Noxious dust exposure renders claimant unemployable

The commission affirmed an award of permanent and total disability benefits to a 50-year old state employee who worked as a janitor and cleaned up around an asbestos abatement work site for about 3 months.  Claimant assets the employer provided no safety protection when he mopped the area and dumped trashcans containing noxious white powder.  Cooper v Mid Missouri Mental Health, 2018 MO WCLR Lexis ___ (2/23/2018)

On appeal, the Commission affirmed an award of PTD, open medical, past medical bills of $232,627 but reversed a 15% safety penalty based on lack of expert opinion to show specific terms within the safety penalty of 292.300 which provides:

§292.300 RSMo:
Employer to provide protection to employees from diseases.
That every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process. (Emphasis ours.)

"We find that claimant’s hypersensitivity pneumonitis was caused by conditions in theemployer’s workplace and exposure occurred relative to employee’s work duties. However, there is an absence of evidence demonstrating the existence of approved and effective devices, means or methods for the prevention of employee’s injury; nor is there evidence demonstrating employer’s failure to provide such caused employee’s injury. Therefore, we are not prepared to conclude if employer had provided a device, means or methods (as required by the statute), then the occupational disease could have been prevented....Employee has not proven that an approved and effective device, means or method existed fro the prevention of such occupational exposure.  .... Employee has not proven that an approved and effective device, means or method existed for the prevention of such occupational disease...." Dr. Parmet, the claimant's expert, asserted that claimant developed hypersensitive pneumonitis from dust exposure and particles and suspected claimant may have also developed sarcoidosis from exposure.  Claimant developed progressive weakness and could not tolerate sedentary work without extensive accommodation.  His condition was originally identified as only an eye problem.  Claimant developed a variety of other medical conditions secondary to use of prednisone, including the ultimate need for a total hip replacement.
The ALJ found claimant developed diabetic neuropathy and needed a hip replacement because of medication used for the pneumonitis.  The ALJ found insufficient medical proof that claimant's sacroidosis flowed from the exposure, not did he find  lymphoma or consequences of using mediation for sacroidosis to be work related. 

The employer denied liability from the onset and defended the case based on expert opinion from Dr. Graham and Dr. Jacobs who found claimant's condition arose from non-occupational sarcoidosis.  The ALJ ultimately found claimant's expert, Dr. Parmet, as more credible. 

"On the issue as to whether Claimant’s interstitial lung disease is hypersensitivity pneumonitis or sarcoidosis, I find Dr. Parmet’s opinion to be more credible and persuasive than those of Dr. Graham or Dr. Jacobs. First of all, Dr. Parmet’s opinion was made upon the examination of all the evidence. Second, Dr. Parmet’s opinions are consistent with the laboratory results. Third, Dr. Parmet’s opinion is consistent with the chronology of the case. While correlation is not causation, Claimant’s lung symptoms did correspond temporally to significant dust exposure. The lung symptoms were not initially accompanied by any other symptoms related to sarcoidosis, and in February 2008 hypersensitivity pneumonitis was diagnosed, and Claimant was treated with prednisone (which is the proper treatment for hypersensitivity pneumonitis and is also the proper treatment for sarcoidosis), and Claimant’s lung symptoms responded positively to the prednisone. It was not until September 2010 (two and a half years later) after evidence of sarcoidosis was found in other body systems, that Dr. Sohal "changed" Claimant’s lung diagnosis to sarcoidosis."

The ALJ accepted the only vocational opinion that claimant was unemployable in the open labor market. 

The ALJ noted Dr. Parmet could not state with a reasonable degree of medical certainty that claimant's sarcoidosis arose from the exposure nor did he provide any testimony that claimant's depression flowed from his accident.

The ALJ noted that the condition involved complicated medical issues that had changing diagnoses in the courses of claimant's care.  The commission affirmed the denial of attorney's fees for unreasonable defense although the employer did not prevail.

The 35-page opinion by ALJ Dierkes is a excellent primer describing the court's treatment of similar cases such as Vickers v. Department of Public Safety, 283 S.W.3d 287 (Mo. App. 2009), Smith v Capital Region Medical Center, 412 S.W.3d 252 (Mo. App. 2013) and Lankford v Newton County, 2017 MO WCLR LEXIS  2019, decision without published opinion 2017 MO Lexis 138  (Jan. 17, 2017).  


ALJ  Dierkes
Atty Rotts, Ahrenbach, Dunkham, Hinson
Treater:  Guntur, Wen
Experts:  Parmet, Kibby, Weimholt, Graham, Jacobs


https://labor.mo.gov/sites/labor/files/decisions_wc/CooperLamont.pdf

Commission affirms SIF total back on back

The 2-0 commission affirmed an award of total SIF benefits to a 52 year old man with a series of 3 back injuries.  Johnson v RBJ Investors, 2018 MO WCLR LEXIS (DOLIR 2/23/2018)

Claimant reported he had back pain before the primary injury and used narcotic medication on occasion and a brace to treat a foot drop following surgery for a prior herniated disc.  Claimant asserts after his last accident his pain is "much worse", that he uses medications more frequently and must lie down to alleviate his symptoms.

The ALJ noted claimant had an identifiable accident from carrying firewood that caused "great pain."
He asserted prior to the accident he worked "up to" 70 hours a week.   The expert for the claimant attributed partial disability to the last accident alone.  The fund apparently offered no expert opinion to challenge the testimony in the 2013 case. 


ALJ:  Fowler
Atty:  Martin, Fournier
Treaters:  Dr. Clough
Experts:  Dr. Stuckmeyer, Direling

Hip replacement re-do not caused by strain

Koch v Aldi
Jan 31, 2018    2018 MO WCLR LEXIS ----
ALJ Hart
Atty:  Cox, Barnett, Toepke
Experts: Lux


The Commission affirmed a denial of past medical bills of more than $51,000  to a claimant who fell in 2013, strained her hip, and claimed new symptoms required her to have new surgery to revise a prior hip replacement.

Claimant failed to prove the need for new hip surgery flowed from her accident based on equivocal testimony.  Dr. Lux initially stated it was unrelated and then stated the need for surgery was related based on a medical history that claimant was asymptomatic and developed intense pain after the accident.  Dr. Volarich testified the claimant remained symptomatic and missed work as the prior replacement due to wear and tear (osteolysis)  Claimant had a prior right hip replacement in 1990, a revision of the prior hip in 1996 for a failed replacement, and she returned to her former surgeon, Dr. Lux, following the 2013 accident, 17 years later.  

The ALJ awarded 15% for a hip strain and denied future medical. The Commission affirmed an award of  total disability against the second injury fund.

"She credibly testified these injuries were a hindrance or obstacle to her employment in that they limited her ability to lift, kneel, and grip. Her strength was reduced and she needed assistance from co-workers. She limped at times and had swelling in her left ankle. She had low back pain and stiffness that limited her ability to sit or stand very long."
The commission stated it deferred to the ALJ's findings on credibility, despite some inconsistencies, but noted it was not legally compelled to follow such a determination.  The commission further noted it considered issues of both causation and nature and extent, although it noted argument in the appeal was broader than the issue on the application for review.