David Kammeier v. A. R. Fleming Printing Company

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

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 October 2, 2008. The award and decision of Administrative Law Judge Suzette Carlisle, issued October 2, 2008, 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 1st day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: October 1, 1999

- State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant developed peripheral neuropathy from prolonged exposure to chemicals at work.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Bilateral hands, legs, and feet

- Nature and extent of any permanent disability: Permanent Total Disability against Employer

1. Compensation paid to-date for temporary disability: $\ 253,640.33
2. Value necessary medical aid paid to date by employer/insurer? $\ 42,323.05

Employee: David Kammeier

Injury No.:99-146915

1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: Sufficient to reach maximum rates of compensation

1. Weekly compensation rate: $\$ 578.48 / \ 303.01
2. Method wages computation: By stipulation

1. Amount of compensation payable:

Permanent total disability benefits in the amount of $\ 578.48 from Employer/Insurer beginning June 19, 2006, for Claimant's lifetime

Employer/Insurer shall receive a credit for overpayment of temporary total disability in the amount of $\ 578.48 per week from June 19, 2006 through December 5, 2007

1. Second Injury Fund liability: Dismissed prior to hearing

1. Future requirements awarded: As outlined in the award

Said payments to begin 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: Dean Christianson

A Temporary Award was issued by Judge Joseph Denigan in the above captioned matter on October 18, 2000. The judge found for David Kammeier, ("Claimant") on notice, but denied issues related to occupational disease, liability for medical expenses, and Temporary Total Disability ("TTD"). On April 6, 2001, the Labor and Industrial Relations Commission ("Commission") reversed the trial judge and found Claimant established medical causation, and awarded TTD and medical benefits. On January 15, 2002, the Court of Appeals affirmed the Commission.

On June 17, 2008, a hearing was held for a final award in this matter at the Missouri Division of Workers’ Compensation ("DWC") St. Louis office at the request of Claimant, pursuant to Section 287.450 RSMo (2000). Attorney Dean Christianson represented Claimant. Attorney Mark Anson represented A.R. Fleming Printing Company ("Employer") and Missouri Printers Group Ins. Trust, also known as Missouri Printing Industry Trust ("Insurer"). The record closed on June 30, 2008 after submission of Employer and Insurer’s Exhibit 6. Hearing venue is correct, and jurisdiction properly lies with DWC.

The parties stipulated that on or about October 1, 1999:

- Claimant was employed by Employer;

- The alleged injury occurred in St. Louis County, Missouri;

- Employer and Claimant operated under the provisions of the Missouri Workers’ Compensation Law;

- Employer’s liability was fully insured by Insurer;

- A Claim for Compensation was filed within the time prescribed by law;

- Claimant’s average weekly wage was sufficient to reach maximum rates of compensation; $\ 578.48 for TTD and Permanent Total Disability ("PTD") and $\ 303.01 for Permanent Partial Disability ("PPD");

- Employer paid $\ 253,640.33 in TTD benefits, representing 438 3/7 weeks, from October 1, 1999 through December 5, 2007;

- Employer paid $\ 42,323.05 in medical benefits; and

- The Court took judicial notice of the DWC file which contains the transcript and exhibits from the first hearing on October 18, 2000.

The parties submitted the following issues for disposition:

- Did Claimant sustain an occupational disease?

- Did Claimant’s condition arise out of and in the course of employment?

- Is Claimant’s medical condition medically causally related to his work activities?

- Did Employer receive notice of an occupational disease?

- Is Employer liable for future medical care?

- What is the nature and extent of the Employers liability for either PPD or PTD benefits?

- Who were Claimant's dependents at the time of the alleged injury?

Judicial notice was taken of Claimant's Exhibits A-O and Employer and Insurer's Exhibits 1-4 from the first hearing. Claimant's Exhibits P-T and W were admitted. Exhibits T-V are not admitted based on relevance but are retained with the record. Employer and Insurers' Exhibits 5-6 were admitted without objection. Any notations contained in the records were present when admitted into evidence.

All evidence was reviewed, but only evidence supporting this award is referenced below. This Court adopts and reissues all "Findings of Fact" adopted by the Commission from the first hearing and supplemented by the Commission on appeal.

Any objections not expressly ruled upon in the depositions, at trial or in this award are overruled. Based upon previous "Findings of Fact," competent and substantial evidence presented at both hearings and reasonable inferences to be derived, I find the following facts:

1. In 1999, Claimant was 59 years old, a high school graduate, and married with two children and four stepchildren all over the age of eighteen and without physical or mental conditions that impaired their ability to work.
2. Claimant received certificates of completion in printing and computers, but did not finish college, and cannot type or use a personal computer. Claimant stands 5 ft 9 " tall and weighs 262 pounds.

1. In 1966, Employer hired Claimant to operate a printing press. For thirty-three years he worked as a pressman, and operated a room-size printing press with two co-employees. One co-employee, called a feeder, brought chemicals to the press. Claimant and the feeder applied most of the chemicals. A third employee was a foreman and operated the press intermittently. Claimant used chemicals to remove ink, and clean machines, rollers, and blankets.
2. Claimant came in contact with 50 different chemicals during his career and averaged contact with ten chemicals per day. Initially, he mixed chemicals but later received them pre-mixed. Chemical spills occurred frequently and sometimes sat for hours before being cleaned.
3. Claimant used the following chemicals at work:

- Prestige Step \#1, a color wash chemical which contains Trimethylbenzene, Aromatic Hydrocarbons, and Aliphatic Hydrocarbons, was used to clean presses,

- Dyna-Clean, contains Trimethylbenzene, and was used to clean plates with a sponge up to 50 times a day, but some days not at all,

- Emerald JRZ contains Butoxyethanol and Trimethylbenzene, and was used to clean plates with a sponge by hand,

- ARS-F contains Solvent EB, which is mixed with water to make it spread out and increase surface tension, and

- Feboclean Yellow and Feboclean Blue, are cleaning pastes which contain Trimethylbenzene and were used to clean rollers by hand.

1. Until 1978, Claimant used these and other chemicals and inks in a 20,000 square foot building, divided into three rooms, with ten foot ceilings, no windows or known ventilation. From 1978 until 1999, Claimant worked in a larger building with higher ceilings and a filtration system, which worked poorly and clogged regularly. The room had no windows and contained an emergency door. Claimant occasionally blew ink from his nose.
2. In 1997, Claimant sought medical treatment after he began having numbness and tingling in his feet. Doctors diagnosed peripheral neuropathy and determined it was not caused by heredity or thyroid conditions. Claimant contacted Employer when he and his doctors suspected the condition was related to chemical exposure at work.
3. At Claimant's request, Mr. Joel Braun, Employer's purchasing agent, provided numerous Material Safety Data Sheets ("MSDS"), which identified chemicals used by the company. The chemicals Claimant identified as being used at work were included in the MSDS.
4. Claimant began wearing gloves and masks two years before he stopped working on October 1, 1999. Claimant stopped working because he could no longer perform the work, and has not worked with chemicals since that time.

1. 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.
2. Claimant uses a cane 90 % of the time when outside. He has fallen at least thirty t