Tunstill v. Eagle Sheet Metal Works

• Decision Date: 15 February 1994
• Docket Number: 18794,Nos. 18777,s. 18777
• Parties: Mark S. TUNSTILL, Employee-Respondent, v. EAGLE SHEET METAL WORKS, Employer, and Federated Mutual Insurance Company, Insurer-Appellant. Mark S. TUNSTILL, Employee-Appellant, v. EAGLE SHEET METAL WORKS, Employer, and Allied Mutual Insurance Company, Insurer-Respondent.
• Court: Missouri Court of Appeals

Page 264

870 S.W.2d 264

Mark S. TUNSTILL, Employee-Respondent, v. EAGLE SHEET METAL WORKS, Employer, and Federated Mutual Insurance Company, Insurer-Appellant.

Mark S. TUNSTILL, Employee-Appellant, v. EAGLE SHEET METAL WORKS, Employer, and Allied Mutual Insurance Company, Insurer-Respondent.

Nos. 18777, 18794.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 15, 1994.

Jerry A. Harmison, Jr., Miller & Sanford, P.C., Springfield, for Mark S. Tunstill.

Carl E. Lippelman, Andereck, Evans, Milne, Peace & Baumhoer, Springfield, for Eagle Sheet Metal Works and Allied Mut. Ins. Co.

Kenneth T. Walker, Mann, Walter, Burkart, Weathers & Walter, Springfield, for Eagle Sheet Metal Works and Federated Mut. Ins. Co.

FLANIGAN, Presiding Judge.

The sole issue in these two consolidated Workers' Compensation appeals is which of two successive insurers of the same employer is liable for benefits awarded the employee and admittedly due him. Resolution of the issue is governed by the pre-1993 version of 287.063, ¹ which read, in pertinent part:

1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists. ²

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.

As used in The Workers' Compensation Law, "Any reference to the employer shall also include his insurer." § 287.030.2.

These are two proceedings under The Workers' Compensation Law, § 287.010, et seq., in which Mark Tunstill is claimant-employee and Eagle Sheet Metal Works ("Eagle") is the employer. Prior to July 1, 1991, Allied Mutual Insurance Company ("Allied Mutual") was the employer's Workers' Compensation insurer. On and after July 1, 1991, Federated Mutual Insurance Company ("Federated") was the employer's Workers' Compensation insurer. One claim named Allied Mutual as the insurer, and the other claim named Federated as the insurer.

The two proceedings were consolidated for trial before an administrative law judge, who entered a Temporary or Partial Award in each proceeding. One award was in favor of the claimant and against Federated, and the other award was against the claimant and in favor of Allied Mutual. An application for review to the Labor and Industrial Relations Commission of Missouri was filed in each proceeding. The Commission entered a "Temporary or Partial Award" affirming the award of the administrative law judge in each proceeding. Separate appeals were taken from the Commission's award ³ by claimant Mark Tunstill and Federated. The two appeals are consolidated in this court.

There is no factual dispute. Tunstill's employment by Eagle began in 1987. His job duties involved the use of his hands for welding, using a hand snip, using an electric power shear, and carrying large quantities of metal. His right and left wrists were, as stated by the administrative law judge, "involved in repetitive use work." At the time the award was entered, he had not missed any time from his work due to disability, he was still in the employment of Eagle, and the only expense so far incurred was the bill of Dr. Seagrave for services rendered on July 9, 1991. He worked on the morning of July 9, 1991, and the medical appointment, which was scheduled before July 1, took place that afternoon. He did not work during the first week in July 1991 because of a temporary layoff.

The Commission's award included the following:

This case involves an employee who has carpal tunnel syndrome and an employer who changed workers' compensation insurers effective July 1, 1991. Although the employee suffered symptoms of the occupational disease for a significant period of time prior to July 1, 1991, he was not seen by a physician until shortly after that date. The question posed is which of two insurers is liable for the medical care, future surgery and any resulting disability.

Federated Mutual, the insurer found liable in this instance, argues that there was no causal relationship established between the work done by the employee on or after July 1, 1991, and the employee's carpal tunnel syndrome. Federated further argues that there must be evidence that the work exposure on or after July 1, 1991, either produced or aggravated the employee's problems.

