Sally Barbrow v. Leonards Metal Inc.

FINAL AWARD DENYING 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 December 18, 2008, and awards no compensation in the abovecaptioned case.

The award and decision of Administrative Law Judge Kevin Dinwiddie, issued December 18, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 20th day of May 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Sally Barbrow (formerly known as Sally Altick) Injury No.: 02-152341

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Leonards Metal Inc.

Additional Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: Liberty Mutual Insurance Company

Hearing Date(s): 9/4/08; 10/3/08

Checked by: $\mathrm{KD} / \mathrm{cmh}$

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of alleged accident or onset of occupational disease: on or about 2/05/02
5. State location where alleged accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? See award
8. Did accident or occupational disease arise out of and in the course of the employment? No
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 alleged accident occurred or occupational disease contracted:

Employee alleges to have sustained a compensable injury by occupational disease due to exposure to toxic levels of aluminum dust. Employee alleges toxicity due to inhalation or absorption of dust created by the sanding, filing, routing, and drilling of aluminum aircraft parts.

1. Did accident or occupational disease cause death? No Date of death: N/A
2. Part(s) of body alleged to be injured by accident or occupational disease: systemic or body as a whole

- Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? See award
4. Employee's average weekly wages: $\ 390.00

- Weekly compensation rate: $\$ 260.00 / \ 260.00

- Method wages computation: By agreement

1. Amount of compensation payable: None. Issues as to injury by occupational disease and medical causation found in favor of the employer and insurer. The claims as against the employer and insurer and the State Treasurer as custodian of the Second Injury Fund are denied. See award.

Total: N/A

1. Future requirements awarded: N/A

Employee: Sally Barbrow (formerly known as Sally Altick)

Injury No: $\quad 02-152341$

Before the<br>DIVISION OF WORKERS'<br>COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

The claimant, Ms. Sally Barbrow, appeared in person at hearing represented by her counsel, Ellen Morgan, and testified on her own behalf with respect to her request for a temporary or partial award in this claim for compensation. The employer, Leonards Metal Inc., and its insurer, Liberty Mutual Insurance Company, appeared by and through its counsel, Attorney Maureen Cary. The employer and insurer have put in dispute the claim of compensable injury by occupational disease. The employer and insurer elicited the fact witness testimony of Mr. Mark Atkinson and of Mr. Michael Harris; put in evidence the expert opinion testimony by deposition of Dr. Rebecca Tominack and of Terry Tyler Martinez, Ph.D.; and submitted certain of the deposition testimony of the claimant, Ms. Barbrow. The claimant requests that the issue as to Second Injury Fund liability remain open.

The parties have acknowledged that the following issues are to be resolved at hearing: Injury by occupational disease; Notice; Medical causation; Future medical care; and Temporary total disability. The claimant further requests that liability for past medical expense remain an open issue. Notice is taken as to the claims and answers filed in this matter.

The following exhibits were received in evidence at the hearing:

- Medical records of Concentra

- Medical records of Mesquite Community Hospital

- Certified medical records of Dr. Robyn Haithcock

- Certified records of ProRehab

- Certified medical records of Farmersville Medical Clinic

- Certified physical therapy records of Healthsouth

- Certified medical records of St. Joseph Health Center

- Certified medical records of LifePath Systems

- Certified medical records of Barnescare

Certified medical records of DePaul Health Center

- Certified records of Cibola Counseling (Valencia Counseling Services, Inc.)

- Medical records of Kanu A. Patel, M.D.

- Certified medical records of Krishna K. Kakani

- Certified medical records of Planned Parenthood of N. Texas

- Certified medical records of Creve Coeur Surgery Center

- Certified medical records of Christian Hospital Northeast-Northwest

- Certified medical records of Dr. Steven Livingstone

- Certified medical records of Parkcrest Orthopedics, by notary dated 3/23/04

- Medical records of Parkcrest Orthopedics. L.L.C.

- Certified medical records of Huntsville Hospital

- Medical records of BJC Corporate Health St. Peters

- Report of Terry Martinez, Ph.D., dated 9/19/2004

- Medical records of Maria Carter, D.O., with attached letter dated 6/19/2006

- Certified medical records of Dr. Victor M. Pace/Elfindale Family Medicine

- Medical records of St. Joseph Health Center

- Medical report of Rebecca L. Tominack, MD, dated 07/19/06, with attachments

- Certified medical records of EHAC (Tipu Sultan, M.D.)

