Reprinted with permission from
The Missouri Trial Attorney,
Volume XX, Number 4, Winter 2002
Copyright 2002, Missouri Association of Trial Attorneys
WORKERS’ COMPENSATION:
OCCUPATIONAL DISEASE CLAIMS
AFTER ENDICOTT
Scott A. Wilson
The Hines Law Firm, L.L.C., Columbia
Workers' compensation claims based on an occupational disease or repetitive
motion theory of liability are often more difficult than single trauma injuries
or "accidents" in that they usually involve multiple employers, multiple
insurance companies, and multiple claims. The nature of the medical conditions
involved, with true medical causation or the exact point of "disability"
often impossible to determine, leads to defenses from successive employers with
each attempting to attribute liability to the other for the worker's occupational
disease or injuries.
Missouri's Workers' Compensation Law contains a provision that assigns legal
liability for a worker's occupational disease to the employer that last exposed
the worker to the hazards of the occupational disease, no matter how short the
period of employment.1 This provision, known
as the "Last Exposure Rule," is a rule of convenience intended to
provide an easy, predictable means of assessing liability. Unfortunately, ease
and predictability have not prevailed in practice as the rule lacks any guidance
in determining the point of "last exposure" in cases where the exposure
is ongoing and continues with a subsequent employer. The determinative issue
in most all repetitive motion injury or occupational disease cases, such as
carpal tunnel syndrome claims, is which employer subjected the claimant to the
"last exposure" when the worker performed jobs which could cause the
disease while working for multiple successive employers.
The Missouri legislature attempted to clarify occupational disease cases in
1993 by further defining what proof is necessary in order for such claims to
be compensable and which employer should be held responsible. The legislation
enacted in 1993 added Section 287.067.7 which created an exception to the Last
Exposure Rule: the Athree-month" exception C what is now commonly referred
to as the "90-Day Rule."2 This exception
allows an employer to shift liability back to the previous employer in certain
cases if the employee has not worked for the current employer for at least three
months.
However, the statute failed to define the point from which the three-month
period begins in order to determine which of the successive employers is liable
for the injury. The question remained whether the three-month period begins
at the "first event" (often the date of medical diagnosis of the condition),
the date the claim was filed with the Division of Workers' Compensation, the
date of "disability" (such as the date employee first lost time from
work), or at some other point, such as when the claimant became subjectively
aware of the work-related condition.
This confusion has since been compounded by conflicting opinions of the Labor
and Industrial Relations Commission and the three districts of the Court of
Appeals, leaving claimants' attorneys no choice but to file against every employer
and letting the administrative law judge and the various appeals tribunals to
eventually determine which employer is liable. It is not uncommon in occupational
disease or repetitive trauma cases for claims to be filed against four or five
employers, some of which have multiple insurers. A fight then ensues, primarily
between the employers and insurers, as to which employers exposed the claimant
to the occupational disease and whether each could avoid liability under the
90-Day Rule.
The Supreme Court of Missouri has recently addressed the confusion in Endicott
v. Display Technologies, Inc., et al., 77 S.W.3d 612, Mo.banc (2002). In Endicott,
the Court adopted a "bright-line" rule affixing the date from which
the 90-Day Rule will be applied as the date of claim.3
Although this decision appears to give both the claimants and employers a clear
standard in applying the Last Exposure Rule and the three-month exception, it
could lead to additional confusion and numerous complex issues remain in occupational
disease cases.
Endicott v. Display Technologies, Inc., et al.
Claimant Norman Endicott, Jr. worked for four successive employers between
1981 and 1998. During this time he was diagnosed with three separate occupational
diseases to his upper extremities. He was first employed by Display Technologies,
Inc. building and testing computer monitors requiring repetitive use of his
hands and arms from 1981 to January 1998. He filed and settled his first claim
alleging carpal tunnel syndrome for 10% disability of the right wrist in 1994.
