issued by the labor and industrial relations …...january 10 and 24, 2017. the record does not...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge)

Injury No.: 14-106433 Wayne Terry

Rick Shipman Construction, Inc.

Travelers Property Casualty Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480, RSMo. We have reviewed the evidence and considered the whole record. Pursuant to§ 286.090, RSMo, the Commission reverses the award and decision of the administrative law judge.

Preliminaries The parties asked the administrative law judge to address the following issues: 1) the existence of an occupational disease; 2) whether the case is barred by the statute of limitations; 3) whether employee provided sufficient notice to employer; 4) temporary total disability; 5) past medical; 6) nature and extent of injury; 7) future medical; and 8) mileage reimbursement.

The administrative law judge ruled that employee timely filed his claim for the purposes of the statute of limitations. However, the administrative law judge held that employee did not provide sufficient notice to employer of his right-hand injuries.

Employee filed an application for review arguing that he did provide sufficient notice to employer because he informed employer within thirty days of being diagnosed with a work injury to his right hand. Employer did not file an answer to the application for review. The parties did not request to file briefs in this matter.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Findings of Fact While on assignment with employer, employee noticed trigger finger issues with both of his hands. At the time, employee and his supervisor were staying at the same hotel room while on the job. Employee showed his hands to his supervisor and indicated that they were hurting. Employee did not specifically ask for medical treatment regarding either of his hands at that time.

After his separation from employer on November 24, 2014, employee performed carpentry work for another employer for over two years, including building walls, installing ceiling tiles, performing trim work, painting, etc.

In June 2015, employee went to the Veteran's Administration with complaints of bilateral pain and catching of the third, fourth, and fifth fingers of both hands. On June 16, 2015, Dr. John Peterson diagnosed employee with bilateral trigger fingers. Employee proceeded to receive medical treatment for his left hand, including surgery in November 2015. Employee's left hand condition was the subject of a Workers' Compensation matter against employer. Employee filed the claim in connection with his left hand injuries on November 20, 20151, citing an injury date of November 24, 2014. Employee's claim against employer/insurer in Injury Number 14-105560 was resolved via settlement on February 17, 2017.

1 We note that the administrative law judge's decision states November 2, 2015. We take administrative notice that the claim for the left hand was filed on November 20, 2015.

Injury No.: 14-106433 Employee: Wayne Terry

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Employee did not obtain surgery regarding his right hand until December 16, 2016. The December 16, 2016 surgery addressed employee's trigger fingering in his right middle and right ring fingers. After the surgery, the surgeon, Dr. Christopher Leslie, noted that "[t]here was no further triggering." Tr., p. 111.

Dr. Brian Swanson, of Leslie Orthopedics and Sports Medicine, later saw employee on January 10 and 24, 2017. The record does not contain Dr. Swanson's progress notes from those dates. However, Dr. Mitchell Mullins summarized those visits as follows:

1/10/2017 - Leslie Orthopedics & Sports Medicine Brian Swanson, PA Right MF and RF A-1 pulley release 12/16/2016. Hand is doing better but he still has some pain when trying to straighten his fingers out completely. Does not feel he is ready to go back to work. Mild right hand swelling. Mild tenderness to palpation around incision. No obvious triggering noted. Sutures removed. Keep incision dry for 48 hours. Continue off work.

1/24/2017 - Leslie Orthopedics & Sports Medicine Brian Swanson, PA Followup. Hand and fingers are doing very well. Does have a little stiffness and soreness in the hand and fingers. Scheduled to return to work in February and feels he is ready. Mild swelling right hand. Mild tenderness to palpation around the incision. No obvious triggering noted. Released to return to work on 2/5/2017. Okay to use the hand as tolerated. Continue with AAT. Follow up as needed.

Tr., p. 103. We find that employee was unable to work from the date of the surgery on December 16, 2016 through February 5, 2017.

Employee filed this claim regarding his right-hand trigger fingers on March 15, 2017, with an injury date of November 23, 2014. Employee claims $15,666.00 in past medical expenses, including the surgery on December 16, 2016, and $206.00 in mileage expenses in order to travel to his medical appointments. Although the surgery was performed through the Veteran's Administration, there is no evidence that the Veteran's Administration waived its right to place a lien on any compensation awarded to pay for its expenses on employee's behalf, or otherwise that employee's liability in connection with this treatment has been extinguished.

On April 18, 2017, employee saw Dr. Mitchell Mullins for an examination and evaluation. At that visit, employee complained of daily pain in his right hand, cramping at night in his fingers, and very stiff fingers that caused "significant pain trying to straighten the fingers." Tr., p. 70. Employee also indicated to Dr. Mullins, that "[p]ostoperatively, he has not done as well as he did with the left hand. He describes pain with extension of his middle and ring finger and the development of triggering with his left thumb." Tr., p. 77.

In his evaluation report, Dr. Mullins indicated that employee's right-hand injuries were sustained as a result of his work for employer and stated:

It is my opinion the strenuous repetitive work done while at [employer] on or before 11/23/2014 was the prevailing factor causing stenosing tenosynovitis to the right hand and multiple digits and the subsequent Dupuytren's contracture.


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Tr., p. 78. This was the first time employee received an official diagnosis that his right hand trigger fingers were work-related.

Although Dr. Mullins did not find that employee was at maximum medical improvement, he rated employee's right hand at 42% permanent partial disability, "due to the multiple digits involved with persistent triggering at the thumb, and development of an early Dupuytren's contracture." Id. Dr. Mullins stated that his rating was based on how employee was that day and "assumes no other care is provided. Should further care be provided, this rating may change." Id. Dr. Mullins suggested that employee receive steroid injections in his thumb and possibly in his right ring finger and middle finger. If that treatment did not resolve employee's issues, Dr. Mullins suggested further surgery.

There is no evidence in the record that employee obtained further treatment for his right hand after his December 16, 2016 surgery. At employee's deposition on June 7, 2017, employee did not have any scheduled appointments with Dr. Leslie to discuss the treatment Dr. Mullins recommended; employee stated that he was waiting for the Veteran's Administration to set up the appointment.

On September 5, 2017, employer's expert, Dr. Michael Hall, performed an independent medical examination. During that examination, Dr. Hall opined that employee was malingering. However, Dr. Hall also opined as follows, "I am giving him the benefit of doubt stating this particular job is the prevailing factor for his need for surgical treatment of his trigger fingers." Tr., p. 197. Dr. Hall did not provide any rating, but stated, "I know for sure he does not have a 42% disability of a hand." Id. Dr. Hall also found "[n]o evidence of dupuytren's disease." Tr., p. 196.

