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Cuba v. State9/26/2000
Cecilia Cuba ("Cuba") appeals from the decision of the Labor and Industrial Relations Commission ("Commission") affirming the decision of the Administrative Law Judge ("ALJ") denying Cuba's workers' compensation claim for permanent partial disability. In its decision, the Commission adopted the date the claim was filed as the date the inquiry begins for purposes of assessing liability for both the last exposure rule and the three-month rule. A dissenting opinion argued that the date of diagnosis is to be used when applying the three-month rule. We agree with the dissent, and thus we reverse and remand the Commission's decision.
Cuba worked as a hair designer for Jon Thomas Salons, Inc. ("Jon Thomas") from August 8, 1983 to April 27, 1995. Cuba worked eight hours per day, 40 hours per week for approximately 12 years at Jon Thomas. Cuba's job duties included cutting, coloring, perming, and highlighting hair, activities that involved extensive use of her hands.
Leading up to February 1995, Cuba began to notice numbness and tingling in her hands, and she sought treatment from her private physician, Dr. Donald DiPasco ("Dr. DiPasco"). Dr. DiPasco diagnosed Cuba with bilateral carpal tunnel syndrome, and he prescribed bilateral wrist splints. After this diagnosis, Jon Thomas filed a Report of Injury with the Division of Workers' Compensation on February 24, 1995, stating that the injury was due to repetitive use of the hands with implements of the trade.
Subsequent to her diagnosis by Dr. DiPasco, Cuba continued her employment at Jon Thomas. On April 17, 1995, Cuba met with Dr. Phillip George ("Dr. George"), an employer-provided physician, for pain in her wrists. Based upon an electromyogram ("EMG") and a nerve conduction test of both wrists, Dr. George diagnosed Cuba with carpal tunnel syndrome on May 8, 1995. He recommended surgery, but Cuba decided to take a more conservative approach to treatment by quitting her full-time job as a hair designer at Jon Thomas and returning to school.
On August 7, 1995, Cuba again saw Dr. George and reported that she was doing well with no ongoing symptoms of numbness, tingling, weakness, or swelling in either hand. Cuba told Dr. George that she was going to school and that she was designing hair approximately 18-19 hours per week. Dr. George's opinion was that Cuba would continue to do well as long as she did not design hair 40 hours per week. Based on this visit, Dr. George believed that Cuba did not need surgery. In a supplemental report, dated November 20, 1995, Dr. George stated that he found Cuba to have a 0% permanent partial disability.
Cuba filed a Claim for Compensation with Jon Thomas and Secura Insurance Company ("Secura") on August 26, 1996, for $56,454 in accordance with Section 287.430 requiring workers' compensation claims to be filed within two years after the date of injury. On August 29, 1996, Jon Thomas and Secura denied the claim.
On November 14, 1996, Cuba visited a third physician, Dr. David Volarich ("Dr. Volarich"), concerning her wrists. Dr. Volarich diagnosed Cuba with carpal tunnel syndrome with a 30% permanent partial disability.
In August 1998, a hearing was held before an ALJ of the Division of Workers' Compensation. In December 1998, the ALJ denied Cuba's "demands for future medical treatment, temporary disability benefits and permanent partial disability." In January 1999, Cuba filed an Application for Review with the Commission. In November 1999, the Commission affirmed the decision of the ALJ denying Cuba's claim, with one member of the three-member panel dissenting.
Section 287.495 provides the standard of review for the appellate cour
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