Mose Hopkins v. Motor Coils Manufacturing

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-148558

Employee: Mose Hopkins

Employer: Motor Coils Manufacturing

Insurer: Zurich North America

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 17, 2009. The award and decision of Administrative Law Judge Margaret D. Landolt, issued July 17, 2009, 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 $\qquad 4^{\text {th }}$ day of February 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Mose Hopkins

Injury No.: 01-148558

Dependents: N/A

Employer: Motor Coils Manufacturing

Additional Party: Second Injury Fund

Insumer: Zurich North America

Hearing Date: May 13, 2009

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

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: December 11, 2001
5. State location where accident occurred or occupational disease was contracted: Unknown
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 inhaled fumes from welding metals during his employment with Employer
12. Did accident or occupational disease cause death? No
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 from Employer
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? \$29,418.17

1. Value necessary medical aid not furnished by employer/insurer? 0
2. Employee's average weekly wages: $\ 940
3. Weekly compensation rate: $\$ 626.67 / \ 329.42
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Permanent total disability benefits from Employer beginning April 1, 2003, for Claimant's lifetime

1. Second Injury Fund liability: No

TOTAL: * INDETERMINATE

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: Mr. Kenneth Vuylsteke

Employee: Mose Hopkins

Departments: N/A

Employer: Motor Coils Manufacturing

Additional Party: Second Injury Fund

Insurer: Zurich North America

Injury No.: 01-148558

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on May 13, 2009, at the Division of Workers' Compensation in the City of St. Louis, Missouri. Mose Hopkins ("Claimant") was represented by Mr. Kenneth Vuylsteke. Motor Coils Manufacturing ("Employer") and its insurer Zurich North America were represented by Mr. Jared Cone, Jr. The Second Injury Fund ("SIF") was represented by Assistant Attorney General Sarah Reicker. Mr. Vuylsteke requested a fee of 25 % of Claimant's award. This case was consolidated for trial with Injury Nos. 01-168465 and 01-168466, which are the subjects of separate awards.

The parties stipulated that on or about December 11, 2001, Claimant was earning an average weekly wage of $\ 940 resulting in compensation rates of $\ 626.67 for total disability benefits, and $\ 329.42 for Permanent Partial Disability benefits. The parties further stipulated Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; and the claim was timely filed. Employer paid no TTD benefits, but paid medical benefits of $\ 29,418.17.

The issues for resolution by hearing are whether Claimant sustained an occupational disease arising out of and in the course of employment; medical causation; liability of the Second Injury Fund; whether Claimant is entitled to TTD benefits from April 1, 2003 to the present; and whether Claimant is permanently and totally disabled.

Employer's exhibits were submitted with numerous portions of the evidence highlighted with yellow marker. None of these markings were made by the Court, and no additional weight was given to any evidence so marked.

Claimant filed a Claim for Compensation on December 14, 2001, alleging on or about December 11, 2001, he contracted an occupational disease from working for years as a welder and due to the inhalation of fumes, developed occupational asthma. On June 11, 2003, Claimant filed a claim against the Second Injury Fund alleging permanent total disability based upon a combination of his occupational asthma and his preexisting injuries of bilateral knees, low back, body as a whole - allergic rhinitis, and body as a whole GERD.

Claimant is a 64 year old man with a high school education, with training in welding and blue print reading. Claimant has worked as a welder since high school, with the exception of approximately five years where he worked in other labor positions. As a welder, Claimant used his hands to weld, cut and grind metals. When he welded metals, Claimant was exposed to welding fumes continually throughout the day. He worked without breathing devices, and the ventilation was poor.

Claimant began working for Employer in 1993, and worked there until December 28, 2001, when the plant closed. Claimant worked as a welder in an enclosed building, with no exhaust system. Claimant worked in a booth with a steel sheet as a curtain, and a small fan. There were one or two other welders performing the same job as Claimant. In addition to the fumes produced by welding metals, Claimant also breathed in paint fumes from spray painters. Claimant was exposed to smoke from oil and grease that arose after he applied heated torches to metals containing oil and grease. Employer had a breathing device available for Claimant to use, but it wouldn't fit under his hood, so he was unable to use it. The last couple of years of his employment Employer provided him with a breathing device.

Before December 19, 1998, Claimant had occasional wheezing, but had never been diagnosed with asthma. He was a smoker with a family history of asthma. On December 19, 1998, Claimant was exposed to a fire at work which was ignited by his welding tools. Claimant initially tried to put the fire out himself, and in the process inhaled smoke and fumes. He was treated at the emergency room at St. Louis University Hospital, where he was diagnosed with smoke inhalation, was prescribed Albuterol, and was told to follow up with Health Line.