Dr. Hall noted that employee could still work 12-hour days as a trim carpenter. Dr. Hall stated that such work required "nearly all the same tools[,] but at a slower speed; he uses hammers, nail guns, and saws." Id. Dr. Hall ended his report, concluding, "[w]ith a benefit of doubt, I do believe his job is the prevailing factor for why he required surgical intervention for multiple trigger fingers. However, it is not responsible for any future medical care under this claim." Tr., p. 198.

While Dr. Hall did not provide a rating of permanent partial disability, he did indicate that employee was at maximum medical improvement by stating the following in his report:

I know for sure he followed up two times after his surgery with Dr. Leslie because I called that physician. Dr. Leslie last saw him on January 24th and he documented [employee] told him he was doing great and did not think that he had any issues. Dr. Leslie did not think there would be any need for the gentleman to come back.

Tr., p. 197 (emphasis in original). Regardless on the truth or falsity of what Dr. Hall heard from Dr. Leslie, Dr. Hall implied that employee reached maximum medical improvement by January 24, 2017, and that there was no more need for further treatment at that time.

With regard to the issue of when employee reached maximum medical improvement, we find that Dr. Hall was more persuasive in his report than Dr. Mullins. Therefore, we conclude that employee's maximum medical improvement date was on January 24, 2017.

Later, on April 19, 2018, Dr. Hall wrote a letter to employer's counsel, which stated as follows, in pertinent part:


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As I stated, [employee's] trigger fingers and only the trigger fingers are secondary to [employee's] job at [employer]. His multiple complaints he expressed to me on September 5, 2017 have nothing to do with his job at [employer]. To make it absolutely clear again, all of his complaints and whatever treatment if any that could be done for them are not [employer's] responsibility because the prevailing factor is not [employer].

Any questions or concerns regarding this feel free to contact me.

Tr., p. 193, (emphasis in original).

We find Dr. Hall's opinion persuasive that employee's work with employer was the prevailing factor for employee's trigger finger condition regarding his right middle and right ring fingers. We also find, that the December 16, 2016 surgery was reasonably required to cure and relieve the effects of employee's right-hand trigger finger injury.

With regard to permanent partial disability, given that Dr. Hall did not rate any permanent disability, we infer that he believed there was none. We further do not find persuasive Dr. Mullins's rating of 42% permanent partial disability regarding employee's right-hand because Dr. Mullins's rating included employee's thumb. More importantly, Dr. Mullins made clear this rating was based on how employee was the day of his examination, assuming no future treatment. Dr. Mullins then opined that employee was not at maximum medical improvement and that he needed more treatment, including possibly surgery.

Employee did not provide testimony to explain his choice to proceed to a hearing where he alleged and sought an award of permanent partial disability, where his own expert opined that he needed more treatment, including surgery. We do not accept employee's implied invitation to award what strikes us as a truly excessive amount of permanent partial disability benefits based on a specifically conditional rating provided by a doctor who was urging that employee seek more treatment to improve his permanent level of disability. Nor are we inclined to enter a temporary award, given that the parties have not requested same, and where we have found that employee has reached maximum medical improvement.

Given that we cannot use the rating from Dr. Mullins, and given that Dr. Hall's opinion was overall more persuasively specific to employee's occupational disease as claimed and as addressed by the December 16, 2016 surgery, we deem it appropriate to adopt Dr. Hall's opinion that employee suffers 0% permanent partial disability referable to this injury. We so find.

We also find persuasive Dr. Hall's opinion that employee's work with employer was not the prevailing factor causing the resulting medical condition(s) encompassed by employee's subsequent complaints about trigger fingering in his thumb, or employee's claim that he developed new complaints of pain after he recovered from the December 16, 2016 surgery. We do not find credible employee's testimony that his conditions after January 24, 2017, were related to his November 23, 2014, right-hand trigger finger occupational disease. We further find persuasive the testimony of Dr. Hall, that no future medical treatment is reasonably required to cure or relieve the effects of employee's November 23, 2014, right-hand trigger finger occupational disease after January 24, 2017.

Employee: Wayne Terry

Conclusions of Law Notice

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Section 287.420, RSMo, provides, in pertinent part:

Injury No.: 14-106433

.... No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

The court in Allcorn v. Tap Enterprises stated:

This statute has six requirements that must be met by a claimant to notify his employer of an occupational disease or repetitive trauma: (1) written notice, (2) of the time, (3) place, and (4) nature of the injury, and (5) the name and address of the person injured, (6) given to the employer no later than thirty days after the diagnosis of the condition.

Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009). Employee's claim filed on March 15, 2017, meets all of the notice requirements.

Regarding the timing of the notice, the court in Allcorn held that the thirty-day clock does not per se start at the time of the initial diagnosis of the underlying medical condition.

Looking to the plain, obvious, and natural import of the language, it follows that a person cannot be diagnosed with an "occupational disease or repetitive trauma" until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure.

Id., at 829. Following the guidance from the Allcorn decision, we conclude the 30-day notice period commenced on April 18, 2017, when employee was officially diagnosed by Dr. Mullins that his right-hand condition was work-related.

The administrative law judge did not find that the April 18, 2017 date was the date upon which the thirty-day notice obligation was triggered because, in part, employee filed his claim for benefits on March 15, 2017, or a month prior to the diagnosis that the right-hand injury was work-related. The administrative law judge held that, "unless [employee] intentionally filed a frivolous claim, it was reasonably discoverable and apparent that he had sustained a workrelated injury prior to Dr. Mullins rendering the causation opinion." Award, p. 11, n.5. The administrative law judge appears to have referenced the "reasonably discoverable and apparent" analysis for statute of limitations purposes into his analysis of the notice issue.

In any event, the Allcorn court dismissed this particular line of reasoning by stating that a claim may serve as notice prior to a diagnosis of causation "because the statute does not require that the notice be given after the diagnosis, but only that it be given 'no tater than thirty days after the diagnosis of the condition."' Id., at 829 (emphasis in original). Therefore, following Allcorn, we conclude that employee's March 15, 2017 claim constituted proper notice pursuant to § 287.420, RSMo.


