Maxon v. Platt

• Decision Date: 19 January 2000
• Citation: 9 S.W.3d 725
• Court: Missouri Court of Appeals
• Parties: (Mo.App. S.D. 2000) Shelly L. Maxon, Claimant/Respondent, v. Leggett & Platt, Employer/Appellant, and Continental Casualty Co., Insurer/Appellant, and Jasper Foods, Inc., CGU Hawkeye Security Ins. Co., and Safeco/American States Ins. Co., Respondents. 23060 0

9 S.W.3d 725 (Mo.App. S.D. 2000)

Shelly L. Maxon, Claimant/Respondent, v. Leggett & Platt, Employer/Appellant, and Continental Casualty Co., Insurer/Appellant, and Jasper Foods, Inc., CGU Hawkeye Security Ins. Co., and Safeco/American States Ins. Co., Respondents.

23060

Missouri Court of Appeals Southern District

01/19/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: John D. Jurcyk and Douglas M. Greenwald

Counsel for Respondent: Charles Buchanan, Steven Shanholtzer and Susan F. Colburn

Opinion Summary: None

Montgomery, P.J., and Barney, J., concur.

James K. Prewitt, Judge

Claimant received an award from the Labor and Industrial Relations Commission determining that Appellant Leggett & Platt was responsible for paying or furnishing her certain Workers' Compensation benefits. Leggett & Platt and its insurer, Continental Casualty Company, appeal.

Claimant began her employment with Jasper Foods on March 8, 1993, where she worked packing single packages of microwave popcorn. Claimant worked approximately six hours of an eight-hour shift retrieving packages from a conveyor belt, in a seated position, at a rate of approximately forty bags per minute, grabbing three bags at a time and transferring the bags to another machine. For the remaining two hours of an eight-hour shift, Claimant stood and boxed packages of popcorn.

Claimant testified that her hands began cramping and swelling "pretty much from the start." She first went to the emergency room at Barton County Hospital complaining that her arms were hurting and she had "a lot of pain and swelling." It was not until July, 1993, when it "became harder [for Claimant] to pick things up," that Claimant reported her complaint to a supervisor. She was referred to the company doctor, Mark Catron, D.O., in February or March of 1994. His initial diagnosis was carpal tunnel syndrome, for which he prescribed an anti-inflammatory medication and referred Claimant to a neurologist.

On March 24, 1994, Claimant was examined by Christopher Andrew, M.D., a neurologist, who preformed an "EMG study," a nerve conduction study, and diagnosed Claimant's condition as "tendonitis and overuse of the wrist," with "no evidence of carpal tunnel syndrome." Dr. Andrew advised continuation of conservative treatment. Thereafter, Claimant occasionally wore a wrist brace, which she said helped some.

No further medical attention was provided to Claimant, although she testified that early in July of 1994, she asked her employer to arrange another appointment because she was experiencing pain in her shoulders.

In August of 1994, Claimant sustained neck and back injuries in a vehicular accident, for which she received chiropractic adjustments four times a week for two and one-half months following the accident.

From September of 1993, until March of 1994, Claimant also worked part-time at Smith Foods. She worked there approximately twelve to sixteen hours a week, cooking cleaning, stocking and cashiering. She was released from her employment at Jasper Foods in September of 1994, because of excessive absences related to other medical problems. She remained unemployed for six weeks, during which time the problems with her wrists, hands and arms continued to worsen. Claimant alleges she was also having pain in her shoulders.

In November of 1994, Claimant was hired at Leggett & Platt, and began her employment there as a "wire bender." In this capacity, Claimant would insert a straight piece of wire into a machine, press two buttons, remove the wire and stack it. She would repeat the process approximately 1,800 times, working eight hours per day, five days per week. She worked at this position for three weeks, until she was switched to a position at which she pulled trolleys through the plant. She occasionally wore her wrist brace. Claimant testified that the "wire bending" position at Leggett & Platt was the "least hand intensive job in the plant." She also testified that she informed the person who interviewed her and another person who was present during her orientation about her physical problems.

In January, 1995, Claimant went to a "tag control job," wherein she applied and scanned bar-coded tags to inventory within the plant. Occasionally she worked in the receiving office, completing paperwork. Claimant was terminated from Leggett & Platt on April 4, 1995, for excessive absenteeism.

