LISA COOK, Claimant-Respondent v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Employer-Appellant.

LISA COOK, )
)
Claimant-Respondent, )
v. ) Nos. SD34290 & SD34291
) Filed: October 25, 2016
MISSOURI HIGHWAY AND )
TRANSPORTATION COMMISSION, )
)
Employer-Appellant. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED

This is a consolidated appeal in which the Missouri Highway and Transportation

Commission (Employer) appeals from two final awards of workers’ compensation benefits

to Lisa Cook (Claimant) for carpal tunnel syndrome of her right and left wrists,

respectively. The Labor and Industrial Relations Commission (Commission) determined

that Claimant was permanently and partially disabled from her bilateral carpal tunnel

syndrome as an occupational disease. The Commission also ordered Employer to pay for

Claimant’s disfigurement after surgery, temporary total disability and past medical

treatment. On appeal, Employer contends: (1) the Commission erred in determining that

Claimant’s claims were not barred by the statute of limitations because she sustained an
injury that was reasonably discoverable more than two years prior to the filing of her

claims; (2) the Commission erred by deciding to credit the testimony of Claimant’s expert

on medical causation because the expert’s opinion was based on incorrect knowledge of

Claimant’s medical history; and (3) the Commission erroneously awarded past medical

expenses because Claimant testified that her medical bills were satisfied by Employer.

Finding no merit in any of these contentions, we affirm.

Factual and Procedural Background

At the time of the December 2014 hearing in this matter, Claimant was 55 years

old. She had begun working for Employer in August 1997 when she was hired as a senior

secretary in the traffic department, a position which she kept through 2011. Claimant’s

duties required her to spend 85-90% of her time at the computer performing data-entry

work. Claimant described her data-entry work as involving typing letters, preparing

permits, revising/updating reports, entering employee time sheet data, preparing requests

for money for permit applications, preparing monthly budget reports, recording vehicle

mileage, making hotel reservations, notifying district offices of permit expirations,

providing clerical support for the maintenance department, performing product research,

and handling email communications for the office. Her duties also included CPR

instruction.

Claimant testified that she was first seen by a medical provider for wrist problems

in 2005 when she saw her personal physician, Dr. Colleen Hunter-Pearson. The doctor

noted that Claimant’s work involved repetitive movements of the wrist and that Claimant

suspected she had bilateral carpal tunnel syndrome. Dr. Hunter-Pearson referred Claimant

to Dr. A. B. Chaudhari, who ordered a nerve conduction study that was performed at

2
Southeast Missouri Hospital in December 2005. The nerve conduction study revealed

normal findings. Dr. Chaudhari told Claimant that she did not have carpal tunnel

syndrome. Neither Dr. Hunter-Pearson nor Dr. Chaudhari told Claimant that they had

made any diagnosis of the condition of her wrists, and neither doctor indicated to her that

her wrist problems were somehow related to her work. She was treated with anti-

inflammatory medication and physical therapy for her neck.

Claimant was next seen for problems with her wrists in September 2007 when

Employer referred her to St. Francis Medical Center (SFMC). At the time, Claimant

complained of wrist pain and swelling, which had been brought on by additional data-entry

requirements that her supervisor had asked her to perform by entering old permits into the

computer system. Dr. Glen Cooper at SFMC diagnosed Claimant with extensor tendinitis

of wrists, right greater than left; tendinitis right elbow; and over-use tendinitis. She was

treated with splints and anti-inflammatories. Claimant was seen at SFMC during four

visits, the last of which was in November 2007, at which time her wrists were “pain free”

and the swelling had resolved. During her 2007 treatment at SFMC, no doctor diagnosed

Claimant with carpal tunnel syndrome.

In late 2010 and early 2011, Claimant began to experience pain, numbness,

weakness and burning in her wrists and hands, which caused her to wake up at night.

During 2011, the problems with her wrists continued to worsen, with her symptoms greater

in the right wrist than the left. In September 2011, Claimant filed a Field Injury Report for

the injury to her right wrist.

In October 2011, Employer sent Claimant to be examined by Dr. R. Evan Crandall.

Dr. Crandall ordered another nerve conduction study performed on her right wrist only,

3
which was done by Dr. Daniel Phillips that same day. This second nerve conduction study

was positive for moderately severe right carpal tunnel syndrome. Based on the results of

this study, Dr. Crandall diagnosed Claimant with moderate to severe carpal tunnel

syndrome for the right wrist only. Dr. Crandall was the first doctor who told Claimant that

he diagnosed either of her wrists with carpal tunnel syndrome. Dr. Crandall indicated that

Claimant’s work could be a risk factor for her right carpal tunnel syndrome, but opined that

it was not a work-related injury. The doctor instead relied on Claimant’s medical risk

factors related to carpal tunnel syndrome, including hypertension, age, gender and

menopause.

