Howard Moreland v. Eagle Picher Technologies, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-144489

Employee: Howard Moreland

Employer: Eagle Picher Technologies, LLC

Insurer: Self-Insured

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 28, 2010. The award and decision of Administrative Law Judge Karen Wells Fisher, issued December 28, 2010, 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 $20^{\text {th }}$ day of October 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

VACANT

Member

Attest:

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: JUNE 26, 2005
5. State location where accident occurred or occupational disease was contracted: JOPLIN, MO
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? YES
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? SELF-INSURED
11. Describe work employee was doing and how accident occurred or occupational disease contracted: EXPOSURE TO BENZENE AND OTHER CHEMICALS
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: BLOOD SYSTEM, WRISTS, FEET, SKIN, KIDNEYS AND BODY AS A WHOLE
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? NONE

1. Value necessary medical aid not furnished by employer/insurer? PAST MEDICAL EXPENSES AMOUNT TO \$734,586.49; AND TRAVEL EXPENSES AMOUNTING TO \$17,434.59: TOTAL \752,021.08
2. Employee's average weekly wages: \ 596.18
3. Weekly compensation rate: $\ 397.45
4. Method wages computation: STATUTORY

1. Amount of compensation payable: The employee is awarded permanent total disability benefits at a rate of $\ 397.45 per week from August 1, 2005 through the remainder of the lifetime of the employee.

Unpaid medical expenses: $\ 752,021.8.

Penalty: The employee is also awarded a penalty of fifteen percent (15\%) of past permanent total disability benefits, of fifteen percent ( 15 % ) of the amount awarded pursuant to Section 287.120.4, based upon statutory violations of Chapters 292.300, 292.310 and 292.320. This penalty shall also apply to future permanent total disability benefits.

1. Second Injury Fund Liability: Dismissed

The employee is also awarded future medical treatment to cure and relieve the effects of the multiple myeloma. Further, the employee is awarded future medical treatment to cure and relieve the effects of complications from either multiple myeloma or medical treatment, primarily chemotherapy, to treat the multiple myeloma. These complications include, but are not limited to, entrapment neuropathies in the upper extremities, neuropathies in the lower extremities, skin cancer and chronic kidney disease. This award also specifically finds that further complications may result and the finding of the complications mentioned here do not exclude complications that may result in the future.

Said payments to begin AUGUST 1, 2005 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:

Attorneys fees and expenses: Attorneys' fees of twenty-five percent (25\%) of the amount recovered are awarded to the Law Firm of Neale \& Newman, LLP and Patrick J. Platter. A lien is placed upon this award pursuant to Section 287.260 R.S.Mo. 2000.

This claim was the subject of a two-day hearing held on Friday, August 20, 2010 and Wednesday, September 1, 2010 at the Joplin office of Division of Workers' Compensation. The Claimant, Howard Moreland, appeared with his counsel, Patrick J. Platter. The Employer appeared by its legal counsel, Robert Gross and Safety Director William Ideker. Claimant dismissed the Second Injury Fund at the commencement of the hearing held on September 1.

The following award is a compilation of the proposed awards submitted by both parties in this matter with the Court's revisions.

The parties stipulated to the following:

(1) That the Claimant, Howard Moreland was an employee operating under and subject to the Missouri Workers' Compensation Law;

(2) That the Employer, Eagle Picher Technologies, Inc., was an employer operating under and subject to the Missouri Workers' Compensation Law;

(3) That Eagle Picher Technologies, Inc. was self-insured, at all times material, for liability under the Missouri Workers' Compensation Law;

(4) That the Claimant, Howard Moreland, was an employee of Eagle Picher Technologies, Inc;

(5) Venue was proper as the exposure occurred in Jasper County, Missouri;

(6) That the compensation rate is $\ 397.45;

(7) That past medical expenses were $\ 734.586 .49 and travel expenses were $\ 17,434.59 for a total of $\ 752,021.08.

Howard Moreland seeks benefits due to an alleged occupational disease. Although employed with Eagle Picher since 1973 the claim is centered on his employment from 1984 until approximately 1994 at the Joplin plant located at C \& Porter. He worked in a building known as Building \#4 during that time. Moreland became ill in June 2005 and was definitely diagnosed with multiple myeloma in late July 2005. He claims that his exposure to chemicals such as, but not limited to, benzene, caused his multiple myeloma. Eagle Picher has denied the claim in its entirety. It argues that Moreland was not exposed to these chemicals and, further, that none of the chemicals alleged to have caused this disorder have been scientifically recognized to cause multiple myeloma.

