Kelley v. Banta & Stude Construction Co.

• Decision Date: 24 August 1999
• Parties: (Mo.App. E.D. 1999) . George F. Kelley, Claimant/Respondent, v. Banta & Stude Construction Co., Inc., Employer/Appellant, and Traveler's Property & Casualty Company, Insurer/Appellant. George F. Kelley, Claimant/Respondent, v. Banta & Stude Construction Co., Inc., Employer/Appellant, and American States Insurance Co., Insurer/Appellant Case Number: 74995 & 75001 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

1 S.W.3d 43 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

George F. Kelley, Claimant/Respondent, v. Banta & Stude Construction Co., Inc., Employer/Appellant, and Traveler's Property & Casualty Company, Insurer/Appellant.

George F. Kelley, Claimant/Respondent, v. Banta & Stude Construction Co., Inc., Employer/Appellant, and American States Insurance Co., Insurer/Appellant

Case Number: 74995 & 75001

Missouri Court of Appeals Eastern District

Handdown Date: 08/24/99

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Daniel Steigerwald and John Geiss

Counsel for Respondent: Brian McInnis and John Palombi

Opinion Summary: Employer and its successive insurers appeal awards for medical care of employee on 1995 claim and 1997 claim. The ALJ and Commission awarded medical care expenses for one hip against employer and Traveler's on the 1995 claim and against employer and American States for the other hip. They found employee offered evidence his osteoarthritis disease affecting both hips was work-related. The award against American States is reversed. The award against Traveler's is reversed and remanded for entry of a new award.

Division Five holds: (1) The September 1995 accident claim, amended in June 1996 to include a disease claim, was defended by employer and its insurer, Traveler's, until November 1995. Where the statute of limitations was not at issue, the 1996 amendment related back to the date of the original claim. Thus, the insurer at the time of the original claim is liable for medical care of both hips, which were diagnosed and disabling at the time of the original claim. (2) The evidence supported a finding that employee's disability of both hips was work- related.

Opinion Author: Kent E. Karohl, Judge

Opinion Vote: REVERSED; REVERSED AND REMANDED. Dowd and Mooney, JJ. concur.

Opinion:

We review two appeals of Banta & Stude Construction Company (employer) from temporary or partial awards entered by the Labor and Industrial Relations Commission (Commission) on claims filed by George F. Kelley (employee) in September 1995 and February 1997. The 1995 claim was amended by two amended claims. The claims were tried together but not consolidated. The 1995 claim involved allegations of an accident in December 1993 or an occupational disease which disabled employee on that date. The 1997 claim involved only allegations of an accident as the cause of disability. We have jurisdiction because employer denied all liability for medical treatment and disability compensation for osteoarthritis effecting employee's hips. Cahall v. Cahall, 963 S.W.2d 368, 371 (Mo. App. E.D. 1998).

The Claims

The original and first amended 1995 claim alleged an accident on December 27, 1993 and injuries to the back, right hip and knee with aggravation and activation of preexisting osteoarthritis of the right hip and lower back and disc disease in the lower back. They were filed on September 5, 1995 and October 4, 1995. Answers were filed by employer and its then insurer, Aetna Casualty and Surety Company (now Traveler's Property and Casualty Company). On November 12, 1995, employer changed carriers and was thereafter insured by American States Insurance Company. On June 6, 1996 employee filed a second amended claim which added allegations of occupational disease since 1972 "due to years, up to and including the present time, of [doing hard work as described]." The second amended claim also alleged the accident affected "both hips" and "aggravation and activation of pre-existing osteoarthritis of both hips and low back and disc disease in low back and osteoarthritis itself." (Emphasis added). On June 19, 1996, employer and Traveler's filed an amended answer admitting injury to the lower back and knee but denying liability for occupational disease.

The February 1997 claim against employer and American States alleged an accident on January 22, 1997 and injuries to the back, both hips and right leg. The claim did not allege occupational disease and, was never amended. However, near the end of the hearing, employee asked for leave to amend his claim. The Administrative Law Judge (ALJ) did not rule on the motion. He considered the motion for leave to amend but made no ruling because of the awards made in the 1995 claim. He suggested employee should amend to add allegations of occupational disease before further consideration of the 1997 claim.

The Hearing

The ALJ tried both claims in one hearing. Employee sought a temporary award for hip replacement of both hips. He is afflicted with severe osteoarthritis of both hips. Traveler's contested employee's theories of the 1993 accident or the work caused hip disease. American States contested employee's theory that the 1997 accident caused only hip disability. No one questioned the medical necessity for total hip replacement of both hips for employee, who was 54 years old at the time of the hearing. The Partial Awards

In the award on the 1995 claim, the ALJ determined:

21. Medical treatment for right hip ordered against Travelers Indemnity Company. See Findings. Medical treatment for left hip against American States Insurance Co. See Findings.