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Judicial Estoppel The administrative law judge raised, sua sponte, the issue of judicial estoppel and concluded that employee took inconsistent positions in two different proceedings by indicating a different date of injury in his claims for his left and right-hand injuries. The administrative law judge relied on Vacca v. Mo. Dep't of Labor & Indus. Reis., 575 S.W.3d 223 (Mo. 2019). 2 In our view, the administrative law judge's conclusions and commentary regarding judicial estoppel are unfounded because judicial estoppel is a doctrine of equity; the Division of Workers' Compensation and this Commission do not have general jurisdiction over equitable questions; and (perhaps most importantly) employee's assignment, in his claims for compensation, of different dates of injury for his right and left hand injuries are not necessarily contradictory positions where there are various competing authorities on what constitutes the proper date of injury in an occupational disease claim.

Accordingly, we deem it necessary, and we do hereby, disclaim the administrative law judge's commentary and conclusions with regard to the topic of judicial estoppel.

Existence of Occupational Disease and Medical Causation Section 287.067, RSMo, provides, in pertinent part, (emphasis in original):

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

2. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-today living shall not be compensable.

3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual

2 In Vacca, the Mo. Supreme Court held that judicial estoppel applied where the appellant had different judicial matters that contradicted with each other. For example, the appellant "was able to successfully convince the court overseeing the dissolution of his marriage to initially award maintenance due to his disability." Vacca, 575 S.W.3d at 225. The appellant also applied for and received long-term disability benefits. However, inconsistent with his application for long-term disability benefits, the appellant in Vacca argued in circuit court in a retaliation claim that he could have continued to work as an administrative law judge for twenty years. The Supreme Court held that the circuit court should have invoked judicial estoppel because of the two inconsistent positions in the different judicial proceedings.


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deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

"In order to support an award in a claimant's favor '[g]enerally, a claimant's medical expert in an occupational disease case must establish the probability that the disease was caused by conditions in the work place[,]' and '[t]here must be medical evidence of a direct causal connection between the conditions under which the work is performed and the occupational disease."' Henley v. Fair Grove R-10 Sch. Dist., 253 S.W.3d 115, 128 (Mo. App. 2008) (quoting Dawson v. Associated E/ec., 885 S.W.2d 712, 716 (Mo. App. 1994)). "'A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause."' Vickers v. Mo. Oep't of Pub. Safety, 283 S.W.3d 287, 292 (Mo. App. 2009) (quoting Jacobs v. City of Jefferson, 991 S.W.2d 693, 698 (Mo. App. 1999)).

We found the opinion of Dr. Hall persuasive that employee's work with employer was the prevailing factor for his trigger finger condition regarding his right middle and right ring fingers. 3

We conclude that employee's particular work with employer was the prevailing factor causing the occupational disease of triggering in his right middle and right ring fingers and that such occupational disease arose out of and in the course of his employment, requiring surgical treatment and a period of temporary total disability.

Past Medical and Mileage Employee claims $15,666.00 in past medical expenses, including the surgery on December 16, 2016, and $206.00 in mileage expenses in order to travel to his medical appointments. Having determined that employee suffered a compensable occupational disease, and having also found that the December 16, 2016 surgery was reasonably required to cure and relieve the effects of employee's right-hand trigger finger injury, we conclude that such medical costs, including mileage, are compensable.

Employee is entitled to, and employer/insurer is hereby ordered to pay, $15,666.00 in past medical expenses and $206.00 in mileage expenses.

Temporary Total Disability We found that employee was unable to work from the date of the surgery on December 16, 2016 through February 5, 2017.

Awards of temporary total disability are intended to cover healing periods. These awards are payable until the employee is able to find some employment or until the employee's condition "has reached the point where further progress is not expected."

Vinson v. Curators of Univ. of Mo., 822 S.W.2d 504, 508 (Mo. App. 1991) (quoting Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. 1955)).

Employee is therefore entitled to, and employer/insurer is hereby ordered to pay, temporary total disability benefits for the period from December 16, 2016 through February 5, 2017, in the amount of $5,801.33 for 7 and 3/7ths weeks at a weekly rate of $781.85.

3 See Wright v. Sports Associated, 887 S.W.2d 596 (Mo. 1994) (Cautious or indefinite expert testimony on medical causation combined with lay testimony can provide sufficient competent evidence to support causation of injury." Wright, 887 S.W.2d at 600 (citing Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364, 367 (Mo. bane 1987)).


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Nature and Extent We have credited the opinion from Dr. Hall that employee did not suffer any permanent partial disability. It follows, therefore, that we award no permanent partial disability benefits to employee in connection with this claim.

Future Medical Again, we found persuasive the testimony of Dr. Hall, who determined that no future medical treatment was reasonably required to cure or relieve the effects of the right-hand trigger finger injuries after January 24, 2017. Accordingly, we deny any claim for future medical.

Award We reverse the award and decision of the administrative law judge. We conclude that employee suffered a compensable injury by occupational disease arising out of and in the course of his employment.

Employer is liable for $15,666.00 in past medical expenses and $206.00 in mileage.

Employer is also liable for temporary total disability benefits at the weekly rate of $781.85 for 7 and 3/7ths weeks, or a total of $5,801.33.

Employer is not liable for future medical expenses or other compensation.

This award is subject to a lien in favor Jonathan B. Pitts, Attorney at Law, in the amount of 25%, for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of administrative law judge Kenneth J. Cain, issued May 9, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this r/l 7fn day of December 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~ ~:;;e? Robert W. Cornejo, Ctta\'rman

DISSENTING OPINION FILED Reid K. Forrester, Member

Attest:

~M-~/M-secretary


DISSENTING OPINION

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed as supplemented herein.

I find that Dr. Michael Hall's concession in finding that employee's work was the prevailing factor in causing his trigger fingering, requiring surgery, is not supported by the remainder of his report and, therefore, is not persuasive. Dr. Hall's concession appears to have been only reluctantly given. Dr. Hall gave employee "the benefit of doubt." Otherwise, Dr. Hall stated that he had "reservations about the cause of [employee's] trigger fingers." Tr., p. 197. Dr. Hall continued,

Id.

I know he's been a carpenter for at least 2 decades. I know he has used his hands enough over that time to develop arthrosis in the closest joints to the pathology responsible for trigger fingers. It seems convenient that trigger fingers developed on a job which he performed for maybe 2 1/2 years. I am seeing him after he's been working at his new job almost two years.

Dr. Hall's reservations regarding medical causation supports a finding that employee's work was not the prevailing factor in causing employee's trigger fingering. Dr. Hall's failure to provide a disability rating is further in line with his reservations. Therefore, the majority opinion's reliance on Dr. Hall's concession is unfounded.

