Harold Sartin v. Paul Mueller Company

condition is non-occupationally induced asthma. The majority of the Commission award 7.5\% permanent partial disability. Neither the administrative law judge nor the majority express that they disbelieve the testimony of Dr. Volarich or Dr. Belz or offer an explanation for concluding that the extent of employee's disability is less than opined by both medial experts.

I am cognizant that it is within the exclusive province of the Commission to determine matters of disability and the Commission is not bound by percentages of disability found by medical experts. See Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465, 470 (Mo. App. 2004). Nonetheless, the Commission may not arbitrarily disregard and ignore the competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base its finding upon conjecture or personal opinion unsupported by sufficient competent evidence. Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. 2004).

Here the undisputed, unimpeached, and uncriticized evidence is that the extent of employee's permanent partial disability is at least 10 % of the body as a whole. The majority errs in concluding it is lower than established by the medical experts. I conclude that the award should be modified to award permanent partial disability of 10 % of the body as a whole.

For the foregoing reasons, I respectfully dissent from the portion of the decision of the majority of the Commission affirming the administrative law judge's conclusion regarding permanent partial disability.

John J. Hickey, Member

Employee: Harold Sartin

Injury No. 02-056606

Dependents: N/A

Employer: Paul Mueller Company

Additional Party:

N/A

Insurer: Sentry Insurance Company

Hearing Date:2/22/05

Checked by: MEH

1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? YES
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: 6/12/02
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
7. Did employer receive proper notice? YES

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

BILL FRANCIS

Employee: Harold Sartin

Injury No. 02-056606

Dependents: N/A

Employer: Paul Mueller Company

Additional Party:

N/A

Insurer: Sentry Insurance Company

Hearing Date:2/22/05

Checked by: MEH

The parties appeared before the undersigned administrative law judge on February 22, 2005, for a final hearing. The claimant appeared in person represented by Bill Francis. The employer and insurer appeared represented by Ray Whiteaker. Memorandums of law were filed by March 28, 2005.

The parties stipulated to the following facts. On or about June 12, 2002, Paul Mueller Company was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Sentry Insurance Company. On the alleged injury date of June 12, 2005, Harold Sartin was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The employment occurred in Greene County, Missouri. The claimant notified the employer of his injury as required by Section, 287.420 RSMo. The claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged occupational disease, the claimant's average weekly wage was sufficient to allow a compensation rate of $\ 329.42 for permanent disability compensation. Temporary disability is not an issue. No temporary disability benefits have been paid to the claimant. The employer and insurer have paid no medical benefits. The attorney fee being sought is 25 %.

1. Whether the claimant sustained an occupational disease which arose out of the course and scope of employment.

1. Whether the occupational disease caused the injuries and disabilities for which benefits are being claimed.
2. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
3. The nature and extent of permanent disabilities.
4. Whether costs should be assessed under Section 287.560 RSMo.
5. Whether a 15 % penalty should be assessed against the employer and insurer for failure to follow safety procedures.

The claimant graduated from high school, after which he has received training as a nurse and as a welder. The claimant has worked at Paul Mueller since 1995. Prior to his employment with the employer, he worked at Reliable Chevrolet in the body shop. He worked in an enclosed paint booth with a down draft system. He reports no pulmonary or respiratory problems during this time. He also held other positions in the healthcare field after this and reported no pulmonary or respiratory problems from any subsequent employment. The claimant testified that he has been a social smoker in the past smoking approximately 3-4 cigarettes per year. At the time of the hearing, he could not recall the last time he had smoked a cigarette. He reports some allergies due to hay fever, but nothing that caused shortness of breath or fatigue.

In 1985 he was hired as a production worker with the employer. He was required to move from station to station wherever he was needed within the departments. He was then promoted to fabricator. His job duties entailed tinning, light welding, and painting. During his time with the fabrication and painting department, he was required to mix paint and fill paint guns. He would then paint approximately 4 - 6 hours daily, sometimes more. The claimant testified that he utilized a paint booth, which consisted of a curtained area within the workspace. He described the booth as a "shower type" set up. The curtains did not reach to the floor, nor were the curtains able to be shut fully. This allowed the paint fumes to escape the booth.

Claimant testified that during his paintwork with employer, he did wear a cartridge mask with open spaces around the nasal area. The mask did not create a vacuum allowing paint to be inhaled thru the mask. Once removed, he and other workers were able to see tracks of paint that had seeped thru the mask onto their faces. There was no temperature control within the building. In the summer, temperatures within the building would cause workers to sweat and thereby causing the masks to slip from the face and move around. He wears glasses and often would observe his glasses fog over due to the lack of seal around the nose. He also observed overspray on his glasses as well.

The claimant often had to spray paint outside the booth due to the excessive size of items to be painted. His supervisor, Steve Norris, authorized this procedure. However, the superintendent, Joe Gimson questioned the practice of painting outside the booth and ordered the claimant to stop. The claimant said that Mr. Gimson informed him that he was receiving complaints regarding the paint fumes. Co-workers also requested he cease

painting. They complained of the fumes bothering them. He was also requested to cease painting by people who met in an overhead meeting room within proximity of the paint booth and surrounding area. The attendees of the meeting complained of headaches due to the fumes.

The claimant presented several masks as examples of what he used during different tasks. The first mask (Claimants Exhibit G) he described would have been used during the "flux" process. He described the flux process as a chemical used to prepare metal to allow materials to adhere to the metal. When the heat would hit the flux