Wiele v. National Super Markets, Inc.

• Decision Date: 13 May 1997
• Docket Number: No. 71190,71190
• Citation: 948 S.W.2d 142
• Parties: Theresa WIELE, Claimant/Respondent, v. NATIONAL SUPER MARKETS, INC., Employer/Appellant.
• Court: Missouri Court of Appeals

Page 142

948 S.W.2d 142

Theresa WIELE, Claimant/Respondent, v. NATIONAL SUPER MARKETS, INC., Employer/Appellant.

No. 71190.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 13, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 14, 1997.

Randee E. Schmittdiel, St. Louis, for employer/appellant.

James F. McCartney, Gabriel & McCartney, St. Louis, for claimant/respondent.

CRANE, Presiding Judge.

In this workers' compensation case, employer, National Super Markets, Inc., appeals from the final award of the Labor and Industrial Relations Commission reversing the award of the Administrative Law Judge (ALJ) and allowing compensation. Employer asserts the Commission erred in making its award because 1) claimant's compensation claim for carpel tunnel syndrome was barred by the statute of limitations because it was made more than three years after the carpal tunnel syndrome was reasonably discoverable; 2) claimant's compensation claim for shoulder disability was barred by the statute of limitations because she did not file a separate claim therefor; 3) claimant's failure to inform employer of her need for medical treatment to her wrists or shoulders absolves employer of any obligation to pay for that treatment; and 4) the percentages of disability found by the Commission were not supported by the weight of the evidence. We affirm.

Claimant, Theresa Wiele, began working as a baker for employer in 1975. She took a leave of absence in May, 1979, and returned in July, 1980 in the position of cashier. She became a price checker in 1989, then returned to her cashier position in September, 1990. Claimant testified that she was diagnosed with bilateral carpal tunnel syndrome on March 12, 1987. She informed employer of the diagnosis and that it was work related. A store assistant filled out an accident report dated March 31, 1987. This report gave the date of injury as January, 1987 and described claimant's illness as carpal tunnel syndrome, hand and arm. Claimant received a letter from employer dated April 8, 1987 denying her claim for workers' compensation for carpal tunnel syndrome for the stated reasons that claimant failed to give employer proper notice of her claim under Missouri law and went to her own doctors rather than those authorized by employer. Employer also wrote that it did not believe that the claimed injury was causally related to claimant's job. Employer recommended that claimant seek treatment with her own physician.

Claimant's symptoms decreased with conservative treatment from her own physician until 1990 when she testified that the numbness and tingling returned from her fingertips to her shoulder. She consulted several doctors. She wore splints beginning in February, 1990. On April 17, 1990 a hand specialist, Dr. Paul Weeks, diagnosed claimant with bilateral carpal tunnel syndrome and told claimant her symptoms were definitely work-related. He scheduled surgery for the right wrist on June 20, 1990. Claimant requested and was denied medical treatment from employer in April, 1990 and again in June, 1990. ¹

Claimant stopped working on May 11, 1990 due to the severity of her symptoms. Dr. Weeks performed the right carpal tunnel release on June 20, 1990. Dr. Weeks released claimant to work on September 3, 1990.

Claimant filed a claim for compensation with the Division of Workers' Compensation on June 22, 1990 alleging injury to her "right wrist, right arm, left wrist, left arm, body" from performing repetitive activity which caused "progressive injuries to her wrist and arm" during the course of her employment with employer. Claimant alleged an accident date of January-February, 1990. The Division assigned this matter Injury Number 90-042989.

Claimant continued seeing Dr. Weeks for problems related to her right and left wrists. In 1992 Dr. Weeks referred claimant to Dr. Susan Mackinnon for her shoulder pain. Dr. Mackinnon reported that claimant had problems with both upper extremities for years, with sensory loss and numbness in her hands. Her examination showed evidence of bilateral thoracic outlet syndrome, more on the right than the left, and bilateral median nerve compression in the right forearm and wrist. Dr. Mackinnon concluded that claimant's work aggravated her problems and that claimant should not be employed long term in work that was repetitive, overhead, or involved use of vibratory instruments.

