Endicott v. Display Technologies

Decision Date28 September 2001
Docket NumberSD24157
PartiesNorman Endicott, Claimant-Respondent, v. Display Technologies, Inc., Employer-Appellant, and ASAP Services, Employer-Respondent, and ADECCO Employment Services, Inc., Employer-Respondent, and Graphic Technologies, Inc., Employer-Appellant. 24157 and 24165 Missouri Court of Appeals Southern District 0
CourtMissouri Court of Appeals

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Michael L. Wilson and Clinton D. Collier

Counsel for Respondent: Doros J. House, Eric T. Lanham and William C. Love

Opinion Summary: None

Montgomery, J., and Barney, C.J., concur.

Kenneth W. Shrum, Presiding Judge

This is a workers' compensation case in which the Labor and Industrial Commission ("Commission") ordered Display Technologies, Inc. ("Display"), and Graphic Technologies, Inc. ("Graphic"), to provide Norman Endicott ("Claimant") with the medical care necessary to cure and relieve Claimant of his repetitive-motion occupational diseases. Commission found Display, a previous employer, responsible for two of Claimant's three diseases. This resulted because Commission concluded it should use the date of diagnosis in assigning liability among various employers for Claimant's injuries.

In No. 24157, Display charges Commission erred and misapplied the law when it used the date of diagnosis and not the claim-filing date in its employer-liability analysis. We disagree; Commission did not err as charged.

In No. 24165, Graphic (Claimant's last employer) raises a "notice" issue, i.e., did Commission err in entering an award against Graphic due to the fact that "Claimant failed to give any notice to [Graphic] that his condition was work-related[?]" We answer, "No."

We affirm Commission's award.

BACKGROUND FACTS, PROCEDURAL HISTORY, AND COMMISSION FINDINGSFactual disputes are minimal in this case. From 1981 through January 31, 1998, Claimant worked for Display (originally known as Motorola). When Display ceased operations, Claimant found employment with ASAP Services ("ASAP"), a temporary job services agency. He worked for ASAP from February 10, 1998, through March 30, 1998. On April 22, 1998, Claimant went to work for ADECCO Employment Services, Inc. ("ADECCO"). ADECCO was a temporary employment service that placed employees for Graphic. Claimant's employment by ADECCO ended July 17, 1998, when his probationary period ended and he then became an employee of Graphic.

Claimant was still employed by Graphic when he filed his original claim for workers' compensation benefits on November 2, 1998. Via his claim, Claimant sought benefits from his current employer, Graphic, and from former employers, Display, ASAP, and ADECCO. Display filed an answer that affirmatively pleaded Claimant never gave Display a written notice of his occupational injury per section 287.420.1

The case was tried before an Administrative Law Judge ("ALJ") on May 12, 2000. The ALJ, after considering and reviewing all the evidence, found, inter alia, that Claimant suffered "from carpal tunnel syndrome on the left, cubital tunnel syndrome on the right, and mild bilateral thoracic outlet syndrome." He found Claimant's condition "is in the nature of an occupational disease and is causally related to his employment."2 Continuing, the ALJ ruled that Graphic "was the last employer to expose Claimant to the hazards of the aforementioned occupational diseases . . . , [that Graphic] was [Claimant's] last employer prior to and at the time of the filing of the claim[,] . . . [and] the [C]laimant's employment at Graphic . . . involved exposure to the hazards of the aforementioned occupational diseases for a period greater than three months." Based on these findings and relying on Maxon v. Leggett & Platt, 9 S.W.3d 725, 729-30 (Mo.App. 2000), the ALJ concluded that Graphic was "responsible for all of the [C]laimant's bilateral arm problems[]" and ordered Graphic to provide medical care to cure and relieve Claimant from his injuries.

In making his award, the ALJ rejected Graphic's "lack-of-notice" defense by observing "[s]ection 287.420 RSMo, requiring notice of an injury, has been held not to apply to occupational diseases. Elgersma v. DePaul Health Center, 829 S.W.2d 35, 37 (Mo.App. 1992)."