In November 2011, Claimant filed a Field Injury Report for injury to her left wrist.

This was based on the fact that she was having symptoms in the left wrist similar to those

she had had in the right wrist, specifically “numbness, tingling, burning sensation,

weakness,” although the symptoms were not as severe. At that time, Employer had

someone take a 45-minute video of Claimant at work, wherein she was asked to show

examples of each type of work that she performed. The video did not record or reflect how

much time she spent doing each task. In addition, Employer put a ghost key counter on

Claimant’s keyboard from November 18 – December 9, 2011, to measure the number of

key strokes she made. Claimant testified that counting the key strokes during that period

was not an accurate reflection of her normal work requirements because: (1) the period

included holidays; and (2) during that time, those she worked for were either out hunting

or were not working on jobs because it was the winter season.

4
 On January 10, 2012, Claimant filed separate claims for carpal tunnel syndrome in

each wrist and arm. In early 2012, Employer denied any additional treatment or evaluation

for problems with Claimant’s wrists.

In October 2012, Claimant saw Dr. Victoria Kubik in Springfield, Missouri. Dr.

Kubik noted that Claimant worked for Employer, does “a lot of typing and has been doing

that for 15 years.” Dr. Kubik diagnosed Claimant with bilateral carpal tunnel syndrome

and prescribed carpal tunnel release surgeries. Because Claimant was taking care of her

father at that time and did not want to be away from him for an overnight stay in Springfield

for the surgeries, she sought a physician in the St. Louis area for further treatment.

In November 2012, Claimant was seen by Dr. Bruce Schlafly. He also diagnosed

bilateral carpal tunnel syndrome and recommended surgical releases, which he performed

for the right wrist in late November 2012 and for the left wrist in mid-December 2012.

Claimant testified that she was off work from November 28 through December 5, 2012,

after the first surgery, and from December 18 through January 2, 2013, after the second

surgery. Claimant testified that the release surgeries provided her with substantial relief in

both wrists by eliminating the numbness and greatly reducing the pain that she experienced.

As of the date of the hearing, Claimant had occasional sharp, stabbing pain in her

wrists when she was lifting and when her wrists were in an awkward position, along with

numbness in her right forearm and decreased strength in both wrists. The carpal tunnel

injuries affected Claimant’s ability to use her wrists in the following ways: (1) she

experienced decreased strength and range of motion; (2) her wrists tired more easily; (3)

she was limited in performing her duties as a CPR instructor for Employer; (4) her

5
gardening activities were limited; and (5) she was unable to pick up her grandchildren since

the wrist injuries. Claimant has approximately 2˝ scars at each wrist from the surgeries.

Dr. Schlafly’s deposition was received in evidence on Claimant’s behalf. Dr.

Schlafly testified that Claimant’s repetitive work duties during her employment for

Employer were the prevailing factor in causing her to develop bilateral carpal tunnel

syndrome, which he treated with carpal tunnel release surgeries. Dr. Schlafly rated

Claimant’s permanent disability from her work injuries at 25% of each hand at the wrist

level. Dr. Schlafly further testified that his treatment of Claimant’s work injuries was

reasonable and necessary and that the bills for the surgeries that he performed, from the

various providers, were also reasonable and necessary.

Dr. Crandall’s deposition was received on Employer’s behalf. Dr. Crandall

testified that he would not defer to the surgeon who performed the carpal tunnel release

surgery on Claimant’s left wrist as to whether there was an impingement at the carpal

tunnel. Dr. Crandall would not confirm a diagnosis of carpal tunnel syndrome in that wrist.

He reiterated that the prevailing factor in causing carpal tunnel in her right wrist was a

combination of Claimant’s medical risk factors. Dr. Crandall also testified that as of

November 6, 2007, following her treatment for tendinitis, Claimant did not have any

evidence of carpal tunnel syndrome in her wrists.

After the hearing, the ALJ found that: (1) Claimant’s employment with Employer

was the prevailing factor causing her bilateral carpal tunnel syndrome; (2) her claims were

filed within the time allowed by law; and (3) she provided proper notice of the occupational

diseases to Employer. The Employer was directed to pay Claimant previously incurred

medical aid, temporary total disability payments, and 20% permanent partial disability plus

6
one week of disfigurement for each wrist. The Commission affirmed the ALJ’s awards for

each wrist through supplemental opinions. Employer appealed both awards and filed a

motion to consolidate, which this Court granted. Additional facts will be included below

as we address Employer’s three points on appeal challenging the timeliness of the claims,

medical causation and award of past medical expenses.