On December 7, 1993, Dr. Thomas Musich, a family practitioner, evaluated claimant at the request of claimant's attorneys. His deposition was admitted into evidence at the hearing. Dr. Musich took claimant's history, reviewed her medical records, and conducted a physical examination along with tests. Dr. Musich diagnosed claimant as suffering from bilateral carpal tunnel syndrome and bilateral thoracic outlet syndrome. Dr. Musich testified to his opinion that claimant developed these conditions as a result of repetitive activity working as a cashier and baker for employer for a number of years. Dr. Musich further opined that claimant sustained permanent partial disability of 45% to the right wrist; 25% to the left wrist; and 25% to both shoulders due to her continuous thoracic outlet syndromes.

Administrative Law Judge William Greer issued a Final Award on Hearing finding that claimant sustained a compensable occupational disease to her right wrist/hand, left wrist/hand, and both shoulders that arose out of and in the course of her employment with employer but that her claims were barred by the statute of limitations. The ALJ determined that the words "reasonably discoverable and apparent" as used in § 287.063.3 apply when an employee is medically advised that the employee's condition might be work-related. The ALJ therefore concluded that claimant's personal knowledge in March, 1987 that she was diagnosed with bilateral carpal tunnel syndrome that was caused or aggravated by her job duties with employer started the three year statute of limitations to run and that her failure to file her formal claim by March, 1990 barred her claim.

The ALJ found that claimant knew as of March 19, 1992 that she was suffering from a shoulder problem that was work-related. He found claimant's shoulder disability to be a separate and distinct injury and not a continuation of her carpal tunnel complaints. He concluded that, because claimant did not file a formal claim or amend claim 90-WC-042989 on or before March 12, 1995, her claim for shoulder injuries was barred by the statute of limitations.

In its Amended Final Award Allowing Compensation reversing the award of the ALJ, the Commission disagreed with the ALJ that the statute of limitations barred either the claim for the wrist injuries or the claim for the shoulder injuries. It concluded that the statute of limitations does not begin to run until the occupational disease causes the employee to become disabled and unable to work and that claimant was not physically disabled from work until May 11, 1990. It also concluded that the shoulder injuries were included in the claim for compensation and that claimant was suffering from those injuries at the time she made her complaint.

The Commission assessed permanent partial disability at: 45% to the right wrist; 25% to the right shoulder; 25% to the left wrist; and 25% to the left shoulder. The Commission adjusted its award to account for the multiple injuries to both arms. It awarded claimant $3,341.60 for temporary total disability for the sixteen weeks she was unable to work; $20,349.14 for permanent partial disability for the right arm; $15,710.13 for permanent partial disability for the left arm; and $5,244.26 for medical care for a total of $44,625.13.

In a separate opinion one member of the Commission dissented in part from the award of benefits for the shoulder disabilities which she found to be separate and distinct and not a continuation of claimant's carpal tunnel complaints.

When a workers' compensation claim is appealed, we review only questions of law. § 287.495.1. We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute. Id. We review decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo.App.1995). Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965). Where the evidentiary facts are not disputed, the Commission's award becomes a question of law. Id.

Where decisions are based on determinations of fact, we review the whole record in the light most favorable to the decision. West, 804 S.W.2d at 744. We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Mann v. City of Pacific, 860 S.W.2d 12, 14 (Mo.App.1993). In the absence of fraud, the factual findings made by the Commission within its powers are conclusive and binding. § 287.495.1; Mann, 860 S.W.2d at 14.

When the Commission affirms or adopts the findings of the ALJ, we review the decision and findings of the ALJ as adopted by the Commission. Cole v. Town & Country Exteriors, 837 S.W.2d 580, 583 (Mo.App.1992). When the Commission reverses the findings and award entered by the ALJ, the appellate court engages in a two-step analysis. Davis v. Research Medical Center, 903 S.W.2d 557, 570 (Mo.App.1995):

First, it examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the award is supported by competent and substantial evidence. At this stage, the court may disregard the credibility...