Rossie Judd v. DaimlerChrysler

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 05-092951

**Employee:** Rossie P. Judd

**Employer:** DaimlerChrysler

**Insurer:** Old Carco, LLC

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge.

On September 1, 2017, employee filed a timely application for review in this matter. On November 30, 2017, along with its brief, employer/insurer filed a motion to dismiss employee's application for review. Employer/insurer argues the Commission should dismiss employee's application for review for failure to comply with Commission rule 8 CSR 20-3.030(3)(A), which provides as follows:

> An applicant for review of any final award, order or decision of the administrative law judge shall state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. It shall not be sufficient merely to state that the decision of the administrative law judge on any particular issue is not supported by competent and substantial evidence.

Employer/insurer argues employee's application for review fails to comply with the foregoing rule, because employee failed to specifically identify why the administrative law judge's findings and conclusions were not supported by the evidence.

On December 11, 2017, employee filed a responsive brief and explained that she is appealing the issue of the nature and extent of her partial disability because the competent and substantial evidence supports a finding she suffers more than 11.25% permanent partial disability of the body as a whole as a result of her work injury.

In considering employer/insurer's motion, we are mindful of the following admonition from the Missouri courts:

> Cases should be heard and decided on their merits. To that end, statutes and rules relating to appeals, being remedial, are to be construed liberally in favor of allowing appeals to proceed. Accordingly we review claimant's application for review in light of a liberal construction of 8 CSR 20-3.030(3)(A).

MNKOI 0001630578

Injury No.: 05-092951

Employee: Rossie P. Judd

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Isgriggs v. Pacer Indus., 869 S.W.2d 295, 296 (Mo. App. 1994).

After careful consideration, and applying a liberal construction of 8 CSR 20-3.030(3)(A), we are more persuaded by employee's arguments. We conclude that employee's application for review is sufficient to satisfy the Commission's rule. We rule this issue against employer/insurer.

The employer/insurer's motion to dismiss is hereby denied.

Having disposed of employer/insurer's motion to dismiss, and because, after careful consideration, we ultimately agree with the administrative law judge's findings, analysis, and conclusions, we otherwise affirm, and adopt as our own, his award in this matter, without further supplementation or comment.

We deny employer/insurer's motion to dismiss.

We affirm and adopt the award of the administrative law judge.

The award and decision of Administrative Law Judge Edwin Kohner is attached and incorporated herein.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 20th day of June 2018.

LABOR AND INDUSTRIAL-RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Impry No.: 05-092951

Employee: Rossie P. Judd

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe employee's application for review should be dismissed or, in the alternative, the decision of the administrative law judge should be reversed.

I do not agree that the application for review complies with the specificity required by 8 CSR 20-3.030(3)(A).

In her application for review, employee alleged as follows: "The Administrative Law Judge determined that the claimant's permanent partial disability of her lung function determined the same permanent partial disability of the claimant's body as a whole. The claimant suggests that the permanent disability in her lungs substantially increased the permanent partial disability of her body as a whole. See Martin v. Heckler 748 F2d 1027 (1984) Therefore, the Administrative Law Judge's award is erroneous." (punctuation of original).

In other words, employee alleged in her application for review that the award was "erroneous" because the administrative law judge did not believe employee. Then employee cited a federal Social Security disability case without explaining how such case was applicable to the matter at hand.

I find no real distinction between employee's application for review and other applications for review that this Commission has historically dismissed for a lack of specificity. See Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App. 1999) and Wilkey v. Ozark Care Ctr. Partners, L.L.C., 236 S.W.3d 101, 102 (Mo. App. 2007).

In Smith v. Smiley Container Corp., the petitioner's application for review stated as follows:

> The undersigned hereby makes application to the Labor and Industrial Relations Commission of Missouri for a review by the full Commission of the Award on Hearing made by Associate Administrative Law Judge Lawrence Kasten in the above case issued on the 2nd day of December 1998. A copy of the Award is attached hereto for this Commission's [sic] review.

