Leonard Fry v. Thomas Industrial Coatings, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-092315

Employee: Leonard Fry

Employer: Thomas Industrial Coatings, Inc.

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated May 17, 2011.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Rebecca S. Magruder, issued May 17, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I write separately to disclose the fact that I did not participate in the October 26, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

Employee: Leonard Fry

Injury No. 09-092315

Dependents: N/A

Employer: Thomas Industrial Coatings, Inc.

Insurer: Insurance Company of the State of Pennsylvania

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

Hearing Date: April 20, 2011

Checked by: RSM/pd

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: November 9, 2009
5. State location where accident occurred or occupational disease was contracted: 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? 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While painting bridges, Claimant was exposed to a toxic chemical which caused him to suffer occupational asthma.
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: Pulmonary system, body as a whole

1. Nature and extent of any permanent disability: Not yet determined
2. Compensation paid to-date for temporary disability: $\ 22,646.84
3. Value necessary medical aid paid to date by employer/insurer? \$5,019.57
4. Value necessary medical aid not furnished by employer/insurer? Undetermined
5. Employee's average weekly wages: $\ 1,252.25
6. Weekly compensation rate: $\$ 807.48 / \ 422.97
7. Method wages computation: By agreement

1. Amount of compensable payable: Employer is to continue to provide care with the authorized physicians in this case and to continue paying weekly temporary total disability benefits again as long as the authorized physicians deem it necessary.

Each of said payments are to begin upon receipt of this award, cover the time period from the date of the hearing, April 20, 2011 forward, and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mr. Keith Yarwood for necessary legal services rendered to the Claimant.

On April 20, 2011, the Employee and Employer appeared for a hearing. The employee, Mr. Leonard Fry, appeared in person and with counsel, Mr. Keith Yarwood. The Employer and Insurer appeared by counsel, Mr. Brandon Lawson.

At that hearing, the parties stipulated to the following:

1. that on or about November 9, 2009, Thomas Industrial Coatings, Inc., was an employer operating under the provisions of the Missouri Workers’ Compensation Law and that its liability under said law was fully insured by Insurance Company of the State of Pennsylvania;
2. that on or about November 9, 2009 Leonard Fry was an employee of Thomas Industrial Coatings, Inc., and was working under the provisions of the Missouri Workers’ Compensation Law;
3. that the employer had notice of the injury and that a claim for compensation was filed within the time prescribed by law;
4. that the average weekly wage resulted in a compensation rate of $\ 807.48 for temporary total disability benefits and $\ 422.97 for permanent partial disability benefits; and
5. that temporary total disability benefits have been paid in this case in the amount of $\ 22,646.84 and that medical had been provided by the Employer/Insurer in the amount of $\ 5,019.57.

The only issue to be determined by this hearing is whether on or about November 9, 2009 Leonard Fry sustained an injury by occupational disease arising out of and in the course of his employment.

The Second Injury Fund did not participate in this hearing as it was for a temporary award only; Attorney Alan Gallas, for St. Luke’s Hospital’s medical fee dispute, did not appear because past medical bills were not to be resolved by this hearing today.

Claimant’s evidence consisted of numerous medical records and the independent medical exam and testimony of Dr. Allen Parmet. Dr. Parmet’s deposition was taken on behalf of the

Claimant on September 20, 2010 and was admitted into evidence as Claimant's Exhibit C. The Employer also offered into evidence deposition testimony of their independent medical examiner, Dr. Gerald Kerby, M.D. That deposition was taken on August 26, 2010 and admitted into evidence as Employer/Insurer Exhibit No. 4. The deposition testimony of Dr. Mark Yagan was taken on behalf of the Employer and Insurer on September 15, 2010. Dr. Mark Yagan was a treating physician in this case. It was the Claimant, however, who admitted Dr. Yagan's deposition testimony into evidence as Claimant's Exhibit A. None of the objections made at the time of the taking of the three depositions were renewed at the time of the trial. Therefore, all of the objections are deemed waived.

In order to make a compensable claim for an occupational disease, claimants have the burden to prove causation of an occupational disease. The claimant must show that the "occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." RSMo 287.067.2 (2010). The prevailing factor is defined as the "primary factor, in relation to any other factor." Id. Section 287.067. The claimant must also provide substantial and competent evidence that he has contracted an occupationally induced disease rather than an ordinary disease of life. Section 287.067.1 provides that "the disease need not have been foreseen or expected but after its contraction, it must appear to have had its origin in a risk connected with the employment and to have flowed from the source as a rational consequent."

Having reviewed presented, I make the following findings of facts and conclusions with regard to the only disputed issue in this case.