Standard of Review

We will review the findings and conclusions of the Commission and the ALJ as

adopted by the Commission. Harness v. Southern Copyroll, Inc., 291 S.W.3d 299, 303

(Mo. App. 2009). The scope of our review is set forth under § 287.495.1 RSMo (2000).1

We review only questions of law and may modify, reverse, remand for rehearing, or set

aside the award when the Commission acted without or beyond its power, the award was

procured by fraud, the facts do not support the award, or the award is not supported by

sufficient competent evidence in the record. Id. “A court must examine the whole record

to determine if it contains sufficient competent and substantial evidence to support the

award, i.e., whether the award is contrary to the overwhelming weight of the evidence.”

Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003); see also

MO. CONST. art. V, § 18.2 This is because an award “contrary to the overwhelming weight

of the evidence is, in context, not supported by competent and substantial evidence.”

1
Unless otherwise specified, all statutory references are to RSMo Cum. Supp.
(2011).
2
We note that some cases cited herein were overruled on other grounds by
Hampton, 121 S.W.3d at 224-32. Because these cases support other principles of law not
affected by the Hampton ruling, no further acknowledgment of Hampton’s effect on these
cases will be recited.
7
Hampton, 121 S.W.3d at 223. Such an award will be rare. Id.; see Roberts v. Missouri

Highway & Transp. Comm’n, 222 S.W.3d 322, 331 (Mo. App. 2007).

We defer to the Commission’s factual findings and recognize that it is the

Commission’s function to determine the credibility of witnesses and the weight to be given

to their testimony. Underwood v. High Road Indus., LLC, 369 S.W.3d 59, 66 (Mo. App.

2012). “[C]onflicting medical theories present a credibility determination for the

Commission to make.” Armstrong v. Tetra Pak, Inc., 391 S.W.3d 466, 470 (Mo. App.

2012). Therefore, the Commission’s decision as to which of the various medical experts

to believe is binding on this Court. Id. at 471. We will not substitute our judgment on

issues of fact where the Commission acts within its powers, even if we would arrive at a

different initial conclusion. Underwood, 369 S.W.3d at 66; see Hornbeck v. Spectra

Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (when evidence would warrant either

of two opposed findings, the reviewing court is bound by the Commission’s findings; it is

irrelevant that there is supportive evidence for the contrary finding). We review questions

of law de novo. Underwood, 369 S.W.3d at 66.

Discussion and Decision

Point 1

Employer’s first point maintains that Claimant’s claims are barred by the statute of

limitations. Section 287.430 generally requires a claim for workers’ compensation to be

filed “within two years after the date of injury[.]” § 287.430 RSMo (2000); see

§ 287.020.3(1) (defining “injury” to be “an injury which has arisen out of and in the course

of employment”). “An injury due to repetitive motion is recognized as an occupational

8
disease for purposes of this chapter.” § 287.067.3.3 In cases of occupational disease, the

statute of limitations shall not begin to run “until it becomes reasonably discoverable and

apparent that an injury has been sustained related to such exposure[.]” § 287.063.3. The

question as to when an “injury has been sustained related to such exposure” of repetitive

motion becomes “reasonably discoverable and apparent” is a question of fact to be

determined by the Commission. See Lawrence v. Anheuser Busch Companies, Inc., 310

S.W.3d 248, 250-51 (Mo. App. 2010).

Here, with respect to each wrist, the Commission found “as a factual matter that it

was first reasonably discoverable and apparent to employee that she’d suffered … carpal

tunnel syndrome arising out of and in the course of employment related to exposure to

repetitive upper extremity duties”: (1) “as of October 12, 2011, when Dr. Crandall

[Employer’s expert] made the diagnosis of right carpal tunnel syndrome” and (2) “as of

October 25, 2012 when Dr. Victoria Kubik first made the diagnosis of left carpal tunnel

syndrome” (bold emphasis added). Because Claimant filed claims for both wrists on

January 10, 2012, the Commission concluded neither claim is barred by the statute of

limitations.

The Commission also addressed Employer’s factual arguments that the statute of

limitations began to run as early as 2005, when Claimant suspected she had bilateral carpal

tunnel syndrome, or in 2007, when Claimant complained of wrist pain following a data-

entry project. With respect to 2005, the Commission rejected Employer’s argument by:

(1) relying on Dr. Chaudhari’s December 2005 nerve conduction study revealing normal

3
The term “occupational disease” is “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.” § 287.067.1.
9
findings; and (2) expressly finding that Claimant “credibly testified … that Dr. Chaudhari

told her that these tests were negative for carpal tunnel syndrome[.]” The Commission

similarly rejected Employer’s argument that the statute of limitations began to run in 2007,

explaining: (1) “[Employer’s] own authorized treating physician, Dr. Glen Cooper,

diagnosed [Claimant’s] condition in 2007 as bilateral extensor tendonitis of the wrists with

tendonitis of the right elbow, not carpal tunnel syndrome” (italics in original); and (2)

“[Employer’s] own evaluating expert, Dr. Evan Crandall, [testified] that there was no

evidence [Claimant] was suffering from carpal tunnel syndrome in 2007.”4 The

Commission therefore concluded that it was not “reasonably discoverable and apparent” in

2005 or 2007 that Claimant had “suffered carpal tunnel syndrome arising out of and in the

course of employment related to her exposure to repetitive duties while working for

[E]mployer.”

