Marc Meng v. Harke Heating and Air Conditioning Co.

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

Injury No.: 08-121599

Employee: Marc Meng

Employer: Harke Heating and Air Conditioning, Co.

Insurer: Auto Owners Ins. Co.

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 $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. We adopt the administrative law judge's findings, except where inconsistent with our supplemental findings below.

The Award prepared by the administrative law judge identifies the parties in the caption in this matter at page one, as Employee, Marc Meng; Employer, Harke Heating and Air Conditioning Co.; and Insurer, Auto Owners Ins. Co. In addition to those parties, the Second Injury Fund was a party appearing and participating at the hearing, as noted on paragraph one of the Award at page three and should be included as a party in the caption.

This matter (08-121599) and Injury No. 06-068486 involving a former employer, SystemAire, were tried together. Applications for review were filed by employee in this matter and by SystemAire in Injury No. 06-068486. At the beginning of oral argument on August 27, 2019, the parties were asked for input regarding allotting time for argument, considering the overlap of issues between the two cases, and to address it in the most efficient and fair manner. After allowing input, hearing no further objection, the Commission determined to hear the cases separately, allowing ten minutes for each party of a case with additional time allowed at the end ofr questions from the Commission. As the Commission's oral arguments are open to the public, each party was allowed to be present as observers on the related claim.

We agree with the administrative law judge's finding that SystemAire is the employer in whose employment the employee was last exposed to the hazards of the disabling occupational diseases of carpal tunnel syndrome, cubital tunnel syndrome and thoracic outlet syndrome (TOS). We supplement the administrative law judge's decision to make it clear that we find these conditions were related and all developed through his work as a sheet metal worker, with first evidence of disability on all conditions, appearing during the employment with SystemAire.

Injury No.: 08-121599

Employee: Marc Meng

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Section 287.063 RSMo. Occupational Diseases, Presumption of Exposure - Last Employer Liable - Statute of Limitations, Starts Running, When.

1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 8 of section 287.067.

1. 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 provisions of section 287.420. (Emphasis ours)

Section 287.067 RSMo. Occupational Disease Defined - Repetitive Motion, Loss of Hearing, Radiation Injury, Communicable Disease, Others; provides in relevant part:

1. 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.

Employee was employed with SystemAire from January 3, 2005 to August 20, 2007. His work duties exposed him to repetitive motion activities involving his hands, arms, and raising his arms above his head involving his shoulders. These repetitive motion activities have been found by credible medical opinion to be the prevailing factor in causing the conditions of carpal tunnel syndrome, cubital tunnel syndrome, and thoracic outlet syndrome.

Employee experienced symptoms consistent with carpal tunnel and cubital tunnel syndromes beginning in 2006, and was initially treated by SystemAire's authorized medical providers. Evidence of disability due to carpal and cubital tunnel syndromes and thoracic outlet syndrome arose in 2006-2007, and employee was unable to work or unable to perform certain work duties during periods of his SystemAire employment. He underwent surgery for both wrists and elbows in early 2007, while employed by SystemAire. As of July 24, 2007, Dr. Susan MacKinnon who had been treating employee for his wrist and elbow symptoms, began to further consider TOS, having documented his inability to raise his arms above his head, and his tendency to drop things. Dr. MacKinnon testified this was consistent with TOS. Medical records in 2006 and the summer and fall of 2007, identify symptoms consistent with TOS, and note evidence of disability resulting from the condition affecting his ability to perform his duties.

Washington University medical providers, Dr. MacKinnon, M.D. and Renee Ivens, P.T. D.P.T. both opined that employee's symptoms were disabling in July through September 2007. Dr. MacKinnon explained that the symptoms of carpal and cubital tunnel and TOS are similar and that a physician may initially focus on one aspect, depending on how the patient presents his worst symptoms. Renee Ivens noted on September 27, 2007 that his neural symptoms were limiting his ability to work safely as a sheet metal worker.

Injury No.: 08-121599

Employee: Marc Meng

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After leaving SystemAire due to lay-off, employee was employed for about four days with a firm referred to as ICON. The duties as a sheet metal worker were the same as at SystemAire. Employee credibly testified in his May 2009 deposition, that his employment ended with ICON at least in part, because of pain and difficulty in performing the work duties.¹ Transcript page 5028. Employee then obtained a job through the union hall with American Sheet Metal (ASM) from October 25, 2007 to October 31, 2017, doing the same duties as in his prior sheet metal work position with SystemAire. He was then off work until he was hired by Harke in late November 2007. Employee's work with each of the interim employers, ICON and ASM, was for less than three months. The evidence supports the finding that the work with the previous employer, SystemAire, was the prevailing factor in causing all the injuries/occupational diseases and evidence of disability first arose during that employment.

Because we find the last exposure rule applies to the employment with the previous employer, SystemAire, and not to this employer, Harke, we must deny the claim.

**Conclusion**

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

The award and decision of Administrative Law Judge Marvin O. Teer, Jr. is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 12th day of December 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert Cornejo, Chairman

Reid K. Forrester, Member

**NOT SITTING**

Curtis E. Chick, Jr., Member

Attest:

Secretary

¹ We note this finding is different than the administrative law judge's finding, and replace his finding at page 8, with our own. Employee's memory on this issue changed as time elapsed, but we deem the testimony nearest in time to the event to be more persuasive.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 08-121599

AWARD

Claimant: Marc Meng

Injury No.: 08-121599

Dependents: N/A

Before the Division of Workers' Compensation

Employer: Harke Heating and Air Conditioning, Co.,

Department of Labor and Industrial Relations of Missouri

Insurer: Auto Owners Ins. Co.,

Jefferson City, Missouri

Hearing Date: September 26, 2018 and October 1, 2018 and October 2, 2018.

Checked by: MT; sh

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: June 3, 2008

1. State location where accident occurred or occupational disease was contracted: St. Louis County, MO.

1. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work Claimant was doing and how accident occurred or occupational disease contracted: On or about June 3, 2008 Claimant sustained an occupational disease through repetitive work related duties

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: upper extremities, body as a whole, wrists and elbows.

1. Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: $0

1. Value necessary medical aid paid to date by employer/insurer? $0.

10072181 1.11

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ed by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-121599

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Claimant's average weekly wages: sufficient to result in the maximum weekly compensation rates.

1. Weekly compensation rate: $742.72 TTD/$389.04 PPD.

1. Method wages computation: Stipulated.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

**TOTAL:** $0.00

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dean Christiansen

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The parties appeared before the undersigned administrative law judge on September 26, 2018, for a final hearing to determine in the matter of Marc Meng (hereinafter Claimant"). Attorney Dean Christianson represented Claimant; Attorney Brian Weinstock represented Employer SystemAire (hereinafter "SystemAire"); Attorney Chris Archer represented Employer Harke Heating and Air Conditioning (hereinafter "Harke") Assistant Attorney General David Drescher represented the Second Injury Fund (hereinafter "SIF" or the "Fund"). This case and Injury Number 0