Claimant followed up with HealthLine on January 5, 1999, and was diagnosed with smoke inhalation which had resolved, and was released to work without restrictions. Claimant returned to HealthLine on March 9, 1999, complaining of shortness of breath and wheezing. Claimant was referred for a pulmonary evaluation.

In March 1999, Claimant began treating with the Pulmonary Clinic at SLU Hospital. Pulmonary Function Tests performed in April 1999 were consistent with moderately severe obstructive airway disease with significant response to bronchodilators. Claimant was diagnosed with mild persistent asthma/reactive airway disease. Between 1999 and December 2001, Claimant's condition continued to deteriorate. In early 2001 Claimant had multiple episodes of exacerbation of his bronchial asthma. On November 28, 2001, Claimant was examined by Dr.

Garcia at the Pulmonology Department. Dr. Garcia diagnosed COPD secondary to tobacco abuse/mild persistent asthma.

Claimant returned to the Pulmonary Clinic in April 2002. Claimant was no longer working, and indicated he had applied for disability. He was diagnosed with mild persistent asthma, which Dr. Garcia did not believe precluded Claimant from working. In July 2002, Claimant reported to the Pulmonology clinic and Dr. Garcia indicated it was Claimant's seventh visit so far that year. Claimant continued to report daily exacerbations of his asthma, and he reported daily wheezing. Dr. Garcia indicated he previously classified Claimant as having mild persistent asthma, but noted his asthma had definitely gotten worse over the years, with seven visits to the office, and at least one visit to the emergency room over the past six months. Dr. Garcia diagnosed Claimant as having severe persistent asthma. In November 2002, Dr. Kleinhenz, expressed dismay Claimant's claim for Social Security Disability was denied, and reiterated Claimant had severe persistent asthma with a moderate to severe obstructive ventilator impairment. She stated Claimant had extreme airway responsiveness which was uncontrolled in the face of inhaled bronchodilators, oral and inhaled corticosteroids, and oral immunomodulating drugs. Claimant continued to treat for severe persistent asthma in 2003.

After leaving Employer, Claimant attempted to work as a welder for another employer, but only worked there three to five weeks because he was having too many breathing problems. Claimant's breathing has continued to worsen since leaving Employer. Claimant is unable to sleep, and wakes up coughing. He has difficulty performing household chores. If Claimant cuts his grass, it takes him four hours to do what used to take him one and one-half hours to do. He is no longer able to participate in sports. He used to play semi-professional baseball, football and basketball. He has difficulty climbing a flight of stairs, and lifting and carrying items.

Claimant has some preexisting injuries. He injured his right ankle and knee sliding while playing baseball. He never had surgery, and had no ongoing medical treatment or medical restrictions with regard to his right ankle or knee. He had a sore arm from throwing in baseball. Claimant also injured his back moving a part in 1999, and was treated conservatively. Claimant testified he had pain and cramping in his hands beginning in 1997 and 1998, and was diagnosed with carpal tunnel syndrome in 2005. Claimant testified he sometimes had trouble holding things, and had to make adjustments at work. Although Claimant had a back problem, and his shoulders, neck, back, hands and legs hurt, he didn't miss any days from work, and he had no permanent restrictions.

After the 1998 fire, Claimant made adjustments in his work. After Claimant left his last job he collected unemployment benefits. Claimant has received no unemployment benefits since April 1, 2003, and has not worked since that time.

Dr. Robert Poetz evaluated Claimant on two occasions, and testified on behalf of Claimant. Dr. Poetz first examined Claimant on August 27, 2002. Dr. Poetz diagnosed occupational asthma due to inhalation of fumes and other irritants, which progressed to chronic pulmonary disease on December 11, 2001. He also diagnosed Claimant as steroid dependent, December 11, 2001; right shoulder adhesive tenosynovitis, 1999; degenerative joint disease

bilateral knees, preexisting; allergic rhinitis, preexisting; and gastroesophageal reflux disease, preexisting. Dr. Poetz provided the following ratings: 70% PPD of the body as a whole measured at the lungs directly resulting from the December 11, 2001 work related injury; 20% PPD of the right shoulder preexisting; 25% PPD of the right and left knees preexisting; 15% PPD of the body as a whole at the lumbar spine, preexisting; 10% of the body as a whole due to allergic rhinitis, preexisting, and 15% PPD of the body as a whole due to gastroesophageal reflux disease, preexisting. Dr. Poetz opined Claimant is permanently and totally disabled, as a result of the combination of his occupational injury and his preexisting conditions, and is unemployable in the open labor market.

