Bird droppings, histoplasmosis
A denial of benefits was reversed against the manifest weight of the evidence. The claimant made a submissible case of a fungus-induced histoplasmosis and the employer offered no "coherent" alternate theory or articulate opinions with a reasonable degree of medial certainty based on a review of records. Claimant's notice was sufficient that he identified a disabling respiratory condition and his initial mischaracterization of the condition as cancer was sufficient as the employer did not demonstrate any evidence of prejudice . Tolbert v the Illinois workers Compensation Commission, No. 12-MR-200 (IL App. 2014) (June 5, 2014)
Experts: Bruyntjens
Treater: Farah, Norris
Chicken house ammonia, etal
Claimant was diagnosed with reactive airway disease after building and repairing chicken houses for Tyson Foods. As a result, the Commission found he was unemployable in the open labor market. Graham v Latco Contractors, 2014 Mo WCLR Lexis 52 (April 11, 2014).
Claimant ultimately identified specific chemicals when he sued Tyson. He states he had to sell his family home, move away from Sikeston to the country in Piedmont where he could build a safe house where he was not exposed to chickens or any other noxious triggers. He stated he was told his condition was irreversible and he should enjoy his time left. Claimant's spouse testified to the deleterious affects after her husband's employment regarding his anger management, his weight control and his dental hygiene. She noted he used to be good looking when she married him. The voluminous award identifies a prior service connected disability for PTSD, among other conditions.
The ALJ found the employer entitled to the full subrogation interest in the third party $750,000 settlement and the employer did not currently owe any accrued benefits of more than $200,000. The ALJ allowed a full credit against the entire settlement as there was no apportionment in the settlement check for the spouse's loss of consortium claim.
ALJ: Robbins
Atty: Rau, Petraborg
Allergy to wood stain renders claimant PTD
Claimant, 56, was found unable to work after he developed an allergic reaction to applying stain, varnish, insulation texture and spraying fire retardants working for a company in the Branson area. Knepper v Midwest Coating of Mid Missouri, 2013 Mo WCLR Lexis 213 (November 21, 2013).
Claimant sought treatment for cracks and swelling of his right hand. Claimant underwent multiple debridements, developed an MRSA infection, and triggering in two fingers of his right hand. The employer stipulated an injury through an exposure to chemicals that is medically and casually related to his work in 2006. The employer's expert indicated that the injury to the right hand created an opening for the MRSA infection causing chronic residual dermatitis, lymphedema and neurologic impairment. He felt claimant could work with lifting restrictions as long as he avoided irritants and drying solutions. The claimant's vocational expert concluded because claimant's poor use of his hand eliminated most unskilled jobs and ruled out other jobs because he couldn't state they were chemical-free. Claimant's vocational expert was the only expert to find claimant unemployable.
The Commission affirmed the award 2-1, with a dissent who concluded claimant was only partially disabled and other prior chronic health conditions impaired his ability to work.
The Commission found no statutory basis to award disfigurement in a permanent total case. It noted disfigurement, however, supported an award for permanent total based on testimony of claimant's brother-in-law who stated essentially that claimant's hand was so ugly for anyone to hire him to do food service. The ALJ noted at the time of the hearing claimant's right hand remained highly discolored with an ashen, cracked and flakey appearance.
The Commission affirmed an award of open medical noting the employer's own expert indicated that claimant didn't need any more medical treatment but conceded that he could use an over-the-counter moisturizers. The award also notes claimant had a "potential" for recurrent triggering of his fingers, although it does not appear that had been treated for years or exactly how recurrent triggering flows from a skin reaction.
It was undisputed that claimant had "marginal" academic abilities at the 4th grade level which were vocationally impaired his ability to be retrained and various chronic cardiac and respiratory conditions. The ALJ noted the lack of expert evidence assigning prior disability to invoke any potential Fund liability. Claimant had worked previous hand-intensive jobs cleaning floors, cutting chicken and flipping donuts but could not use the job skills he had learned during his ten years in prison.