From October 1997 to January 1998 his symptoms reappeared while disassembling
the plant, working 72-hour weeks. He then took a similar job at ASAP Services,
Inc. where he worked from February 10 to March 30, 1998. He continued to have
problems with his upper extremities and was diagnosed with right elbow bursitis
on March 2, 1998, during his brief employment at ASAP. While unemployed he underwent
nerve conduction studies and EMG testing and was diagnosed with moderate to
severe carpal tunnel of the left wrist, right neurogenic medial motor changes,
right carpal tunnel entrapment and possible lateral epicondylitis on the right
side.
Endicott then took a job at ADECCO Employment Services, Inc., an employment/temporary
agency, on April 22, 1998 which placed him at Graphic Technologies, Inc. (GTI)
performing repetitive job duties. He was then diagnosed with extensor tendonitis
of the right elbow and median nerve dysfunction on the right and carpal tunnel
release was recommended on the left wrist during the time he was employed by
ADECCO. Further complicating the case, he then became a permanent employee of
GTI on July 17, 1998 - just under 90 days.
Endicott filed a Claim for Compensation against all four employers on November
2, 1998 alleging a date of onset "on or about December 1997." His
problems continued. At his attorney's request, he was seen by an orthopedic
surgeon on January 25, 1999 who diagnosed bilateral thoracic outlet syndrome
and right cubital tunnel syndrome. Endicott then amended his claim in May, 1999,
adding occupational diseases or injuries to the right elbow and both shoulders.
Endicott's doctor testified that his problems were caused by repeated minor
trauma to his upper extremities during his various jobs, each of which were
capable of producing the problems, and that it was Endicott's position that
most of the problems started at Display Tech and increased at ASAP, but remained
steady while working for GTI.
The Administrative Law Judge found GTI liable for all of claimant's current
conditions, finding that, under the Last Exposure Rule, GTI was the last employer
to expose Endicott to repetitive activity capable of producing the occupational
diseases for over three months prior to the filing of the claim, citing a recent
Southern District case and language of an older Missouri Supreme Court case.4
The Labor and Industrial Relations Commission reversed the ALJ relying on
the date of diagnosis of each particular occupational disease to affix liability,
citing two Eastern District Court of Appeals holdings.5
The Commission held Endicott's first employer, Display Technologies, liable
for his bilateral carpal tunnel syndrome and bursitis of the right elbow, and
his last employer, GTI, responsible for the bilateral thoracic outlet syndrome
based on when each was diagnosed. The Southern District Court of Appeals affirmed
the Commission and the Supreme Court accepted transfer, together with another
case with similar facts, presumably to finally address the numerous conflicting
opinions in the Court of Appeals.6
The Supreme Court of Missouri reversed and remanded the case flatly stating
that the date of claim is the relevant date under the Last Exposure Rule and
the three-month exception. Judge Benton wrote the rather concise opinion for
the court finding:
The last exposure rule is not a rule of causation. Johnson, 911 S.W.2d at
288. Rather, as a starting point, the last employer before the date of claim
is liable if that employer exposed the employee to the hazard of the occupational
disease. Id.; Maxon v. Legget & Platt, 9 S.W.3d 725, 730 (Mo. App. 2000).7
The Court determined that the three-month exception of Section 287.067.7 does
not assess liability based on the date of diagnosis of each occupational disease,
as GTI asserted. Because GTI was last in the line of Endicott's employers to
expose him to repetitive motion prior to the date the claim was filed and his
exposure was for more than three months, the court held GTI liable for each
of Endicott's three separate occupational diseases, even though two of the three
conditions had been diagnosed prior to him becoming an employee of GTI.8
Apparently hoping to wash its hands of the issue by adopting the "date
of claim" rule, the court specifically overruled all prior cases holding
otherwise.9 In doing so, the court expanded on
the "rule of convenience" nature of the Last Exposure Rule by choosing
the easily-determined, fixed "date of claim" rather than the more
causally relevant but difficult to ascertain date of medical diagnosis. The
Court cited the sentence structure of the language of '287.067.7 in an attempt
to show why the phrase "exposure to the repetitive motion which is found
to be the cause of the injury" should not be interpreted to fix liability
at the time the disease is diagnosed.10 Yet the
Court failed to explain the absence of any reference to "claim" in
the three-month exception of 287.067.7, unlike the language of 287.063.2, or
to show any particular relevance or legal significance associated with the date
the claim was filed with the Division of Workers' Compensation.11
At least ending on a positive note, the Court in Endicott also held that the
notice requirement in 287.420 does not apply to occupational disease claims,
finally putting to rest another tired defense which had been raised in nearly
all such cases.12
Application of the 90-Day Rule after Endicott
For better or worse, it is now clear that under the Last Exposure Rule when
the claimant has been exposed to the hazards of an occupational disease by multiple
employers, the starting point is the date the Claim for Compensation is filed.