In the award on the 1997 claim, the ALJ entered no award for medical treatment.

Administrative Law Judge's Findings of Fact

I. The 1995 accident and disease claim defended by employer and Traveler's.

The ALJ entered separate, partial awards. With respect to 1995 claim, we summarize his findings as follows:

1. Employee worked for employer from 1972 to 1976 and from 1980 to 1997 as a laborer.

2. On December 27, 1993 he was injured when he slipped and twisted his body while at work.

3. On December 28, 1993 Dr. McAllister treated him for "significant osteoarthritis of the right hip." His impression was "lumbar facet syndrome and osteoarthritis of the right hip."

4. He returned to work in February 1994 but continued to experience pain in his back, right hip and leg.

5. In August 1995 he returned to Dr. McAllister. Dr. McAllister found he had "left hip arthritis to a lesser degree, but it's certainly progressing." (Emphasis added). Surgery on the right hip was scheduled. Traveler's declined to pay for it, and it was cancelled. The original compensation claim was filed in September 1995.

6. On October 4, 1995 Dr. Perry, an orthopedic surgeon, examined him. Dr. Perry noted employee "had severe arthritis which had worsened during the previous year by his heavy work." X-rays "disclosed severe ostoearthritis of the right hip and also osteoarthritis of the left hip." (Emphasis added).

7. Dr. Perry referred him to Dr. Sutherland, also an orthopedic surgeon. On November 7, 1995 Dr. Sutherland found osteoarthritis in both hips, more advanced on the right. He opined the bilateral osteoarthritis was not work related, but the 1993 injury could have aggravated the condition.

8. Prior to January 22, 1997, he saw two additional orthopedic surgeons, Dr. Maloney and Dr. Leuke.

9. On January 22, 1997 he was injured when he slipped in the mud while carrying concrete forms.

10. On January 24, 1997 he was examined by Dr. Koreckij, an orthopedic surgeon. He diagnosed "lumbar sprain-strain with exacerbation, possibly underlying lumbar arthrosis." He found no direct relationship between his occupation and arthritis in the hips. His X-rays "indicated obviously arthritic hips." (Emphasis added).

11. Both hips were asymptomatic before December 22, 1993.

12. The accidents in 1993 and 1997 did not cause, aggravate or accelerate the right hip osteoarthritis.

13. The left hip osteoarthritis was not diagnosed until August 24, 1995 and it was not caused, aggravated or accelerated by the 1993 accident.

14. The January 22, 1997 accident did not cause, aggravate or accelerate the left hip.

On the alternative occupational disease claim the ALJ found:

15. Dr. Perry testified employee had a predisposition to osteoarthritis and his (21 of the last 25) years of heavy work aggravated this predisposition.

16. Dr. Perry's testimony supports a finding that the years of heavy work was a "substantial factor both in causing [employee's] bilateral hip osteoarthritis and in accelerating the pathologic progress." Furthermore, "Dr. Perry has opined that [employee's] work was more than 'a substantial factor' in causing his arthritis."

II. The 1997 accident claim defended by employer and American States Insurance Co.

We will not repeat the findings of fact also made in the award for the 1995 claim. We summarize the ALJ's findings as to the 1997 claim as follows:

1. On January 22, 1997 employee was injured at work.

2. On January 24, 1997 Dr. Koreckij examined employee. He diagnosed employee as having "lumbar sprain-strain with exacerbation, possibly underlying lumbar arthrosis."

3. On June 18, 1997 Dr. Leuke, an orthopedic surgeon, examined employee. He found severe degenerative joint disease in the hips.

4. Dr. Perry's opinion on causation of occupational disease, previously noted, applied toboth the 1993 and 1997 events.

5. The 1997 accident did not cause, aggravate or accelerate the left hip arthritis.

6. If employee files an amended claim alleging occupational disease, it would suffice to thereafter decide at a future hearing pertaining to these claims whether such amended claim relates back to February 6, 1997.

Appeal of Employer and Traveler's Property and Casualty Company

Traveler's argues on appeal that the Commission erred: (1) in making any award for medical care against Traveler's because when employee was last exposed to the risk of occupational disease of both hips by continuing to work for employer, before filing a claim and at the time of the filing, American States insured employer; and (2) in finding that employee suffered a compensable occupational disease because the finding is not supported by substantial, competent evidence and employee's...