I would affirm the administrative law judge's award denying benefits because employee did not establish that his work was the prevailing factor causing his trigger fingering in his right-hand middle and ring fingers. Because the Commission majority has decided otherwise, I respectfully dissent.

Issued by Division of Workers' Compensation Employee: Wayne Terry Injury No. 14-106433

Employee:

Dependents:

Employer:

Insurer:

FINAL AWARD

Wayne Terry

NIA



Additional Party: NI A

Hearing Date:

Briefs Filed:

March 6, 2019

April 5, 2019

Injury No. 14-106433

Checked by: KJClpd

FINDINGS OF FACT AND RULINGS OF LAW

I. Are any benefits awarded herein? No.

2. Was the injury or occupational disease compensable under Chapter 287? No.

3. Was there an accident or incident of occupational disease under the Law? See additional findings of fact and rulings oflaw.

4. Date of accident or onset of occupational disease: alleged November 23, 2014

5. State location where accident occurred or occupational disease was contracted: alleged Kansas City, Jackson County, Missouri

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

7. Did employer receive proper notice? No.

8. Did accident or occupational disease arise out of and in the course of the employment? See additional findings of fact and rulings of law.

9. Was Claim for Compensation filed within time required by Law? Yes. See additional findings of fact and rulings oflaw.

10. Was employer insured by above insurer? Yes.

11. Describe work employee was doing and how accident occmTed or occupational disease contracted: Employee alleged that while in the course and scope of his employment as a laborer/carpenter for

1


Rick Shipman Construction, Inc., he had to do hand intensive and repetitive work. He alleged that he developed trigger fingers on his right hand due to perfonning the work.

12. Did accident or occupational disease cause death? No. Date of death? NIA.

13. Pa1t(s) of body injured by accident or occupational disease: Alleged trigger fingers on his right hand.1

14. Nature and extent of any pennanent disability: NI A. (See additional findings of fact and rulings of Law).

15. Compensation paid to-date for temporary disability: None.

16. Value necessaty medical aid paid to date by employer/insurer? None.

I 7. Value necessa1y medical aid not furnished by employer/insurer? None.

18. Employee's average weekly wages: $1,172.78 per week

19. Weekly compensation rate: $781/85/451.02

20. Method wages computation: By agreement.

COMPENSATION PAYABLE

21. Amount of compensation payable:

Unpaid medical expenses: None. Weeks for permanent pa1tial disability: None. Weeks for temporaty total (temporaty pattial disability): None. Weeks for pennanent total disability: None.

22. Future requirements awarded: None.

TOTAL: None.

Said payments to begin as of N/ A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount ofN/A of all payments hereunder in favor of the following attorney for necessaty legal services rendered to the claimant: Mr. Jonathan Pitts

1 Claimant's medical records showed that he was diagnosed with trigger fingers involving the third, fourth and fifth

digits of his right hand on June 16, 2015. He was diagnosed on the same date with trigger fingers involving the

same three digits of his left hand. He filed a claim for compensation for his left hand injuries on November 2,

2015. He filed a claim for compensation for his right hand injuries on March 15, 2017. That was a month after he

settled his case involving his left hand.

2


Employee:

Dependents:

Employer:

Insurer:

FINDINGS OF FACT and RULINGS OF LAW

WayneTe1Ty

NIA



Injury No. 14-106433

Additional Patty: NIA

Hearing Date:

Briefs Filed:

March 6, 2019

April 6, 2019

Checked by: KJC/pd

Mr. Wayne Te!Ty (hereinafter refe1Ted to as Claimant) filed a claim for compensation on November 2, 2015 alleging that he developed left trigger fingers due to hand intensive and repetitive work for his employer, Rick Shipman Construction, Inc. He alleged an injury date of November 24, 2014. That was the last day he worked for the company. He settled that case on February 17, 2017.

On March 15, 2017, Claimant filed another claim for compensation alleging that he

developed right trigger fingers due to hand intensive and repetitive work for the same employer. He alleged an injury date ofNovember 23, 2014 for his right trigger fingers.

Prior to the hearing in his case involving his right trigger fingers, Claimant and his employer entered into various admissions and stipulations. The remaining issues were as

follows:

I. Whether the employee sustained a repetitive motion injury/and or occupation disease;

2. Whether the claim was filed prior to the expiration of the limitation period in the case;

3. Whether the employee provided his employer with timely and proper notice of the alleged repetitive motion injury/and or occupational disease;

4. Liability of the employer for 7 3/7 weeks of temporary total disability benefits in the amount of $5,801.33 covering the period, December 16, 2016 to February 5, 2017;

5. Liability of the employer for past medical aid in the amount of$15,666; 6. The nature and extent of the disability sustained by the employee; 7. Liability of the employer for future medical aid; and 8. Liability of the employer for $206 for mileage reimbursement.

3


At the hearing, Claimant testified that he was born on July 27, 1953 and that he was 65

years old. He stated that he attended a junior college for two years. He also stated that he

served in the Army and received an honorable discharge.

Claimant testified that he worked for Rick Shipman Construction, Inc., from 2011 to the

end of 2014. He stated that his job title for the company was laborer/carpenter. He stated that while working for the company he sustained injuries to his right shoulder and both hands. He stated that the injuries to his hands involved trigger fingers.

Claimant testified that he settled his right shoulder and left trigger fingers injuries in February 2017 for approximately $59,000. He testified that the date for his right trigger fingers injury was November 23, 2014. He stated that his bilateral trigger fingers impainnent resulted

from repetitive activities he performed for his employer on a job at Sam's.

Claimant described the job as a "big" remodeling project. He stated that he was working about 12 hours per day for 6 days per week. He stated that the job lasted 6 or 7 months. He stated that the job involved hanging drywall and required him to remove and install screws and to lift and install the drywall. He stated that his right ring and middle fingers began to catch.2

Claimant testified that after the Sam's job he worked on two other construction jobs where he did repetitive hand intensive work. He stated that he used shears to cut laminate for counter tops. He stated that he had to do demolishing work. He stated that he had to tear out the

old drywall to install new drywall.

Claimant testified that he told Rick Martin, his roommate, that his right hand was hurting in their hotel room. He stated that he showed Mr. Martin that his hand was clicking. He stated

that Mr. Martin was a supervisor for the company.

