MO LC Denies Award For Compensation From Exposure To Carpal Tunnel Syndrome Hazards

Jefferson City, MO (CompNewNetwork) - Employee is a nurse who contracted carpal tunnel syndrome. She worked for two hospitals; Children's Mercy Hospital (CMH) and Truman Medical Center (TMC).
On April 7, 2005, employee filed her original claim against CMH. This claim is the subject of this award. The Division of Workers' Compensation (Division) assigned Injury No. 02-030979 to this claim. On March 12, 2007, employee (newly represented by counsel) re-submitted the claim against CMH. On April 12, 2007, employee filed an amended claim against CMH. Finally on September 26, 2009, employee filed another amended claim – this time against CMH and TMC. The administrative law judge awarded benefits for this claim.
On April 12, 2007, employee also filed an original claim against TMC. The Division assigned Injury No. 07-030979 to that claim. On September 25, 2008, employee filed an amended claim in Injury No. 07-030979 naming both TMC and CMH as employers. The administrative law judge consolidated Injury No. 07-030979 with the instant claim (Injury No. 02-144321) for purposes of discovery, proceedings, and hearings. On April 21, 2009, the administrative law judge issued a Temporary Award denying benefits in Injury No. 07-030979 on the basis that compensation was awarded in Injury No. 02-144321.
The administrative law judge found CMH liable for benefits in this case. CMH filed an Application for Review alleging, among other things, that the administrative law judge erred in concluding that CMH is liable to employee for workers' compensation benefits because CMH was not the last employer to expose employee to the hazards of the occupational disease.
Pursuant to § 287.430 RSMo, a claim for occupational disease must be filed within two years after the date of injury or death or within two years of payment of some element of compensation: "[N]o proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death,…"
Until August 28, 2005, the two year period did not begin to run until it became "reasonably discoverable and apparent that a compensable injury has been sustained." § 287.063.3 RSMo (2004). The question as to when a compensable injury becomes reasonably discoverable and apparent is a question of fact to be determined by the Commission. Mann v. Supreme Express, 851 S.W.2d 690, 692 (Mo. App. 1993). Under the law in effect before August 28, 2005, the statute of limitations in an occupational disease case starts to run when: (1) an employee is no longer able to work due to the occupational disease; (2) an employee must seek medical advice and is advised that he can no longer work in the suspected employment; or (3) the employee experiences some type of disability that is compensable. Rupard v. Kiesendahl, 114 S.W.3d 389 (Mo. App. 2003), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).
Within this context, a disability is the inability to do something; the deprivation or lack of physical, intellectual, or emotional capacity or fitness; the inability to pursue an occupation or perform services for wages because of physical or mental impairment. Loven, 63 S.W.2d at 284. It is not necessary for an employee to miss work before that employee can recover on an occupational disease claim. Coloney v. Accurate Superior Scale, 952 S.W.2d 755 (Mo. App. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Rather, an employee with an occupational disease is compensably injured when the employee suffers a demonstrated loss of earning capacity, such as an inability to perform various vocational tasks. Loven, 63 S.W.3d at 284-285; Coloney, 952 S.W.2d at 760. Requiring that the harm tangibly affect the employee's earning ability upholds the intent of the Law, which is to provide indemnity for loss of earning power and disability to work. Coloney, 952 S.W.2d at 760.
Generally, such a condition becomes apparent when an employee is medically advised that he or she can no longer physically continue in the work environment. A compensable injury occurs when the disease causes the employee to become disabled and unable to work. Wiele v. National Super Markets, Inc., 948 S.W.2d 142 (Mo. App. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).
An employee is not expected to file a workers' compensation claim until the employee has reliable information that his or her condition is the result of his or her employment. The employee is entitled to rely on a physician's diagnosis of the employee's condition rather than his or her own impressions. This rule is not, however, absolute. Under certain circumstances, it can be foreseen the time should begin to run without having an expert's opinion in the employee's hands. The facts of each case will have to be determined on a case-by-case basis in this uncertain area, all under the existing doctrine of construing the workers' compensation law liberally. Rupard, 114 S.W.3d at 396-397.
Applying the analysis described above, the Labor Commission conclude that as of August 27, 2005, employee had sustained no disability triggering the running of the statute of limitations.
The legislature changed the tolling provision for the filing of occupational disease claims with the 2005 amendments to the Workers' Compensation Law. Beginning August 28, 2005, the two year period begins to run when "it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure,…" § 287.063.3 RSMo (2005). The evidence reveals that employee was aware her carpal tunnel syndrome was related to her nursing duties as of August 28, 2005.
"[T]here is no vested right in the maintenance in force of the statute in effect when the claim accrued. It is possible to shorten the statute of limitations applicable to an existing claim. If any such attempt is made, however, those who have pending and unbarred claims at the time the new statute becomes effective must be afforded a reasonable time within which to file suit." Goodman v. St. Louis Children's Hospital, 687 S.W.2d 889, 891 (Mo. 1985)
"No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions [including] those which have accrued or are pending and future actions." State ex rel. Clay Equipment Corp. v. Jensen, 363 S.W.2d 666, 669 (Mo. 1963).
Applying the principals enunciated in Goodman and Clay Equipment, employee had no vested right in the tolling provision as contained in the previous version of § 287.063. As such, the two year period within which employee could timely file a claim began to run simultaneously with the effective date of the amendment to the tolling provision – August 28, 2005.

In April 2007, employee first filed a claim naming TMC. The claim was assigned Injury No. 07-030979. The April 12, 2007, claim was filed within two years after August 28, 2005. Injury No. 07-030979 was tried with the instant claim. That matter is still pending before the Division because the administrative law judge issued a Temporary Award on April 21, 2009.
In September 2008, employee added TMC to the claim in the instant matter. The attempted amendment is barred by the statute of limitation (statute of extinction) set forth in § 287.430.
Although both claims for compensation allegedly arise from exposure to the hazards of carpal tunnel syndrome, no party has requested that the Labor Commission combine Injury Nos. 02-144321 and 07-030979 into a single claim. If the claims had been combined, the Labor Commission could fully resolve the issues remaining between the parties. Instead, the parties will have to proceed to final award in Injury No. 07-030979 before the Division to determine if employee is entitled to compensation from either employer.
For the foregoing reasons, the Labor Commission reverse the Temporary Award of the administrative law judge issued April 21, 2009 and issue a Final Award denying compensation in the instant claim. 
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