Employer’s point contends the Commission erred, as a matter of law, in finding

that Claimant’s claims were not barred by the statute of limitations because she sustained

an injury that was reasonably discoverable more than two years prior to the 2012 filing of

her claims, namely in 2005 and 2007. Employer argues that “the Commission misapplied

section 287.063.3” by: (1) relying on a “medical diagnosis from a doctor without regard

to other evidence to the contrary”; and (2) making “a finding based on Claimant’s

subjective knowledge rather than the appropriate objective standard.” We find no merit in

either of these arguments.

4
In a footnote, the Commission further chastised Employer stating: “Employer’s
failure to identify evidence on the record which squarely refutes its arguments is troubling,
to say the least, and calls into question the candor with which [E]mployer approaches this
tribunal.”
10
 Employer’s First Argument

Employer’s first argument, as we understand it, is essentially that the Commission

misapplied § 287.063.3 by relying on a medical diagnosis when that statute does not

require that a diagnosis be made in order to trigger the statute of limitations. Employer’s

first argument has three prongs: (1) the 2005 legislative changes to § 287.063.3 were

“clearly intended to reduce the requisite knowledge to begin the running of the statute of

limitations”; (2) according to Lawrence, 310 S.W.3d at 249, the statute of limitations may

begin running for an occupational disease before the employee has a physician’s diagnosis;

and (3) according to Miller v. U.S. Airways Group, Inc., 316 S.W.3d 462 (Mo. App. 2010),

an employee’s carpal tunnel syndrome apparent several years prior renders claims filed

thereafter duplicative and impermissible. We will address each prong of this argument in

turn.

The first prong of Employer’s argument involves a 2005 amendment to

§ 287.063.3. To address this argument, some background is required. In 1959, the

legislature adopted the following statute of limitations for an occupational disease claim:

The statute of limitation referred to in Section 487.430 shall not begin to
run in cases of occupational disease until it becomes reasonably
discoverable and apparent that a compensable injury has been sustained,
except that in cases of loss of hearing due to industrial noise said limitation
shall not begin to run until the employee is eligible to file a claim as
hereinafter provided in section 287.202.

§ 287.201.9, 1959 Mo. Laws S.B. 167 p. 13 (italics added). This subsection of the statute

was construed to mean that:

In latent injury or latent occupational disease the statute of limitations
commences to run from the time it becomes reasonably discoverable and
apparent to the employee that he has sustained a compensable injury. The
injury is reasonably discoverable and apparent when the employee loses
time from his work or has to seek medical advice as a result of his injury.

11
Enyard v. Consol. Underwriters, 390 S.W.2d 417, 422 (Mo. App. 1965) (italics added).5

This statutory language codified the rule that had been adopted in prior Missouri appellate

decisions. Id. at 431. In 1997, the relevant language had been moved to § 287.063.3.

Wiele v. Nat’l Super Markets, Inc., 948 S.W.2d 142 (Mo. App. 1997), was a carpal tunnel

syndrome case which addressed that subsection of the statute in the following fashion:

Carpal tunnel syndrome is a known occupational disease. Weniger v.
Pulitzer Pub. Co., 860 S.W.2d 359, 360 (Mo. App. 1993). The statute of
limitations does not begin to run on occupational disease claims “until it
becomes reasonably discoverable and apparent that a compensable injury
has been sustained.” § 287.063.3 RSMo 1986. In construing this statute
our courts have long held that mere awareness on the part of the employee
of the presence of a work-related illness is not, in and of itself, sufficient
knowledge of a compensable injury. Mann v. Supreme Exp., 851 S.W.2d
690, 692 (Mo. App. 1993); Sellers v. Trans World Airlines, Inc., 752 S.W.2d
413, 416 (Mo. App. 1988); Moore v. Carter Carb. Div. ACF Industries, 628
S.W.2d 936, 941 (Mo.App.1982); 29 Missouri Practice, Workers’
Compensation § 4.44. Generally, such a condition becomes apparent when
an employee is medically advised that he or she can no longer physically
continue in the work environment. Mann, 851 S.W.2d at 692; Thomas v.
Becker Metals Corp., 805 S.W.2d 271, 273 (Mo. App. 1991); Sellers, 752
S.W.2d at 417; Moore, 628 S.W.2d at 941. A compensable injury occurs
when the disease causes the employee to become disabled and unable to
work. Prater v. Thorngate, Ltd., 761 S.W.2d 226, 228 (Mo. App. 1988).

Id. at 146.

