Miller v. U.S. Airways Group Inc

• Decision Date: 31 August 2010
• Docket Number: No. WD 70840.,WD 70840.
• Citation: 316 S.W.3d 462
• Parties: Bonita MILLER, Appellant,v.U.S. AIRWAYS GROUP, INC., Respondent.
• Court: Missouri Court of Appeals

316 S.W.3d 462

Missouri Court of Appeals Western District.

Bonita MILLER, Appellant,v.U.S. AIRWAYS GROUP, INC., Respondent.

No. WD 70840.

May 11, 2010.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 2010.

Application for Transfer Denied

Aug. 31, 2010.

Kristi L. Pittman, Esq., Liberty, MO, for appellant.

Eric T. Lanham, Esq., and Douglas M. Greenwald, Esq., Kansas City, KS, for respondent.

BEFORE DIVISION ONE: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.

LISA WHITE HARDWICK, Judge.

Bonita Miller appeals from a final award denying her workers' compensation claim for repetitive trauma injuries from carpal tunnel syndrome that developed as a result of her employment with U.S. Airways Group, Inc. (“Employer”). The Labor and Industrial Relations Commission (“Commission”) denied relief because Miller had an earlier claim pending against the Employer for injuries related to carpal tunnel, and the Commission determined that the repetitive trauma was not a “new and distinct injury.” Miller contends the Commission's decision is not supported by competent and substantial evidence in the record. For reasons explained herein, we find no error and affirm the final award.

Factual and Procedural History

Miller began working for the Employer in 1984. Since May 1991, she has worked full-time as a customer service agent at Kansas City International Airport, where her primary duty is to check-in airline passengers. Her work involves repetitive activities with frequent use of her hands and arms, such as keyboarding, tearing off baggage claims and boarding passes from the computer terminals, and lifting luggage.

In 2002, Miller began to experience pain in her upper extremities and was diagnosed by her physician with early signs of carpal tunnel syndrome. Two years later, the symptoms intensified with numbness, pain, and tingling in her hands. In June 2004, Miller requested medical treatment from the Employer because she believed her condition was work-related. The Employer filed a “Report of Injury” with the Division of Workers' Compensation and provided treatment through its insurer, AIG. Miller was diagnosed with mild bilateral carpal tunnel syndrome. She underwent five weeks of physical therapy, took prescribed medication for several weeks, and wore splints at night. In October 2004, Miller was released from treatment with no limitations on her ability to work.

Miller continued to perform her work duties without significant pain or difficulty until late 2006 and early 2007, when she worked substantial overtime due to a heavy holiday schedule. She experienced increasing discomfort in her hands, with sharp pains extending into her forearms causing an “electrical shock” sensation. After receiving notice of these symptoms on January 29, 2007, the Employer filed a second “Report of Injury” and referred the matter to AIG. The insurer declined to approve further treatment for Miller.

On October 26, 2007, Miller filed two separate workers' compensation claims seeking “temporary total and permanent disability” benefits from the Employer for injuries related to carpal tunnel syndrome. The first claim, No. 04-054594, alleged that Miller suffered “[r]epetitive trauma through 6/4/04” (“2004 claim”). The second claim, No. 07-070265, alleged that Miller suffered “[r]epetitive trauma through 1/29/07” (“2007 claim”). Both claims gave an identical description of Miller's alleged injury:

During the course and scope of employment as a customer service representative, Employee suffered repetitive trauma to her bilateral upper extremities due to lifting luggage and by keyboarding resulting in bilateral carpal tunnel syndrome. Employee requires medical care, will suffer temporary total and permanent disability.

Miller also filed a third workers' compensation claim against the Employer for injuries related to carpal tunnel syndrome. The third claim, No. 05-144695, alleged that Miller suffered repetitive trauma through August 28, 2005.¹ The three claims proceeded independently and were not consolidated.

In June 2008, an Administrative Law Judge (“ALJ”) held a hearing on the 2007 claim. Miller testified that she first reported symptoms of carpal tunnel syndrome to her employer in 2004. She underwent treatment and took ibuprofen as necessary after she was released from treatment. When her symptoms worsened in late 2006, she again reported them to the Employer in early 2007.

