Miller v. Unitog Co., WD

• Court: Missouri Court of Appeals
• Writing for the Court: LOWENSTEIN
• Citation: Miller v. Unitog Co., 965 S.W.2d 373 (Mo. App. 1998)
• Decision Date: 17 March 1998
• Docket Number: No. WD,WD
• Parties: Mary L. MILLER, Respondent, v. UNITOG COMPANY, Appellant, and Carrollton Specialty Products, Respondent. 54103.

Page 373

965 S.W.2d 373

Mary L. MILLER, Respondent, v. UNITOG COMPANY, Appellant and Carrollton Specialty Products, Respondent.

No. WD 54103.

Missouri Court of Appeals Western District.

March 17, 1998.

Randall W. Schroeer, Kansas City, for Unitog.

Scott C. Hamilton, Lexington, for Respondent.

Melodie Annee' Powell, Kansas City, for Carrollton Specialty.

Before LOWENSTEIN, P.J., and BRECKENRIDGE and HANNA, JJ.

LOWENSTEIN, Presiding Judge.

In this worker's compensation appeal, the underlying injury is carpal tunnel syndrome, a known occupational disease. Weniger v. Pulitzer Pub. Co., 860 S.W.2d 359, 360 (Mo.App.1993). The issue is which of two successive employers is responsible for a claim for surgery and resultant temporary benefits, where both jobs involved repetitive motion or trauma, and both jobs were substantial contributing factors to the occupational disease of carpal tunnel syndrome. On the question of liability for medical treatment, this court has jurisdiction. Walker v. Klaric Masonry, Inc., 937 S.W.2d 219, 220--21 (Mo.App.1996). Applicable to the issue of which employer is liable for benefits are two statutes: § 287.063.2, RSMo 1994, also known as the "last exposure rule," which is the general statute on occupational diseases, and § 287.067.7 RSMo.1994.

Section 287.063.2 provides that,

"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 exposure."

Section 287.067.7, states in pertinent part, that,

"With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with a prior employer was the substantial contributing factor to the injury, the prior employer shall be liable for such occupational disease."

The Administrative Law Judge held the appellant Unitog, which was the second employer, responsible. The Labor and Industrial Commission affirmed. Review of the Commission's award is under the standard set forth in Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App.1995). A question of law is reviewed without deference to the Commission's award. Oberg v. American Recreational Products, 916 S.W.2d 304, 306 (Mo.App.1995).

The employee, respondent Mary Miller, worked for respondent Carrollton Specialty Products ("Carrollton") from July 13, 1995, until October 3, 1995. The work involved repetitive hand motions while folding greeting cards. During that period of employment Miller felt pain from her hands to her elbows. She went to the company nurse and was given anti-inflammatory medicine and splints. She was put on limited duty, but did not miss any work.

On October 5, 1995, she went to work for the appellant Unitog, ultimately doing seaming on clothing. She noticed minimal problems with her hands. Eighty-nine days into the Unitog employment she began top stitching, a more hand intensive function, which caused severe pain to her hands. On January 2, 1996, Miller reported to Unitog that she was experiencing pain in her hands and wrists similar to that experienced at Carrollton. A report of injury was filed by Unitog on January 4, 1996, ninety-one days into her employment there. She missed some work, and her job duties were changed one to two weeks into January of 1996. Unitog's doctor sent Miller to an orthopedic specialist, Dr. Rose, who, in February of 1996, diagnosed the problem as carpal tunnel syndrome. As the only medical expert to testify, Dr. Rose said he believed Miller's employment at Unitog was a substantial or causing factor of her condition. He also said he believed the onset of Miller's condition was brought on at Carrollton. Surgery was recommended. Miller continued in the employ of Unitog and periodically performed hand intensive activities which have caused her discomfort. Miller filed this claim for the surgery and rehabilitation in May of 1996 against both employers. Unitog and Carrollton denied the claim, and as a result, Miller, while still working at Unitog, has not had the surgery Dr. Rose believes is necessary.

In his testimony, Dr. Rose opined that the employee had carpal tunnel syndrome prior to leaving Carrollton and, "that it quieted down when she first started at Unitog doing less work intensive or repetitive overuse activities and then recurred or was reaggravated when she started increasing her repetitive work activities." Dr. Rose concluded that, "it sounds like the process was started at Carrollton, and she left that job but she ... didn't get a different type of job ... and then when she did a more work-intensive job, it got her carpal tunnel going, or flared up again." The Administrative Law Judge and the Industrial Relations Commission ruled that § 287.067.7 did not apply here and § 287.063, as interpreted in Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo. banc 1995), resulted in Unitog being responsible for benefits. The Court in Johnson held, "[t]he starting point in applying the last exposure rule is that the employer liable for compensation is the last employer to expose the employee to the occupational hazard prior to the filing of the claim. The employee in Johnson experienced problems with the first employer, and filed a claim against the...