Federated's arguments are very persuasive. Were we to adopt its position, however, our decision would be contrary to the statutory mandate that the Commission apply the "last exposure rule" as stated in § 287.063.2 RSMo 1986, which reads as follows:

The employer liable for the compensation in this section 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. (Emphasis in original).

. . . . .

In the instant case it is undisputed that the employee worked for the same employer both before and after July 1, 1991. The clear inference from the record as a whole is that the employee's job duties and his symptoms remained the same after July 1, 1991. No witness indicated that the employee's job duties were altered July 1, 1991. The employee worked for the employer on the morning of July 9, 1991. Therefore, it is the Commission's finding that the conditions of the employee's employment were essentially the same or similar to those prevailing prior to July 1 1991, and such duties, based on the medical testimony, are conducive to the development of bilateral carpal tunnel syndrome.

. . . . .

[Section 287.063.2] unequivocally states that the length of the exposure to the hazard of the occupational disease makes no difference provided that the same job conditions are present. Therefore, Federated Mutual Insurance Company is the liable insurer in this instance.

. . . . .

This award against Federated Mutual Insurance Company is only temporary or partial, is subject to further order and the proceedings are continued and shall remain open until a final award can be made.

Federated's appeal from the Commission's award is Appeal No. 18777. Tunstill's appeal from the Commission's award is Appeal No. 18794. The appeals will be treated separately in this opinion.

No. 18777

Federated's first point reads:

"The findings and Temporary or Partial Award of the Labor and Industrial Relations Commission making Federated Mutual Insurance Company instead of Allied Mutual Insurance Company liable for any past and future benefits due the employee are contrary to § 287.063.2, RSMo, and are not supported by competent and substantial evidence, are not supported by the facts found by the Commission, and are clearly contrary to the overwhelming weight of the evidence because: (a) The employee's hand/wrist condition would have supported a claim prior to Federated assuming coverage on July 1, 1991, because he (1) had experienced his symptoms for two years or longer, (2) had sought to locate a doctor for the condition and (3) had asked the employer in June, 1991, to send him to a doctor. (b) The employee had worked only one-half of a day during Federated's policy period. (c) There was no causal relationship established between work done by the employee on or after July 1, 1991, and his hand condition. (d) There was no evidence that work exposure on or after July 1, 1991, produced or aggravated any of the employee's symptomatology but, rather, the problems the employee experienced with his hands remained the same in July as they had been in June, 1991. (e) There was no evidence that work exposure on or after July 1, 1991, caused the need for bilateral carpal tunnel surgery as recommended by Dr. Seagrave. (f) The employee's condition was the same on June 30, 1991, as it was on July 9, 1991, when diagnosed by Dr. Seagrave. (g) The employee's condition did not worsen after seeing Dr. Seagrave on July 9, 1991."

A decision of the Commission in workers' compensation proceedings which is clearly an interpretation or application of law, as distinguished from a determination of fact, is not binding upon this court and falls within its province of review and correction. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo.banc 1991).

Missouri cases determining which of two successive workers' compensation insurers is liable for the payment of occupational disease benefits include, in chronological order, the following: King v. St. Louis Steel Casting Co., 353 Mo. 400, 182 S.W.2d 560 (1944); Enyard v. Consolidated Underwriters, 390 S.W.2d 417 (Mo.App.1965); White v. Scullin Steel Company, 435 S.W.2d 711 (Mo.App.1968); Ringeisen v. Insulation Services, Inc., 539 S.W.2d 621 (Mo.App.1976); Bollmann v. Certain-Teed Products Corp., 651 S.W.2d 613 (Mo.App.1983).

King, Enyard, and White did not involve the application of § 287.063, for they were proceedings which commenced prior to its enactment. The statute was involved in Ringeisen and Bollmann, but not in its present form.

In King, Enyard, and Bollmann, there was only one employer involved, and the issue was which of the successive insurers was liable. In White, there were two successive employers involved, but the last employer was not sued and the first was exonerated. In Ringeisen, there were two successive employers and both were exonerated.

In King, the employee died of silicosis, and his survivors brought a claim for death benefits. The death occurred during the coverage period of Liberty Mutual, the last of three successive insurers. Liberty Mutual had coverage from August 1, 1940, to July 31, 1942. The employee was exposed to silicosis-causing working conditions from 1929 to April 1942 and died on June 3, 1942.

The Commission's award, which held Liberty Mutual liable and...