Collins v. Neevel Luggage Mfg. Co., 25632

• Decision Date: 03 April 1972
• Docket Number: No. 25632,25632
• Citation: 481 S.W.2d 548
• Parties: Kathryn COLLINS, Respondent, v. NEEVEL LUGGAGE MANUFACTURING COMPANY, and the Travelers Insurance Company, Appellants.
• Court: Missouri Court of Appeals

Page 548

481 S.W.2d 548

Kathryn COLLINS, Respondent, v. NEEVEL LUGGAGE MANUFACTURING COMPANY, and the Travelers Insurance Company, Appellants.

No. 25632.

Missouri Court of Appeals, Kansas City District.

April 3, 1972.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 11, 1972.

Application to Transfer Denied July 17, 1972.

Gary E. Lowe and Jack B. Robertson Rogers, Field, Gentry, Benjamin & Robertson, J. Richard Hachey, Kansas City, for appellants.

Herman M. Swafford, A. J. Falcone, Kansas City, for respondent.

Richard B. McKelvey, Paul Scott Kelly, Jr., Gage, Tucker, Hodges, Kreamer, Kelly & Varner, Kansas City, Earnest L. Keathley, Jr., St. Louis, for amicus curiae, Associated Industries of Missouri.

SHANGLER, Chief Judge.

The Industrial Commission, by a split vote, determined that the bilateral carpal syndrome exhibited by Kathryn Collins, an employee engaged in the manufacture of luggage, was an occupational disease under Sections 287.063 and 287.067, V.A.M.S., and awarded her compensation. The employer and insurer have appealed from the judgment of the Circuit Court affirming the award, which they say in not supported by competent and substantial evidence on the whole record.

Kathryn Collins was fifty years of age and, except for a brief interval, had worked for appellant Neevel Manufacturing Company for seventeen years. Her usual work was placing hinges on suitcases, but on July 1, 1967, she was given the task of putting valances on pieces of luggage as they came along on an assembly line. A valance is a metal rim, aluminum in this instance, which fits over the frame of a piece of luggage where the two sides close together. Each metal rim was inserted manually around the wooden frame of the luggage. This procedure required Mrs. Collins to bend her fingers toward the palms of her hands, exert pressure downward and inward to force the rim onto the luggage frame. In the course of an hour, she would complete 100 to 200 pieces of luggage, depending on the size, and would flex her wrists about once a second in the process. This task was performed for one hour a day during the week and for six to eight hours on Saturday. The other working hours were spent doing other tasks.

After approximately two weeks of this regimen, Mrs. Collins began to wake up during the night and find her hands asleep. She soon developed pain 'at the big part of the thumb(s)', between the joints of the index fingers and in the thenar surface of the thumbs. Pain then developed in her forearms and eventually in the upper part of both arms. The pain symptoms were more severe in her left hand than in her right. On July 24, 1967, Mrs. Collins went to the Unversity of Kansas Medical Center and thereafter submitted to tests, whirlpool treatments and injections. She was referred to Dr. William P. Williamson, Chief of Staff of neurosurgery, who operated on her left hand and wrist. The hospital records, given in evidence, show the diagnosis as carpal tunnel syndrome and the surgical procedure as a revision of the transverse carpal ligament.

Also in evidence were the medical reports of Dr. Revis C. Lewis, neurosurgeon, and Dr. Edwin B. Shires, neurologist, each of whom was appointed a neutral examiner by the Referee. Both examiners found Mrs. Collins exhibited a bilateral carpal tunnel syndrome, but neither expressed an opinion as to cause.

Dr. Bernard Abrams, a neurologist, was called by the employee to give expert testimony on carpal tunnel syndrome and its relationship to occupational activity. He described the carpal tunnel syndrome as a disease characterized by a train of symptoms produced by the entrapment of the median nerve in the carpal tunnel, which is on the outside of the wrist. The resultant nerve compression gives rise to characteristic complaints. The first of these complaints, usually experienced nocturnally while abed, is a 'draginess' of the affected hand followed by a sensory numbness in the fingers and hand along the distribution pattern of the median nerve, onset of pain in the hand, weakness in grasping and loss of the sensory and motor functions of parts of the thumb and fingers. These symptoms may be relieved by incising the carpal ligament and reattaching it loosely, thereby easing the compression of the median nerve.

