Garrone v. Treasurer of State of Missouri

• Court: Missouri Court of Appeals
• Writing for the Court: Kathianne Knaup Crane
• Citation: Garrone v. Treasurer of State of Missouri, 157 S.W.3d 237 (Mo. App. 2004)
• Decision Date: 14 December 2004
• Docket Number: No. ED 83906.,ED 83906.
• Parties: Michael GARRONE, Claimant/Respondent, v. The TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Additional Party/Appellant.

157 S.W.3d 237

Michael GARRONE, Claimant/Respondent, v. The TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Additional Party/Appellant.

No. ED 83906.

Missouri Court of Appeals, Eastern District, Division Two.

December 14, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 9, 2005.

Application for Transfer Denied April 5, 2005.

Rebecca K. Wright, Assistant Attorney General, St. Louis, MO, for appellant.

Robert J. Lenze, Robert J. Lenze, P.C., St. Louis, MO, for respondent.

KATHIANNE KNAUP CRANE, Judge.

In this worker's compensation case, the Second Injury Fund (SIF) appeals from the award of the Labor and Industrial Relations Commission (Commission) finding SIF liability for permanent total disability. It considered claimant's left knee surgery in May, 1999, to be a disability that pre-existed his primary injury, carpal tunnel syndrome, which did not become disabling until December 1, 1999, the date of his carpal tunnel surgery, which was the first date claimant was unable to perform his ordinary work duties as a result of that disease. The SIF asserts that the Commission erred in determining December 1, 1999 to be the date of disability for the carpal tunnel syndrome, and that the Commission was precluded from making that determination because claimant had used an earlier date as the date of the "occupational disease" on both his claim form and his settlement stipulation with employer. It also contends that the permanent and total disability award was against the weight of the evidence because there was overwhelming evidence that claimant was employable in the open labor market. We affirm.

Claimant, Michael Garrone, who was born in 1940, was employed by SuperValu, Inc., (employer) and its predecessor for approximately 30 years, until June, 2000, as a grocery buyer, a position primarily involving computer entry work. On November 13, 1998, he saw his primary care physician, Stephen Sanders, M.D., with complaints of pain and numbness in his arms. Dr. Sanders diagnosed bilateral hand paresthesia consistent with carpal tunnel syndrome. Claimant began using splints. After undergoing a nerve conduction study, claimant reported the disease to employer. On the December 3, 1998 report form, claimant listed the date of injury as November 3, 1998.

Employer first sent claimant to Dr. George Dirkers, who saw claimant on December 14, 1998 and diagnosed bilateral carpal tunnel syndrome. He advised him of various treatment options. Claimant continued with splints. Employer then sent claimant to Robert Tucker, M.D., for an evaluation. Dr. Tucker saw claimant on January 12, 1999. He also found claimant's symptoms consistent with carpal tunnel syndrome and that his work was a significant contributing factor. Dr. Tucker recommended claimant continue splinting, which reduced claimant's symptoms. As a result, Dr. Tucker did not place any restrictions on claimant.

In the meantime, on April 19, 1999, claimant began treatment for an April 9 injury to his left knee. Over time, that injury resulted in several surgeries, including one in May, 1999.

Claimant's carpal tunnel symptoms subsequently returned, and, in October, 1999, Dr. Tucker recommended surgery, but advised that claimant could continue his regular job duties until surgery. Dr. Tucker performed the surgery on claimant's right arm on December 1, 1999 and on claimant's left arm on December 15, 1999. Claimant was restricted to left hand duty after the first surgery and was restricted from all work after the second surgery. This was the first time claimant missed work from the carpal tunnel disease. On December 28, 1999, Dr. Tucker allowed claimant to return to limited duty using a computer for data entry up to fifteen minutes per hour. On January 11, 2000, claimant was released to full duty. He continued with medical care until May 30, 2000, at which time he was rated. Claimant retired in June, 2000.