Claimant testified that he saw Dr. Mullins on April 18, 2017. He stated that no doctor had told him that his right hand complaints were work related prior to that date. He admitted, however, that he had received medical treatment at the VA in January 2015 with complaints of pain in his right biceps and right thumb. He also admitted that he had X-rays of his right hand in

March 2015 at the VA.

2 Claimant's evidence showed that he complained that the fingers on his left hand also began to catch at that time.

4


Claimant acknowledged that in July 2015 he complained to Dr. Peterson at the VA of bilateral hand pain. He testified that he had left trigger fingers releases in September 2015.3 He stated that he had his right trigger fingers releases on December 16, 2016.

Claimant admitted that he last worked for Rick Shipman on November 24, 2014. He

stated that he worked for Zemco from March 2016 to May 2016. He stated that he worked for Sharmock Builders from May 2016 to October 2018. He admitted that his job duties at

Shamrock were nearly identical to those at Rick Shipman Construction. He admitted that on both jobs he hung drywall and dropped ceilings. He admitted that he used power tools. He admitted that he did a lot of lifting, gripping, screwing and unscrewing, and cutting drywall. He admitted that he used a screw gun. He admitted that he believed that those activities caused his trigger fingers.

Claimant admitted that he did not ask Rick Shipman Construction to provide any treatment for his right trigger fingers. He stated that he did not do so, because when he had

earlier done so for his right shoulder complaints, his employer told him to talk to his attorney.

Claimant complained of continuing problems with his right hand. He complained of aching, soreness and numbness as well as a diminished grip. He complained of difficulty in holding things. He stated that his hand was "contracted".

Finally, Claimant identified his medical bills for treatment of his right trigger fingers. He stated that the bills totaled $15,666. He stated that although the VA paid for his medical treatment, his liability had not been extinguished. He also stated that he was seeking $206 in mileage reimbursement.

On cross-examination, Claimant admitted that he had filed a claim for compensation for his alleged left hand trigger fingers injuries on November 2, 2015. He stated that he alleged an injury date of November 24, 2014 for his left trigger fingers. He admitted that November 24, 2014 was the last day he worked for Rick Shipman Construction.

Claimant admitted that when he settled his case involving his left trigger fingers in February 2017, he was told that as a result of the settlement he would not receive any additional compensation for his alleged left trigger fingers injury with an injury date of November 24,

2014. He admitted, however, that a month after the settlement he filed a new claim alleging that he had also sustained right trigger fingers injuries, but substituted November 23, 2014 for November 24, 2014 as the injury date in his new claim.

3 Dr. Mullins' records stated that Claimant had left trigger fingers release surgery on August 5, 2015.

5

Issued by Division of Workers' Compensation

Employee: Wayne Terry Injury No. 14-106433

Claimant reiterated that he did the same type of hand intensive repetitive work for his

subsequent employers, Zernco and Shamrock, as he had done for Rick Shipman. He admitted

that he did not give notice of his alleged right trigger fingers injury to Rick Shipman

Construction. He admitted that when he allegedly showed his hand to Rick Martin, his

roommate, he did not tell Mr. Martin that he was alleging a work-related hand impairment or that

he needed to see a doctor. He admitted that he did not ask his employer for any treatment for his right fingers.

Claimant admitted that he did not provide his employer with the X-rays of his right hand taken at the VA in March 2015. He admitted that the VA doctors told him in 2015 that he

needed surgery on both hands due to his trigger fingers. He admitted that he elected to have the

surgery on his left hand first. He admitted that he waited until December 2016 for his surgery on his right hand and during the 16 months between his left and right hand surgeries, he did hand

intensive repetitive work on his job for Shamrock Construction. He admitted that no doctor had

recommended any surgery on his right hand prior to November 24, 2014 when he last worked for Rick Shipman Construction.

Medical Evidence

Mitchell C. Mullins, D.O., wrote a report for Claimant. He noted that he examined

Claimant on April 18, 2017. Claimant had filed his claim for compensation alleging right trigger

fingers injuries on March 15, 2017.4 Dr. Mullins noted that Claimant had X-rays of his right hand at the VA in March 2015.

Dr. Mullins also noted that Claimant's medical records showed that Claimant saw John

Peterson, M.D., at the VA in June 2015 with complaints of bilateral pain and catching of the

third, fourth and fifth fingers of both hands. He noted that Dr. Peterson diagnosed Claimant on

June 16, 2015 with trigger fingers of the third, fourth and fifth fingers of both hands.

Dr. Mullins noted that Claimant had trigger finger releases of his left middle, ring and little fingers on August 5, 2015. He noted that on December 16, 2016 Claimant had an Al pulley release of his right middle and ring fingers.

4 Claimant argued that the statute of limitations did not begin to run in his case until he was told by a doctor that

his right trigger fingers were work-related. He filed his claim, however, prior to when Dr. Mullins examined him

and according to Claimant told him for the first time that his right trigger fingers were work-related. Similarly, he

filed his claim for compensation for his left trigger fingers on November 2, 2015, prior to when Dr. Mullins

examined him and wrote a report in that case.

6



Dr. Mullins noted that Claimant repo1ied that his right hand had not done as well as his left hand. He noted that Claimant still had some contractw-e of his right ring finger and

triggering of his right thumb.

Dr. Mullins noted Claimant's complaints. He noted that on examination Claimant's right ring finger showed development of an early Dupuytren' s contracture. He noted that Claimant

had constant triggering of his right thumb with any flexion-extension. He noted that Claimant's

grip was 55 pounds on the right and 90 pounds on the left. He noted that Claimant was right

hand dominant.

Dr. Mullins diagnoses were as follows:

1. Stenosing tenosynovitis of the right middle and ring fingers and thumb, 2. Status post Al pulley release of the right middle and ring finger, 3. Persistent right thumb trigger finger, and 4. Dupuytren's contractw-e of the right hand and ring finger.

Dr. Mullins concluded that Claimant's "strenuous repetitive work done while at Rick Shipman Construction on or before 11/23/2014 was the prevailing factor causing stenosing tenosynovitis to the right hand at multiple digits and subsequent Dupuytren's contracture." He also concluded that Claimant had sustained a 42 percent pe1manent paiiial disability to his hand. He stated that the treatment Claimant had received was fair, reasonable and necessary and that Claimant would require future care involving "possibly" a steroid injection in his thumb and

"possibly" an Al pulley release.

Claimant's Medical Records

Claimant's medical records showed that in June 2015 he told his doctor that he wanted his left hand surgery done first. His radiology report dated June 18, 2015 showed that Claimant

provided a two-year history of"worsening" pain in the third, fomih and fifth fingers of both

hands.

