Coloney v. Accurate Superior Scale Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Before ULRICH; ULRICH, Chief Judge
• Citation: Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo. App. 1997)
• Decision Date: 23 September 1997
• Docket Number: No. WD,WD
• Parties: Gerald T. COLONEY, Employee/Respondent, v. ACCURATE SUPERIOR SCALE COMPANY, Employer/Appellant, General Accident Insurance, Company of America, Insurer/Appellant. 52800.

Page 755

952 S.W.2d 755

Gerald T. COLONEY, Employee/Respondent, v. ACCURATE SUPERIOR SCALE COMPANY, Employer/Appellant General Accident Insurance, Company of America, Insurer/Appellant.

No. WD 52800.

Missouri Court of Appeals Western District.

Sept. 23, 1997.

William F. Ringer, Kansas City, for appellants.

Dewey L. Crepeau, Truman E. Allen, Crepeau & Allen, Columbia, for respondent.

Before ULRICH, C.J., P.J., and HANNA and SMART, JJ.

ULRICH, Chief Judge, Presiding Judge.

Accurate Superior Scale Company and General Accident Insurance Company of America (ACCURATE) appeal from the permanent partial disability award of the Labor and Industrial Relations Commission (Commission) affirming the Administrative Law Judge's (ALJ) award of $24,491.14 to Gerald T. Coloney. ACCURATE asserts the Commission erred in interpreting the "last exposure rule," section 287.063, RSMo.1986, as amended. ACCURATE claims that it was not the last employer to expose Mr. Coloney to the hazards of the occupational disease for which his claim for compensation was made. Specifically, ACCURATE claims that section 287.063 imposes liability only at the time when an employee becomes "disabled" or incapacitated causing absenteeism from work. The Commission's decision is affirmed.

FACTS

Mr. Coloney began working at ACCURATE in August 1988. The primary business of ACCURATE was calibrating large truck and forklift scales with capacities of ten to several hundred thousand pounds. Part of Mr. Coloney's work at ACCURATE required the repeated placement and removal of weights from scales to determine their accuracy. During a "light" day, Mr. Coloney lifted between 50,000 and 100,000 pounds of weights. During inspections and at other certain times, the amount of weights lifted by Mr. Coloney in a day increased to 300,000 to 500,000 pounds.

In 1990, Mr. Coloney began noticing functional problems in his hands and shoulders, and he sought medical treatment in September through November of 1991. ¹ The physician seen by Mr. Coloney diagnosed the condition as "arthralgia of the left shoulder and possible rotator cuff syndrome, possible mild AC arthritis, possible bursitis and tendinitis." The physician subsequently prescribed Naprosyn, recommended that Mr. Coloney tape his hands, wear a brace, and receive injections. Sometime later, ACCURATE changed Mr. Coloney's duties from lifting weights and calibrating scales to a sales position. His hands improved. On February 27, 1992, Mr. Coloney filed a Claim for Compensation with the Division of Worker's Compensation alleging his left shoulder was injured.

Sometime in April of 1992, Mr. Coloney quit ACCURATE. He began working for "Bugs Away," a residential pesticide company. At "Bugs Away," Mr. Coloney's duties consisted of spraying residences with insecticide. He strapped a vacuum pump sprayer, weighing 11 to 12 pounds to his shoulder. To operate the sprayer, he depressed the trigger of the wand that extended from the tank that contained the insecticide. While employed at the pest control company, Mr. Coloney also began a "handyman" business. Mr. Coloney continued to experience physical problems in his hands and shoulders, and he sought medical treatment twice in May 1992.

In September 1992, Mr. Coloney quit "Bugs Away" and continued his repair business. On September 23, 1992, he amended his February 1992 claim for compensation, filed while he was employed by ACCURATE, to include claimed injury to his right shoulder. Mr. Coloney, in the amended claim, continued to designate ACCURATE as his employer rather than "Bugs Away" or his self-employed business.

Mr. Coloney sought additional treatment for upper extremity complaints on December 4, 1992. He amended his claim for compensation a second time asserting that both hands were affected by the claimed malady, and he continued to designate ACCURATE as his employer. Mr. Coloney received additional medical treatment for upper extremity complaints, primarily to the right ring and little fingers on both his hands, culminating in outpatient surgery on those fingers on November 18, 1993. Medical treatment continued through March 7, 1994.

