Feltrop v. Eskens Drywall and Insulation, WD

• Court: Missouri Court of Appeals
• Writing for the Court: LAURA DENVIR STITH
• Citation: Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408 (Mo. App. 1997)
• Decision Date: 04 November 1997
• Docket Number: No. WD,WD
• Parties: Richard FELTROP, Respondent, v. ESKENS DRYWALL AND INSULATION, Appellant, Liberty Mutual Insurance Company, Appellant, Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent. 53708.

Page 408

957 S.W.2d 408

Richard FELTROP, Respondent, v. ESKENS DRYWALL AND INSULATION, Appellant Liberty Mutual Insurance Company, Appellant Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent.

No. WD 53708.

Missouri Court of Appeals Western District.

Nov. 4, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 23, 1997.

John F. Sander, Riethmann, Valentine and Rouse, St. Louis, for Eskens Drywall and Liberty Mutual, appellant.

William Brandecker, Brandecker & Smull, Columbia, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Appellant Liberty Mutual Insurance Company appeals the decision of the Labor and Industrial Relations Commission awarding workers' compensation benefits to Richard Feltrop. It contends that it is not responsible for such benefits because Mr. Feltrop was not disabled, as that term is used in the workers' compensation statutes, in that he did not miss work as a result of his injuries. We reject this argument, and hold that where, as here, the employee has been diagnosed with a work-related occupational disease which limited his earning capacity because it limited his ability to perform certain work, he is disabled under the statute despite the fact that he has managed to find a way to continue working despite the injury.

Liberty Mutual also argues that, because Mr. Feltrop was diagnosed with an occupational disease before it provided insurance coverage for Mr. Feltrop's employer, it is not liable for workers' compensation benefits. Because Mr. Feltrop continued to perform the injury-causing work after Liberty Mutual began to provide coverage to Mr. Feltrop's employer, and up until the time he filed his claim, we find that Liberty Mutual is liable for Mr. Feltrop's workers' compensation benefits.

We also reject Liberty's argument that the award was erroneously based on an inadmissible medical expert's opinion given in response to a defective hypothetical question because Liberty Mutual has failed to preserve this point for appeal. Finally, we reject Liberty's claim that the Commission erred in finding that Mr. Feltrop sustained his burden of showing a causal relationship between his medical bills and his work-related injuries. For these reasons, the decision of the Commission is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Richard Lee Feltrop began working at Eskens Drywall and Insulation ("Eskens") in 1971. His duties included installing and finishing sheetrock, which involved working with his arms over his head much of the time while making repetitive motions. In 1979, Mr. Feltrop left Eskens and started his own business. From approximately 1980 to 1984, Mr. Feltrop was self-employed. In 1981, during the time he was self-employed, Mr. Feltrop went to see Dr. Joseph Kayser, a chiropractor, because he was having trouble sleeping due to back aches. He returned to work for Eskens in 1985, working primarily in a supervisory capacity, but continuing to do some physical labor such as installing and finishing sheetrock.

Mr. Feltrop developed a "burning, tingling, crawling" pain in his neck and shoulders. He also testified that his wrists got numb and tingled. Mr. Feltrop testified that real problems from the pain began in approximately 1991 or 1992. After that time, Mr. Feltrop had to decrease the amount of time he spent doing the physical aspects of his job because working over his head to hang and finish drywall was causing him too much pain. He testified that he spent about sixty hours per year hanging sheetrock and ten hours per week finishing it. The remainder of his time was spent estimating and coordinating Eskens' work.

A. Insurance Coverage

Liberty Mutual began providing insurance coverage for Eskens on September 1, 1992. Liberty Mutual asserts that Mr. Feltrop was diagnosed with herniated cervical disks and carpal tunnel syndrome before this date and, therefore, it is not liable to Mr. Feltrop for compensation. Instead, Liberty Mutual claims that Eskens' prior insurer, who provided coverage at the time of Mr. Feltrop's diagnosis, is liable for any workers' compensation benefits to which Mr. Feltrop may be entitled.

B. Treatment for Neck Pain.

Mr. Feltrop sought medical attention for his neck pain on January 24, 1992. On that date, he saw Dr. Curtis Cox in Jefferson City. Dr. Cox ordered an MRI to be done to help him evaluate the problem. Four days later, on January 28, 1992, Mr. Feltrop returned to see Dr. Cox and to discuss the results of the MRI. At that time, Dr. Cox diagnosed Mr. Feltrop as having a herniation in his spine and prescribed cervical traction. After one month of cervical traction, on February 25, 1992, Dr. Cox saw Mr. Feltrop again and diagnosed him as having "stenosis from bulging discs and cervical spondylosis." Dr. Cox recommended surgery if Mr. Feltrop's symptoms persisted.

