Brune v. Johnson Controls

• Decision Date: 10 March 2015
• Docket Number: No. ED 101924,ED 101924
• Citation: 457 S.W.3d 372
• Parties: Michael Brune, Claimant/Respondent, v. Johnson Controls, a/k/a Hoover Universal, Inc., Employer/Appellant.
• Court: Missouri Court of Appeals

457 S.W.3d 372

Michael Brune, Claimant/Respondent

v.Johnson Controls, a/k/a Hoover Universal, Inc., Employer/Appellant.

No. ED 101924

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: March 10, 2015

L. David Green, Knapp, Ohl & Green, PO Box 446, Edwardsville, Illinois 62025, for appellant.

Dean L. Christianson, Schuchat, Cook & Werner, 1221 Locust Street, Suite 250, St. Louis, Missouri 63103, for respondent.

Philip M. Hess, Judge

Introduction

In this workers' compensation claim, Johnson Controls, Inc. (Employer) appeals the temporary and partial award of the Labor and Industrial Relations Commission (Commission) granting Michael Brune (Claimant) medical treatment and other benefits necessary to cure the effects of his bilateral carpal tunnel syndrome (CTS). Employer asserts that the Commission erred by (1) applying the “last exposure rule” in § 287.063 RSMo 2000¹ because Claimant's work for Employer did not expose him to the hazards of an occupational disease and (2) applying the law regarding notice of an occupational disease to an employer under § 287.420 RSMo Supp. 2005. We affirm.²

Factual Background

Claimant worked as an assembly technician for Employer beginning in August 2000 through May 2007. His duties for Employer required him to use both hands in the assembly of various parts of Chrysler pickup trucks and vans. Before his employment with Employer, Claimant worked for D & H Trucking, during which time he developed problems with his hands and wrists. Claimant filed a worker's compensation claim against D & H Trucking in September 2000, but voluntarily dismissed the claim in August 2003.

In the spring of 2005, Claimant reported pain and numbness in his hands to Employer. Employer authorized Claimant to seek care from Dr. Cynthia Byler, who diagnosed Claimant with severe right, and more moderate left, sensory motor median neuropathy across the carpal tunnels and recommended that a hand specialist examine claimant. Employer authorized Claimant to see Dr. Mitchell Rotman, who found that Claimant's work activities did not cause his bilateral CTS and recommended bilateral CTS releases. Employer denied further treatment and Claimant's condition continued to worsen.

In July 2005, Claimant filed the instant workers' compensation claim against Employer, asserting that in June 2004 he sustained bilateral CTS due to the “repetitive nature” of his work and the continued use of his hands, wrists, and elbows over an extended period of time in the scope of his employment. Employer filed an answer to the claim for compensation, alleging that Claimant had failed to give Employer proper notice of his claim.

After a hearing, an administrative law judge (ALJ) entered a temporary and partial award in Claimant's favor, awarding Claimant “all medical treatment and other benefits necessary to cure and relieve the effects of his disease.” The ALJ found that Claimant's work for Employer exposed him to an occupation in which the hazards of an occupational disease exist, i.e., bilateral CTS. Specifically, the ALJ found credible Claimant's testimony regarding the tasks he performed while on the job (including clipping, snapping, flipping, pushing, gluing, and loading vehicle parts) and the opinion of Claimant's medical expert, Dr. Bruce Schlafly, that these duties were a “substantial factor” in the cause of Claimant's bilateral CTS. The ALJ rejected Dr. Rotman's medical opinion that CTS is idiopathic, noting that his opinion is “too extreme to be worthy of belief and contrary to the past decisions from the Missouri Court of Appeals which have said that [CTS] is a known occupational disease.” The ALJ further found that because Employer was the last employer to expose Claimant to the hazards of this occupational disease before the filing of the claim in 2005, that Employer is liable for the injury under the last exposure rule, § 287.063.

Employer filed an application for review before the Commission, asserting, in part, that (1) the ALJ's determination of medical causation that Claimant's occupational disease arose out of the course of employment is not supported by law or substantial evidence; (2) that the ALJ incorrectly applied the last exposure rule; and (3) that the ALJ's determination that Claimant gave timely notice of his claim is not supported by law or substantial evidence. The Commission unanimously affirmed the temporary or partial award, incorporating the ALJ's award and decision by reference. The Commission found that the award was “supported by competent and substantial evidence” and in accordance with Missouri's Workers' Compensation Law. Employer appeals.

