Walker v. Klaric Masonry, Inc., 69947

• Court: Missouri Court of Appeals
• Writing for the Court: GERALD M. SMITH; CRANE, P.J., and PUDLOWSKI
• Citation: Walker v. Klaric Masonry, Inc., 937 S.W.2d 219 (Mo. App. 1996)
• Decision Date: 05 November 1996
• Docket Number: No. 69947,69947
• Parties: Teddy C. WALKER, Employee/Respondent, v. KLARIC MASONRY, INC., and U.S. Fire Insurance Company, Employer/Insurer-Appellant/ Cross-Respondent, and Grant Bricklaying, Inc., and General Accident Insurance Company, Employer/Insurer-Respondent/ Cross-Appellant.

Page 219

937 S.W.2d 219

Teddy C. WALKER, Employee/Respondent, v. KLARIC MASONRY, INC., and U.S. Fire Insurance Company Employer/Insurer-Appellant/ Cross-Respondent and Grant Bricklaying, Inc., and General Accident Insurance Company, Employer/Insurer-Respondent/ Cross-Appellant.

No. 69947.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 5, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 8, 1997.

Application to Transfer Denied

Feb. 25, 1997.

Edward A. Stierberger, Hensen, Stierberger, Downard & Milenbrink, Union, for Employee/Respondent.

John J. Mohan, Margaret A. Hesse, Hinshaw & Culbertson, St. Louis, for Employer-Appellant/Cross-Respondent.

Jeffrey M. Proske, St. Louis, for Employer-Respondent/Cross-Appellant.

GERALD M. SMITH, Judge.

Employer, Klaric Masonry Inc., appeals from an award by the Labor and Industrial Relations Commission determining that Klaric is responsible for providing medical treatment to Teddy Walker for radial tunnel syndrome. Grant Bricklaying, Inc. appeals from the failure of the Commission to award it medical and disability payments it has already expended on Walker's behalf. We affirm and remand to the Commission.

Walker is a bricklayer and worked for Grant Bricklaying, Inc. when he first experienced difficulty in his left arm. The condition was diagnosed as "lateral epicondylitis with extensor tendinitis". Walker did not return to work for two and one-half months and received physical therapy. When he was released to return to work at Grant, he was told there was no work for him and he should go on unemployment. He found work at another employer but left there after one and one-half weeks and took a job with Klaric because he thought the job would be easier on his arm. The pain became greater and Walker again stopped working and had surgery on his arm.

Following physical rehabilitation he returned to Klaric but shortly thereafter redeveloped pain in the arm. He was seen by an orthopedic physician who diagnosed the problem as radial tunnel syndrome and recommended surgery to correct the condition. It was the doctor's opinion that Walker had initially sustained the condition at Grant and that the lateral epicondylitis and radial tunnel syndrome co-existed prior to the earlier surgery but the latter condition was masked by the former condition, a not uncommon situation. The doctor did opine that the work at Klaric aggravated the radial tunnel syndrome. Walker ceased work at Klaric and filed his worker's compensation claim a month later. It was filed against both Grant and Klaric. Until that time Grant had provided Walker's worker's compensation benefits.

The Commission determined that under the "last exposure" rule Klaric was responsible for the surgery to be performed to correct the radial tunnel syndrome. The Commission did not award Grant the money it had expended for medical treatment and temporary total disability on Walker's behalf.

Section 287.063.1 RSMo 1994 provides:

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, subject to the provisions relating to occupational disease due to repetitive motion as is set forth in subsection 7 of section 287.067, RSMo.

The referenced section provides a three month window for repetitive motion diseases during which the presumption is not...