Timothy Parker v. ECOLAB Incorporated/Pest Elimination

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-040743

Employee: Timothy R. Parker

Employer: ECOLAB Incorporated/Pest Elimination

Insurer: Insurance Company of the State of Pennsylvania

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 6, 2013. The award and decision of Administrative Law Judge Gary L. Robbins, issued August 6, 2013, 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 February 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: May 6, 2013

Checked by: GLR/sm

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? March 3, 2009.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, 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.

1. Was employer insured by above insurer? Yes.
2. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was exposed to chemicals damaging his lungs and caused him to develop occupational asthma.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: Lungs and body as a whole.
5. Nature and extent of any permanent disability: 25% permanent partial disability of the body as a whole due to the employee’s occupational asthma.
6. Compensation paid to date for temporary total disability: 20,000.00.
7. Value necessary medical aid paid to date by employer-insurer: 11,989.24.
8. Value necessary medical aid not furnished by employer-insurer: 261.00.
9. Employee's average weekly wage: 576.55.
10. Weekly compensation rate: $384.39 for all purposes.
11. Method wages computation: By agreement.
12. Amount of compensation payable: 38,439.00 as Permanent Partial Disability and 261.00 for payment of a medical bill. See Award.
13. Second Injury Fund liability: N/A.
14. Future requirements awarded: Future Medical. See Award.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Robert J. Goldson.

On May 6, 2013, the employee, Timothy R. Parker, appeared in person and with his attorney, Robert J. Goldson, for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Steven R. Sharp. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. ECOLAB Incorporated/Pest Elimination was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Insurance Company of the State of Pennsylvania.
2. On March 3, 2009, Timothy R. Parker was an employee of ECOLAB Incorporated/Pest Elimination and was working under the Workers' Compensation Act.
3. On March 3, 2009 the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 576.55, resulting in a compensation rate of $\ 384.39 for all purposes.
7. The employee's injury was medically causally related to the occupational disease, however the employer-insurer challenges medical causation after September 14, 2010.
8. The employer-insurer paid $\ 11,989.24 in medical aid.
9. The employer-insurer paid $\ 20,000.00 in temporary disability benefits.
10. The employee has no claim for mileage.
11. The employee has no claim for temporary total disability.
12. The parties agree that the employee reached maximum medical improvement /MMI as of September 14, 2010.

1. Previously Incurred Medical Bills
2. Future Medical Care
3. Liability of the Employer-Insurer for Permanent Partial or Permanent Total Disability

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

A. Deposition of Timothy G. Lalk.

B. Deposition of Peter G. Tuteur, M.D.

C. Deposition of Anthony Kulczycki Jr., M.D.

D. Records from ECOLAB.

E. Record re: James Dubois.

F. Records from Washington University.

G. Records from Washington University.

H. Medical records of Gregorio L. Rodriguez, M.D.

I. Medical records of Musa Wadi, M.D.

J. Medical records from Cape County Otolaryngology.

K. Medical records from Southeast Missouri Hospital.

L. Medical bills.

M. Deposition of J. Stephen Dolan.

N. Deposition of Robert M. Bruce, M.D.

Employer-Insurer Exhibits:

1. Deposition of Robert M. Bruce, M.D.
2. Deposition of J. Stephen Dolan.
3. Investigation report.
4. Video.

The employee, Timothy R. Parker, and James Dubois, Craig A. Truedelle and David N. Coffey all personally testified at trial. All other evidence was presented in the form of written records, medical records, video tape records or deposition testimony.

The employee is approximately 45 years old and lives in East Prairie with his wife and dependent children. He graduated from high school in 1985. He served in the Army reserves from 1985 and 1994 where he was an armor crewman. He was honorably discharged. He attended the police academy at Southeast Missouri State University and completed the program in 1992. From 1992 to approximately 2003 he served as a police officer in multiple sheriff and police departments.

In 2003 the employee began working for ECOLAB as a service specialist. His job was to spray and treat homes and businesses with pesticides. The employee worked in this capacity until March 3, 2009. He was actually terminated from ECOLAB a year later as he had not physically worked there for about a year.

The employee was exposed to various pesticides and chemicals as a result of his employment. He developed respiratory problems and began a course of medical treatment with multiple doctors and physicians. He was ultimately diagnosed with occupational asthma as a result of his

chemical exposures. He is currently using medications for his respiratory problems and will continue to do so in the future.

The employee reported that he experienced another chemical exposure in 1996 while working as a law enforcement officer.

The employee testified that he wore a respirator when the chemicals he was using called for it. He testified that his supervisor, Jim Dubois, falsified records for the last two years that the employee was working and indicated that he had performed safety check of the employee's respirator when he had not done so.

The employee testified that he actually began to experience breathing problems in 2008. He testified that he is currently taking:

- ProAir, an inhaler

- Singulair

- Advair, twice a day

- Bystolic which deals with blood pressure

The employee testified that with the use of medications his condition has improved since 2009.

He indicated that he keeps an inhaler with him at all times as he does not know what sets off his breathing problems.

The employee testified about some of his activities:

- He and his wife started the Sportsman Club as a place for him to hang out. It is a private club where people can bring alcohol and drink. He testified that he spends two to three hours there two to three times a week.

- He testified that depending on the day he spends 15-16 hours each day in his home.

- He tries to limit his activities outdoors. On an average day he spends 30 minutes to an hour outdoors.

- He attempts to limit the places he goes for worry of a trigger that may bring on an attack.

- On average he goes to Wal-Mart or the grocery store about two times a week.

- He eats out in a restaurant about once a week.

- He takes his family to their vacation property at Kentucky Lake but most of the time he stays in the trailer and watches television while his wife takes the kids to the pool.

- He went to an Oktoberfest and stayed there about 1to $11 / 2$ hours.

- He told Mr. Lalk that he would walk, stand, sit and change positions without difficulty. He also testified that he could only walk about 50 yards depending on the day.

- There are days where he can stand for more than 15 minutes.

Mr. Dubois testified that he is a former supervisor of the employee when he worked for ECOLAB. He testified that he tested the employee's respirators. He indicated that he checked

Employee: Timothy R. Parker

Injury No. 09-040743

the respirators the first few years he was there but in the last two years he did not do so. He admitted that he falsified a report indicating that he had checked the respirators when he did not.

Dr. Bruce

Dr. Bruce is a medical doctor who is board certified in internal medicine with a specialty in pulmonary diseases. He first saw the employee September 14, 2010 for an independent medical examination. He authored multiple letters/reports and testified by deposition on February 3, 2012.

As of September 14, 2010, the employee's chief complaint was reported as "My breathing is better now that I am on medications". Dr. Bruce took a history from the employee and reported that:

- The employee is 43 years old and is a life-long non-smoker.

- The employee's respiratory health was good until two to three years ago when he developed episodic problems with breathing characterized by a sensation that he could not catch his breath, meaning that he could not get air "in" and cough, which was non-productive. These episodes resolved spontaneously and he did not immediately seek medical attention. He was subsequently told he had allergies and asthma.

- The employee has been on inhaled steroids and short acting bronchodilators and his symptoms are much improved.

- The employee said he could walk 70 to 100 yards on level ground without much difficulty; pushing himself beyond that or going faster he gets a "weight on his chest".

- The employee worked at ECOLAB from 2003 to March 2009 applying pesticides.

- The employee had no problems