Crabill v. Hannicon, 72683

• Court: Missouri Court of Appeals
• Writing for the Court: ROBERT G. DOWD, Jr.
• Citation: Crabill v. Hannicon, 963 S.W.2d 440 (Mo. App. 1998)
• Decision Date: 03 February 1998
• Docket Number: No. 72683,72683
• Parties: Joyce CRABILL, Claimant-Appellant, v. HANNICON d/b/a Dura Automotive and Reading Tube, Employers-Respondents.

Page 440

963 S.W.2d 440

Joyce CRABILL, Claimant-Appellant, v. HANNICON d/b/a Dura Automotive and Reading Tube Employers-Respondents.

No. 72683.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 3, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 18, 1998.

Application for Transfer Denied

April 21, 1998.

Davis Terrell, Vicki A. Dempsey, Hannibal, for appellant.

Alan Cotton, St. Louis, Rick L. Montgomery, Columbia, Christine Miller, Robert E. Bidstrup, Carol T. Clark, St. Louis, for respondent.

ROBERT G. DOWD, Jr., Presiding Judge.

Joyce Crabill (Claimant) appeals from the Labor and Industrial Relations Commission's (Commission) denial of her claim for a temporary award. ¹ Claimant contends the Commission erred: (1) in finding the date of placement on light duty as the date of disability because the record supports a finding medical advice was sought prior to placement on light duty; (2) in finding Hannicon d/b/a Dura Automotive (Hannicon) was not liable in its self-insured phase; and (3) in applying the last exposure rule to deny coverage by Reading Tube (Reading). We affirm.

Claimant was employed, using her hands, on the factory line at Hannicon, from February through October, 1994. She left Hannicon and began to work at Reading on November 29, 1994, where she used her hands to tighten coils after they came out of the furnace.

Claimant filed applications for temporary awards in three separate work-related claims: (1) against Hannicon on February 2, 1995, listing Management Services (self-insurance) as the insurer, for pain in both wrists from repetitious movement; (2) against Hannicon on February 2, 1995, listing Travelers as the insurer, for pain in her right arm and shoulder after a couple of hours of blowing air into hoses; and (3) against Reading on March 14, 1996, listing Zurich American as insurer for pain in both wrists from repetitious movement. On July 30, 1996, a hearing was held on Claimant's three claims. The following Findings of Fact and Conclusions of Law were made by the Administrative Law Judge (ALJ) and adopted by the Commission:

February 1994              Claimant began employment at Hannicon, which was
                                             self-insured for workers' compensation
                June 17, 1994              Claimant first noticed wrist pain, reported it to
                                             supervisor, continued to work
                July 22, 1994              Claimant reported wrist pain to plant nurse, advised
                                             to take medication, continued to work
                August 1, 1994             Claimant complained of wrist pain to plant nurse,
                                             advised to use ice pack, continued to work.
                August 31, 1994            Last day Hannicon self-insured.
                September 1, 1994          Travelers begins as Hannicon's insurer.
                September 9, 1994          Claimant experiences shoulder pain.
                October 6, 1994            Plant nurse places Claimant on light duty.
                October 25, 1994           Claimant leaves employment at Hannicon.
                November 29, 1994          Claimant begins work at Reading.
                January 15, 1996           Claimant first diagnosed with bilateral carpal
                                             tunnel syndrome, requiring surgery.
                ----------
                

Further, the ALJ found Dr. Christopher Michael Bieniek, witness for Claimant, testified both diabetes and her work at Hannicon contributed to the carpal tunnel syndrome, but her work at Reading did not contribute to the carpal tunnel syndrome. Dr. Crandall, witness for Hannicon, was not asked about the work at Reading as a contributing factor to her carpal tunnel syndrome. The ALJ further found a change of insurer is deemed a change in employers for purposes of determining the last exposure liability. Thus, the ALJ found Claimant's employment at Hannicon must be construed as two distinct periods of employment, with one prior to and one after September 1, 1994, the date when Hannicon changed insurers.

The ALJ further found:

In Johnson v. Denton Construction Company, 911 S.W.2d 286 (Mo.1995), the Supreme Court held that: "The starting point in applying the last exposure rule is that the Employer liable for compensation is the last employer to expose the employee to the occupational hazard prior to the filing of the claim." Dr. Bieniek, Claimant's primary expert witness, did not feel that the employment at Reading Tube had any effect on Claimant's acquisition of bilateral carpal tunnel syndrome. Dr. Bieniek testified to the occupational hazard at Hannicon, and the causation of the work at Hannicon as causing the carpal tunnel syndrome, but Dr. Bieniek did not differentiate between the work Claimant did at Hannicon prior to September 1, 1994, as opposed to the work done after September 1, 1994. Thus, using the Supreme Court's rationale in Johnson, the period of employment at Hannicon after September 1, 1994, when Travelers was the insurer, would be the period of such last exposure.

The ALJ further found the disability occurs when the employee loses time from work. Thus, the date of disability, according to the ALJ, was October 6, 1994, when the employee was put on light duty, because Claimant had lost no time from work. Therefore, Travelers would be the responsible insurer. However because Claimant never filed a claim against Travelers, ² the ALJ concluded no award can be made against Hannicon, Travelers, or Reading. On appeal, the Commission affirmed.

We review the Commission's findings of fact in the light most favorable to the Commission. Lococo v. Hornberger Elec., Inc., 914 S.W.2d 67, 68 (Mo.App. E.D.1996). We review questions of law without deference to the Commission. Id.

We address Claimant's third point first. In her third point, Claimant argues, in the alternative, the Commission erred in applying the last exposure rule to deny coverage by Reading. She argues that Dr. Bieniek's undisputed testimony is that she was last exposed at Reading. Thus, the doctor's testimony meets "the requirement of Section 287.063(2) regarding exposure to the hazard of developing occupational disease." Reading responds that Claimant's point was not properly before the Commission because she failed to raise the issue in her Application for Review before the Commission. Finally, Reading asserts that Claimant's third point has not been preserved and is not available for review by this court.

We begin our review by looking to the last exposure rule, Section 287.063, RSMo 1994, which follows:

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, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo.

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.

"The starting point in applying the last exposure rule is that the employer liable for compensation is the last employer to expose the employee to the occupational hazard prior to the filing of the claim." Johnson v. Denton, Const. Co., 911 S.W.2d 286, 288 (Mo.1995). The Johnson court recognized the plain meaning...