Standard of Review

We defer to the Commission on issues of fact. Endicott v. Display Techs. Inc., 77 S.W.3d 612, 615 (Mo. banc 2002). “However, questions of law are reviewed de novo.” Id.

Point I: The Last Exposure Rule

In its first point relied on, Employer asserts that the “Commission erred in applying the ‘last exposure rule’ to this workers' compensation claim for bilateral CTS since [Claimant's] work for [E]mployer did not expose him to the hazards of an occupational disease.” According to the argument portion of Employer's brief, the Commission's decision is not supported by law and requires de novo review. Employer explains that the Commission's findings of medical causation and that Claimant's duties for Employer exposed him to an occupational disease, is a misapplication of the last exposure rule. Employer further asserts in the argument portion of its brief that the three-month exception to the last exposure rule is inapplicable because Claimant filed a claim against D & H Trucking 36 days after Claimant began working for Employer.³

A. Rule 84.04

At the outset, we note that Employer's point relied on, as fully stated above, and related briefing does not comply with Rule 84.04. The point does not substantially follow the proper form, as articulated in Rule 84.04(d)(2).⁴ Further, the point fails to identify the statute authorizing review or explain why, in the factual context of this case, the legal reasons for the claim support the claim of reversible error. Id. The allegation that Claimant's work for employer did not expose Claimant to an occupational disease is a conclusory assertion, insufficient to meet the requirements of Rule 84.04(d). The point is also not followed by a list of cases or other authority on which Employer “principally” relies. See Rule 84.04(d)(5). Typically, such a deficient point is grounds for dismissal, as it preserves nothing for appellate review. Bailey v. Phelps County Reg'l Med. Ctr., 328 S.W.3d 770, 772–73 (Mo.App.S.D.2010).

Nonetheless, and despite these numerous deficiencies in Employer's briefing, we are able to discern from the argument portion of Employer's brief the basic contention of the claim raised in the point. Mainly, that the last exposure rule is inapplicable because (1) the Commission erred in finding medical causation and that Employer exposed Claimant to the hazards of an occupational disease; and (2) the three-month exception to the last exposure rule applies to shift liability to D & H Trucking.⁵ Therefore, we exercise our discretion ex gratia to review Employer's claim.

B. Factual Determinations

Employer first claims that the Commission's findings of medical causation and that Employer exposed Claimant to the hazards of an occupational disease are erroneous because neither Claimant nor Claimant's medical expert were credible witnesses. While Claimant attempts to frame this argument as a question of law, requiring de novo review, it is clear from Employer's assertions that Employer is attacking the Commission's factual determinations as unsupported by sufficient competent and substantial evidence. Claimant responds that the Commission did not err in its determination that Claimant's bilateral CTS was medically caused by his work activities.

It is well-established that this Court defers to the Commission's factual findings and credibility determinations and that reversal on the basis that the evidence weighs overwhelmingly against the award is warranted only in rare cases.See § 287.495; Dwyer v. Fed. Express Corp., 353 S.W.3d 392, 394–95 (Mo.App.S.D.2011). When a party raises a claim that the Commission's findings are not sufficiently supported by competent evidence, “[a] court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003). Thus, to successfully challenge the Commission's factual findings, Employer needed to (1) marshal all record evidence favorable to the award; (2) marshal all unfavorable evidence, subject to the Commission's explicit or implicit credibility determinations; and (3) show in the context of the whole record how the unfavorable evidence so overwhelms the favorable evidence and its reasonable inferences that the award is, in context, not supported by competent and substantial evidence. See Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo.App.S.D.2012).

Here, Employer's assertions focus on step two, emphasizing the evidence favorable to it, and ignores steps one and three. Because Employer has not made the requisite showing, its argument, in this regard, lacks any “persuasive or analytical value.” See id. Accordingly, we cannot conclude as Employer urges, that the Commission erred by applying the last exposure rule for lack of competent and substantial evidence to support its findings of medical causation and that Employer exposed Claimant to the hazards of an occupational disease.

C. Three–Month Exception to the Last Exposure Rule

Employer also argues that even if the last exposure rule applies, that the Commission misapplied the law by finding that Claimant's prior workers' compensation claim against D & H Trucking does not fall within the...