On August 16, 2000, claimant made a claim for compensation for injuries to his left and right wrists from repetitive hand activities that caused carpal tunnel syndrome. In Box 3 of the claim form, labeled "DATE OF ACCIDENT/OCCUPATIONAL DISEASE," he entered "11/3/98." He made an SIF claim based on previous injuries suffered in an automobile accident in 1965.

On May 15, 2001, claimant entered into a Stipulation for Compromise Settlement with employer. Line 1 of that form recited that "on or about 11/3/98, the above named EMPLOYEE, while in the employment of the above named employer, sustained an accidental injury/occupational disease...." Claimant and employer agreed to a compromise lump sum settlement based on approximate disability of 22.5% of the left hand and 15% of the right hand, with a 10% load factor. The ALJ ordered that the SIF claim would remain open.

After settling with employer, claimant amended his SIF claim for permanent partial disability benefits to a claim for permanent total disability benefits. The ALJ conducted a hearing to determine whether and to what extent the SIF was liable for benefits. The ALJ awarded claimant 29 weeks of permanent partial disability, but denied permanent total disability benefits. The ALJ found, as a subsequent injury, that claimant had injured his left knee in April, 1999, resulting in surgery on May 4, 1999. The ALJ determined that claimant stopped working as a result of the April 1999 left knee injury, and was not permanently disabled from his primary carpal tunnel injury or the 1965 pre-existing injury.

Claimant filed an application for review asserting that the ALJ erred as a matter of law in finding that his carpal tunnel syndrome disability date was the date of diagnosis and not the date it became disabling. He argued that the carpal tunnel syndrome did not become disabling until after his December 1999 surgery, and, as a result, his April 1999 left knee injury was a pre-existing condition.

On review, the Commission modified the decision of the ALJ. The Commission found that December 1, 1999, the date of claimant's first wrist surgery for carpal tunnel release, was the date of disability from the primary condition and should be used in determining SIF liability. The Commission found that claimant was permanently totally disabled from the carpal tunnel injury combined with the pre-existing 1965 injury and the pre-existing 1999 knee injury. It awarded claimant permanent total disability benefits from January 11, 2000. The SIF appeals.

DISCUSSION

When a workers' compensation claim is appealed, we review only questions of law. Section 287.495.1 RSMo (2000). We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute: (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; or (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Id. We review the Commission's award to determine whether the award is "supported by competent and substantial evidence upon the whole record." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003).

We review decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo.App.1995). Findings of ultimate facts reached through applications of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965). We defer to the Commission on issues of fact, but review questions of law de novo. Endicott v. Display Technologies, Inc., 77 S.W.3d 612, 615 (Mo. banc 2002). We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Moriarty v. Treasurer of State of Missouri, 141 S.W.3d 69, 72 (Mo.App.2004).

I. Date Disease Became Compensable Injury

For clarity we first address the SIF's second point, in which it contends that the Commission erred in finding that claimant sustained a compensable injury on December 1, 1999 because there was overwhelming evidence that claimant experienced some type of disability that was compensable on or about November 3, 1998.

An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability. Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408, 413 (Mo.App.1997); Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 759-60 (Mo.App.1997). An employee can be diagnosed with an occupational disease and experience symptoms of the disease prior to the time that it becomes disabling. See Prater v. Thorngate Ltd., 761 S.W.2d 226, 228-29 (Mo.App.1988); Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 429 (Mo.App.1965); Renfro v. Pittsburgh Plate Glass Co., 235 Mo.App. 226, 130 S.W.2d 165, 171 (1939).

In this case, claimant worked without restriction until his first surgery for carpal tunnel release on December 1, 1999. There was no evidence that claimant's earning ability was impaired prior to December 1, 1999. Accordingly, claimant did not suffer a compensable injury until that date. The Commission's finding that claimant's carpal tunnel syndrome did not become disabling until December 1, 1999, when he was first unable to perform his ordinary work duties, was supported by competent and substantial evidence on the whole record. It did not err in holding as a matter of law that claimant's prior knee injury was a pre-existing disability to the carpal tunnel syndrome. This point is denied.

II. Stipulation to Scope of Hearing

We next address...