On November 27, 1995, Claimant filed her initial claim, alleging an occupational disease caused by repetitive motion afflicting her right and left wrists, which occurred in "March 1994 [a]pproximately." The first claim named both Jasper Foods and Leggett & Platt as employers. In an amended claim, filed on December 30, 1996, Claimant named only Jasper Foods as employer, and provided a different date of injury, that being "[b]etween March 1993 and September 1994 [a]pproximately." Two more claims were filed on December 30 and 31, 1996, against Leggett & Platt and naming the Second Injury Fund, with one claim designating an injury date as "November 1994 [a]pproximately", and the other claim listed "between November 1994 and May 1995." Subsequently, Claimant dismissed her claim against the Second Injury Fund, and through a new attorney filed an amended claim against Jasper Foods and another amended claim against Leggett & Platt. Both claims designated her injury as involving "[r]ight wrist, arm and shoulder; [l]eft wrist, arm and shoulder," and amended the date of injury to "[a]pproximately March 1994."

Following a hearing on November 2, 1998, the Administrative Law Judge found that "claimant is suffering from overuse of the upper extremities (tendonitis) chronic muscle pain and myofacitis . . . , an injury sustained by occupational disease arising out of her employment." Awarding Claimant compensation on a temporary basis, the judge assigned responsibility for Claimant's future medical care to Leggett & Platt and its insurer, "as the last employer to expose claimant to the hazards of her occupational disease prior to the filing of her claim." On her claim against Jasper Foods, Claimant was awarded weekly compensation at a rate of $175.82, and as to her claim against Leggett & Platt, Claimant was awarded weekly compensation at a rate of $172.63. Leggett & Platt had argued that proper notice of Claimant's injury was not provided, and the lack of notice prejudiced employer. The Administrative Law Judge ruled that notice was not required under Missouri law in cases of occupational disease, and that the filing of Claimant's claim was sufficient notice for the employer in any event. The ruling also directed further medical evaluation "to determine more fully the nature of claimant's condition."

The parties agree that because this award determines liability, an appeal lies, even though it was a temporary award. See Crabill v. Hannicon, 963 S.W.2d 440, 442 n.1 (Mo.App. 1998); Walker v. Klaric Masonry, Inc., 937 S.W.2d 219, 220 (Mo.App. 1996).¹

The Commission affirmed and adopted "the award and decision of the administrative law judge dated February 9, 1999," attaching and incorporating the same by reference. Therefore, this Court reviews the findings and rulings of the administrative law judge as part of the Commission's decision. Reese v. Coleman, 990 S.W.2d 195, 197 n.2 (Mo.App. 1999).

An appellate court reviewing a decision of the Labor and Industrial Relations Commission conducts a two-step analysis. First, the reviewing court examines the record, together with all reasonable inferences to be drawn from evidence therein, in the light most favorable to the findings and the award of the Commission to determine whether they are supported by competent and substantial evidence. If so, the reviewing court must then determine whether the Commission's findings and award, even if supported by some competent evidence, are nevertheless clearly contrary to the overwhelming weight of the evidence contained in the record before the Commission. Davis v. Research Med. Center, 903 S.W.2d 557, 565 (Mo.App. 1995).

Whether a Workers' Compensation claimant's injury is an accident or an occupational disease is a question of fact. Holaus v. Wm. J. Zickell Co., 958 S.W.2d 72, 79 (Mo.App. 1997). For the appellate court to substitute its opinion of facts as decided by the Labor and Industrial Relations Commission would be to violate limitations placed upon the court's review in Workers' Compensation cases. Shaffer v. St. John's Reg'l Health Center, 943 S.W.2d 803, 807 (Mo.App. 1997). Decisions that are interpretations or applications of law, rather than determinations of fact, are reviewed for correctness without deference to the Commission's judgment. Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 758 (Mo.App. 1997).

A reviewing court defers to the fact-finding body on credibility of witnesses and the weight to be accorded their testimony in workers' compensation cases. Jaycox v. General American Life Insurance Co., 992 S.W.2d 240, 244 (Mo.App. 1999). The Court of Appeals defers to the Labor and Industrial Relations Commission on issues concerning credibility and weight to be given to conflicting evidence and testimony. Holaus, 958 S.W.2d at 74. The Commission is free to disregard testimony of a witness even if no contradictory or impeaching evidence is introduced. Id.

Appellants present two points critical of the award. Their second point contends that it is Respondent Jasper Foods, Inc. which should be assessed for the benefits because Claimant suffered from an occupational disease due to repetitive motion and was not exposed to repetitive motion for a period of three months while working for Leggett & Platt. At issue here is the application of Section 287.063.1 and .2, RSMo 1994, as modified by Section 287.067.7, RSMo 1994.

Section 287.063.1 and .2 state:

1. An employee shall be conclusively deemed to have been exposed

to the hazards of an occupational disease when for...