In 2005, the legislature deleted “compensable” and added language to read

“reasonably discoverable and apparent that an injury has been sustained related to such

exposure.” 2005 Mo. Laws 911 (italics added). According to Employer, the sole reason

for the change was to focus the inquiry on when the employee’s condition was reasonably

discoverable and apparent without regard to whether the employee had the benefit of a

5
The provisions of this subsection were renumbered as § 287.063.6. See § 287.063
RSMo (1959); Enyard, 390 S.W.2d at 431. Section 287.202 was changed to § 287.197.
See § 287.197 RSMo (1959).

12
diagnostician’s opinion that the employee had sustained an injury related to work exposure.

We disagree. We believe the purpose of this amendment was simply to change the rule

applied in Wiele and other occupational disease cases that an employee’s awareness of the

presence of a work-related illness was not sufficient to start the running of the statute of

limitations. See Wiele, 948 S.W.2d at 146; see also Garrone v. Treasurer of State of

Missouri, 157 S.W.3d 237, 242 (Mo. App. 2004) (“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”).

After this 2005 amendment, an occupational disease that is reasonably discoverable and

apparent to the employee, and related to work exposure, will start the running of the statute

of limitations. The Commission concluded, and we agree, that “the legislature in 2005

simply made clear that the apparent work-relatedness of an injury must be our paramount

concern in answering the question when the statute of limitations begins to run in

occupational disease cases.”

Based upon our determination of the purpose of the 2005 amendment to

§ 287.063.3, the first prong of Employer’s argument lacks merit. Although Claimant

suspected she had carpal tunnel syndrome in 2005, she tested negative for the syndrome

and was told she did not have carpal tunnel syndrome at that time. The Commission found

Claimant’s testimony credible, and we defer to that determination. Underwood, 369

S.W.3d at 66; see also Bock v. City of Columbia, 274 S.W.3d 555, 562 (Mo. App. 2008)

(“conditions that have been found to be outside the realm of lay understanding include

carpal tunnel syndrome”); see, e.g., Decker v. Square D Co., 974 S.W.2d 667, 669 (Mo.

App. 1998) (when “a worker seeks compensation for carpal tunnel syndrome, he or she

13
must submit a medical expert who can establish a probability that working conditions

caused the disease”). Further, both of Employer’s experts, Dr. Cooper and Dr. Crandall,

opined that Claimant did not have carpal tunnel syndrome in 2007. If it was not reasonably

discoverable and apparent to trained medical experts that Claimant suffered from carpal

tunnel syndrome, it would not have been reasonably discoverable and apparent to her. It

was not until 2011 that Dr. Crandall first diagnosed Claimant with carpal tunnel syndrome,

based on the second nerve conduction study that was positive for moderately severe right

carpal tunnel syndrome at that time.6 Similarly, the first time Claimant was told that she

had left carpal tunnel syndrome was via Dr. Kubik’s diagnosis in 2012. We therefore

conclude the Commission did not misapply § 287.063.3 by relying on the medical

diagnoses in this case to determine that Claimant’s two claims were not barred by the

statute of limitations.

The second prong of Employer’s argument, relying on Lawrence, fares no better.

In Lawrence, the employee developed ringing in her ears and other symptoms after being

exposed to extended periods of loud noise at work. She did not know what was causing

her ears to ring and then read several articles about tinnitus. Lawrence, 310 S.W.3d at 249.

She was moved to a quieter work location and was diagnosed with tinnitus over twenty

years later. Id. The employee argued that the statute of limitations began running when

she was diagnosed; the employer relied on the date twenty years earlier when she figured

out that she had tinnitus. Id. at 251-52. Because the Commission had not made a factual

6
Even at that point, however, Claimant was told by Dr. Crandall that Claimant’s
right carpal tunnel syndrome was not work-related, and was instead caused by other
medical risk factors. Therefore, it would not have been reasonably discoverable and
apparent to Claimant that her carpal tunnel syndrome was caused by work-related
exposure.
14
finding on the issue, the eastern district of this Court merely remanded for the Commission

to do so. Id. at 252. Employer relies on Lawrence to argue that Claimant should have

filed her claims in 2005 based solely on her suspicion that she had bilateral carpal tunnel

syndrome, or in 2007 following the data-entry project. We find no merit in either argument.

Lawrence is factually distinguishable because: (1) Claimant tested negative for carpal

tunnel syndrome in 2005; (2) she was given a different diagnosis of tendonitis in 2007, and

her symptoms resolved after a short course of treatment; and (3) Claimant was told that she

did not have carpal tunnel syndrome by physicians in 2005 and 2007. Placing an

obligation on Claimant to self-diagnose and file a workers’ compensation claim in either

of those years is not supported by the plain language of § 287.063.3 because it would not

have been reasonably discoverable and apparent to Claimant that she suffered from work-

related carpal tunnel syndrome at that time.7 Given the circumstances present in this case,

Employer’s reliance on Lawrence is misplaced. Therefore, the second prong of

Employer’s argument fails.