ALJ Mahon
Atty: Newman, Blickhan, Burks
Experts: Parmet, Volarich, Cordray, Swearingin
Treaters: Harris, Haddow, Cross
The Commission awarded life-time benefits to a mechanic because of COPD and pleural fibrosis, caused by smoking cigarettes and working as a mechanic with insulated pipes, smoke, dust and fumes for 32 years. Medical experts agreed that work and "many years" as a smoker both contributed to his disease. The Commission in a 2-1 decision reversed a denial of benefits, and awarded life-time benefits against the second injury fund and partial disability and future medical against the employer. The Commission found that claimant showed an increased risk greater than the general public and a link between his medical condition and distinctive features of the job. A claimant does not have to identify a specific noxious chemical. Claimant stated he was exposed to white powder and that sulfur fumes burned paint from employer's cars. The Commission rejected the employer's defense that the claimant was not competent to identify a substance as asbestos. The claimant testified about an asbestos-abatement program, and a supervisor identified material as asbestos. It was further reasonable to assume bags that were marked "asbestos" contained asbestos. Bennett v Kansas City Power & Light, DOLIR 12-7-10
The case involved a 2004 claim under former "liberal construction." The Commission found that the ALJ erred applying strict construction.
ALJ Siedlik
Atty: Knepper
Experts: Parmet, Beller, Kerby, Titterington
Paint fume exposure
The commission affirmed a 2-1 denial of work related asthma/RAD from exposure to paint fumes for about 2 years. Claimant is a 51 year old nonsmoker with allergies who worked initially in a painting booth until his duties were reassigned. Claimant described some ongoing symptoms after his layoff, but his examining physician Koprivica admitted during his rating exam he was asymptomatic. Claimant had no confirmatory tests of RAD, such as a methacholine test. The dissenting commissioner Chick felt claimant established causation because he had more paint fume exposure at work than away from work and the employer's expert was less credible because he did not testify. The administrative law judge declined to allow judicial notice to admit a CDC study discussing occupational asthma in other states, noting the more limited scope of judicial notice allowed by administrative law judges. Estebo v Webco Inc. DOLIR 7-13-11.
ALJ Mahon
Atty: Alberhasty, Sparlin, Bean
Experts: Koprivica, Parmet
Claimant alleged choking and a heart attack from noxious fumes after spraying an apartment bathroom to remove mold. The claimant’s expert attributed claimant’s symptoms to breathing muriatic acid without protective equipment. The Commission denied benefits and found claimant failed to prove accident, in Poarch v Madison Apartments, DOLIR 8-2-11. The administrative law judge concluded claimant failed to prove that claimant sprayed muriatic acid in his unmarked bottle or that the concentration reached a toxic level. Claimant denied immediate symptoms, delayed treatment for several weeks and had a history of a prior multi-level bypass. Claimant worked 25 years as a firefighter and alleged injuries while working as an unpaid employee without health insurance for his wife’s apartment complex. The employer settled the case before hearing for $16,000.
The court of appeals affirmed a denial of benefits that claimant failed to prove accident and rejected the contention that the second injury fund had a duty to present contrary evidence. The court noted 287.808 created a duty to present evidence on affirmative defenses, but claimant had the duty to provide credible issue on accident and the Commission indicated concerns about his credibility. Poarch v Treasurer of the State of Missouri, 2012 Mo. App. Lexis 592 (May 1, 2012).
Atty Kenter, Lowe.
ALJ Cain
Experts: Parmet, Cordray
Treater: Schenk
Isocyanate exposure to painter caused asthmatic bronchitis
Claimant worked more than 20 years with a previous employer as a painter, but his work painting a bridge was the prevailing factor in his asthmatic bronchitis. Medical records identified acute changes such as burning and peeling skin, direct exposure to paint splatter and ineffective masks, and a positive blood test. The employer's physician agreed the exposure was a contributing factor, but disputing whether it was the prevailing factor. Claimant had a 20 year smoking history, although the exact amount of smoking varied. Fry v Thomas Industrial Coating, DOLIR 11-10-2011, 2011 MOCLR 225.