The court in Endicott states that the Last Exposure Rule Ais not a rule of causation."13
By propounding the "date of claim rule," the court has adopted a bright-line
test affixing legal causation, regardless of proof of medical causation or all
evidence regarding the claimant's development of the disease. So long as the
medical evidence in the record reflects that a claimant suffering from an occupational
disease performed job activities which could cause the disease at the time the
claim is filed, liability is first assigned to the last employer regardless
of any and all circumstances and events occurring prior to the filing of the
claim.
The burden of proof then shifts to the last employer to show, under the 90-Day
Rule, that both: (1) The employee has not been exposed to the hazards of the
occupational disease for three months while working for that employer, and (2)
that the repetitive motion with a prior employer was Athe substantial contributing
factor" in causing the medical condition.14
The last employer at the time the claim is filed must prove it meets both
prongs of the defense: the 90-day provision and the causation-type test. The
first prong is met if the worker had not been employed for at least 90 days
at the time the claim was filed, or if the employee worked there for over three
months but did not perform repetitive motion tasks over a period of at least
90 days. A more tenuous defense could be raised claiming the employer did not
perform repetitive motion activities for 90 consecutive days. However, at least
one district of the Court of Appeals has held that the exposure to the repetitive
motion need not occur on a daily basis, so long as the exposure existed throughout
a three-month period.15
If B and only if B the first prong of the 90-Day Rule exception is met, that
employer must also show that the repetitive motion at a prior job was Athe substantial
contributing factor" in causing the occupational disease. This language
is, of course, different from the usual Aa substantial factor" standard
found in the statutory definition of Ainjury."16
Though this language does not appear to refer to any particular standard, the
Eastern District has held it to mean Aa factor which is the more responsible
of the two contributing factors," and that this is satisfied if expert
testimony reflects that the prior employment was more substantial in duration
or more significant in causing the disease, or both.17
Endicott did not give any further guidance regarding this standard since the
last employer could not make it past the first prong of the 90-day exception.
It should be noted that the three-month exception to the Last Exposure Rule
applies only to employers and not to insurers.18
In Smith v. Tiger Coaches, Inc., 73 S.W.3d 756 (Mo. App. E.D. 2002), the Eastern
District recently held that the 90-Day Rule does not allow an insurer to shift
liability to the prior insurer in an occupational disease claim.19
Taken with the holding in Endicott, the insurer providing coverage on the date
the claim is filed is the liable insurer, no matter how brief the period of
coverage.
Also, Endicott does not appear to affect the actual date of injury used in
determining the wage rate under 287.250, since the three-month exception does
not refer to a date of injury.20 Although it
could be argued that the date of injury is now the date the claim was filed,
Endicott does not specifically address this issue. Claimant's counsel is free
to use the date of injury used in the Report of Injury, the date the claimant
first missed time, the date of diagnosis, or to stipulate to another date for
use in computing the rate of compensation. However, the courts may see the benefit
of another bright line rule to affix this date as prior case law has been contradictory
on this issue, as well, varying between the date of last exposure and the date
of "disability" C meaning lost time or other "compensable disability."21
90-Days to File Claim Against Prior Employer
Effectively, then, Endicott imposes a practical 90-day type of statute of
limitations for filing an occupational disease claim against a previous employer
once the employee has left the prior employment and begins another job where
exposed to the hazards of the occupational disease. In order to pursue a claim
against the prior employer for an occupational disease and to allow the subsequent
employer a 90-Day Rule defense, the claim must be filed with the Division of
Workers' Compensation within 90 days after beginning new employment, though
the usual, true statute of limitations would still apply to the claim itself
against each employer.