On December 15, 2015, Dr. Leslie at Orthopedics & Spmis Medicine noted that Claimant complained that his right middle and ring fingers were locking and that he could no longer straighten his middle finger. Dr. Leslie's assessment was trigger fingers of the right middle and

ring fingers.

On December 16, 20 I 6, Dr. Leslie did surgery on Claimant's right hand for the trigger fingers. On January 24, 2017, he noted that Claimant was doing "very" well and that Claimant

only had a little stiffness and soreness of his hand and fingers.

7


Employer's Medical Evidence

In an April 29, 2018 letter, Michael Hall, M.D., a hand and upper extremity specialist with Encompass Medical Group, rendered his opinions in the case. In an earlier letter, Dr. Hall had stated that he did on average about 3,000 upper extremity examinations and 400 surgeries per year. He stated that conservatively he had performed over 28,000 procedures over his 25 years of practice. He stated that he was "well versed" in workers' compensation cases.

Dr. Hall concluded in his April 2018 letter that Claimant's trigger fingers were related to Claimant's work. He stated that giving Claimant "the benefit of the doubt" Claimant's work for Rick Shipman Construction was the prevailing factor for Claimant's need for surgical intervention for trigger fingers. He stated, however, that Claimant's impairment was not 42 percent as concluded by Dr. Mullins. He stated that he had spoken with Dr. Leslie, Claimant's hand surgeon, who indicated that Claimant had reported that he was doing "great" after the surgery and that Dr. Leslie did not believe that Claimant had any "issue." Dr. Hall concluded that Claimant did not need any additional medical treatment due to any injury Claimant sustained on the job with Rick Shipman Construction

Finally, Dr. Hall concluded that Claimant's work at Rick Shipman Construction was not the prevailing factor in causing the numerous other complaints Claimant relayed to him. He concluded that Claimant was malingering. He indicated that he based that opinion on the results from Claimant's grip strength testing.

Law

After considering all the evidence, including the medical reports and records, the other exhibits, Claimant's testimony, and after observing his appearance and demeanor, I find that he filed his claim for compensation on a timely basis. I also find, however, that he did not provide timely or proper notice of his alleged repetitive motion injury/occupational disease. He further failed to prove a lack of prejudice based on his failure to provide timely or proper notice. Thus, his claim must be denied based on his employer's notice defense as set out in the statute.

Burden of Proof

Claimant had the burden of proving all material elements of his claim. Fischer v. Arch Diocese of St. Louis - Cardinal Richter Inst., 703 SW 2nd 196 (Mo .App. E.D. 1990); overruled on other grounds by Hampton vs. Big Boy Steel Erections, 121 SW 3rd 220 (Mo. Banc 2003); Griggs v. A.B. Chance Company. 503 S.W. 2d 697 (Mo. App. W.D. 1973); Hall v. Country Kitchen Restaurant, 935 S.W. 2d 917 (Mo. App. S.D. 1997); ove1rnled on other grounds by Hampton.

8


His employer had the burden of proof on the affirmative defense of notice. Once Claimant's employer, however, met its burden of proving that Claimant did not provide timely or

proper notice of his alleged repetitive motion injury/occupational disease, the burden shifted to Claimant to prove that his employer was not prejudiced by his failure to provide timely and proper notice. See Aramark v. Faulkner, 408 S.WJd 271 (Mo. App. E.D. 2013); Pursifull v. Braun

Plastering & Drywall, 233 S.WJ rd 219 (Mo. App. W.D. 2007); Soos v. Mallincrodt, Chemical Co., 19 S.W.3 rd 683 (Mo. App. E.D. 2000); Klopstein v. Schroll House Moving Co., 425 S.W. 3d 498 (Mo. App. 1998).

Claimant did not prove that his employer was not prejudiced by his failure to provide timely and prnper notice of his alleged repetitive motion injury/occupational disease. Therefore, his claim must fail on that basis.

Whether the Limitation Period had Expired Prior to the Filing of the Claim for Compensation

The applicable statute pertaining to the limitation period provides as follows:

287.430. Limitation as to action, exception. - Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefore 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, except that if the report of the i11iury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death. The filing of any form, report, receipt, or agreement, other than a claim for compensation, shall not toll the running of the periods of limitation provided in this section. The filing of the repo1i of injury or death three years or more after the date of injury, death, or last payment made under this chapter on account of the injury or death,

shall not toll the running of the periods of limitation provided in this section, nor shall such filing reactivate or revive the period of time in which a claim may be filed. . . . The statute of limitations contained in this section is one of extinction and not ofrepose.

§ 287.430 RSMo. 2005

The limitation period for repetitive motion injuries and or occupational diseases is the

same as the period for all other injuries. The applicable statutes pe1iaining to repetitive motion injuries and occupational diseases provide as follows:

287.067. Occupational disease defined - repetitive motion, ...

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I. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. ...

2 .... The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability ..

3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.

§ 287.067 RSMo. 2005.

The statute oflimitations in occupational disease cases provides as follows:

287.063. Occupational diseases, presumption of exposure - last employer liable - statute oflimitations, starts running, when ...

3. The statute of limitation refen-ed to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, (emphasis added)

§ 287.063 RSMo. 2005

In addition, the Missouri statutes at§ 287.800 RSMo. 2005 provides as follows:

287.800. Law to be strictly construed. -

I. Administrative law judges, ... the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly .... (emphasis added)

2. Administrative law judges, ... the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impaitially without giving the benefit of the doubt to any paity when weighing evidence and resolving factual

conflicts.

§ 287.800 RSMo. 2005.

Thus, a claim for compensation as to an employer must be filed within 2 years of the date of injury or the last payment made under "this chapter" on account of the injury. If a timely repmt

10



of injury is not filed by the employer, the limitation period is extended by one year. The report of injury must be filed within 30 days of notice ofan injury. See§ 287.380 RSMo. 2005.

The evidence showed that Claimant's employer received notice of Claimant's alleged right trigger fingers injuries on the date it received a copy of Claimant's claim for compensation in the case. Claimant filed his claim for compensation on March 15, 2017, alleging an injury date of November 23, 2014. Claimant's employer electronically filed its report of injury on March

27,2017.