ALJ Magruder
Atty Yarwood, Lawson
Treater: Yagan
Experts; parmet, Kerby
Aluminum dust and supports COPD claim
The Commission concluded exposure to dust and smoke substantially caused asthmatic bronchitis in a 66 year old retired smoker. Claimant had no obligation to provide notice of her 2004 disability until 2006 when a physician identified work as a factor. The ALJ noted claimant failed to prove periods of TTD after her retirement. Elwell v Stahl Specialty, 2011 MOWCLR LEXIS 233 (Nov. 15, 2011) Experts: Kerby, Koprivica
Benzene exposure renders claimant unemployable
A 57 year old long-term employee involved in the manufacture of battery cells reported exposure to benzene and other substances for a 10 year period caused IgA myeloma with resulting kidney damage, neuropathy in his hands and feet, and fatigue. The employer indicated claimant had no direct contact to benzene, the company use involved small quantities, and claimant could not make causation without more reliable information on dosage or duration of exposure. Neither party offered any field studies to evaluate the level of any toxic particulants. The Commission questioned whether such tests were necessary to establish causation. The employer reported some of its documents were lost in a fire. The claimant offered testimony from co-workers of lack of adequate safety equipment including no respirators and poorly functioning ventilators. Testimony from claimant's expert noted higher disease rates in certain industries and that claimant incurred the condition a younger age than typical for non-industrial onset. A coworker had also died form myeloma.
The Commission affirmed an award of permanent total benefits with open medical and imposed a 15% safety penalty for the 57 year old claimant. The Commission rejected the employer's objection that testimony had to satisfy the Frye standard. The award included past medical benefits of $734,586. Moreland v Eagle Picher Technologies, DOLIR 10-20-2011, 2011 MOWCLR LEXIS 210, affirmed 2012 Mo. App. Lexis 396 (SD 3-21-2012).
ALJ Fisher
Atty: Platter, Gross
Experts: Goldstein, Borak, Parmet, Pineda
Tricholoroethylene exposure renders claimant unable to work
A 62-year old claimant's multiple exposures to tricholoroethylene caused dementia, tremors and blackouts and rendering him permanent and totally disabled, based on an award from Judge Wilson recently affirmed by the Commission. The parties did not dispute that claimant had an exposure and that claimant was unable to work, but questioned whether the occupational exposure caused the conditions. Claimant described acute symptoms after various exposures. Claimant had a normal MRI, normal EMG studies, and no evidence introduced of any liver damage. No evidence was introduced from experts Heligman or Koprivica to support an award for future medical. Judge Wilson rejected a statute of limitations defense noting claimant did not become aware of a work related claim until he stopped working in 1995, rejected that the employee had any obligation to provide notice under the older statute, and that the employer had no "credit" for benefits paid on a disability plan that could be applied under chapter 287. The case is Trueblood v FAG Bearings, DOLIR 9-9-09.
Claimant proves exposure causes chemical sensitivity
In Lewry v City of Kansas City, 9-1-09, the Commission found PTD for a chemical exposure, resulting in tremors and neurologic damage, and chemical sensitivity. ALJ Siedlik noted claimant relied upon testimony from Dr. Kilburn, a well-qualified expert to address the effects of claimant's exposure to cyanide, and pesticide ingredients. The employer introduced records that claimant might be a malingerer.
Benezene exposure
In Kammeier v AR Fleming Printing Company, DOLIR 4-1-09 the Commission affirms an award of PTD benefits awarded by Judge Carlisle, in a second bite at this decade-old exposure claim.Claimant received an award of permanent and total disability benefits from exposure to various chemicals, leading up to his last employment in 1999. Current complaints include a loss of intimacy, difficulty sleeping, burning sensation in his fingertips, decreased ability to grasp or button a shirt, leg numbness below the knee with shooting pain, cold and burning feet, inability to distinguish between hardwood floors and carpet or gas and brake pedals, difficulty putting on tight socks, and tucking or buttoning his shirt. His toes do not bend and he has gained one-hundred pounds from inactivity. The employer’s expert indicated claimant’s abnormal studies likely arose from cigarette smoking and not from occupational exposure to benzene, including trimethylbenzene. Other experts disputed whether the medical studies supported causation or not.Claimant originally lost causation when the cause was first tried, but the Commission reversed resulting in a temporary award. The employer reported it had paid 438 weeks1 in TTD benefits leading up to the second hearing.Claimant's counsel attempted a pre-emptive strike for a determination of dependency, but Judge Carlisle declined to make an findings of dependency, noting claimant could not have dependents unless he was already dead.1. 287.170 now limits TTD payments to not more than 400 weeks.