Because Mr. Feltrop wanted a second opinion, he saw Dr. Joel T. Jeffries at Columbia Orthopaedic Group almost a year later on February 16, 1993. Dr. Jeffries' notes indicate that he reviewed the January 1992 MRI and concluded that Mr. Feltrop had "degenerative disc disease of [the] cervical spine." Dr. Jeffries' records indicate that a copy of this diagnosis was mailed to Eskens, because it was Mr. Feltrop's employer. This is the earliest indication in the record that a physician believed Mr. Feltrop's neck and shoulder pain were work-related. In addition, Mr. Feltrop testified that Dr. Jeffries told him that his injury was work-related at the time the doctor looked at an MRI and asked Mr. Feltrop what his job details were. This corresponds with what occurred on Mr. Feltrop's February 16, 1993, visit to Dr. Jeffries. Mr. Feltrop further testified that Dr. Jeffries' office called Eskens at that time. Dr Jeffries conducted several follow-up examinations of Mr. Feltrop on March 24, 1993, April 28, 1993, August 5, 1993, and February 22, 1994. ¹ Dr. Jeffries also sent Mr. Feltrop for treatment at St. Mary's Health Center in March 1993.

C. Treatment for Wrist Pain.

Mr. Feltrop sought medical attention for his wrist pain on May 13, 1992, when he saw Dr. Roger Cameron of the Jefferson City Bone and Joint Clinic, Inc. Dr. Cameron's records of that visit state, "HISTORY BY PATIENT: Onset one year. Carpal tunnel syndrome due to type of work patient does." The notes also concluded that it was possible Mr. Feltrop had early carpal tunnel syndrome and he was, therefore, referred to a specialist, Dr. A.M. Hooshmand. Dr. Cameron's records elsewhere indicate that on May 27, 1992, he spoke with an employee of Eskens and was told that they had sent a report of injury on May 22, 1992. The records also indicate that, on that same day, Dr. Cameron left a message for Ms. Ruth McAtee at American States Insurance, which was Eskens' insurer at that time, to call his office. Dr. Cameron's notes for May 28, 1992, state that Ms. McAtee at American States had not yet received the information she needed from Eskens. The note further states that Mr. Feltrop was notified of this and he was going to discuss it with a secretary at Eskens that day.

On August 4, 1992, Dr. Hooshmand sent a letter to Dr. Cameron in which Dr. Hooshmand diagnosed Mr. Feltrop as having the early stages of bilateral carpal tunnel syndrome. The letter states that Mr. Feltrop indicated that the pain in his wrists decreased as he decreased the amount of physical labor he did. Although the letter did not unequivocally state that Mr. Feltrop's carpal tunnel syndrome is due to his work at Eskens, the letter did state that Mr. Feltrop did not need surgery "considering the fact that he mostly does bid on the job and doesn't get involved with the manual aspects of his work as he use [sic] to do in the past." The record also includes a letter written by Dr. Cameron, dated September 22, 1992, and addressed "TO WHOM IT MAY CONCERN." This letter unequivocally stated that Mr. Feltrop's carpal tunnel syndrome "is related to the type of sanding and finishing work he does with his hands that has caused his symptoms."

D. Filing of Injury Claims.

On December 9, 1993, Mr. Feltrop filed a Claim for Compensation against Eskens and Liberty Mutual for the injuries to his wrists and his neck. The Claim alleged that using his arms, hands, wrists, neck, and shoulders repetitively as a drywall finisher had caused permanent injury in the form of carpal tunnel syndrome, cervical disc protrusion, and tennis elbow. An amended claim was filed on May 10, 1994, adding a claim against the Second Injury Fund for permanent partial disability. On May 11, 1994, Mr. Feltrop filed a second Claim for Compensation against Eskens and American States Insurance for similar injuries.

The ALJ held a hearing on January 4, 1996. On February 27, 1996, the ALJ issued Findings of Fact stating that Mr. Feltrop had sustained an occupational disease or accident as a result of repetitive motion arising out of and in the course of his employment. The ALJ found that both Mr. Feltrop's neck and wrist injuries were diagnosed as being work-related during Liberty's coverage and, therefore, held Liberty Mutual liable. In particular, the ALJ held that Mr. Feltrop learned of the work-relatedness of his neck injury from Dr. Jeffries in February 1993, long after Liberty Mutual began coverage on September 1, 1992. As to the wrist injury, the ALJ stated, "Medical records of the Bone and Joint Clinic reveal a diagnosis of work-related carpal tunnel syndrome in September 1992 when Dr. Cameron writes that 'it is my impression that this is related to the type of sanding and finishing work that he [Mr. Feltrop] does with his hands that has caused his symptoms.' " The ALJ concluded that Mr. Feltrop had "a permanent disability of 12 and 1/2 percent of the body referable to the neck and 10 percent of each hand at the wrist." Therefore, the ALJ awarded Mr. Feltrop $11,780.50 for his neck...