Thus, Claimant's employer timely filed its report of injury. The evidence also showed that Claimant's employer made no payments in the case on account of the injmy. Therefore, because Claimant's "injury" involved an alleged repetitive motion injury or occupational disease, Claimant had two years from the date it became reasonably discoverable and apparent that he had sustained an "injury" to file his claim for compensation.

Also, contrary to Claimant's argument, reasonably discoverable and apparent does not require a diagnosis in every case. 5 If the legislature had intended for the standard to be

5 Claimant argued that the statute did not begin to run in his case involving his right trigger fingers until April 18,

2017 when Dr. Mullins, the D.O. he chose to perform an independent medical examination, rendered a causation

opinion. That argument was without merit. That argument does not address the "reasonably discoverable and

apparent" standard as set out in the statute. That argument places when the statute of limitations begins to run

entirely in the hands of the injured worker. That argument defeats the purpose of statute of limitations in our

legal system.

Furthermore, that argument contradicts the facts in Claimant's case. As noted above, Dr. Mullins rendered his

causation opinion on April 18, 2017. Yet, Claimant had filed his claim for compensation alleging causation for his

right trigger fingers a month earlier, on March 15, 2017. Thus, unless Claimant intentionally filed a frivolous claim,

it was reasonably discoverable and apparent that he had sustained a work-related injury prior to Dr. Mullins

rendering the causation opinion.

The reasonably discoverable and apparent standard as set out by the legislature in the statute is in keeping with

the purposes of statutes of limitations laws in this country. Statutes of limitations laws are designed to protect the

rights of defendants. Statutes of limitations laws are designed to insure that anyone who brings a cause of action

does so with "reasonable" diligence. Statutes of limitations laws are designed to protect defendants from having

to defend stale cases where evidence may have been destroyed and where the defendants may not be able to

present a proper defense.

For example, under Claimant's unsupported theory, an employee could quit a job in 2019 where he did repetitive

work. In 2029, the employee could file a viable claim against his employer from 2019, on the basis that 2029 was

the first time a doctor diagnosed his trigger fingers or carpal tunnel syndrome and told him that it was caused by

his repetitive work activities ten years earlier. The Missouri workers' compensation statutes do not support that

theory. That theory does not require an employee to act with "reasonable diligence". That theory is without

merit.

11


"diagnosis" in every case, it could have set out such language in the statute. The legislature chose the phrase "reasonably discoverable and apparent" that an injury had been sustained as the standard for determining when the statute begins to run. The statute must be strictly construed.

Id.

Reasonably discoverable and apparent that an injury has been sustained requires a reasonable person standard. Reasonably discoverable and apparent that an injury has been sustained must be determined on a case-by-case basis. Reasonably discoverable and apparent is not based strictly on when an employee alleges that he discovered the condition or injury. It is when an injury would have been reasonably discoverable and apparent to a reasonable person.

For example, if a person's work had caused his trigger fingers impairment in a prior case and he did the exact same work in a later case, reasonably discoverable and apparent that an injury had been sustained might differ in the two cases. In the earlier case, reasonably discoverable and apparent that an injury had been sustained, might be when a doctor diagnosed the condition and told the person that the condition was work related. In the later case, based on a reasonable person standard, reasonably discoverable and apparent that an injury had been sustained might be when the person developed the exact same symptoms he had in the earlier case.

In Claimant's case, he alleged left hand trigger fingers due to hand intense repetitive work in the claim for compensation he filed on November 2, 2015. He alleged an injury date of November 24, 2014. He settled the case on February 17, 2017.

On March 15, 2017, Claimant filed a new claim for compensation alleging right hand trigger fingers with an injury date of November 23, 2014. He did the exact same work in both trigger fingers cases. The only difference was that he alleged an injury date of November 24, 2014 in one case and November 23, 2014 in the other case. He failed to explain why any credence should be given to his argument that the statute of limitation in his case involving his right trigger fingers did not begin to run until April 2017, when Dr. Mullins allegedly told him that his right trigger fingers were work-related.

The evidence clearly showed that it was reasonably discoverable and apparent that a workrelated "injury" had been sustained to his right hand and fingers at the same time it was so reasonably discoverable and apparent that he had sustained an "injury" to his left hand and fingers. In fact, John Peterson, M.D., Claimant's treating physician at the VA, diagnosed Claimant with bilateral trigger fingers of the third, fourth and fifth fingers on both his right and left hands on June 16, 2015. Based on that information, Claimant filed his claim for compensation alleging a work-related left trigger fingers "injury" on November 2, 2015.

12



Claimant, however, inexplicably chose not to allege right trigger fingers in the claim he filed on November 2, 2015. It was certainly reasonably discoverable and apparent to a reasonable person that if his left hand trigger fingers were work related that the same was also true for his right hand trigger fingers. Again, as noted above, Dr. Peterson diagnosed Claimant with bilateral

trigger fingers on the same day, June 16, 2015.

Thus, the statute oflimitations in Claimant's case began to run on June 16, 2015 when Dr. Peterson made the diagnoses and Claimant in reliance thereof filed a claim for compensation on November 2, 2015 alleging left trigger fingers. Claimant had two years from June 16, 2015 to file his claim for compensation for his trigger fingers. He filed the claim for his right trigger fingers on March 15, 2017. It was filed on a timely basis, although there were other issues associated with the filing of his claim for right trigger fingers as set out and discussed in detail

below.

Judicial Estoppel

This decision is not meant in any way to sanction Claimant's actions in the case. Clearly, there was no basis in the facts or the law to support two separate occupational disease claims for "injuries" allegedly sustained one day apart based on the exact same repetitive motion activities.

Claimant did the exact same work in both cases. He complained of the symptoms for trigger fingers on both hands at the same time. He received treatment for both hands at the same time, although he elected to have surgery on his left hand first. He was diagnosed with bilateral trigger fingers on the same day. The only difference in the two cases was that he alleged injury

dates one day apart.

Claimant did not explain how he determined that the injury dates for an occupational disease based on alleged repetitive motion activities occurred one day apart. He admitted that November 24, 2014 was the last day he did any work for Rich Shipman Construction. He alleged that injury date in the claim he filed on November 2, 2015 involving his left trigger fingers.