Dr. Poetz re-evaluated Claimant on March 7, 2008. Dr. Poetz increased Claimant's ratings for his preexisting lumbar spine condition to 25% of the body as a whole, and rated Claimant's preexisting cervical spine condition at 15% PPD of the body as a whole. The remaining ratings remained the same as in his previous report. Although Dr. Poetz opined Claimant is permanently and totally disabled as a result of the combination of the December 11, 2001 work related injury and his preexisting conditions, he stated: "However, if absent the prior injuries and medical conditions and he was only suffering from the December 11, 2001 injury alone, he would still be permanently and totally disabled.

Mr. James England, a certified rehabilitation counselor evaluated Claimant on July 24, 2006, and testified on behalf of Claimant. Mr. England concluded considering Claimant's age, limited education and the combination of his impairments, he does not believe Claimant would be competitively employable. Mr. England did not believe Claimant would be able to successfully acquire or sustain employment due to his combination of problems.

Dr. Thomas Dew, a board certified internist and pulmonologist, testified on behalf of Employer. Dr. Dew examined Claimant on July 18, 2006. When Dr. Dew examined Claimant he had some wheezing in both lungs, and some airway obstruction despite the fact he had taken his medicine that day, which indicated he still had active ongoing asthma. At that time the only precipitating factor for Claimant's injury Dr. Dew could come up with was the fire in December of 1998. He testified Claimant had a family history of asthma, so he was probably pre-disposed to developing asthma, but since 1998, his asthma had been out of control. Dr. Dew labeled Claimant's condition as asthma occupationally induced by the fire. Dr. Dew stated neither his cigarette smoking nor his family history of asthma, caused him to have asthma, but may have been mild precipitating factors, but the big precipitating factor was the fire in his place of employment in 1998, and the fact that he did not get good treatment early. He stated he thought Claimant was totally disabled from bronchial asthma which was related to the industrial fire in 1998.

Dr. Dew was unable to determine when Claimant became totally disabled, but testified that 2003 or 2004, when Claimant was found to be totally disabled by the Social Security Administration was as close as he could come to providing a date.

After opining Claimant was totally disabled as a result of the fire of 1998, Employer's attorney provided Dr. Dew with additional medical records to review. After reviewing those

records Dr. Dew continued to believe Claimant was totally disabled based upon his bronchial asthma, and not taking into account his other injuries. Dr. Dew, testified his opinion has been consistent that Claimant had a family history of asthma, Claimant had been asymptomatic, something happened in late 1998 where he started having more trouble with his asthma, and the disease got worse and worse. Dr. Dew testified welding can be a cause of occupational asthma, and in his opinion Claimant's work activity of welding was a significant contributor to his asthma. Dr. Dew testified it is possible to develop asthma from welding almost any metal compound. Although Dr. Dew did not believe Claimant had welder induced asthma, he believed once Claimant's asthma was precipitated, the welding added to his ongoing disability, and Claimant's welding from 1998 until 2001 was a substantial aggravating factor to his asthma.

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing and the application of Missouri law, I find:

Claimant sustained an occupational disease arising out of and in the course of employment on or about December 11, 2001. Dr. Poetz and Dr. Dew agree Claimant suffers from asthma. Dr. Poetz diagnosed occupationally induced asthma, and although Dr. Dew's opinion is difficult to decipher, at a minimum he testified Claimant's ongoing employment as a welder after the 1998 fire, aggravated his asthma. An aggravation of a preexisting condition is compensable. Smith v. Climate Engineering 939 S.W.2d., 429 (Mo. App. 1996).

Claimant is permanently and totally disabled and unable to compete in the open labor market. There is a consensus of opinion among the experts that Claimant is permanently and totally disabled. Dr. Poetz, Dr. Dew, Dr. Kleinhenz and Mr. England all agree Claimant is permanently and totally disabled.

I find Claimant is permanently and totally disabled as a result of his asthma alone, and Employer is responsible for permanent total disability benefits. In determining liability of the Second Injury Fund, the first determination to be made is the degree of disability from the last injury alone. Hughey v. Treasurer of Missouri, 34 S.W.3d 845 (Mo. App. 200). The medical opinions of Dr. Poetz, and Dr. Dew support a finding of permanent disability based upon the Claimant's asthma alone. Dr. Poetz stated Claimant's lung condition in and of itself, without considering any preexisting conditions render him permanently and totally disabled.

Claimant sustained an occupational disease arising out of and in the course of employment from years of exposure to welding fumes. Claimant is permanently and totally disabled as a result of his lung injury alone, without considering his preexisting disabilities. Employer is liable for weekly total disability benefits beginning on April 1, 2003, and such benefits shall continue for Claimant's lifetime. The Second Injury Fund is not liable for any benefits.

This award is subject to an attorney's lien of 25 % in favor of Claimant's attorney Mr. Kenneth Vuylsteke.

Date: $\qquad Made by: \qquad$

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

$\qquad$

Naomi Pearson

Division of Workers' Compensation