This filing deadline becomes particularly important in cases where the employee
has taken a new job and wants to avoid any potential negative repercussions
associated with filing a claim against the new employer after having only worked
for the new employer a relatively short period of time, an unfortunately common
scenario. The date of claim rule adopted in Endicott will affect the strategies
of those practicioners who prefer to wait to formally file a Claim for Compensation
(Form 21) until there are benefits due and owing which have been improperly
denied by the employer/insurer. The rule ignores the fact that, most likely,
a majority of all claims filed, both pro se and by counsel, are not actually
filed with the Division of Workers' Compensation until long after the claimant
has been diagnosed with an occupational disease and has undergone medical treatment,
lost work, and has been released from further treatment, has been fired, or
both.
Finally, the date of claim rule, in essence, encourages employers to fire
employees who show signs of developing an occupational disease so as not to
be held liable by the time a claim is filed, particularly considering the lack
of legal protections afforded Missouri's workers. Additionally, the rule discourages
other employers from hiring workers who have been diagnosed with B or have the
symptoms of B an occupational disease, and further discourages employees from
postponing surgery in order to try alternative conservative treatment for fear
of being fired and having the surgery denied.22
Caution is Advised with the Filing of Claims
If claimants are aware of the date of claim rule, they are now able to fix
the determinative date under the last exposure rule by choosing when to file
a claim and which employers to file against. Assuming the medical evidence supports
the claim, claimants can now plead on the claim form the specific dates of the
exposure to hazards of the occupational disease and file the claim on a particular
date in order to limit or preserve defenses based on the 90-Day Rule. It should
be cautioned that in cases where there is potentially an issue of medical causation
with regard to a particular employment, there may be no choice but to file against
all potentially liable employers. Claimants' attorneys must not risk an injured
worker's right to recover for an occupational disease by being overly artful
or too narrow in the filing of claims for ease of handling or simplicity's sake.
Unfortunately, by assigning liability for the claimant's occupational diseases
to the employer at the date the claim was filed, Endicott allows prior employers
to escape liability for any prior similar occupational diseases, medical conditions,
or symptoms related to the same part of the body alleged in the claim. This
would presumably be true even in cases where the worker had already had surgery
to correct the occupational disease and the surgery had been authorized by the
original employer/insurer.
Obviously, this could lead to the incongruous result of a subsequent employer
being held liable not just for permanent partial disability from the injury
itself, but also for claimant's initial medical treatment, surgery, and missed
work C and resulting medical bills and temporary total disability benefits C
incurred prior to the claimant ever having worked for that employer. In this
sense, the rule of convenience may not seem so convenient to subsequent employers
which will likely be made to indemnify prior employers/insurers for the benefits
previously paid on the claim.
Claimants' attorneys must also be certain that the medical testimony in the
record supports the finding of liability against the employer pled in the claim.
Though medical testimony is not required as to which employer most exposed the
claimant to the hazards of the occupational disease, it is potentially fatal
to the claim if the medical evidence does not both describe the job activities
performed by the claimant for each of the employers in question and find that
they were sufficient to cause the occupational disease or medical condition.23
Because there is often conflicting medical evidence in the record, it is still
strongly advised to err on the side of filing against all employers for which
the claimant performed any repetitive motion jobs.
Finally, claimants' attorneys should also err on the side of pleading an occupational
disease in the original claim rather than waiting and attempting to amend a
claim which alleged only an accident or single-trauma injury. Numerous cases
have rejected attempts to add an occupational disease theory of liability by
amending an original claim which pled only a specific accident.24
Similarly, an amended claim that adds an additional body part has been held
to not relate back to the original claim but was considered a new and distinct
claim.25 It is a safer practice to either include
both theories in the original claim or to file two separate claims as early
as possible: one alleging the specific accident and the other alleging the exposure
to and development of an occupational disease so as not to give rise to a statute
of limitations defense.