As noted above, Claimant settled his case involving his left trigger fingers on February 17, 2017. Less than a month later, on March 15, 2017, he filed a new claim alleging right trigger fingers with an "injury" date of November 23, 2014. Again, he offered no explanation as to how he determined that there were two separate occupational diseases based on the exact same

repetitive motions activities with "injury" dates one day apart.6

6 There was justification in the facts and the law for the November 24, 2014 injury date Claimant pied for his left

trigger fingers. That was the last day that he performed any repetitive motion activities for his employer and the

last date of his exposure to the risk of developing trigger fingers from any such activities based on his employment

13


Claimant's actions in filing the two separate claims sixteen months apart and one claim a month after the other claim had settled required judicial resources to needlessly be allocated to two separate cases and his employer to incur extra expenses to defend two cases when only one legitimate case existed.

Recently, the Missouri Supreme Cami reaffirmed the concept of judicial estoppel. See Matthew D. Vacca v. Missouri Depatiment of Labor and Industrial Relations, Division of Workers' Compensation and Brian May, No. SC 96911 (Mo. bane March 19, 2019). In Vacca, the Cami noted that judicial estoppel was appropriate when a party made inconsistent claims in sepai·ate judicial proceedings involving the same issue. The judge who wrote the opinion specifically stated that:

"Judicial estoppel is invoked to protect the dignity of the judicial

proceedings and to prevent patiies from playing fast and loose with the

judicial process by taking inconsistent positions in two different

proceedings."

Here, Claimant took inconsistent positions in two different proceedings. He alleged two separate "injury" dates for one activity, hand intense repetitive work over a period of time, which resulted in bilateral trigger fingers. He compounded his duplicitous actions by waiting until after his employer had settled his initial claim to file the second claim based on the same alleged hand intense repetitive work he had made the subject of his first claim.

Claimant's actions clearly demonstrated that he was playing fast and loose with the judicial process. He seemingly picked an "injury" date out of the air for his second claim. The only legitimate "injury" date for his second claim based on his alleged occupational disease due to repetitive motion activities had already been pied and resolved based on his claim filed sixteen months earlier.

Claimant's actions clearly met the criteria as set out in Vacca as being inappropriate and subject to judicial estoppel. Because, however, that issue was not raised at the hearing, and Claimant was not afforded a11 opp01iunity to address it, due process mandates that his claim must be allowed to proceed.

Notice

The applicable statute pe1iaining to notice provides as follows:

with Rick Shipman Construction. There was no justification in the facts or the law for the November 23, 2014 date

he chose for his right trigger fingers.

14


No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injnry, .and the name and address of the person injured, has

been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. No proceedings for compensation for any occupational disease or

repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the nan1e and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the

notice. ( emphasis added)

§ 287.420 RSMo 2005

Thus, a claim fails if proper notice is not provided, and when the employee cannot prove

a lack of prejudice due to his failure to provide timely and proper notice. Notice, however, is an affinnative defense. Aramark Educational Services, Inc. v. Leona Faulkner, 408 S.W3d 271 (Mo. App. E.D. 2013); Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97 (Mo. App. 1972). The employer has the burden of proving that timely and proper notice was not provided.

Aramark; Snow.

The burden of proof shifts to the employee to prove a lack of prejudice once the employer

establishes that timely or proper notice, as set out in the statute was not provided. See Soos v. Mallinckrodt Chem.Co., 19 S.W3d 683 (Mo. App. E.D. 2000) overruled on other points by Hampton v. Big Boy Steel Erections, 121 S.W. 3d 220 (Mo. bane 2003). Actual notice of the injmy by the employer is sufficient to meet the notice requirement as set out in the statute. Hall

v. G.W. Fiberglass, Inc., 873 S.W.2d 297 (Mo. App. E.D. 1994).

The evidence showed that Claimant did not provide his employer with timely or proper

notice of his alleged right trigger fingers "injuries".7 He admitted as such. He was also

7 Claimant did testify that he told Rich Martin, his roommate, that his right hand was hurting in their hotel room.

He stated that he showed Mr. Martin that his hand was "clicking." He stated that Mr. Martin was a supervisor for

the company. He admitted, however, on cross examination tha.t he did not tell Mr. Martin that he was ~lleging a

work-related hand impairment or that he needed to see a doctor. He did not call Mr. Martin as a witness at the

hearing. His allegation was no different than an employee telling his employer that his back was hurting without

telling his employer that he had injured his back at work. Notice pursuant the statute requires notice of the time,

place and nature of the injury. Id. An employee telling a supervisor that his back or hand is hurting or his hand is

clicking does not constitute notice of a work-related injury under the statute.

15


diagnosed with trigger fingers on his right hand on June I 6, 2015. Per the statute, he had thirty

days from the date of diagnosis to provide notice to his employer. Id. Claimant did not provide notice to his employer until he filed his claim for compensation on March 15, 2017, alleging right trigger fingers. That was 21 months after he was diagnosed with the condition.

Claimant did not even argue a lack of prejudice. Numerous courts have indicated that lack of prejudice involves a case- by- case determination. The purpose of the notice requirement as set out in the statute is to allow the employer an oppo1tunity to minimize the effects of the injury by providing timely and proper treatment and to properly investigate and preserve evidence. Hannick v. Kelly, Temporary Services, 855 S.W. 2d 497 (Mo. Ct. App. D 1993) overruled on other grounds by Hampton.

Claimant's employer was not afforded an opportunity to provide timely and proper treatment. Although Claimant was diagnosed with bilateral trigger fingers on the same day in June 2015, he elected to have surgery on his left hand first. He had the surgery for his left trigger fingers on August 5, 2015. He then waited another 16 months, or until December 16, 2016, to have surgery for his right trigger fingers. Both surgeries were provided by the VA at no cost to Claimant.

Also, the surgery for his right trigger fingers ended up requiring a more complex and involved procedure than the surgery for his left trigger fingers. The results from his surgery on his right hand were not as favorable as those from his left hand. Claimant chose to offer no medical nor any evidence, which addressed the issue of whether his delay in getting treatment led to those results. He clearly failed to prove that his employer was not prejudiced by his failure to provide timely notice to allow his employer the right to provide timely and proper treatment. He failed to prove that his employer was not prejudiced in its right to investigate the case due to his 21- month delay in providing notice. His claim must be denied. All other issues raised at the hearing were rendered moot.

I Cl!rtlfy lh~t or1 5 £r--/ C/ . ···- , I delivered a copy of the foregoing award lo the parties lo the case. A complete record _of the method of deliveiy and date of service upon each party is retained with the executed award in the Division's case file.

8Y·----d./:114,hf)1LV: __ _ Madeby: ~~-

Kenneth J. C~ -Administrative Law Judge

Division of Workers' Compensation

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issued by the labor and industrial relations …...january 10 and 24, 2017. the record does not...

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