Bull v. Excel Corp.

• Court: Missouri Court of Appeals
• Writing for the Court: JAMES M. SMART, Jr.
• Citation: Bull v. Excel Corp., 985 S.W.2d 411 (Mo. App. 1999)
• Decision Date: 09 February 1999
• Docket Number: No. WD,WD
• Parties: Sandra D. BULL, Respondent, v. EXCEL CORPORATION, Appellant. 55609.

Page 411

985 S.W.2d 411

Sandra D. BULL, Respondent, v. EXCEL CORPORATION, Appellant.

No. WD 55609.

Missouri Court of Appeals Western District.

Submitted Sept. 16, 1998.

Decided Feb. 9, 1999.

William A. Peterson, Marshall, for Appellant.

John R. Fox, Kansas City, for Respondent.

Before SMART, P.J., and ELLIS and HOWARD, JJ.

JAMES M. SMART, Jr., Judge.

Excel Corporation ("Excel") appeals a final award of the Labor and Industrial Relations Commission ("Commission") affirming the Administrative Law Judge's ("ALJ") award of $8,501.14 for temporary total disability and $11,320.76 for permanent partial disability to Sandra Bull based on her last exposure to repetitive motions causing bilateral carpal tunnel syndrome and related injuries. Excel challenges the Commission's finding as to the date of injury. Excel further contends that Tyson Foods, Ms. Bull's previous employer, should have borne the cost of compensating Ms. Bull because she had been employed by Excel for less than ninety days at the time her "injury" occurred. Because we conclude that the stipulation as to "date of injury" was legally immaterial as to the allocation of liability to Excel, and because the Commission was not bound by any stipulation as to the period of exposure to the harmful repetitive motion, we affirm the Commission's decision granting Ms. Bull an award against Excel under §§ 287.063 and 287.067.7.

Facts

Sandra Bull began working for Tyson Foods on July 25, 1994, shaving the "butts and armpits" of hogs. The shaving process was physically demanding, and Ms. Bull began experiencing problems with her shoulders. Later, Ms. Bull was transferred to a position in which she separated the stomachs from the livers of hogs. Ms. Bull would hold the liver of the hog in her left hand and a large knife in her right hand. She then cut the liver from the stomach using the knife, repeating this process between 6,000 and 9,000 times per day, stopping every twenty minutes to sharpen her knife. It is not possible to precisely pinpoint the date on which the change in job duties occurred. Ms. Bull was unable to clearly recall the progression of events and could not remember whether the change was made before Excel's purchase of the business from Tyson Foods on September 1, 1995, or near that time. Ms. Bull remained with Excel until she was terminated on January 15, 1996.

It is unclear when Ms. Bull began to develop problems associated with the injury for which she received compensation. Dana Latimer, the nursing supervisor in charge of workers' compensation for Excel, testified that Ms. Bull had come to the nurses' station many times, both before and after Excel purchased the plant, complaining of pain in her upper extremities. Ms. Bull complained about her fingers, arms, hands and shoulders, although the complaints differed as to severity and symptoms. Mr. Jim Schulter the supervisor of the "kill floor," testified that Ms. Bull went to the nurse's station often, although he did not know the exact number of times. He also did not know how long Ms. Bull had been cutting livers. After Excel purchased the plant, Ms. Latimer sent Ms. Bull to Dr. C. Alan Scott because she tired of seeing Ms. Bull at the nurse's station.

Ms. Bull saw Dr. Scott on September 29, 1995, for pain in her left hand. He found that her exam was "remarkable only for soreness over the dorsum of the hand" and diagnosed tenosynovitis. Dr. Scott recommended restrictions on cutting livers, however, Excel did not accommodate this recommendation. Although Ms. Bull was in pain and "bugged" Excel to see a doctor, Excel did not authorize her to go.

Ms. Bull went to see Dr. Scott again on January 4, 1996. Dr. Scott believed that Ms. Bull had arthritis or cumulative trauma syndrome. He referred her to Dr. Janie R. Vale, a physician with Columbia Occupational Medicine, who treated many Tyson and Excel employees. Dr. Vale first examined Ms. Bull on January 25, 1996. Ms. Bull told the doctor that she was having trouble with her hands and forearms. She also noted difficulty in sleeping, as well as numbness and tingling. Dr. Vale reported that Ms. Bull associated the onset of her problems with the job of cutting livers. Ms. Bull told Dr. Vale that she had been cutting livers for about fourteen months. Dr. Vale diagnosed fatigue and tendinitis of the forearm, wrists and hands associated with work activities. Dr. Vale recommended conservative treatment, rather than surgical intervention.

