Johnson v. Denton Const. Co., 77996

Decision Date21 November 1995
Docket NumberNo. 77996,77996
Citation911 S.W.2d 286
PartiesLarry C. JOHNSON, Respondent/Employee v. DENTON CONSTRUCTION COMPANY., et al., Appellant/Employer.
CourtMissouri Supreme Court

James K. Blickhan, Jeffrey O'Connor, Kansas City, for appellant.

Alexander W. Staab, Kansas City, for respondent.

BENTON, Judge.

The Labor and Industrial Relations Commission awarded worker's compensation benefits to Larry C. Johnson against Denton Construction Company. Denton objects to liability claiming not to be the employer that last exposed Johnson to the hazard of his occupational disease. After opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V., § 10. Affirmed.

I.

Following a layoff, Johnson returned to work for Denton Construction on March 1, 1992, laying concrete 55 to 70 hours, 6 days a week. Ninety percent of the time, Johnson operated a come-along, which required a repetitive hoeing-type motion. The crew worked hard and fast with virtually no breaks.

About three weeks after returning to work, Johnson began waking in the middle of the night with arm numbness and pain. On March 28, 1992, Johnson's doctor diagnosed medial epicondylitis, prescribed medication, and gave him splints to wear. In a written note, the doctor advised that Johnson should do light duty and not use a come-along. His boss refused even to look at the note; Johnson continued to work full duty.

When his condition did not improve, Johnson asked again for treatment. Denton sent him to Occupational Medicine Associates on April 14, 1992. An electromyogram of both Johnson's wrists showed "bilateral carpal tunnel syndrome (left more involved than the right)." Continuing to complain of tingling in his left hand, Johnson returned to Occupational Medicine Associates on April 21, 1992. A doctor there confirmed the earlier diagnosis and advised that Johnson "see a hand surgeon." However, he was never authorized to see a hand surgeon and was fired a few days after the April 21st visit. Johnson filed this claim for worker's compensation May 4, 1992, a few days after his termination, listing Denton as his only employer (as admitted in Denton's answer).

A week or so after leaving Denton, Johnson began employment with Lock and Sand, another construction company. There his job was less strenuous, mainly pulling wire from a truck every 15 minutes and stomping it into poured concrete. The last three weeks of his job, in October 1992, Johnson did use a come-along and shovel to finish concrete. Although some of Johnson's symptoms improved after leaving Denton, he continued to experience numbness, severe nocturnal pain, and shooting pains in his arms when attempting to pick things up.

The administrative law judge found that Johnson needed surgery to decompress the nerve, and had since March 1992 when first diagnosed with bilateral carpal tunnel syndrome after the onset of nocturnal pain. The ALJ further found that this need for surgery was medically caused by his work for Denton. Nevertheless, the ALJ awarded no compensation based on an interpretation of the "last exposure rule," § 287.063 RSMo1986.

The Commission reversed the ALJ, granted temporary total disability benefits, and directed further medical treatment, including decompression surgery. While adopting the factual findings of the ALJ, the Commission reversed because of an erroneous interpretation of the law. As to questions of law, this Court conducts an independent review. § 287.495 RSMo1994; see also Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993).

II.

According to Denton, the Commission erred in finding for Johnson because § 287.063 RSMo1986--the "last exposure rule"--relieves it of liability since Johnson was last exposed to the hazard of his occupational disease while employed at Lock and Sand. Section 287.063.2 RSMo1986 provides:

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. (emphasis added). 1

The Commission concluded that this statute places liability "on the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to the diagnosis of the disease or disability."

Denton counters that the statute does not refer to "diagnosis" or "disability" and thus cannot be interpreted as the Commission did. Rather, Denton claims that regardless of when the disease developed or was diagnosed, the liable employer is the last employer ever to expose the employee to the occupational hazard. Though the parties earnestly request a ruling on this point, this...

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