The Claimant in this case is a 51-year-old professional painter who had painted for more than 20 years. Prior to going to work for Thomas Industrial Coatings, Inc., the Claimant spent 22 years working for Ammons Painting working as a painter and superintendent. In his role as a superintendent, he did hiring, firing, bookkeeping, paying, receiving and ordering, as well as performing "fit tests" for respirators. He testified that he received training on the proper air filters to use when dealing with both particles and chemicals.

Claimant commenced his employment at Thomas Industrial Coatings in 2008 as a bridge painter. The evidence demonstrates that during the course of his employment with Thomas Industrial Coatings the Claimant was exposed to a toxic chemical called an isocyanate. The isocynate antibody was found in a blood test in the Claimant. All of the experts agree that the Claimant was indeed exposed to this chemical. The evidence also demonstrates that the Claimant was exposed to this chemical during the course of his employment with Thomas Industrial Coatings due to the chemical analysis and tests that were conducted. See the deposition of Dr. Parmet. This chemical is found in Carboline products and was contained in the paint the Claimant used at Thomas Industrial Coatings, Inc. There was no evidence that Claimant worked on bridges or that he was exposed to any isocyanates during his 22 years with Ammons Painting.

The three different sites where the Claimant used these products were a project on the Paseo Bridge, now known as the Bond Bridge; a project north of the river on I-29 near St. Joseph; and a job in Lee's Summit. The Paseo Bridge project was the first site where the Claimant was exposed to the Carboline products. The Employer provided the Claimant with a half-face respirator with a particulate filter that covered his nose and mouth but left the rest of his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Leonard Fry

Injury No. 09-092315

face exposed. Mr. Fry should have been fit-tested and given a full-face filter protecting against fumes/vapors rather than a half-face particulate filter. Mr. Fry requested that his supervisor provide him with a full-face respirator, which the Employer did. However, the full-face respirator was never fit-tested, so the Claimant refused to wear it because it had not been fittested as is recommended. He attempted to make a shield out of duct tape to attempt to block his face from the paint materials. The Claimant and two other painters worked from a platform between two eight-foot-high beams under the bridge. Their faces were less than a foot from the bottom of the bridge where they applied the paint. Mr. Fry used rollers and brushes to apply the Carboline products. He stated that the paint splattered the exposed portions of his face and dripped down his neck as he applied the paint to the bridge. He also worked on a project on I-29 for approximately three weeks cleaning up wet sand. Again, he wore no protective clothing but had a 3M half-face respirator for particulates. Wet Carboline paint covered the tarp walls in this unventilated area. His primary job was to clean up the sand which contained Carboline paint. At this time, his symptoms worsened, but he merely assumed that he was suffering from some type of flu. He stated that he did notice shortness of breath at this time. He also used Carboline products at a work site in Lee's Summit. He was at this site for merely a week. Again, he was rolling and spraying Carboline products on this job.

The Employer did not provide air monitoring at any of the three sites, nor did they monitor the air quality of any of the workers who Mr. Fry worked alongside. The Employer did not provide any protective clothing for the Claimant other than the respirator and safety goggles. It did not provide any shower facilities for workers to clean off the paint once they had finished their shifts.

Although the Claimant began experiencing symptoms as early as late August 2009, he did not actually seek medical treatment until early November 2009. However, I find that he did experience the following symptoms from late August to early November 2009: difficulty breathing, shortness of breath, burning and peeling skin on his face, watery eyes, occasional vomiting, coughing and headaches. In early November, the Claimant's symptoms were so severe that he drove himself to St. Luke's Memorial Hospital Emergency Room and requested treatment for his flu-like symptoms. Doctors at St. Luke's quickly ruled out flu caused by the H1N1 virus. Dr. Yagan, a board certified pulmonologist, was Mr. Fry's primary treating physician in the hospital and for follow-up care. Dr. Yagan concluded that the Claimant's smoking history played little or no role in his pulmonary problems. Dr. Yagan also rejected the proposition that Mr. Fry's smoking might have reactivated a possible childhood asthmatic condition. Dr. Yagan testified that Claimant's symptoms of burning of the face, watery eyes, shortness of breath and chest burning indicated that Mr. Fry had come in contact with an extreme and intense exposure to fumes. Dr. Yagan initially diagnosed Mr. Fry with reactive airways dysfunction syndrome.

