Cuba v. State

• Decision Date: 26 September 2000
• Citation: 33 S.W.3d 542
• Parties: (Mo.App. E.D. 2000) Cecilia Cuba, Appellant v. State of Missouri, Respondent. ED77249 0
• Court: Missouri Court of Appeals

33 S.W.3d 542 (Mo.App. E.D. 2000)

Cecilia Cuba, Appellant v. State of Missouri, Respondent.

ED77249

Missouri Court of Appeals Eastern District

09/26/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: James J. Sievers

Counsel for Respondent: Teresa Jeffery and John Johnson, Jr.,

Opinion Summary: Cecilia Cuba appeals the Labor and Industrial Relations Commission decision affirming the Administrative Law Judge decision to deny Cuba's workers' compensation claim for permanent partial disability. In its decision, the Commission adopted the date the claim was filed as the date the inquiry begins for purposes of assessing liability for both the last exposure rule and the three-month rule. A dissenting opinion argued that the date of diagnosis is to be used when applying the three-month rule.

Division Four holds: (1) Section 287.067.7 refers to the date of diagnosis and not the date of the claim for purposes of assessing liability for both the last exposure rule under Section 287.063 and the three-month rule under Section 287.067.7.

(2) Because the date of diagnosis is the controlling date in determining whether a prior employer is liable under Section 287.067.7, because Cuba was diagnosed with carpal tunnel syndrome less than two weeks after leaving Jon Thomas, and because Cuba's work at Jon Thomas was the substantial contributing factor to her occupational disease, Jon Thomas is liable for Cuba's claim.

Sherri B. Sullivan, Judge

Cecilia Cuba ("Cuba") appeals from the decision of the Labor and Industrial Relations Commission ("Commission") affirming the decision of the Administrative Law Judge ("ALJ") denying Cuba's workers' compensation claim for permanent partial disability. In its decision, the Commission adopted the date the claim was filed as the date the inquiry begins for purposes of assessing liability for both the last exposure rule and the three-month rule. A dissenting opinion argued that the date of diagnosis is to be used when applying the three-month rule. We agree with the dissent, and thus we reverse and remand the Commission's decision.

Cuba worked as a hair designer for Jon Thomas Salons, Inc. ("Jon Thomas") from August 8, 1983 to April 27, 1995. Cuba worked eight hours per day, 40 hours per week for approximately 12 years at Jon Thomas. Cuba's job duties included cutting, coloring, perming, and highlighting hair, activities that involved extensive use of her hands.

Leading up to February 1995, Cuba began to notice numbness and tingling in her hands, and she sought treatment from her private physician, Dr. Donald DiPasco ("Dr. DiPasco"). Dr. DiPasco diagnosed Cuba with bilateral carpal tunnel syndrome, and he prescribed bilateral wrist splints. After this diagnosis, Jon Thomas filed a Report of Injury with the Division of Workers' Compensation on February 24, 1995, stating that the injury was due to repetitive use of the hands with implements of the trade.

Subsequent to her diagnosis by Dr. DiPasco, Cuba continued her employment at Jon Thomas. On April 17, 1995, Cuba met with Dr. Phillip George ("Dr. George"), an employer-provided physician, for pain in her wrists. Based upon an electromyogram ("EMG") and a nerve conduction test of both wrists, Dr. George diagnosed Cuba with carpal tunnel syndrome on May 8, 1995. He recommended surgery, but Cuba decided to take a more conservative approach to treatment by quitting her full-time job as a hair designer at Jon Thomas and returning to school.

On August 7, 1995, Cuba again saw Dr. George and reported that she was doing well with no ongoing symptoms of numbness, tingling, weakness, or swelling in either hand. Cuba told Dr. George that she was going to school and that she was designing hair approximately 18-19 hours per week. Dr. George's opinion was that Cuba would continue to do well as long as she did not design hair 40 hours per week. Based on this visit, Dr. George believed that Cuba did not need surgery. In a supplemental report, dated November 20, 1995, Dr. George stated that he found Cuba to have a 0% permanent partial disability.

