Lococo v. Hornberger Elec., Inc., 67349

• Court: Missouri Court of Appeals
• Writing for the Court: GARY M. GAERTNER; REINHARD, P.J., and CRAHAN
• Citation: Lococo v. Hornberger Elec., Inc., 914 S.W.2d 67 (Mo. App. 1996)
• Decision Date: 23 January 1996
• Docket Number: No. 67349,67349
• Parties: David J. LOCOCO, Employee, v. HORNBERGER ELECTRIC, INC./SAFECO INSURANCE COMPANY, Appellant/Employer/Insurer, and Ohio Casualty Insurance Company, Respondent/Insurer.

Page 67

914 S.W.2d 67

David J. LOCOCO, Employee, v. HORNBERGER ELECTRIC, INC./SAFECO INSURANCE COMPANY Appellant/Employer/Insurer and Ohio Casualty Insurance Company, Respondent/Insurer.

No. 67349.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 23, 1996.

Robert Edward Bidstrup, Karen A. Mulroy, St. Louis, for appellant.

Brian J. Dean, St. Louis, for respondent.

GARY M. GAERTNER, Judge.

Appellant, Safeco Insurance Company ("Safeco"), appeals from the Final Award of the Labor and Industrial Relations Commission ("Commission") affirming the award of the Administrative Law Judge ("ALJ") holding Safeco, the first of two successive insurers, liable for payment of compensation for the occupational disease of carpal tunnel syndrome. This case was transferred to the state Supreme Court, which retransferred to this Court for reconsideration in light of Johnson v. Denton Construction Company, 911 S.W.2d 286 (Mo. banc 1995). We reverse the award of the Commission.

David Lococo ("employee") was employed by Hornberger Electric ("employer") as an electrician during the period of time relevant to this case. Employee's work required repetitive movement with pliers and wire. It was necessary for employee to do a lot of twisting and pulling to strip and pull wires into position. The nature of employee's work remained continuous throughout his employment with employer.

In December 1990, employee began having complaints of pain, tingling, and numbness in his right hand. Employee sought medical advice in January of 1991 from his personal physician, Dr. Kaup. An EMG and nerve conduction velocity examination were scheduled for the next day at Christian Hospital Northeast. The tests were interpreted by Dr. Eli Shuter. He determined employee suffered from right carpal tunnel syndrome with compression of the right ulnar nerve in Guyon's canal. Employee returned to Dr. Kaup for treatment on February 14, 1991.

On February 20, 1991, employee was examined by Dr. Paul Sheehan. Dr. Sheehan prescribed the use of a wrist splint for one week. Although employee felt some relief from use of the splint, shortly after discontinuing use the pain returned even worse than before. Employee underwent right carpal tunnel release surgery on March 12, 1991. Employee missed no work due to his carpal tunnel syndrome until this surgery. Employee filed a claim for compensation on May 3, 1991.

The depositions of Drs. Joseph Morrow and Ralph Graff were submitted into evidence. Both doctors opined employee's carpal tunnel syndrome manifested itself and was diagnosed in January 1991. There was no dispute that employee's condition was the result of his work for Hornberger Electric.

At the hearing on this matter before the ALJ, the following stipulations were entered into and included in the ALJ's Findings of Fact and Rulings of Law:

The parties stipulated Claimant was employed by Employer on the date reflected in the Report of Injury and Claimant sustained occupational disease arising out of and in the course of employment, i.e. exposure to a hazard during employment. Claimant was earning an average weekly wage of $707.20 on said date resulting in applicable compensation rates of $397.50 for temporary total disability benefits and $198.75 for permanent partial disability benefits. Unpaid medical expenses total $4,107.80. Unpaid temporary total disability benefits are $2,328.24. The parties further stipulated Claimant sustained twenty-one percent PPD of the right wrist (175 week level), or $7,304.06. The SIF liability is ten percent of the body as a whole referable to the cardiovascular system, or $7,950.

The parties further stipulate that Safeco ... had coverage for the period commencing February 20, 1990 and ending 12:01 a.m. on February 20, 1992 [sic]. Further, the Ohio Casualty Company ... had coverage for the period commencing February 20, 1991 and ending February 20 [sic] 1992.

The single issue for determination at the hearing was the liability of each insurer. The ALJ determined Safeco carried sole liability for employee's disability. Upon review, the ALJ's award was affirmed and his decision was adopted by the Commission. This appeal ensued.

Safeco raises one point on appeal, contending the Commission erred in holding Safeco liable because it was the first insurer in time. We agree.

While factual determinations of the Commission are reviewed in the light most favorable to the Commission, decisions that are clearly interpretations or applications of law are not accorded any deference by the reviewing court. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991).

In determining the liability of the insurers, we are governed by RSMo § 287.063 (1986). ¹ RSMo § 287.063.2 states:

2. 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.

It is a well-accepted principle of...