Eagle Picher does not dispute that Moreland's various complications specified in this Award resulted from either Moreland's multiple myeloma, his stem cell transplants or chemotherapy.

The parties designated the following issues to be in dispute:

(1) Whether the Claimant, Howard Moreland, suffered an occupational disease as defined in Section 287.067 R.S.Mo. 2000;

(2) The liability for past medical expense;

(3) The liability for past temporary disability;

(4) The nature and extent of permanent disability;

(5) Future medical treatment;

(6) Whether the Claimant filed his claim within the applicable statute of limitations;

(7) Whether Eagle Picher Technologies, Inc. is liable for a statutory penalty pursuant to Section 287.120.4 R.S.Mo. 2000. ${ }^{1}$

At the hearing Claimant testified on his own behalf. The following coworker witnesses also testified on behalf of Claimant: Kathy Ogden, Tom Betebenner, John Newberry, Leroy Christy, Julie Alford, and Donnie Smith.

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[^0]: ${ }^{1}$ Unless otherwise specified, all references to statutes shall be to RSMo. 2000.

Patrick Platter, claimant's attorney, seeks an attorneys' fee of twenty-five percent (25\%) of all amounts recovered pursuant to Section 287.260.

The following exhibits were admitted into evidence on behalf of the Claimant Howard Moreland:

A. Deposition of Bernard Goldstein, MD and exhibits with DVD video

B. Deposition of Allen Parmet, MD and exhibits

C. Deposition of Mauricio Pinada-Roman, MD and exhibits

D. Complete Medical Report of Leslie Hamlett, MD

E. Deposition of Jeff Dermott and exhibits

F. Deposition of William Ideker and exhibits

G. MSDS Documents from Eagle Picher

H. Medical Records - Irving LaFrancis, MD

I. Medical Records - Samuel Carter, MD

J. Medical Records - Freeman Hospital

K. Medical Records - Freeman Radiation Oncology

L. Medical Records - UAMS

M. Medical Records - Leslie Hamlett, MD

N. Medical Records - Derek Towery, MD

O. Medical Records - John Ogden, MD

P. Medical Records - Matthew Richins, MD

Q. Medical Records - Michael Swann, MD

R. Billing Records Summary

S. Floor Plans - Eagle Picher facility

S1 Floor Plans - Kathy Ogden

S2 Floor Plans - John Newberry

S3 Floor Plans - Donnie Smith

S4 Floor Plans - Leroy Cristy

S5 Floor Plans - Howard Moreland

S6 Floor Plans - Harry Betebenner

T Report of Injury

U Environmental Covenant

V Supplemental Deposition of Dr. Allen Parmet

Two witnesses testified at the hearing on behalf of the Employer: Bill Ideker, Director of Health, Safety and Environment and Dennis Chiappetti, Production Supervisor.

The following exhibits were admitted into evidence on behalf of the Employer, Eagle Picher Technologies, Inc.

1. Accident Reporting Guidelines
2. Analytical Procedures for Ni-H2
3. Hazardous Waste Disposal Reports
4. Health Safety \& Environment Department Guidelines

1. IH Monitoring Data
2. Dr. Parmet’s 03APR09
3. Original claim filed by H. Moreland
4. Dr. Borak transcript \& exhibits
5. Certificates of Compliance for Rubber

9a. H. Moreland’s Application for Family or Medical Leave

1. MSDS for Rubber [NBR 6850]
2. MSDS for PS-18A Acrylic Adhesive
3. MSDS for PS-18B Acrylic Adhesive Catalyst
4. MSDS for PS18C Acrylic Adhesive Promoter
5. Transcript of the Deposition Testimony of Howard Moreland 12SEP08

Howard Moreland is 57 years of age and resides in Webb City, Missouri with his wife, Cheryl Moreland. They have two sons. Howard has lived most of his life in the Joplin/Webb City area. He graduated from Webb City High School and attended one year of college at Missouri Southern State College-Joplin.

Moreland is a second generation employee of Eagle Picher. Moreland’s father worked for Eagle Picher until his death due to a cerebral hemorrhage. There is no indication that a family history contributed to Moreland’s disease.

Moreland does not smoke cigarettes, drink or take recreational drugs. He chewed tobacco for approximately twenty years. That personal habit did not contribute to the circumstances that underlie this claim. No physician attempted to connect Moreland’s use of smokeless tobacco with any of his medical disorders.

Moreland worked for Eagle Picher from 1973 to 2