Currently, Mr. Coloney asserts that he is unable to do work that requires him to reach over his head; experiences pain in his hands and shoulders when working with sheetrock; has difficulty using a hammer; cannot dig with a shovel; cannot hold a bowling ball; cannot swing a bat; and cannot use pliers for an extended time with his right hand. On May 14, 1996, the Commission affirmed the ALJ's award of $24,491.14 in permanent partial disability compensation. This appeal followed.

STANDARD OF REVIEW

The Commission's decision is reviewed using a two-step evidentiary evaluation process to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo.App.1995). The record and all reasonable inferences drawn from the evidence therein are viewed in the light most favorable to the findings and award to determine whether they are supported by competent and substantial evidence. Id. If the record supports the award, determination is then made regarding whether the Commission's findings and award are clearly contrary to the overwhelming weight of the evidence contained in the whole record before the Commission. Id. Decisions that are clearly interpretations or applications of law, rather than determinations of fact, are reviewed for correctness without deference to the Commission's judgment. West v. Posten Constr. Co., 804 S.W.2d 743, 744 (Mo. banc 1991).

ACCURATE'S LIABILITY FOR MR. COLONEY'S OCCUPATIONAL INJURIES

ACCURATE claims the Commission erred in determining that it was liable for Mr. Coloney's carpal tunnel syndrome illness for two reasons: (1) Mr. Coloney never became "injured" for purposes of worker's compensation while working for ACCURATE; and (2) under the last exposure rule set forth in Johnson v. Denton Constr. Co., 911 S.W.2d 286 (Mo. banc 1995), ACCURATE cannot be liable for Mr. Coloney's injuries because ACCURATE was not the last employer to expose Mr. Coloney to carpal tunnel-producing work conditions. For the reasons explained below, the Commission's decision is affirmed.

I. WHETHER MR. COLONEY SUSTAINED A "COMPENSABLE INJURY" UNDER THE WORKER'S COMPENSATION ACT

The first issue to be determined is whether Mr. Coloney was "injured" within the meaning of the Missouri Worker's Compensation Act. Determination that the employee has been "injured" is generally necessary before the state can assess liability against any employer. § 287.120 RSMo. (1993). Section 287.120 states in part: "[e]very employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment ..." The "injury" requirement is consistent with the purpose of the Worker's Compensation Act which is to provide compensation for certain injuries sustained by employee through employment. Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 618 (1977).

Carpal tunnel syndrome, which Mr. Coloney experienced, is a known occupational disease. Weniger v. Pulitzer Publ'g Co., 860 S.W.2d 359, 360 (Mo.App.1993); Elgersma v. DePaul Health Ctr., 829 S.W.2d 35, 36 (Mo.App.1992). An "occupational disease" ² is not considered an "injury" under section 287.120 as defined by section 287.020, subsection 3:

The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form ...

§ 287.020.3(3) RSMo (1993) (emphasis added).

However, section 287.063 states:

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.

2. 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 for which claim is made regardless of the length of time of such last exposure.

§ 287.063 RSMo. (1993). Missouri courts have interpreted section 287.063 to provide that an employee with an occupational disease is "injured" within the meaning of the section 287.120 when the disease causes a "compensable injury." Hinton v. National Lock Corp., 879 S.W.2d 713, 717 (Mo.App.1994)(citing Prater v. Thorngate, Ltd., 761 S.W.2d 226, 228 (Mo.App.1988)). Like any other worker's compensation case, Missouri courts have held that there must be medical evidence of a direct causal connection between the conditions under which the work is done and the occupational disease. Sheehan v. Springfield Seed & Floral, Inc., 733 S.W.2d 795, 797 (Mo.App.1987); Estes v. Noranda Aluminum, Inc., 574 S.W.2d 34, 38 (Mo.App.1978).

ACCURATE relies on several cases as support for its position that a "compensable injury" does not occur until the occupational disease causes the employee's inability to work. Lococo v. Hornberger Elec., Inc., 914 S.W.2d 67, 68 (Mo.App.1996); Oberg v. American Recreational Prod., 916 S.W.2d 304, 306 (Mo.App.1995); Simmerly v. Bailey Corp., 890 S.W.2d 12, 14 (Mo.App.1994); Tunstill v. Eagle Sheet Metal Works, 870 S.W.2d 264, 270 (Mo.App.1994); King v. St. Louis Steel Casting Co., 353 Mo. 400, 182 S.W.2d 560, 562 (1944). ³ ACCURATE...