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:
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...."
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
