Crabill v. Hannicon

963 S.W.2d 440, 1998 Mo. App. LEXIS 193, 1998 WL 37007
CourtMissouri Court of Appeals
DecidedFebruary 3, 1998
DocketNo. 72683
StatusPublished
Cited by5 cases

This text of 963 S.W.2d 440 (Crabill v. Hannicon) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crabill v. Hannicon, 963 S.W.2d 440, 1998 Mo. App. LEXIS 193, 1998 WL 37007 (Mo. Ct. App. 1998).

Opinion

ROBERT G. DOWD, Jr., Presiding Judge.

Joyce Crabill (Claimant) appeals from the Labor and Industrial Relations Commission’s (Commission) denial of her claim for a [442]*442temporary award.1 Claimant contends the Commission erred: (1) in finding the date of placement on light duty as the date of disability because the record supports a finding medical advice was sought prior to placement on light duty; (2) in finding Hannicon d/b/a Dura Automotive (Hannicon) was not liable in its self-insured phase; and (3) in applying the last exposure rule to deny coverage by Reading Tube (Reading). We affirm.

Claimant was employed, using her hands, on the factory line at Hannicon, from February through October, 1994. She left Hanni-con and began to work at Reading on November 29, 1994, where she used her hands to tighten coils after they came out of the furnace.

Claimant filed applications for temporary awards in three separate work-related claims: (1) against Hannicon on February 2, 1995, listing Management Services (self-insurance) as the insurer, for pain in both wrists from repetitious movement; (2) against Hannicon on February 2,1995, listing Travelers as the insurer, for pain in her right arm and shoulder after a couple of hours of blowing air into hoses; and (3) against Reading on March 14, 1996, listing Zurich American as insurer for pain in both wrists from repetitious movement. On July 30, 1996, a hearing was held on Claimant’s three claims. The following Findings of Fact and Conclusions of Law were made by the Administrative Law Judge (ALJ) and adopted by the Commission:

February 1994 Claimant began employment at Hannicon, which was self-insured for workers’ compensation.
June 17,1994 Claimant first noticed wrist pain, reported it to supervisor, continued to work.
July 22,1994 Claimant reported wrist pain to plant nurse, advised to take medication, continued to work.
August 1,1994 Claimant complained of wrist pain to plant nurse, advised to use ice pack, continued to work.
August 31,1994 Last day Hannicon self-insured.
September 1,1994 Travelers begins as Hannicon’s insurer.
September 9,1994 Claimant experiences shoulder pain.
October 6,1994 Plant nurse places Claimant on light duty.
October 25,1994 Claimant leaves employment at Hannicon.
November 29,1994 Claimant begins work at Reading.
January 15,1996 Claimant first diagnosed with bilateral carpal tunnel syndrome, requiring surgery.

Further, the ALJ found Dr. Christopher Michael Bieniek, witness for Claimant, testified both diabetes and her work at Hannicon contributed to the carpal tunnel syndrome, but her work at Reading did not contribute to the carpal tunnel syndrome. Dr. Cran-dall, witness for Hannicon, was not asked about the work at Reading as a contributing factor to her carpal tunnel syndrome. The ALJ further found a change of insurer is deemed a change in employers for purposes of determining the last exposure liability. Thus, the ALJ found Claimant’s employment at Hannicon must be construed as two dis-tinet periods of employment, with one prior to and one after September 1,1994, the date when Hannicon changed insurers.

The ALJ further found:

In Johnson v. Denton Construction Company, 911 S.W.2d 286 (Mo.1995), the Supreme Court held that: “The 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.” Dr. Bieniek, Claimant’s primary expert witness, did not feel [443]*443that the employment at Reading Tube had any effect on Claimant’s acquisition of bilateral carpal tunnel syndrome. Dr. Bien-iek testified to the occupational hazard at Hannicon, and the causation of the work at Hannicon as causing the carpal tunnel syndrome, but Dr. Bieniek did not differentiate between the work Claimant did at Hannicon prior to September 1, 1994, as opposed to the work done after September 1, 1994. Thus, using the Supreme Court’s rationale in Johnson, the period of employment at Hannicon after September 1,1994, when Travelers was the insurer, would be the period of such last exposure.

The ALJ further found the disability occurs when the employee loses time from work. Thus, the date of disability, according to the ALJ, was October 6, 1994, when the employee was put on light duty, because Claimant had lost no time from work. Therefore, Travelers would be the responsible insurer. However because Claimant never filed a claim against Travelers,2 the ALJ concluded no award can be made against Hannicon, Travelers, or Reading. On appeal, the Commission affirmed.

We review the Commission’s findings of fact in the light most favorable to the Commission. Lococo v. Hornberger Elec., Inc., 914 S.W.2d 67, 68 (Mo.App. E.D.1996). We review questions of law without deference to the Commission. Id.

We address Claimant’s third point first. In her third point, Claimant argues, in the alternative, the Commission erred in applying the last exposure rule to deny coverage by Reading. She argues that Dr. Bieniek’s undisputed testimony is that she was last exposed at Reading. Thus, the doctor’s testimony meets “the requirement of Section 287.063(2) regarding exposure to the hazard of developing occupational disease.” Reading responds that Claimant’s point was not properly before the Commission because she failed to raise the issue in her Application for Review before the Commission. Finally, Reading asserts that Claimant’s third point has not been preserved and is not available for review by this court.

We begin our review by looking to the last exposure rule, Section 287.063, RSMo 1994, which follows:

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

“The 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.” Johnson v. Denton, Const. Co., 911 S.W.2d 286, 288 (Mo.1995). The Johnson court recognized the plain meaning of the statute.

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Cite This Page — Counsel Stack

Bluebook (online)
963 S.W.2d 440, 1998 Mo. App. LEXIS 193, 1998 WL 37007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crabill-v-hannicon-moctapp-1998.