(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 08-121100
Employee: Dan Estebo
Employer: Webco, Inc.
Insurer: American International Insurance Company
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 December 13, 2010, and awards no compensation in the above-captioned case.
The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 13, 2010, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this $\qquad 13^{\text {th }}$ day of July 2011.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
DISSENTING OPINION FILED
Curtis E. Chick, Jr., Member
Attest:
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed and employee should be awarded past medical expenses, future medical care, and permanent partial disability benefits.
Employee alleges he sustained occupationally-induced asthma due to his exposure to paint fumes at work. The ALJ found that employee failed to satisfy his burden of proving that the work-exposure caused his occupationally-induced asthma or airway sensitivity condition because he provided no objective symptoms of the disease.
The outcome of this case largely depends on the weight given to the two experts' opinions. Based on the totality of the evidence, I find the opinions of employee's expert, Dr. Koprivica, to be more credible than the opinions of employer's expert, Dr. Parmet.
Dr. Koprivica affirmatively testified by deposition to the following: 1) employee has reactive airways disease; 2) employee was exposed to more paint fumes at work than in nonemployment life; 3) paint fumes are known respiratory irritants; and 4) employee's work exposure was the prevailing factor in employee's development of reactive airways disease.
Dr. Koprivica testified that he came to the aforementioned conclusions because there was a clear-cut correlation between employee's work-exposure, the development of his symptoms, and the contemporaneous medical records. Dr. Koprivica went on to point out that employee had no history of reactive airways disease before he began working for employer. Lastly, Dr. Koprivica noted that there was no evidence that employee was being exposed to any pulmonary irritants away from work while he was experiencing respiratory symptoms.
Dr. Koprivica opined that employee sustained 15\% permanent partial disability of the body as a whole as a result of his work-exposure to paint fumes. Dr. Koprivica also opined that employee had 25 % preexisting permanent partial disability of his right shoulder due to a motorcycle accident. Finally, Dr. Koprivica opined that employee's primary injury combined with his preexisting disability to result in a 10\% load factor.
With regard to Dr. Parmet's opinions, employer only offered his medical reports, not his deposition. Consequently, Dr. Parmet's opinions were not subject to cross-examination. Additionally, Dr. Parmet's opinions in his report were questionable at best. Dr. Parmet opined that employee's respiratory symptoms were "more likely than not" due to allergies associated with such common allergens as cat dander, grass, trees, and mold. However, Dr. Parmet did not explain why employee's symptoms alleviated when he was out of employer's work-environment. It seems that someone having respiratory symptoms associated with allergies to cat dander, grass, trees, and mold would continue having such symptoms indefinitely due to their constant presence in everyday life, but employee's symptoms alleviated correlative to his work separation.
In addition to the aforementioned, in Dr. Parmet's second report dated June 3, 2010, he appears to give a great deal of weight to the absence of any records showing employee to have abnormal pulmonary functions. Dr. Parmet giving this absence any weight at all cuts to his credibility in light of the fact that the reason there are no pulmonary functions test records - abnormal or normal - is because employee was unable to complete the test. Employee testified that he was unable to complete the test because he could not breathe adequately into the testing device.
Dr. Koprivica provided affirmative opinions establishing a causal connection to employee's work-exposure and his permanent disability. Dr. Parmet simply appears to be uninformed.
Based upon the foregoing, I find Dr. Koprivica's opinions to be more credible than Dr. Parmet's. Therefore, I believe the ALJ's award should be reversed and employee should be awarded past medical expenses, future medical care, and permanent partial disability benefits pursuant to Dr. Koprivica's ratings.
I respectfully dissent from the decision of the majority of the Commission.
Curtis E. Chick, Jr., Member
| Claimant: | Dan Estebo | Injury No. 08-121100 |
| Dependents: | N/A |
| Employer: | Webco, Inc. | Before the DIVISION OF WORKERS’ COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri |
| Additional Party: | Treasurer of Missouri as Custodian of the Second Injury Fund |
| Insurer: | American International Insurance Company |
| Hearing Date: | October 6, 2010 | Checked by: VRM/db |
| FINDINGS OF FACT AND RULINGS OF LAW |
| 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 September 30, 2008. |
| 5. | State location where accident occurred or occupational disease was contracted: Alleged Greene County, Missouri. |
| 6. | Was above Claimant in the employ of above employer at time of alleged accident or occupational disease? Yes. |
| 7. | Did employer receive proper notice? Not determined. |
| 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 Claimant was doing and how accident occurred or occupational disease contracted: Claimant alleges occupational asthma from pain fumes. |
| 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: Alleged respiratory condition. |
Issued by DIVISION OF WORKERS' COMPENSATION
Claimant: Dan Estebo
- Nature and extent of any permanent disability: None.
- Compensation paid to date for temporary disability: None.
- Value necessary medical aid paid to date by employer/insurer? None.
- Value necessary medical aid not furnished by employer/insurer? None.
- Claimant's average weekly wages: $\ 460.80.
- Weekly compensation rate: $\ 307.20.
- Method wages computation: By agreement of the parties.