In an "Application for Review" filed by Graphic with Commission, Graphic charged the ALJ erred because, inter alia, Claimant's occupational diseases had been diagnosed before Claimant ever started working for Graphic, "thereby shifting liability for Claimant's award to a prior employer as a matter of law." Also, Graphic charged Commission erred in assigning liability to Graphic because Claimant, despite actual knowledge that his condition was related to work with a prior employer, failed to notify Graphic about his work-related disease until he filed his claim. Graphic alleged it was prejudiced by the lack of notice as it was deprived of the chance to reassign Claimant to a nonrepetitive motion position and thereby perfect its ninety-day defense under section 287.067.7.

After hearing oral arguments, the Commission modified the award by assigning to Display responsibility for providing Claimant the treatment necessary to cure and relieve him from bilateral carpal tunnel syndrome and right elbow bursitis. It left intact that part of the ALJ's award that assigned responsibility to Graphic for furnishing Claimant the treatment necessary to cure and relieve his bilateral thoracic outlet syndrome.3

The facts found by Commission to support its award, included the following: (1) Claimant was first diagnosed with bilateral carpal tunnel syndrome while working for Display; (2) Claimant was first diagnosed with bursitis of the right elbow on March 2, 1998, while working for ASAP; (3) Claimant had not worked for ASAP for three months at the time of the right elbow bursitis diagnosis; and (4) Claimant was first diagnosed with bilateral thoracic outlet syndrome on January 25, 1999, more than three months after he went to work for Graphic.4

In its conclusions of law, Commission adopted and used interpretations of sections 287.063 and 287.067.7 found in Arbeiter v. National Super Markets, Inc., 990 S.W.2d 142 (Mo.App. 1999), and Cuba v. Jon Thomas Salons, Inc., 33 S.W.2d 542 (Mo.App. 2000), namely, that 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." Id. at 546.5

Regarding the "lack of notice" argument, Commission made no specific finding concerning it but simply adopted the ALJ's analysis and decision on that issue.

Both Display and Graphic appeal from Commission's award.6


To the extent that the issues here call for interpretation of workers' compensation statutes, our review of Commission's award is essentially de novo. Bunker v. Rural Elec. Co-op., 46 S.W.3d 641, 643[1] (Mo.App. 2001). Decisions of the Commission that are clearly interpretations or applications of law, rather than resolution of conflicting facts, are viewed for correctness without deference to the Commission's decision about the facts. Id. at 643[2].

APPLICABLE STATUTES IN NO. 24157In No. 24157, this court must decide whether the Commission properly interpreted and 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 only to the provisions . . . set forth in [section 287.067.7].

"2. The employer liable for the compensation in this section 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 three-month exception to the last exposure rule found in section 287.067.7, provides:

"7. 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 No. 24157, Display complains the trial court erred as a matter of law in finding that Display was liable for medical treatment for Claimant's bilateral carpal tunnel syndrome and right elbow bursitis. Display argues that in a case such as this, i.e., where Claimant suffers from an occupational disease caused by repetitive motion and was exposed to a repetitive motion hazard for more than three months at both Display and Graphic, the claim-filing date must be used in assessing liability. In advancing this proposition Display relies heavily on Maxon, 9 S.W.3d 725, and Johnson v. Denton Constr.Co., 911 S.W.2d 286 (Mo.banc 1995), and says that the approach taken in Arbeiter, 990 S.W.2d 142, and Cuba, 33 S.W.3d 542, i.e., that the date of diagnosis is to be used when applying the three-month rule, "is in direct contradiction to the Maxon case." However, Display's reliance on Johnson is misplaced for the reasons explained in Cuba:

"[I]n Johnson, the Court did not address the issue of whether the date of diagnosis or the date of the claim determines liability. Section 287.067.7 was not in effect when Johnson's claim was filed. The Court found that the claim was filed immediately after Johnson left Denton, and therefore, it did not have to address the issue of whether the date of diagnosis or the date of the claim was the determining factor. Thus, the Court did not apply the last exposure rule as a...

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