Conclusion
Prior case law in occupational disease cases was clouded, at best, in determining
the relevant date which affixes liability under the Last Exposure Rule and the
three-month exception of the 90-Day Rule. Endicott, for better or worse, should
at least clear up the prior confusion as to the proper date in determining the
employer liable under the Last Exposure Rule. Occupational disease claims remain
complex, however, and particular attention must be paid as to the date the claim
is filed and to which employers are included in the claim B as well as to the
medical evidence in the record B to be sure the claimant obtains all benefits
available under current law.
ENDNOTES:
1. Section 287.063, RSMo. (1994) states, in pertinent part:
(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. (b) 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.
(2) Section 287.067.7, RSMo. (1994) states: With regard
to an occupational disease due to repetitive motion, if the exposure to the
repetitive motion is for a period of less than three months and the evidence
demonstrates that the exposure to the repetitive motion with a prior employer
was the substantial contributing factor to the injury, the prior employer shall
be liable for such occupational disease.
3. Endicott v. Display Tech. Inc., et. al, 77 S.W.3d 612 at 615.
4. Maxon v. Legget & Platt, 9 S.W.3d 725 (Mo. App. S.D. 2000); Johnson
v. Denton Constr. Co., 911 S.W.2d 286 (Mo. banc 1995.
5. Arbeiter v. National Supermarkets, Inc., 990 S.W.2d 142 (Mo. App.
1999); Cuba v. Jon Thomas Salons, Inc. 33 S.W.3d 542 (Mo. App. 2000).
6. Oswald v. National Fabco Mfg. Inc., 77 S.W.3d 611 (Mo. banc 2002)
was handed down the same day as Endicott.
7. Endicott v. Display Tech. Inc., et. al, 77 S.W.3d 612 at 615.
8. Id. at 616.
9. Cuba v. Jan Thomas Salons, Inc., 33 S.W.3d 542 at 546 (Mo. App. 2000);
Arbeiter v. National Super Markets, Inc., 990 S.W.2d 142 at 145-46 (Mo.
App. 1999).
10. Endicott v. Display Tech. Inc., et. al, 77 S.W.3d 612 at 615.
11. Arbeiter v. National Supermarkets, Inc., 990 S.W.2d 142 (Mo. App.
1999).
12. Endicott v. Display Tech. Inc., et. al, 77 S.W.3d 612 at 616.
13. Id. at 615.
14. Id.
15. Maxon v. Legget & Platt, 9 S.W.3d 725, 732-733 (Mo. App. S.D.
2000).
16. Section 287.020.3(2)(a) RSMo. 2000.
17. Mayfield v. Brown Shoe Co., 941 S.W.2d 31 at 36 (Mo. App. S.D. 1997).
18. Tunstill v. Eagle Sheet Metal Works, 870 S.W.2d 264 (Mo. App. S.D.
1994); Crabill v. Hannico; 963 S.W.2d 440 (Mo. App. 1998); Feltrop
v. Eskens Drywall and Insulation, 957 S.W.2d 408 (Mo. App. 1997).
19. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756 (Mo. App. E.D. 2002).
20. Bull v. Excel Corp., 985 S.W.2d 411 (Mo. App. W.D. 1999).
21. See, Renfro v. Pittsburgh Plate Glass Co., 130 S.W.2d 165 (Mo. App.
E.D. 1939); Enyard v. Scullin Steel, 390 S.W.2d 417 (Mo. App. E.D. 1965);
and Gillam v. General Motors Corp., 913 S.W.2d 81 (Mo. App. E.D. 1995).
22. See, Cuba v. Jan Thomas Salons, Inc., 33 S.W.3d 542 at 546 (Mo. App.
2000); aside from any potential violations of the Americans with Disability
Act.
23. Brundige v. Boehringer Ingelheim, 812 S.W.2d 200 (Mo. App. 1991);
Putnam-Heisler v. Columbia Foods, 989 S.W.2d 257 at 260-261 (Mo. App. 1999).
24. Bissell v. Paramount Cap Manufacturing Co., 962 S.W.2d 13 (Mo. App.
S.D. 1998); Holaus v. William Zickell Co., 958 S.W.2d 72 (Mo. App. E.D.
1997).
25. Colony v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo. App. W.D.
1997); Hunsicker v. J. D. Industries, 952 S.W.2d 376 (Mo. App. W.D. 1997).
