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Endicott v. Display Technologies6/25/2002
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Thus, Display Tech was liable for two diseases -- bilateral carpal tunnel syndrome and right elbow bursitis -- diagnosed during (and shortly after) employment with Display Tech. GTI was liable for only one disease -- bilateral thoracic outlet syndrome -- first diagnosed while Endicott worked for GTI.
This Court defers to the Commission on issues of fact. Section 287.495. However, questions of law are reviewed de novo. Id.; Johnson v. Denton, 911 S.W.2d 286, 287 (Mo. banc 1995).
II.
At issue are subsections 1 and 2 of section 287.063:
1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo.
2. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease for which claim is made regardless of the length of time of such last exposure.
This last exposure rule is not a rule of causation. Johnson, 911 S.W.2d at 288. Rather, as the 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. Leggett & Platt, 9 S.W.3d 725, 730 (Mo. App. 2000).
At GTI, Endicott's duties included repetitive motion, the hazard of his occupational diseases. Because GTI was the last employer to expose him to this hazard, GTI is solely liable.
GTI attempts to invoke the exception in subsection 287.067.7:
With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury 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.
As a turning point, this provision shifts liability to a prior employer only if the employee's exposure at a later employer is less than three months and exposure with a prior employer was the substantial contributing factor to the injury.
GTI asserts that because two of Endicott's diseases were diagnosed during (and shortly after) employment with Display Tech, Display Tech is liable for them. GTI interprets the phrase "which is found to be the cause of the injury" to fix liability at the time the disease is diagnosed.
In fact, the phrase "which is found to be the cause of the injury" modifies the subject "the exposure to the repetitive motion." If this exposure with an employer is for more than three months, that employer -- as in this case -- may not invoke the exception in section 287.067.7. Cases holding otherwise are overruled. Cuba v. Jon Thomas Salons, Inc., 33 S.W.3d 542, 546 (Mo. App. 2000); Arbeiter v. National Supermarkets, Inc., 990 S.W.2d 142, 145-46 (Mo. App. 1999).
GTI alternatively contends that if Endicott had notified it of his diseases when first exposed at GTI, GTI could have limited his exposure to less than three months, avoiding liability under section 287.067.7. GTI cites dicta implying that an employee must give notice of an occupational disease: "It seems clear an employer is entitled to a notice but there are no existing guidelines to define the nature or timeliness for notice." Elgersma v. DePaul Healt
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