The third prong of Employer’s argument, relying on Miller, is also misplaced. In

Miller, 316 S.W.3d at 464, the western district of this Court upheld the Commission’s

factual finding that one of the employee’s claims for carpal tunnel syndrome with a 2007

7
As the Commission explained:

On the one hand, employer expects us to elevate employee’s lay opinion
regarding the proper diagnosis and work-relatedness of her upper extremity
problems as sufficient to obligate her to file a claim for compensation,
notwithstanding the unanimous opinions from the treating and evaluating
physicians that she did not have carpal tunnel syndrome in 2005 and 2007.
On the other, employer asks us to credit the opinion from Dr. Crandall that
employee’s carpal tunnel syndrome is, in any event, the product of a number
of non-work-related risk factors.

15
date of injury was duplicative of another carpal tunnel claim that she had filed with a 2004

date. Id. Both the employee’s claims “gave an identical description” of her injury, and the

employer offered medical testimony to support a finding that the 2007 claim did not set out

a new injury. Id. at 464-66. After concluding that the duplicative claim should be

dismissed without prejudice, the Court ordered the Commission to consolidate the other

claims and address the case on the merits. Id. at 466-67.

Employer relies on Miller to argue Claimant’s two 2012 claims “were duplicative

of the 2007 claim” and “are barred by the applicable statute of limitations as not filed

timely[.]” We find no merit in this argument because Miller is distinguishable. Although

Employer’s argument refers to “the 2007 claim[,]” Employer concedes that “Claimant has

never filed a Claim for Compensation” in 2007 or in 2005. We reject Employer’s specious

argument that the two claims Claimant did file are duplicative of a claim that she did not

file. Accordingly, the third prong of Employer’s first argument fails.

Employer’s Second Argument

The second argument made by Employer is that the Commission misapplied

§ 287.063.3 by applying a “subjective” rather than “the appropriate objective standard” to

decide when the occupational disease was reasonably discoverable and apparent.

According to Employer, that misapplication of law is found in the Commission’s reference

to Claimant when explaining its findings, i.e., whether the occupational disease was

“reasonably discoverable and apparent to employee that she’d suffered … carpal tunnel

syndrome” (italics added). We disagree.

As explained above, the statutory language in § 287.063.3 requiring an

occupational disease to be “reasonably discoverable and apparent” has long been

16
interpreted to mean that the running of the statute of limitations commences “[i]f it

becomes reasonably discoverable and apparent to the employee that he needs medical or

surgical treatment ….” Williams v. S. N. Long Warehouse Co., 426 S.W.2d 725, 734 (Mo.

App. 1968) (italics added); see also Enyard, 390 S.W.2d at 431 (affirming the

Commission’s finding that the claim was filed within one year of the time it became

reasonably discoverable and apparent to claimant that he had sustained a compensable

injury). Although the legislature made many revisions to Chapter 287 in 2005, no change

was made to the “reasonably discoverable and apparent” language in § 287.063.3. We

presume the legislature was aware of and adopted this settled judicial construction by

reenacting § 287.063.3 with this language included. See Flowers v. City of Campbell, 384

S.W.3d 305, 312 (Mo. App. 2012). The western district of this Court has applied §

287.063.3 in the same way as previous cases. See, e.g., Smith v. Capital Region Med. Ctr.,

412 S.W.3d 252, 262 n.9 (Mo. App. 2013) (holding that “the evidence in the record

supported the Commission’s determination that Smith’s claim did not accrue until 2005,

when he was informed by his physician of a possible connection between his hepatitis C

and his employment with Capital Region”). Accordingly, Employer’s second argument

fails.

In sum, there is no merit to any of Employer’s various arguments that the

Commission “misapplied section 287.063.3[.]” Therefore, Point 1 is denied.

Point 2

Employer’s second point challenges the Commission’s findings on medical

causation. “An occupational disease due to repetitive motion is compensable only if the

occupational exposure was the prevailing factor in causing both the resulting medical

17
condition and disability.” § 287.067.3. “The ‘prevailing factor’ is defined to be the

primary factor, in relation to any other factor, causing both the resulting medical condition

and disability.” Id. (bold emphasis in original). Here, the Commission credited Dr.

Schlafly’s opinion as to causation because:

Dr. Schlafly persuasively testified (as we so find) that [Claimant’s] typing
duties involved repetitive flexor tendon movements from repetitive motion
of the fingers, which in turn created a process of gradual inflammation
around the flexor tendons in the area of the median nerve and the carpal
tunnel. We find that [Claimant’s] occupational exposure to this gradual
inflammation process is the prevailing factor causing [Claimant] to suffer
the resulting medical condition of [right and left] carpal tunnel syndrome.