>

> Specifically, Petitioner, Russell Stover Candies, submits that Judge Kasten's determinations regarding the nature and extent of the employee's injury(s) and the employee's permanent partial disability were not supported by substantial evidence.

>

> Petitioner, Russell Stover Candies, hereby requests permission to file a brief and present an oral argument before this Commission at a later date.

The court in Smith upheld the Commission's dismissal of the application for review and stated,

> The regulation requires an application for review to state specifically the reason the aggrieved party believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. The regulation explicitly provides it is not sufficient to merely state that the decision on any particular issue is not supported by competent and substantial evidence.

Injury No.: 05-092951

Employee: Rossie P. Judd

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The unadorned assertion in Employer's application for review that certain determinations of the administrative law judge "were not supported by substantial evidence" is precisely the type of averment the regulation proscribes.

*Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App. 1999).*

In *Wilkey*, the application for review stated:

> The Award was against the weight of the credible evidence in its finding that the Employee's last injury rendered the Employee permanently and totally disabled; the Award was against the weight of the credible evidence in finding the Employee permanently and totally disabled.

The court again affirmed the dismissal and stated that "Ozark's 'reasons' failed to specifically identify why the administrative law judge's findings and conclusions were not properly supported by the record that was before that judge." *Wilkey v. Ozark Care Ctr. Partners, L.L.C., 236 S.W.3d 101, 102 (Mo. App. 2007).*

Here, employee's application for review does not specifically explain why the administrative law judge erred in failing to believe her evidence. I do not agree that the application for review complies with the specificity required by 8 CSR 20-3.030(3)(A) and would dismiss.

Alternatively, I would reverse the administrative law judge's award and find that employee did not establish a compensable injury. The competent and substantial evidence shows that the date of injury was much later than August 26, 2005, and that employee did not suffer from a compensable occupational disease, as defined by statute.

The administrative law judge incorrectly found the date of injury to be August 26, 2005. The date of injury, if there was a compensable injury, was much later than August 26, 2005. The administrative law judge sidestepped the issue by generally stating that employee proved a prima facie case regardless of the law, either pre-2005 or post-2005. As claimant continued to work for the employer through December 21, 2007, her date of injury could not have been prior to that date.

"An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." *Wickam v. Treasurer of the State, 499 S.W.3d 751, 756 (Mo. App. 2016)* (quoting *Garrone v. Treasurer of State of Mo., 157 S.W.3d 237, 242 (Mo. App. 2004)*). "It is possible for an employee to have experienced symptoms of and be diagnosed with an occupational disease before the time it becomes disabling and thus compensable." *Wickam, 499 S.W.3d at 756* (citing *Garrone, 157 S.W.3d at 242*).

In both the *Wickam* and *Garrone* cases, the employees were diagnosed with carpal tunnel syndrome over a year prior to reaching the point where the carpal tunnel syndrome impaired the employees' earning ability. In both cases, the court held that the proper date of compensable injury was the date the condition affected the employees' earning ability. *Wickam, 499 S.W.3d at 758*; *Garrone, 157 S.W.3d at 240*.

MNKOI 0000914468

Injury No.: 05-092951

Employee: Rossie P. Judd

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Here, claimant continued to work with her asthma until the employer's plant closed on December 21, 2017. Therefore, claimant's asthma did not affect her earning ability prior to December 21, 2007. Because claimant only ceased to work when her plant closed, there is no real evidence that her condition ever affected her earning ability. However, in any case, the post-2005 law applies to this matter.

**Compensable Occupational Disease**

Employee failed to establish that her working conditions resulted in a compensable occupational disease, as defined by statute.

Section 287.067.1, RSMo, defines occupational disease as "an identifiable disease arising with or without human fault out of and in the course of the employment." The section further provides:

> Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

Section 287.067.2, RSMo, provides:

> An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, cau