Dr. Yagan contacted Dr. Allen Parmet, M.D., M.P.H., seeking his input as an occupational physician. Dr. Parmet, when advised that Mr. Fry was a bridge painter, suspected that the Claimant had been exposed to isocyanate used in urethane paint. The isocyanates are highly toxic and can cause an allergic reaction by coming into contact with a person's skin or eyes or if they are inhaled. Dr. Parmet and Dr. Yagan agreed to test for isocyanate antibodies and the antibodies were found. There is no dispute by the Employer that the Claimant was indeed exposed to the isocyanates, and all the evidence points to the fact that exposure to isocyanates can indeed cause pulmonary problems such as asthma. Isocyanates do not occur

naturally. Therefore, Mr. Fry's exposure to the isocyanates was exclusively in his work setting. The antibodies the human body creates to fight isocyanates leave the system within 10 months to a year. Dr. Yagan found high levels of the antibodies in Mr. Fry's system more than a year after he went to work for Thomas Industrial Coatings.

The only real dispute in this case is whether the Claimant's exposure to the isocyanates during the course of his employment with Thomas Industrial Coatings was the prevailing factor causing his current medical condition. In other words, did the Claimant meet his burden of proving that his exposure to isocyanates at Thomas Industrial Coatings was the prevailing factor causing his asthma? Depositions of three experts were taken in this case. The expert testimony of Dr. Yagan, the treating board certified pulmonologist, and Dr. Parmet, who Dr. Yagan requested assist him in determining the etiology of the Claimant's condition, found that the exposure was the prevailing factor in causing Claimant's asthmatic pulmonary condition, i.e., occupational asthma. Dr. Kerby, also a board certified pulmonologist, was hired by the Employer/Insurer to conduct an independent medical examination. It was Dr. Kerby's opinion that the isocyanate exposure was only a factor and not the prevailing factor in causing the Claimant's medical pulmonary condition; i.e., asthmatic bronchitis. Although the Claimant clearly has a smoking history, that history is somewhat confusing. I find that Claimant had at least a 20-year history of smoking a half a pack of cigarettes a day and was exposed to secondhand smoke as a child. All of the doctors were aware that Claimant had a smoking history; the details and the amount and duration tended to vary. The variances were not extreme. There was no evidence that the Claimant was a one or two pack a day smoker for 20 years. However, he did smoke consistently for a long period of time at least 10 cigarettes a day. Employer points out that Dr. Parmet "incorrectly" stated that Mr. Fry had a 10-pack-year smoking history (that is a ten-year history of smoking one pack per day) rather than a 20 half-pack-year smoking history (that is a 20-year history of smoking a half pack of cigarettes per day). While Claimant did smoke for 20 years, the number of cigarettes he smoked would be the same under both statements. Again, all the doctors considered that the Claimant had smoked cigarettes consistently for a long period of time.

It was Dr. Kerby's opinion that the Claimant developed purulent bronchitis, which is, essentially, acute bronchitis caused by a bacteria or a virus. It was Dr. Kerby's opinion that the Claimant's failure to seek medical attention for this condition most likely worsened the condition. He also found that the Claimant's smoking as well as his exposure to isocyanates all played a role in his current medical condition. He simply did not believe that the isocyanate exposure was the prevailing factor causing the Claimant's medical condition.

It is the circumstantial evidence in this case, however, that led me to conclude that the opinions of Drs. Parmet and Yagan were more persuasive than the opinion of Dr. Kerby. There is absolutely no evidence that the Claimant suffered from any ongoing pulmonary problem before August 2008. Rather, he had significant symptoms from mid-August through his hospitalization in November which included such symptoms such as burning and peeling skin and watery eyes. Given the dramatic onset of symptoms and the nature of those symptoms (the weepy eyes and burning and peeling skin) along with the lack of any significant history of pulmonary problems, and his undisputable occupational exposure to isocyanates leads me to believe that the isocyanate exposure was indeed the prevailing factor causing the Claimant's medical condition. I find that the experts in the case all have strengths as experts and find that all three experts are equally qualified to address the issues in this case. I simply find due to the

Circumstantial evidence, as recounted above, the prevailing factor was indeed the Claimant's occupational exposure to the toxic chemical isocyanate that caused his pulmonary condition.

The Employer, therefore, is ordered to continue providing treatment with the group of doctors the Claimant has been treating with, which the Employer apparently had authorized at an earlier time at St. Luke's Multi-Specialty Clinic. Employer is also ordered to provide any and all treatment those physicians find related to the initial pulmonary injury and effects of the treatment for that injury. Additionally, the Employer is ordered to commence payments of temporary total disability benefits to the Claimant in accordance to the dictates of the treating physicians.

Date: __________________________ Made by: __________________________

Rebecca S. Magruder

*Administrative Law Judge*

*Division of Workers' Compensation*

This award is dated, attested to and transmitted to the parties this ______ day of ______________ 2011, by:

__________________________

Naomi Pearson

*Division of Workers' Compensation*