Cuba filed a Claim for Compensation with Jon Thomas and Secura Insurance Company ("Secura") on August 26, 1996, for $56,454 in accordance with Section 287.430¹ requiring workers' compensation claims to be filed within two years after the date of injury. On August 29, 1996, Jon Thomas and Secura denied the claim.

On November 14, 1996, Cuba visited a third physician, Dr. David Volarich ("Dr. Volarich"), concerning her wrists. Dr. Volarich diagnosed Cuba with carpal tunnel syndrome with a 30% permanent partial disability.

In August 1998, a hearing was held before an ALJ of the Division of Workers' Compensation. In December 1998, the ALJ denied Cuba's "demands for future medical treatment, temporary disability benefits and permanent partial disability." In January 1999, Cuba filed an Application for Review with the Commission. In November 1999, the Commission affirmed the decision of the ALJ denying Cuba's claim, with one member of the three-member panel dissenting.

Section 287.495 provides the standard of review for the appellate court in workers' compensation cases. It provides in relevant part:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) that the commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award; (4) that there was not sufficient competent evidence in the record to warrant the making of the award.

In determining the sufficiency of the evidence in a workers' compensation case, the appellate court reviews the evidence and inferences in the light most favorable to the Commission's award. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 (Mo.App. E.D. 1997). The Commission's decision shall be overturned only if it is unsupported by substantial evidence or clearly contrary to the overwhelming weight of the evidence. Id. The appellate court will disregard any evidence that might support a finding different from the Commission's even though the evidence may have been sufficient to support contrary findings. Id. Decisions of the Commission which are clearly interpretations or applications of law are reviewed for correctness without deference to the Commission's judgment. Tidwell v. Kloster Co., 8 S.W.3d 585, 588 (Mo.App. E.D. 1999).

We address Cuba's second point on appeal first. Cuba argues that the Commission erred in determining liability for the last exposure rule under Section 287.063 and the three-month rule under Section 287.067.7 based on the date of the claim rather than on the date of the diagnosis. Carpal tunnel syndrome is a known occupational disease. Weniger v. Pulitzer Publishing Co., 860 S.W.2d 359, 360 (Mo.App. E.D. 1993). Workers' compensation claims for occupational diseases are analyzed under Section 287.063 of the Missouri Workers' Compensation Act. Hunsicker v. J.C. Industries, Inc., 952 S.W.2d 376, 381 (Mo.App. W.D. 1997). Thus, we must determine whether the Commission properly applied the last exposure rule for occupational diseases set forth in Section 287.063 and an exception to this rule set forth in Section 287.067.7.

Section 287.063 provides:

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.

Section 287.067.7 provides:

With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with a prior employer was the substantial contributing factor to the injury, the prior employer shall be liable for such occupational disease.

In its decision, the Commission stated that its interpretation of Section 287.067.7 is supported by case law with the purpose of developing a bright line rule. We find that the Commission erred in its interpretation of Section 287.067.7. In Arbeiter v. Nat'l Super Markets, 990 S.W.2d 142, 145 (Mo.App. E.D. 1999), we held that, based upon rules of statutory interpretation, liability under Section 287.067.7 is determined by the date the occupational disease was diagnosed rather than the date the claim was filed. "Unlike section 287.063, section 287.067.7 does not employ the phrase 'for which claim is made.' Rather, with respect to timing, the operative phrase in section 287.067.7 is 'if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months....'" Id.

The language in Section 287.067.7 supports our conclusion that the legislature intended the three-month time frame to refer to the date of diagnosis. Repetitive motion injuries take time to manifest themselves. There is no logical reason to provide a three-month period to file a claim for a repetitive motion injury. The logical interpretation is that the legislature believed that because repetitive motion injuries do not occur overnight, it is necessary to determine whether the current job or the previous job actually caused a repetitive motion injury to an employee. The legislature determined that an employer who exposes an employee to a form of repetitive motion for less than three...