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Donald Hagan v. Western Waterproofing

Decision date: August 14, 20079 pages

Summary

The Commission affirmed the administrative law judge's award allowing workers' compensation benefits for Donald Hagan's occupational disease (dust inhalation) contracted on September 15, 1998 while operating a jackhammer. The employee was awarded permanent total disability benefits and compensation for temporary disability and past medical expenses.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-115786

Employee: Donald Hagan

Employer: Western Waterproofing

Insurer: Aetna Casualty Company c/o Travelers

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

Date of Accident: September 15, 1998

Place and County of Accident: St. Louis, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 16, 2007. The award and decision of Administrative Law Judge Margaret D. Landolt, issued April 16, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }} \qquad$ day of August 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Dependents:N/ABefore the
Division of Workers’
Employer:Western WaterproofingCompensation
Additional Party:N/ADepartment of Labor and Industrial
Relations of Missouri
Jefferson City, Missouri
Insurer:Aetna Casualty Company c/o Travelers
Hearing Date:January 25, 2007Checked by: MDL:tr

FINDINGS OF FACT AND RULINGS OF LAW

  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: September 15, 1998
  5. State location where accident occurred or occupational disease was contracted: St. Louis
  6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  7. Did employer receive proper notice? N/A
  8. Did accident or occupational disease arise out of and in the course of the employment? Yes
  9. Was claim for compensation filed within time required by Law? Yes
  10. Was employer insured by above insurer? Yes
  11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was operating a jackhammer when he inhaled dust. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Body as a whole - lungs 14. Nature and extent of any permanent disability: Permanent total disability 15. Compensation paid to-date for temporary disability: -0 - 16. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Donald Hagan Injury No.: 98-115786 17. Value necessary medical aid not furnished by employer/insurer? -0 - 18. Employee's average weekly wages: $\ 861.70 19. Weekly compensation rate: $\$ 562.67 / \ 294.73 20. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable: 137 3/7 weeks of temporary total disability (or temporary partial disability) $\ 77,326.93 Past medical expenses $\ 1,452.75
(* Employer is entitled to a $10,000.00 credit pursuant to the agreement of the parties)($10,000.00)
Permanent total disability benefits from Employer beginning July 1, 2001 for Claimant's lifetime**
(** represents an indeterminate lifetime amount)
22. Second Injury Fund liability: No
TOTAL:$68,779.68 **
23. Future requirements awarded: None
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 fornecessary legal services rendered to the claimant:
Mr. Dennis Barbour
FINDINGS OF FACT and RULINGS OF LAW:
Employee:Donald Hagan
Dependents:N/A
Employer:Western Waterproofing
Additional Party:N/A
Insurer:Aetna Casualty Company c/o Travelers
Injury No.:98-115786
Before the
Division of Workers'
Compensation
Department of Labor and Industrial
Relations of Missouri
Jefferson City, Missouri
Checked by:MDL:tr
PRELIMINARIES
A hearing was held on January 25, 2007, at the Division of Workers' Compensation in the City of St. Louis. Donald Hagan (Claimant) wasrepresented by Mr. Dennis Barbour. Western Waterproofing (Employer) and its Insurer, Aetna Casualty in care of Travelers, were represented by Mr. Robert Hendershot. This case was consolidated with Injury Numbers 98-174736 and98-115782for purposes of hearing. All three claims allege a date of injury of September 15, 1998, and all allege permanent total disability. Before the hearing, Claimant dismissed his claim against the Second Injury Fund. Mr. Barbour requested a fee of 25% of Claimant's award.
The parties stipulated that on or about September 15, 1998, Claimant was an employee of Employer;

venue is proper in the City of St. Louis; and the claim was timely filed. The parties further stipulated Claimant was earning an average weekly wage of $\ 861.70 resulting in applicable rates of compensation for $\ 562.67 for total disability benefits and $\ 294.73 for permanent partial disability benefits. Employer has paid no benefits.

The issues for resolution by hearing are: Did Claimant sustain an occupational disease arising out of and in the course of employment; medical causation; liability of Employer for past and future medical care; is Employer liable for TTD benefits; what is the nature and extent of permanent partial disability sustained by Claimant; and is Claimant permanently and totally disabled.

