone v. Treasurer of State, 157 S.W.3d 237 (Mo. App. 2004). It appears to us that by removing the term "compensable" and adding the qualifier "related to such exposure," the legislature intended to shift the focus of our inquiry from the apparent compensability of an injury to the apparent work-relatedness of an injury.

In doing so, the legislature recognized that the "compensability" of any particular injury does not always turn on whether an employee has sufficient grounds for bringing a claim, but may involve a number of other factors which are not particularly relevant to the determination of when it becomes apparent an employee has suffered a work injury. ${ }^{1}$ In our view, the legislature in 2005 simply made clear that the apparent work-relatedness of an injury must be our paramount concern in answering the question when the statute of limitations begins to run in occupational disease cases.

Employer asks us to find that the statute of limitations began to run as early as 2005, pointing to a diagnosis from Dr. A. B. Chaudhari of bilateral carpal tunnel syndrome on November 14, 2005. Employer fails to acknowledge, however, the results of a subsequent electromyogram and nerve conduction study of December 1, 2005, which Dr. Chaudhari deemed to be normal, with no evidence of denervation. Transcript, pages 241-42. Employee credibly testified (and we so find) that Dr. Chaudhari told her that these tests were negative for carpal tunnel syndrome, and that her upper extremity problems were instead related to her neck. As a result, we are not persuaded that it was reasonably discoverable and apparent to employee in late 2005 that she'd suffered carpal tunnel syndrome arising out of and in the course of employment related to her exposure to repetitive duties while working for employer.

Employer next argues that the statute of limitations began to run in 2007, because employee filed with employer a "Missouri Department of Transportation Workers' Compensation Field Injury Report" on September 19, 2007, complaining of pain in her bilateral wrists and forearms related to her computer data entry work and repetitive typing and filing. Employer fails to mention that its own authorized treating physician, Dr. Glen Cooper, diagnosed employee's condition in 2007 as bilateral extensor tendonitis of the wrists with tendonitis of the right elbow, not carpal tunnel syndrome. Transcript, page 273. Employer also fails to apprise this Commission of the opinion from its own evaluating expert, Dr. Evan Crandall, that there was no evidence that employee was suffering from carpal tunnel syndrome in 2007. ${ }^{2}$ Transcript, pages 469-70.

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[^0]: ${ }^{1}$ An employee may suffer an injury that is "apparently" work-related but is not ultimately compensable. Examples include cases wherein the work exposure is deemed not to be the prevailing causative factor and/or when there is a failure to satisfy some other requisite to an award of benefits, such as compliance with the notice provisions of § 287.420 RSMo.

${ }^{2}$ Employer's failure to identify evidence on the record which squarely refutes its arguments is troubling, to say the least, and calls into question the candor with which employer approaches this tribunal.

Employer's argument, as we understand it, is that despite Dr. Chaudhari's ruling out of carpal tunnel syndrome in 2005 based on the negative electrodiagnostic studies, and despite Dr. Cooper's opinion that employee's 2007 upper extremity problems were the product of a extensor tendonitis, employee should have rejected the opinions from these diagnosticians and, relying solely on her own lay opinion that she had bilateral carpal tunnel syndrome related to her work for employer, filed a claim against employer for a 2005 or 2007 injury in the form of carpal tunnel syndrome. We are not persuaded.

The Missouri courts have cautioned that causation of carpal tunnel syndrome is not a question within lay understanding. "In cases in which a worker seeks compensation for carpal tunnel syndrome, he or she must submit a medical expert who can establish a probability that working conditions caused the disease..." Decker v. Square D Co., 974 S.W.2d 667, 669 (Mo. App. 1998)(citation omitted). On the one hand, employer expects us to elevate employee's lay opinion regarding the proper diagnosis and work-relatedness of her upper extremity problems as sufficient to obligate her to file a claim for compensation, notwithstanding the unanimous opinions from the treating and evaluating physicians that she did not have carpal tunnel syndrome in 2005 or 2007. On the other, employer asks us to credit the opinion from Dr. Crandall that employee's carpal tunnel syndrome is, in any event, the product of a number of non-work-related risk factors.

Ultimately, and after careful consideration of the entire record, we find as a factual matter that it was first reasonably discoverable and apparent to employee that she'd suffered right carpal tunnel syndrome arising out of and in the course of employment related to her exposure to repetitive upper extremity duties as of October 12, 2011, when Dr. Crandall made the diagnosis of right carpal tunnel syndrome. Employee filed her claim for compensation on January 10, 2012. We conclude that employee's claim is not barred by the statute of limitations.

Section 287.140.1 RSMo controls with respect to the issue of past medical expenses, and provides, in r