Dr. Abrams testified that in his five years of practice he has seen 30 or 40 cases of carpal tunnel syndrome. It was his expert opinion that sixty per cent of the time the cause of this disease is 'pure unadulaterated constant trauma' over some period of time. It was also his testimony that repetitive flexion of the wrist and hand under pressure was a form of trauma sufficient either to cause or contribute to the development of carpal tunnel syndrome. In addition, he was of opinion that a change in occupation may precipitate the syndrome by changing the relationship of the nerve to the structure surrounding it which has been conditioned by use. Perhaps because of their lighter bone structure, the incidence of the disease is three women to every two men. The syndrome is developmental and can fully mature within a two week period. Although repetitive flexion of the wrists and hands under pressure is 'far away the largest cause of carpal tunnel syndrome', Dr. Abrams testified it may also be caused by cancer in the carpal tunnel, abnormal tissue growth in the tunnel, overgrowth in the fibrous canals or sheaths, multiple myeloma, myxedema or hyperthyroidism, pregnancy if the tissues are engorged with fluid, and diseases affecting the tissues.

Dr. Irving A. Wien, a general surgeon with a practice in industrial medicine also testified for the employee. He first examined Mrs. Collins on June 28, 1968, after surgery had been done to her left hand and wrist. The employee's symptoms were described as a classic carpal tunnel syndrome, a disease he considered relatively uncommon. He gave as a common cause of the disease chronic trauma resulting from continuous, repetitive use of wrists and hands. In answer to a hypothetical question positing the relevant evidentiary facts, Dr. Wien gave his opinion with reasonable medical certainty that the recurrent flexion and manipulation required for the insertion of the metal valances during the two week period caused the employee's carpal tunnel syndrome. He also made the distinction between ordinary wrist movement, which does not involve a motion identically repeated and occupational wrist movement, which does.

Dr. Wien examined the University of Kansas Medical Center record, which had been received in evidence, and found that the laboratory reports on the employee's blood and urine were normal; no disabetes was found; x-rays of the carpal bones showed normal placement; there was no arthritis, or finding of tumor or ganglion; there was no inflammation of the fibrous tissues, nor cancer nor benign tumor; and there was no evidence of any systemic or infectious disease. It was his conclusion that the carpal tunnel syndrome exhibited by Mrs. Collins was the result of a thickening of the transverse carpal ligament brought on by the occupational trauma of repetitive wrist flexions.

Whether, on this evidence, the decision of the majority of the Industrial Commission awarding the employee compensation may be sustained is to be determined by reference to Section 287.067, V.A.M.S., which defines occupational disease. Prior to the enactment of that section in 1959, in the absence of statutory definition, recovery for occupational disease both by actions at common law and claims under the 1931 amendment to the compensation law, was governed by judicial definition of that term. Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580, 584(4); Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081, 1084(2). Occupational disease, taken in its ordinary and customary sense, was judicially regarded to mean: "(A) disease which is the natural incident or result of a particular employment and is peculiar to it, usually developing gradually from the effects of long continued work at the employment, and serving, because of its known relation to the employment, to attach to the employment a risk or hazard which distinguishes it from the ordinary run of occupations and is in excess of that attending employments in general". Marie v. Standard Steel Works, Mo. banc, 319 S.W.2d 871, 875(5). In comparison, the statutory definition of occupational disease, found in Section 287.067(1) V.A.M.S. provides:

'In this chapter the term 'occupational disease' is hereby defined to mean a discase arising 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 said disease follow as an incident of an occupational disease as defined in this section. A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind upon consideration of all the circumstances a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. 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.' (Emphasis supplied.)

This statutory definition is basically a reiteration of the judicially declared standard. The statute, however, introduces language (if not a concept) not found in the...