Christain Manion v. Fahr's Greenhouses

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-127767

Employee: Christian Manion

Employer: Fahr's Greenhouses

Insurer: Florists Mutual Insurance Co. a/k/a Hortica

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 November 10, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued November 10, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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 accident or onset of occupational disease: Alleged date of onset is September 11, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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
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 accident occurred or occupational disease contracted: Claimant alleged she developed asthma and chemical sensitivity from exposure to chemicals and latex in the work place.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 5,999.29
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,959.74

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[^0]: ${ }^{1}$ During the hearing, Claimant testified that her name is spelled incorrectly with the DWC. It should be spelled "Christain" not "Christian" as stated in the DWC file

${ }^{2}$ Attorney Campbell provided updated information about the Insurer during the hearing.

Employee: Christain Manion

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 244.77
3. Weekly compensation rate: $\ 163.18
4. Method wages computation: Stipulated

1. Amount of compensation payable:
2. Second Injury Fund liability: None

TOTAL:

NONE

1. Future requirements awarded: None

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Akers.

Employee: Christian Manion

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

Employer: Fahr Greenhouses, Inc.

Additional Party: Second Injury Fund

Insurer: Forrest Mutual Insurance Co aka Hortica

Injury No.: 98-127767

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

checked by: SC

Christian Manion (Claimant) requested a hearing for a final award pursuant to $\S 287.450 .{ }^{3}$ Claimant seeks permanent total disability (PTD) benefits. The hearing was held at the Missouri Division of Workers' Compensation (DWC), St. Louis Office on August 12, 2009. Claimant appeared in person and by counsel, Attorney Mark Akers. Attorney Jonathan L. Downard, Claimant's co-counsel, did not appear. Attorney Maria Campbell represented Fahr Greenhouses, Inc. (Employer) and Forrest Mutual Insurance Company (aka Hortica) (Insurer). ${ }^{4}$ Attorney Michael Finneran represented the Treasurer, Custodian of the Second Injury Fund (SIF). The record closed after presentation of the evidence.

Claimant and Employer's Joint Exhibits A1-E5 are admitted. Claimant's Exhibits F, G, H, I and J, K, L and M are admitted. ${ }^{5}$ Employer's Exhibits 6-7 are admitted. SIF offered no exhibits. Any notations contained in the records were present when admitted. Any objections contained in the depositions but not addressed in the award are overruled. ${ }^{6}$

Based on the credible testimony of Dr. Belz, medical records, reports, Claimant's demeanor during the hearing, and less than credible testimony by the Claimant and Dr. Feinberg, I find Claimant

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[^0]: ${ }^{3}$ All statutory references are to the 1993 Revised Statutes of Missouri, unless otherwise stated.

${ }^{4} In this award, references to the Employer also include the Insurer.

{ }^{5}$ Employer objected to Exhibit K based on hearsay. Claimant authenticated the out of pocket expenses listed in Exhibit K. The objection is overruled. Employer and the SIF objected to Exhibits G, L, and M based on hearsay. Claimant noted Exhibits G, L, and M were obtained by Employer's attorney with authentication, and later removed by the attorney. All three exhibits were written by Dr. Berdy, the treating physician, authorized by the Employer and Insurer. Exhibit L was written in response to questions raised by the Employer, who is a party to the case. Exhibit M was a follow up to Dr. Pettenger, the physician that referred Claimant to Dr. Berdy. These letters were written to provide medical information, not for the truth of the matter asserted. Similarly, Exhibit G, written to Claimant's attorney Jonathan L. Downard, provided information about Claimant's medical condition, not for the truth of the matter asserted. Further, the letter contained diagnostic and treatment information, not easily obtained from the hand written documents in evidence. It should be noted that the outcome would not have changed if Exhibits G, K, L and M were omitted. The objection is overruled.

${ }^{6}$ Employer's objections to Dr. Feinberg's statements about the opinions of Dr. Berdy and Dr. Sultan are sustained. A testifying expert cannot be a mere conduit for a non-testifying expert. See Bruflat v. Mister Guy, Inc., 933 S.W.2d 829 (Mo. App. 1996).

did not meet her burden to prove she sustained an occupational disease that arose out of and in the course of her employment.