SUMMARY OF EVIDENCE

Claimant is a 52 year old man who completed $11 \frac{1}{2}$ years of high school but did not graduate. After leaving high school, Claimant worked in various labor positions. In the 1970s, he was a gas station attendant and performed general mechanics. In the 1980s, Claimant worked for Hussmann in production for a brief period of time and also worked in the food and bartending industry. Claimant also worked for various construction companies doing mainly new commercial construction. Claimant began working for Employer as a general laborer in 1992 and worked until September 15, 1998. He has not worked since that time. Before working for Employer, Claimant never had any medical problems. He never had breathing problems, sinus problems, allergies or gastrointestinal problems. Claimant was an avid runner. Employer is in the business of repairing parking garages. Claimant operated jackhammers which ranged from 30 to 60 pounds. He used the jackhammer to break up concrete. Claimant also performed gunniting work, which involved mixing dry sand, cement, and microsilica, and then spraying the mixture onto the ceiling in a wet form. While working for Employer, Claimant also occasionally worked with a bonding agent called Armatec, and worked on deck coating jobs. Working on deck coating jobs involved removing old concrete, then cleaning before applying primer, basecoat, intermediate and top coat. When he applied deck coating, he had to mix basecoat, which produced fumes that gave him headaches, and caused him to have labored breathing and shortness of breath. It sometimes took his breath away.

The last job Claimant had with Employer was at the Pierre Laclede garage from January 1, 1998 to September 15, 1998. Claimant worked an eight-hour shift, five days a week operating his jackhammer for approximately six hours every day. Claimant did not perform any deck coating work while on the Pierre Laclede project. At the Pierre Laclede project, they started on the top deck with its half wall and cross breeze, and worked their way down the garage.

As they moved down the levels of the Pierre Laclede garage, there were numerous complaints regarding debris on parked cars, so plastic barriers were erected. These barriers were large sheets of plastic which were hung from the roof but not sealed either to the roof or to each other. These barriers were in place for the three months from January to April 1998 and then crews began working at night. During the night shifts the workers used a ventilating fan.

There was excessive dust on the Pierre Laclede project. About a one-inch thick layer of dust accumulated on the floor, and there were times when the dust was so thick that the workers could not see someone jackhammering within a few feet of them. Workers were provided with 3M paper dust masks but Claimant went through as many as six masks in a single shift, and occasionally Employer ran out of masks. While inside the barriers, Claimant's mouth and nose became clogged with dust, and sometimes turned his spit black or gray. Claimant testified that he could taste the microsilica in the concrete, and when he blew his nose black chunks came out. The jackhammers gave off an oil spray which combined with the dust to form a thick material on Claimant's hands and clothes. Toulene was used to wipe down their tools and occasionally they used Toulene to clean their faces. Although Employer's witness, Dave Economon, testified that workers used a product called "Scrubs in a Bucket" to clean their hands and faces, Claimant was not familiar with the product and had never seen it.

While working on the Pierre Laclede project, Claimant began to notice he was developing breathing problems and feeling run down. He experienced problems with excess mucous, spitting, chest tightness, raspiness of voice, headaches, increased coughing, shortness of breath, decreased stamina, and trouble sleeping. He began to notice severe breathing problems in March 1998, three months after beginning the Pierre

Laclede project. Claimant stopped running at the end of March 1998.

On September 15, 1998, Claimant went to work and began hammering. He became especially fatigued and his breathing was labored, and he had a pain in his throat area. Claimant left work at 4:00 a.m. and tried to do some clean up work, but he felt nauseated and eventually vomited. Claimant then left the job site and drove home, but because he was having breathing problems he responded to the emergency room at Christian Hospital.

At Christian Hospital, Claimant complained of chest pains, lung congestion, and a burning feeling lasting for the preceding six to eight months, as well as double vision, nausea, and dizziness. The clinical impression was acute dyspnea, and he was referred to Dr. Mark Wald, a pulmonologist. Claimant also went to his primary care physician, Dr. Knapp, with complaints of chronic bronchitis for the preceding six months and was referred to Dr. Wald.

Claimant saw Dr. Wald on September 14, 1998, for complaints of troubled breathing, a burning in chest, congestion, nausea, and headaches. Claimant denied any reflux symptoms. Claimant underwent a pulmonary function test with the impression of mild restrictive ventilatory abnormality. Dr. Wald prescribed Prednisone, but Claimant had a severe psychotic reaction to the medication which required hospitalization at DePaul Health Center. Following his release, Claimant underwent another course of pulmonary function testing on October 15, 1998, which again revealed mild restrictive ventilatory abnormality.

Claimant then sought trea

Full decision text continues in the plain-text archive copy.

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