- Certified medical records of St. Joseph Health Center

- Missouri Division of Workers' Compensation records

- Certified records of Liberty Mutual Insurance Company- Industrial Hygiene

- Summary of hours worked

- Deposition of Dr. Rebecca Tominack dated 11/20/2006

- Deposition of Terry Tyler Martinez, Ph.D., dated 8/29/2008

- Withdrawn

- Social Security Administration records

- Pages 16-17 and 49-50 of the Telephone Deposition of Sally Altick

(nka Sally Barbrow)

Ms. Barbrow, 45 years old as of the date of hearing in this matter, began her employment with Leonards Metal, Inc. (hereinafter referred to as "employer") on 2/24/00. Employer subcontracts with major aerospace contractors to provide them with airplane parts. Ms. Barbrow worked as an "aerospace assembly mechanic", riveting, routing, hand sanding, orbital sanding, and otherwise finishing airplane parts made of an aluminum alloy. Ms. Barbrow performed such sanding in "Work Center 40", one of the work areas at a facility located in St. Charles, Missouri. The claimant relates that approximately 40 % of her time working in assembly was spent performing sanding, and that approximately 75 % of the time some other assembler in the work center is performing sanding of parts.

As a part of the process of applying for social security SSI disability benefits (Employer and Insurer's Exhibit No. 6), Ms. Barbrow provided the following work history in order of most recent:

Aerospace Assembly Mechanic;

Shipping Recvg Forklift Operator;

Assistant Manager, Retail;

Produce Prep., Grocery;

Cook;

Attendant, Self \& Full Svc Laundry; and

U.S. Army Administrative Specialist.

The claimant quit her employment with the employer on 2/04/02 and moved to Farmersville, Texas to live with her sister. Ms. Barbrow testified that she lived there for 9 months, and thereafter moved to Grants, New Mexico and lived with another sister for approximately a year. The claimant then moved back to Texas and stayed with her parents in Terrell, Texas before marrying her husband, Wayne Barbrow, and in 2005 relocating to Springfield, Missouri.

Medical records indicate that while working for the employer Ms. Barbrow suffered a series of relatively minor injuries that did not cause her to miss time from work, until such time in January of 2001 when the claimant began making complaints as to her right arm at the elbow. On 1/30/01 Ms. Barbrow was provided with a tennis elbow strap for what was diagnosed as a lateral epicondylitis. Thereafter Ms. Barbrow was rotated through jobs at least every four hours, but her complaints worsened, and in April of 2001 in order to calm her symptoms she was provided with injection into the epicondyle of the elbow. In May of that year the claimant began suffering severe complaints in the elbow, leading to a lateral epicondyle release and partial epicondylectomy performed by Dr. Emanuel on 8/31/01. Post-op Ms. Barbrow spent four months or so either off duty or on light duty prior to a full release by Dr. Emanuel on 1/03/02. In a follow up note dated 1/28/02, Dr. Emanuel states that the claimant complained of the employer assigning her heavy work, and of having suffered elbow swelling, crackling, some soreness, and throbbing type of discomfort. Dr. Emanuel recommended restrictions for the next three weeks, and on 2/5/02 documented a telephone conversation in which he was informed that the claimant had quit her employment, and that further work restrictions were no longer an issue.

Ms. Barbrow has not worked since she left her employment in February of 2002. When asked at her deposition on 11/25/03 why she had stopped working, Ms. Barbrow responded "Because I was still having issues with my arm that had been worked on that made me unable to go find another job. I mean, I couldn't find another job because I was still broken." (Employer and Insurer's Exhibit No.7, at pp 16-17).

Ms. Barbrow relates that the act of sanding aluminum parts created an aluminum dust that would settle onto her clothes and on her body, including into her ears and into her nose. Claimant further relates that on certain days the silver dust would cause her to look like a tin man. The only protective clothing provided by the employer was as follows; shoes; face shield and arm sleeve protectors when performing work that causes aluminum chips to fly; ear plugs; and paper face masks for the discretionary use by employees as respiratory protection. Ms. Barbrow acknowledged that she used the face mask at her work. Ms. Barbrow claims to have suffered an aluminum toxicity as a consequence of a work related exposure to aluminum dust particles.

Mark Atkinson, testifying on behalf of the employer, acknowledges that from 1996 to 2007, approximately eleven of the thirty years that he has been employed with