Wickam v. Treasurer of the State of MO, 499 S.W.3d 751 (Mo App. 2016) ( reverses an award of permanent partial against the Fund and remanded to find permanent total disability. The award was modified to PTD by the Commission. 2017 MOWCLR Lexis 8.
An issue in the case was when carpal tunnel became a disabling condition to benchmark what conditions "pre-existed" for purposes of assessing fund liability. The fund argued an earlier date applied of 2000, when claimant began to experience symptoms of his hands instead of 2001 when there was a recommendation for surgery, as found by the Commission. The claimant argue that the later date applied of 2003 when surgery was performed.
Claimant treated in 1999 for a shoulder injury and had a diagnosed of carpal tunnel based on EMG studies. Claimant in 2000 retained an expert who concluded he had carpal tunnel as a result of a work-related exposure. In 2003 he underwent surgery. He later settled the case with the employer.
He also settled his work related shoulder injury.
The Commission by using the earlier date for the onset of the carpal tunnel disability it precluded consideration of sleep apnea and knee impairment. A dissent argued that disability for fund purposes existed when claimant began to miss work or impact ability to work, and not merely when diagnosis or symptoms manifested.
The court found the controlling standard:
"An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." Garrone v Treasurer of the State of MO , 157 S.W.3d 237 (Mo App. 2004). There was no evidence in the Wickam from either party how claimant's carpal tunnel condition affected his ability to work prior to the surgery. The court found the Commission had insufficient evidence to make its finding when disability occurred based alone on a recommendation for surgery. The court noted that liability attaches when vocational impairment attaches without or without surgery and the employer should not rely upon Wickam for the proposition that it did not owe anything until there was a recommendation for surgery.
The uncontested evidence was that claimant was permanently and totally disabled as the fund apparently offered no contrary medical or vocational opinions.
It should not go unnoticed that this is pre-reform, claimant has already obtained two settlements from the employer and this SIF-only appeal involves a dispute more than a decade ago.