Employer’s point contends the Commission erred in making the above finding “because

the facts found by the Commission do not support the award[.]” According to Employer,

“the Commission erroneously found that Dr. Schlafly’s testimony was more persuasive on

causation” because his opinions “were based upon a large data entry project that occurred

in 2011 when the evidence clearly shows, and the Commission found, that the data entry

project occurred in 2007.” We disagree.

While Dr. Schlafly mistakenly referred in his deposition to the data-entry project

occurring in 2011 instead of 2007, that particular project was not the only basis for his

opinion that Claimant’s carpal tunnel syndrome was work-related. Dr. Schlafly also relied

on Claimant’s normal work duties, which involved repetitive motion of the hands in the

form of typing throughout most of the work day. The Commission credited Claimant’s

testimony that her normal work duties involved keyboarding 85-90% of each day and that

she was exposed for 14 years to repetitive hand-intensive work duties. Dr. Schlafly also

opined, as the Commission found, that it was Claimant’s “occupational exposure to this

gradual inflammation process” that formed the basis for Dr. Schlafly’s diagnosis of

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bilateral carpal tunnel syndrome in 2012. His opinion is supported, in part, by Dr. Cooper’s

diagnosis of tendinitis in 2007 and Dr. Crandall’s testimony that Claimant had no evidence

of carpal tunnel syndrome in 2007. What Employer is essentially arguing here is that the

Commission should have found Dr. Crandall more credible on the issue of causation. It is

well settled, however, “[t]he weighing of conflicting medical causation testimony lies

within the Commission’s sole discretion and cannot be reviewed by this court.” Proffer v.

Fed. Mogul Corp., 341 S.W.3d 184, 187-88 (Mo. App. 2011); see Armstrong, 391 S.W.3d

at 470-71 (the Commission’s decision as to which of the various medical experts to believe

is binding on this Court).8 Accordingly, Point 2 is denied.

Point 3

Employer’s third point challenges the Commission’s award of past medical

expenses pursuant to § 287.140. This statute requires an employer to provide an employee

with such care “as may reasonably be required after the injury or disability, to cure and

relieve from the effects of the injury.” § 287.140.1; Maness v. City of De Soto, 421 S.W.3d

532, 544 (Mo. App. 2014).9 A sufficient factual basis exists for the Commission to award

compensation for past medical expenses when: (1) the claimant introduces his or her

8
Employer also argues that Commission’s causation findings are not supported by
sufficient competent evidence in the record and are against the weight of the evidence.
Both arguments are predicated upon the premise that the Commission should not have
relied upon Dr. Schafly’s opinion on causation, which lacks merit for the reasons set out
above.
9
Further, “[i]f the employer is on notice that the claimant needs treatment, and the
employer fails or refuses to provide it, the claimant may select his or her own medical
provider and hold the employer liable for the costs thereof.” Martin v. Town & Country
Supermarkets, 220 S.W.3d 836, 844 (Mo. App. 2007); Abt v. Mississippi Lime Co., 420
S.W.3d 689, 704 (Mo. App. 2014).

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medical bills into evidence; (2) the claimant testifies that the bills are related to and the

product of his or her work injury; and (3) “the bills relate to the professional services

rendered as shown by the medical records in evidence.” Martin v. Mid-America Farm

Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. banc 1989), superseded by statute on other

grounds by § 287.160.3; Maness, 421 S.W.3d at 544. When these three elements are met,

the burden shifts to the employer to prove some reason the award of past medical expenses

is inappropriate. See Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818,

823 (Mo. banc 2003) (such as employee’s liability for the medical expenses was

extinguished, or that liability does not otherwise fall within other statutory provisions);

§ 287.270 (allowing an employer to receive a credit for medical bills paid by the

employer).10 The following additional facts are relevant to this point.

To meet Claimant’s burden, she provided her bills, the medical records reflecting

the treatment giving rise to the bills, and testimony identifying the bills and establishing

that she received them as a result of the disputed treatment. The Commission credited Dr.

Schlafly on the issue of past medical expenses and concluded that the “disputed treatment

was reasonably required to cure and relieve from the effects of [Complaint’s] compensable

work injury of [right and left] carpal tunnel syndrome.” The Commission then noted the

10
Section 287.270 RSMo (2000) provides:

No savings or insurance of the injured employee, nor any benefits derived
from any other source than the employer or the employer’s insurer for
liability under this chapter, shall be considered in determining the
compensation due hereunder; except as provided in subsection 3 of section
287.170, and employers of professional athletes under contract shall be
entitled to full credit for wages or benefits paid to the employee after the
injury including medical, surgical or hospital benefits paid to or for the
employee or his dependents on account of the injury, disability, or death,
pursuant to the provisions of the contract.

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burden properly shifted to Employer to demonstrate that Claimant was not required to pay

the billed amounts, that her liability for the disputed amounts was extinguished, or that the

reason the liability was extinguished does not otherwise fall within the provisions of

§ 287.270.