At the hearing, the Employer admitted that Miller sustained carpal tunnel syndrome in the course of her employment but denied that she sustained the injury in 2007. The Employer presented independent medical evaluations of Miller conducted by two orthopedic specialists, Dr. Anne Rosenthal and Dr. James Stuckmeyer. Both physicians noted that Miller's diagnosis of carpal tunnel syndrome dated back to 2002. They concluded that Miller's condition was occupationally related to her hand intensive, repetitive job duties during the course of her twenty-five year employment with U.S. Airways.

Following the hearing, the ALJ issued a decision denying the 2007 claim because it alleged the same injury, bilateral carpal tunnel syndrome, for which Miller received treatment in 2004 and for which she still had a 2004 claim pending. The ALJ also determined that the 2007 claim was time-barred by recent amendments to Section 287.063.1, which affected the accrual dates under the statute of limitations in Section 287.430.²

On review, the Commission affirmed the denial of compensation on the 2007 claim. The Commission found that Miller did not sustain a new and distinct injury in 2007 because her repetitive trauma stemmed from the same bilateral carpal tunnel syndrome that she was treated for in 2004. The Commission's final award incorporated the ALJ's decision to the extent that it was consistent with this finding; however, the Commission declined to adopt or incorporate the ALJ's conclusions regarding the statute of limitations. ³ Miller appeals the final award.

Standard of Review

“Where the Labor and Industrial Relations Commission's award attaches and incorporates the ALJ's award and decision, this court considers the findings and conclusions of the Commission as including the ALJ's award.” Cochran v. Indus. Fuels & Res., Inc., 995 S.W.2d 489, 492 (Mo.App.1999). We review only questions of law and may modify, reverse, remand for rehearing, or set aside the award when the Commission acted without or beyond its power, the award was procured by fraud, the facts do not support the award, or the award is not supported by sufficient competent evidence in the record. § 287.495.1.

“We examine the whole record to determine the sufficiency of the evidence.” Marmon v. City of Columbia, 129 S.W.3d 921, 924 (Mo.App.2004). “An award of workers' compensation benefits ‘that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.’ ” Kerns v. Midwest Conveyor, 126 S.W.3d 445, 452 (Mo.App.2004) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). A decision is against the overwhelming weight of the evidence if we are left with a firm impression that the decision was incorrect. Id. “We will find an award by the Commission to be contrary to the overwhelming weight of the evidence only in rare cases.” Vincent v. Mo. State Treasurer, 287 S.W.3d 715, 718 (Mo.App.2009).

Analysis

Miller brings two points on appeal. First, she contends the Commission's determination that she did not suffer a new injury in 2007 is unsupported by competent and substantial evidence in the record. Second, Miller asserts the Commission erred in failing to determine when her 2007 claim accrued for purposes of applying the statute of limitations. Because we find no error in the Commission's determination that Miller did not suffer a new injury in 2007, we need not address Point II.

In denying Miller's 2007 claim, the Commission adopted the following findings in the ALJ's decision:

The Employee filed two Claims for Compensation on or about October 26, 2007 for her previously diagnosed bilateral carpal tunnel syndrome, alleging in each claim an identical repetitive trauma injury to bilateral upper extremities, with one alleging a date of accident of occupational disease of a repetitive trauma through 6/04/04 (Injury # 04-054594) and the other alleging a date of accident or occupational disease of repetitive trauma through 1/29/2007 (Injury # 07-070265).

I find the work-related medical condition of ill alleged in the Claim for Compensation, Injury # 07-070265, ... is the same work-related medical condition of ill for which Claimant received medical treatment back in 2004. Undoubtedly, her symptoms have become more severe over the years, but I find that it is the same disease, same diagnosis, and same medical condition of ill-bilateral carpal tunnel syndrome. The change in her condition is one of degree not one of kind or type ... There has only been a worsening of Claimant's injury not a new or different injury.

The Commission's finding that Miller did not suffer a new injury in 2007 is supported by substantial evidence in the record. The Employer presented medical records to establish that Miller's carpal tunnel syndrome dated back to at least 2002 and had grown progressively worse. Dr. James Stuckmeyer opined:

I feel within reasonable medical certainty that as a direct, proximate and prevailing factor of the repetitive nature of the occupational duties required upon Ms. Miller throughout 25 years of employment with U.S. Airways that she has developed progressively worsening neurological symptoms in both the right and left hand requiring medical treatment.

The medical records would reflect that dating back to 2002 she was assessed by Dr. Sachen as having very early carpal tunnel syndrome. Obviously, the development of carpal tunnel syndrome is usually related to repetitive activities, and Ms.

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