No disability for cleaning solvent exposure
Claimant alleged permanent total from asthma and treated for period asthma attacks and claimed her conditioned worsened due to exposure of 409 cleaning solvent. Judge Landolt found the employer controlled the work environment, knew of claimant's exposure to allergens, and created a direct link for causation of a work-related condition since she could have arguably avoided exposures outside the workforce. Claimant was awarded about $11,000 in medical bills, but did not establish additional disability, despite vocational evidence that she was unemployable because she could not "control the air" around her in the open labor market. Claimant continued to report 4-5 attacks per month even after she stopped working. Prior to her 409 exposure, she had reported attacks due to exposures at work from cat hair of a co-employee and obtained a medical restriction that: " she not share desks, chairs, etc. with workers who have cats, nor work near them." The case is Bills v Express Scripts, affirmed by the Commission on 7-30-09.
Claimant failed to prove disability from aluminum dust exposure
Claimant asserts that exposure to aluminum dust in her job as a sander caused numerous medical problems, and states she worked 40% of her time sanding and could look like a "tin man" due to dust exposure. Claimant filed a claim in 2003, when she was first diagnosed with high serum levels a year after her employment ended. Judge Dinwiddie denied benefits and found the employer's expert Dr. Tominack more persuasive based on his toxicology credentials and more informed medical history. The judge also noted that claimant's cogent presentation at two hours of hearing undermined her claim that work made her forgetful and confused. The case is Sally Barbrow v Leonards Metal, affirmed by the Commission on 5-20-09.
Pro se loses mold exposure case
The commission affirms a denial of benefits in the pro se case Nanette Kirkey v City of Springfield, DOLIR 6-24-10, in which claimant who has allergies alleges working in airport caused disability from exposure to mold. The administrative law judge noted that claimant failed to prove her case: she had no medical evidence of work-related causation or disability, that mold exposure levels at work were any higher than what she would encounter in non-occupational environment, and that her pictures of "mold" may not have even been mold. Claimant's original hearing date had been continued for 2 months to allow her to retain counsel. The Commission does not identify what exact point of error was alleged on the appeal. The case demonstrates another example of how comp pro se claimants can prevail for their day in court without a summary judgment procedure.
ALJ Wilson
Atty: Harmison
The Comission affirms a denial of a chemical sensitivity claim, after affirming a permanent total award last year with similar allegations. The condition is sometimes described as idiopathic environmental intolerance (IEI).
Claimant became short of breath, dizzy, and nauseous after working in her employer’s greenhouses, and states spraying plants periodically over 2 ½ years caused multiple chemical sensitivity. She stated she even had an "attack" during an IME and couldn’t tolerate her own expert’s cologne.
Claimant treated for several years with Dr. Sultan for chemical sensitivity since the 1998 exposure and uses a "detox" cocktail. Dr. Sultan advised her to change jobs and work only in a "clean" environment. He did not testify in her claim for permanent and total disability, and the employer objected to another expert testifying about Dr. Sultan’s causation opinions. Claimant states she is a recluse and rid her home of chemical products and changed her diet due to food sensitivities. Dr. Feinberg, a pain management expert retained by her attorney, concluded that claimant was unemployable.
The Commission affirmed a denial of the claim. Claimant and her expert were not found to be credible. Claimant described inconsistent symptoms. She provided no medical support for her claims of fibromyalgia and latex allergy (including multiple normal RAST tests). Claimant’s expert was found less qualified. He did not fully consider her entire history that included prior complaints of headache, nausea and fatigue and asthma Dr. Belz, the employer’s expert, indicated that the diagnosis of chemical sensitivity is not generally recognized in the medical community.
The case demonstrates the importance of an expert’s qualifications relative to other experts. No explanation is indicated why Dr. Sultan, as a treating expert, did not testify.