The parties stipulate that on or about September 11, 1998,

1. Claimant was employed by Employer, in St. Louis County;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law;
3. Insurer fully insured Employer's liability;
4. Employer had notice of the injury;
5. A Claim for Compensation was timely filed;
6. Claimant's average weekly wage was $\ 244.77;
7. The rates for permanent partial disability (PPD) and permanent total disability (PTD) are $\ 163.18;
8. Employer paid temporary total disability (TTD) totaling \5,999.29;
9. Employer paid medical benefits totaling \ 1,959.74; and
10. Claimant achieved maximum medical improvement (MMI) on April 16, 1999

The parties identified the following issues for disposition:

1. Did Claimant sustain an occupational disease?
2. If so, did it arise out of and in the course of Claimant's employment?
3. Was the occupational disease medically causally related to the work Claimant performed for Employer?
4. Is Employer liable for past medical expenses totaling $\ 5,284.50 ?
5. What is the nature and extent of Employer's liability for PPD or PTD benefits?
6. What is the nature and extent of the SIF's liability for PPD or PTD benefits?

All evidence was reviewed but only evidence discussed below is considered to establish the relevant facts based on competent and substantial evidence contained in the record:

1. Claimant earned an Associates' Degree in landscape design from East Central College in 1995. She worked for Employer as a grower from January 2, 1996 to October 5, 1998. Claimant worked Monday through Friday, and occasionally a half day on Saturday.
2. The first 3 hours of each work day, Claimant watered plants in 20 greenhouses. An hour each day, Claimant used the computer to process requests for cuttings from other nurseries. She assigned personnel to cut plants, inventoried stock, processed orders, and monitored workers who filled orders. She wore boots with a rubber bottom, but no protective gear was required.
3. In 1997, Claimant began using chemicals to spray plants to control bugs and disease. She sprayed in the evening after work hours. Before she began spraying plants, Claimant reviewed literature with her supervisor and saw video tapes about the proper use of chemicals, protective clothing, and use of the respirator.

1. Claimant sprayed an average of two hours per day, three nights a week during the week. Spraying took place from April $1^{\text {st }} to December 1^{\text {st }}$.
2. While mixing and spraying chemicals, Claimant wore a disposable jumpsuit that zipped to neck level in the front, rubber boots inside the suit, rubber gloves placed over the jumpsuit sleeves that reached the elbow, a mask, and a half face respirator with two cartridges. Goggles were used when spraying overhead baskets. Claimant's supervisor made sure the mask was flat against her face. The respirator was a good fit and sealed. Claimant wore no head covering.
3. A coworker filled the container with water and Claimant added an ounce of powder or liquid chemicals. Three types of sprayers were used. Claimant filled a 2 gallon container that she used to spray one greenhouse. A coworker pushed the medium size container was on wheels while Claimant sprayed. This method was used 90 % of the time. A coworker used a tractor to spray large jobs. Plants were sprayed periodically as needed.
4. After the plants were sprayed, Claimant rinsed the mixing and measuring containers and small sprayer three times. The gloves were rinsed before the mask was removed. Claimant proceeded to the chemical room, put the gloves back on, removed the boots and hung the jumpsuit to drip dry. The mask was placed in a personal bag in the office. Everything else remained in storage. The gloves were rinsed three times and hung up to dry. The boots were not washed.
5. She did not spill chemicals before, during or after use. Claimant had an acute sense of smell, but never smelled an odor when she mixed, measured, sprayed, and cleaned.
6. On September 11, 1998, Claimant sprayed poinsettias but does not know the name of the chemical she used. Claimant finished spraying, put away equipment, and locked up the chemical building. While outside on her way to the office, she developed shortness of breath, nausea, vomiting, and a severe headache. The symptoms continued when she arrived home.
7. The next day symptoms continued and Claimant informed her supervisor. For several days, symptoms returned when she went to work and decreased when