Dr. Vale next saw Ms. Bull on February 15, 1996, because of Ms. Bull's persistent symptoms. Ms. Bull was feeling tingling and burning throughout both hands, particularly the right hand. Electrodiagnostic studies were ordered. The studies showed borderline median compression at wrist level. Eventually, Dr. Vale recommended obtaining a surgical opinion concerning a release of the right carpal tunnel because Ms. Bull was not improving with conservative care. Dr. Vale referred Ms. Bull to Dr. Ronald Carter.

Dr. Carter examined Ms. Bull on April 1, 1996, and performed a carpal tunnel release that afternoon on her right wrist. In his testimony, Dr. Carter explained that carpal tunnel syndrome is caused by swelling of the carpal tunnel which causes pressure on the median nerve resulting in numbness, increased pain and burning. Because of the tight space, the tendon swells and there is no space for expansion. The level of symptoms and amount of pain varies and it can develop, resolve or partially resolve, and then return. This variance can be caused by a variety of things. Dr. Carter could not determine when the cumulative effect reached such swelling and compression as to make surgery necessary.

Ms. Bull saw Dr. Vale and Dr. Carter for follow-up visits. Before releasing her, both doctors noted a loss of motion and pain or tenderness. Both doctors recommended limitations on future employment to prevent frequent pinching, gripping, pronation and supination use of the upper extremities. Dr. Vale opined that Ms. Bull's job of cutting livers was causally related to her condition and that the work at Tyson was the substantial contributing factor to her condition.

Dr. James P. Hopkins performed a rating examination on Ms. Bull on September 17, 1996. Dr. Hopkins found that Ms. Bull had a twenty-five percent permanent partial disability to her right forearm and a fifteen percent permanent partial disability to her left wrist. Because both extremities were involved, Dr. Hopkins assigned a fifteen percent loading factor.

The Hearing

Ms. Bull filed a claim for workers' compensation benefits on April 23, 1996. At a hearing on the matter, held April 4, 1997, the parties stipulated to the date of the injury as September 20, 1995. The ALJ noted further stipulations:

THE [ALJ]: And the parties have also stipulated that the issues today are as follows: The parties have stipulated that the exposure on the repetitive motion which is the cause of the injury was for a period of less that three months at Excel Corp.?

MR. PETERSON: Yes.

MR. FOX: Yes.

THE [ALJ]: And the issues shall be whether the evidence determines that the exposure to the repetitive motion with Tyson Foods was the substantial contributing factor to the injury such that Excel Corp. is not liable for such occupational disease pursuant to Section 287.067.7.

MR. FOX: That's correct.

MR. PETERSON: Yes, Your Honor.

After the hearing, the ALJ found that the date of Ms. Bull's "injury" was January 15, 1996. The ALJ further found that she had been exposed to the hazard of repetitious motion for over three months at Excel. The ALJ also concluded that, in any event, Excel did not meet its burden of showing that Tyson was the substantial contributing factor to Ms. Bull's injury.

The ALJ found that Ms. Bull suffered an eleven percent partial disability to her body as a whole. He ordered Excel to pay $342.00 for 24 6/7 weeks ($8,501.14) of temporary total disability and $257.29 for 44 weeks ($11,320.76) of permanent partial disability to Ms. Bull for last exposing her to conditions causing bilateral carpal tunnel syndrome and related injuries. Excel filed an application for review with the Commission. The Commission affirmed the award and adopted the decision of the ALJ.

Excel appeals.

Standard of Review

We begin by noting that "[t]he fundamental purpose of the Workers' Compensation Law is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment." Wolfgeher v. Wagner Cartage Serv., Inc., 646 S.W.2d 781, 783 (Mo. banc 1983). In reviewing Excel's contention, we are guided by § 288.210, RSMo Supp.1997, which provides, in pertinent part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the decision was procured by fraud;

(3) That the facts found by the commission do not support the award; or

(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

In Davis v. Research Med. Ctr., 903 S.W.2d 557, 570 (Mo.App.1995), this court summarized the process for the two-step review of an award made by the Commission in workers' compensation decisions. First, an appellate court must determine whether the whole record, viewed in the light most favorable to the decision, contains sufficient competent and substantial evidence to support the Commission's decision. Id. If the court finds that it does, the second step requires that the court make a determination as to whether the decision is against the overwhelming weight of the evidence. Id. In this second step, all of the...