To meet Employer’s burden, Employer relied on Claimant’s testimony, elicited on

cross-examination. At that time, Claimant testified that her insurance through Employer

paid for all of her medical expenses and “to her knowledge” those bills were “completely

satisfied.” Claimant also testified, however, that she was unaware of whether she would

be asked for reimbursement of these charges in the event the case is deemed compensable

under workers’ compensation. The Commission relied on this latter testimony and

specifically found that, based on Claimant’s lack of training or expertise in these matters,

the Commission could not rely on her testimony alone that her liability for past medical

expenses has been extinguished:

There is no showing on this record that [Claimant] has any particular
training or expertise with regard to the topics of medical billing, insurance
law, or an employee’s liability for past medical expenses incurred in the
context of a disputed workers’ compensation case. Employer did not
provide any other evidence to demonstrate that [Claimant’s] liability for her
past medical bills has been extinguished, such as testimony from billing
representatives with the healthcare providers or a representative from
[Claimant’s] insurance program with [E]mployer. After careful
consideration, we do not deem [Claimant’s] testimony to persuasively
support a finding that her liability for her past medical expenses has been
extinguished.

We defer to this factual finding. Employer also argued that, because it is self-insured for

workers’ compensation purposes, any payment by Claimant’s health insurance through

Employer must be deemed a payment directly from Employer for purposes of § 287.270.

The Commission rejected this argument because:

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 [T]he fact that [E]mployer is self-insured for workers’ compensation
purposes reveals nothing with regard to the nature of [Claimant’s] health
insurance with [E]mployer. Employer did not provide any evidence with
regard to that insurance policy, and thus failed to establish that such
insurance is fully funded by [E]mployer and does not involve any co-pays,
co-insurance, deductibles, or monthly premiums payable by [Claimant]. In
the absence of any such evidence, we are not persuaded to make a finding
that payments from [Claimant’s] insurance with [E]mployer constituted
payments directly from [E]mployer for purposes of § 287.270.

After finding that Claimant met her burden, the Commission found that Employer failed to

meet its burden and awarded Claimant past medical expenses.

Employer’s point contends the Commission erred by finding Employer liable for

past medical expenses “because the facts found by the Commission do not support the

award[.]” According to Employer, the Commission erred in finding that “Employer failed

to meet its burden of (1) demonstrating that Claimant’s liability for her past medical

expenses has been reduced or extinguished in any amount, and (2) showing that the reason

Claimant’s liability was extinguished does not otherwise fall within the provisions of

§ 287.270” because “the uncontroverted evidence established that Claimant’s prior

medical bills were satisfied by her Employer and Claimant presented no evidence that she

may be responsible for such medical charges.” We disagree.

Employer’s point does not argue the Commission erred in finding Claimant met her

burden, but instead asserts error only in finding Employer failed to meet its burden to prove

some reason the award of past medical expenses is inappropriate. See Farmer-Cummings,

110 S.W.3d at 822-23; see also Maness, 421 S.W.3d at 544. Generally, if a medical

provider has allowed write-offs and fee reductions for its own purposes and the employee

is not legally subject to further liability, then the employee is not entitled to a windfall

recovery. Farmer-Cummings, 110 S.W.3d at 822-23. On the other hand, if the employee

22
“remains personally liable for any of the reductions, the employee is entitled to recover

them as “fees and charges” pursuant to § 287.140. Id. The employer carries the burden of

proving by a preponderance of the evidence that it is entitled to credit for write-offs and

fee reductions. Id.; see Proffer, 341 S.W.3d at 190.

On appeal, Employer relies exclusively on Claimant’s cross-examination testimony

that Employer paid for all of her medical expenses, and “to her knowledge” those bills

were “completely satisfied.” Contrary to Employer’s argument, it was not Claimant’s

burden to present “evidence that she may be responsible for such medical charges” – it was

Employer’s burden to prove she was not. See Farmer-Cummings, 110 S.W.3d at 822-23;

see, e.g., Proffer, 341 S.W.3d at 190 (to seek a reduction for write-downs, write-offs, or

adjustments, employer had to show that claimant had no reimbursement obligation or other

liability to pay such sums). Employer failed to present any of its own evidence to

demonstrate that liability for Claimant’s past medical bills had been extinguished or that

payments from Claimant’s insurance with Employer constituted payments directly from

Employer for purposes of § 287.270. Review of the record reveals no basis to reverse the

Commission’s finding that Employer failed to carry its burden. “As the party claiming a

credit, Employer carried the burden of proving it.” Proffer, 341 S.W.3d at 190. Point 3 is

denied.

The awards allowing workers’ compensation benefits for Claimant’s right and left

carpal tunnel syndrome, respectively, are affirmed.

JEFFREY W. BATES, P.J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCUR

MARY W. SHEFFIELD, C.J. – CONCUR

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