The Commission affirmed a permanent and total disability award last year in a similar chemical sensitivity case. Lewry v City of Kansas City, involved another patient of Dr. Sultan who alleged symptoms arising from exposure to pesticides and unknown chemicals. In Lewry, claimant reported tremors and described irregular use of protective gear. The administrative law judge in Lewry, by contrast, criticized the employer’s expert, Dr. Parmet, as less credible because he had the "pre-conceived" notion that multiple chemical sensitivity did not exist as a "real" diagnosis.
transformer oil
The court of appeals has tossed back to the Commission for further findings a case from an exposure 29 years ago in which claimant reported an accident caused a swollen penis, among other symptoms, and rendered him unemployable.
Claimant alleges he cannot work since 1990 after 3 exposures to spilled transformer oil from 1987-1990 in his employment as a electrical lineman causing sclerosing lipogranuloma resulting in infection with testicular inflammation. "Mr. Spencer suffered from a "swollen hard penis," flushing of his face and arms, and complained of blurred vision and pain." The case is Spencer v SAC Osage Electric, WD 70443 (Mo. App. 2-9-10).
The Court of Appeals reversed the Commission's denial of benefits for further findings of fact whether the Commission considered claimant's exposure to transformer oil was in its "virgin" state or altered state based on length of service and exposure to lightning strikes and the elements. The Court noted the employer's expert had not considered the effects of transformer oil in the later condition and a denial may be against the overwhelming evidence in those circumstances since such a finding would be uncontroverted. A medical expert identified self-injection of wax to improve sexual performance was recognized as a cause for the condition, although claimant denied he performed any self-injections The Commission "must decide" not only the historical facts concerning the transformer oil to which Mr. Spencer was exposed, but must also address Dr. Belz's opinions as to the changes in the chemical composition of that 15 oil based on its service life and history (including his competence to offer those opinions).
Claimant did not provide histories of transformer oil exposure to his initial treating exposures and his expert Dr. Belz, formulated one of his theories of causation 1 week before the hearing. Claimant's expert reported a latency period of 5-18 months following an exposure.
The court reminded the Commission to consider application of pre-1993 law, as the case originated nearly 3 decades earlier. Attorney Dan Rice represented the employee.
Claimant, 64, worked 8 years as a welder and reports exposure to welding and "fumes" caused chronic pulmonary disease that rendered him permanently unable to work, an argument supported by his expert Dr. Poetz and accepted in Hopkins v Motor Coils Mfg, DOLIR 2-4-10 (Landolt, J). Claimant asserted that he had ill-fitting safety equipment and that at one time was able to engage in semi-pro football. Dr. Dew, the employer's expert, concluded that claimant had bronchial asthma from an industrial fire, and that welding could aggravate claimant's condition, but could not conclude that claimant had any welding induced asthma. The administrative law judge noted that Dr. Dew's opinions were "difficult to decipher." Dr. Garcia noted worsening symptoms of claimant's asthma but found claimant employable and attributed the condition to chronic smoking.
insufficient proof of exposure
Claimant lost his claim against the second injury fund when he failed prove an accident that his alleged exposure to muriatic acid fumes caused a heart attack. Poarch v Treasurer of the State of Missouri, 2012 Mo. App. Lexis 592 (May 1, 2012). The ALJ found that Poarch's "whole case was based on his uneducated self-diagnosis or determination that he was exposed to some substance for which he offered no credible proof that he was in fact exposed or that the substance was toxic. The ALJ [Cain] further noted that Poarch had no expertise in identifying muriatic acid and that Poarch, who was not a doctor, only offered his self-diagnosis as proof that he sustained a heart attack on May 18, 2006."
Claimant alleged choking and a subsequent heart attack after he inhaled noxious fumes while spraying an apartment bathroom to remove mold. The claimant’s expert attributed claimant’s symptoms to breathing muriatic acid without protective equipment. The Commission denied benefits and found claimant failed to prove accident, in Poarch v Madison Apartments, 2011 Mo. WCLR Lexis 169 (August 2 2011). The administrative law judge concluded claimant failed to prove that claimant sprayed muriatic acid in his unmarked bottle or that the concentration reached a toxic level. Claimant denied immediate symptoms, delayed treatment for several weeks and had a history of a prior multi-level bypass. Claimant worked 25 years as a firefighter and alleged injuries while working as an unpaid employee without health insurance for his wife’s apartment complex. The employer and Fireman's Fund settled the case before the hearing.
