Barbara Kinnaird v. Buckeye International, Incorporated

Minnaird, Barbara

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administrative law judge deemed determinative. The Commission hereby denies employer/insurer's motion to dismiss.

Employee's brief focuses on a medical causation argument that Dr. Schoedinger agreed that a portion of employee's symptomatology is attributable to the repetitive nature of her work. Dr. Schoedinger's report states that employee's symptoms

are attributable to aggravated degenerative cervical disc disease and arthritis; in addition to which, she may have a cervical disc rupture at one or more levels. She was told that I believe a portion of her symptomatology is attributable to the repetitive nature of her job related activities and to those duties which require lifting or overhead use of her upper limbs.

Tr., at 245.

The ALJ found that "from the treatment records submitted in this case, there is no definitive opinion from any of her multiple treating physicians that her exposure to multiple chemicals at work were the prevailing factor in causing a specific diagnosis or condition." *Award 09-061323, p. 30.* We agree with the ALJ's award on this factual finding. Dr. Schoedinger's opinion further fails to establish that repetitive work duties were the prevailing factor in causing employee's medical condition and disability, as opposed to a contributing factor.

Section 287.067, RSMo, defines a compensable occupational disease as follows, in pertinent part:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. 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.

1. 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, causing both the resulting medical condition and disability. 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.

1. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. 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. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. 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.

Under this section, one does not have a compensable occupational disease if one's work duties constitute a contributing factor, as opposed to being the prevailing factor that causes both the resulting medical condition and disability. Because Dr. Schoedinger opined that the repetitive nature of employee's job-related activities contributed to employee's symptomatology, but did not opine that employee's work activities constituted the prevailing factor resulting in employee's medical condition and disability, his opinion fails to establish a compensable occupational disease under § 287.067. ${ }^{1}$

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

The award and decision of Administrative Law Judge Jason A. Tilley is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 22nd \qquad$ day of November 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member


Shalonn K. Curls, Member

Attest:

[^0]

[^0]: ${ }^{1}$ We note that as of August 28, 2005, § 287.800.1, RSMo, provides: "Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly."

Claimant: Barbara Kinnaird

Dependents: N/A

Employer: Buckeye International, Incorporated

Additional Party: Second Injury Fund

Insurer: Hartford Casualty Insurance

c/o Gallagher Bassett Services, Inc.

Hearing Date: April 22, 2021

Injury No.: 09-061323

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

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: N/A.
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri.
6. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
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 Claimant was doing and how accident occurred or occupational disease contracted: N/A.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Alleged chemical exposure.
14. Nature and extent of any permanent disability: 0 %.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? N/A.
18. Claimant's average weekly wages: $\ 661.38.

1. Weekly compensation rate: The rate of compensation for temporary total disability/permanent total disability was $\ 440.94 and the rate of compensation for permanent partial disability was $\ 404.66.
2. Method wages computation: Adjudicated.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: 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 attorneys for necessary legal services rendered to the Claimant: Robert Miller.

Barbara Kinnaird (hereinafter "Claimant"), requested a hearing for a final award to determine the liability of Buckeye International (hereinafter "Employer") for permanent partial disability ("PPD") benefits for an injury alleged on May 12, 2009 while at work.

On April 22, 2021, Claimant appeared in person and by counsel, Attorney Robert Miller, at the Missouri Division of Workers' Compensation office in St. Louis, Missouri. Buckeye International, Inc., and its insurer, Hartford Casualty Insurance c/o Gallagher Basset Services, Inc., appear by and through their attorney, Loretta Simon. The Second Injury Fund appears in person through its attorney, Jennifer Sommers. The Division has jurisdiction to hear this case pursuant to Section 287.110 RSMo. Claimant's counsel requested twenty-five percent (25\%) of the amount awarded to Claimant herein as and for his attorney's fees.

These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth as follows:

1. Incident of occupational disease/exposure.
2. Whether injury arose out of and in the course of employment.
3. Medical Causation.
4. Future Medical Treatment.
5. If there was an accident, did that accident cause permanent total disability?
6. The liability of the Second Injury Fund for permanent total disability.
7. Average weekly wage/TTD rate.

The following exhibits were offered and entered into evidence:

Claimant submitted the following exhibits, which were received into evidence:

1. St. Anthony's Medical Center
2. Ravi Shitut, M.D.
3. St. Anthony's Medical Center
4. John Gragnani, M.D.
5. Jerome Levy, M.D.
6. St. Joseph Health Center
7. Robert Rimmer, D.C.
8. St. Joseph Health Center
9. Meredith Payne, M.D. \& Joseph