Donna Blyzes v. General Motors Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 03-124598

Employee: Donna M. Blyzes

Employer: General Motors Corporation

Insurer: Self-Insured

This 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, read the briefs, heard the parties' arguments, 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.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued August 11, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 27^{\text {th }} \qquad$ day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., 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: October 2, 2003
5. State location where accident occurred or occupational disease was contracted: St. Charles 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
10. Was employer insured by above insurer? Self-Insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee alleged that from April 27, 2002 until October 2, 2003, she was exposed to cigar smoke which caused stress.
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 psychological stress and asthma
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna M. Blyzes

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,319.69
3. Weekly compensation rate: $\$ 662.55 / \ 347.05
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

NONE

1. Future requirements awarded: None

Said payments to begin immediately 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: Herman L. Jimerson, Esq.

This workers' compensation case raises several issues arising out of an occupational disease claim in which the claimant, an automotive assembly line worker, alleged she developed asthma and mental stress while being exposed to cigar smoke while working on the employer's automotive assembly line. The issues for determination are (1) Occupational disease; (2) Medical causal connection; (3) Future medical care, and (4) Permanent disability. The evidence supports an award for the defense.

At the hearing, the claimant testified in person along with her husband, William Blyzes and Rick Cavins, a social worker. The claimant also offered the following exhibits:

Claimant's Exhibit A: Mr. Cavins' letter dated October 19, 2011

Claimant's Exhibit B: GM Wentzville Plant Special Bulletin

Claimant's Exhibit C: George Hernia deposition transcript dated January 18, 2013

Claimant's Exhibit D: Marlin Brown's deposition transcript dated January 18, 2003

Claimant's Exhibit E: Jerry Meyers, M.D. deposition transcript dated October 31, 2013

Claimant's Exhibit F: Robert Schlitt, M.D. deposition transcript dated November 8, 2013

Claimant's Exhibit G-I: Photographs

Claimant's Exhibit J: Kevin D. Weikart, M.D. medical report dated December 2, 2002

Claimant's Exhibit K: Personnel Administration medical report.

The employer submitted the following exhibits:

Employer's Exhibit 1:Robert M. Bruce, M.D. reports dated February 1, 2005 and May 3, 2005

Employee: Donna M. Blyzes

Injury No.: 03-124598

Employer's Exhibit 2: Roger L. Mell, M.D. records dated July 22, 1991 through December 9, 1992

Employer's Exhibit 3: Roger L. Mell, M.D. records dated August 29, 2000 and November 29, 2005

Employer's Exhibit 4: General Motors plant records dated November 19, 1986 through October 19, 1995

Employer's Exhibit 5: William Sedgwick, M.D. records dated November 19, 1985 and December 3, 1985

Employer's Exhibit 6: Eliseo Figueroa, M.D. report of October 10, 1995

(Objection on hearsay from Second Injury Fund only sustained)

Employer's Exhibit 7: Division of Workers' Compensation prior records

Employer's Exhibit 8: Michael Nogalski, M.D. deposition dated July 22, 2013

Employer's Exhibit 9: Wayne A. Stillings, M.D. deposition dated January 22, 2014

Employer's Exhibit 10: Rick Cavins' deposition dated February 24, 2006

(Only received with respect to 2003 case)

Employer's Exhibit 11: GM Global Security Incident Report dated October 13, 2011

Employer's Exhibit 12: Claim for Compensation - Injury Number 03-124598

Employer's Exhibit 13: Claim for Compensation - Injury Number 04-148011

Employer's Exhibit 14: Claim for Compensation - Injury Number 09-070136

Employer's Exhibit 15: Deposition of Donna Blyzes dated May 24, 2010 (pgs. 86-92)

The parties stipulated that the claimant was off work on short-term disability from October 8, 2003 through March 22, 2004.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the alleged occupational disease was alleged to have been contracted in Missouri. Any markings on the exhibits were present when offered into evidence. Exhibits G, H, and I were received in the condition as presented with white out and a sticky substance on the documents.

The claimant, an automotive assembly line worker, alleged that she suffered asthma and psychological stress from cigar smoke in her working area. The claim alleges that she was exposed to smoke on the line from April 27, 2002, until October 2, 2003. See Exhibit 14. The claimant testified that she discovered she was "allergic" to smoke on April 26, 2002, when a coworker's cigar fumes reached her nose, causing her to state she could never work with a smoker.

The next day several co-workers were standing on a ramp on the right side of the claimant and one said, "It's fireworks time." Todd Asher, a co-worker, then lit a cigar which was about 5 inches from her nose. She said she made several attempts to place a fan by her, but other co-

workers complained about the fan. After a third failed attempt to place a fan by her, she became overwhelmed and went to medical, where she was given a compress and Tylenol.

The claimant then resumed her duties but after a lunch break, Mr. Asher again lit up his cigar and her symptoms returned. She went to plant medical and received the same treatment. When Mr. Asher lit his cigar for the third time that same day, she left to go sit somewhere else, at which point Mr. Asher called over three co-workers, gave each a cigar and one of the three lit up a cigar and walked over to her. However, before she could smell the fumes, she went to medical for the rest of her shift.

The claimant testified that she returned to work the following Monday and Mr. Asher lit a cigar after the first break. The claimant testified that she then went to plant medical again and they sent the claimant to the head of Manpower and she was placed on a different job as a right front door welder. This occurred on April 29, 2002. At that job, she experienced no smoke inhalation.

The claimant testified that on April 30, 2002, she showed up for work early, because it was Election Day for the union. When she got there, the day shift had not gotten out yet and Todd was smoking a cigar. However, she testified that Mr. Asher did not light the cigar in her presence. At that point, the claimant did not go to her specific job, but went to the office and again saw the head of Manpower. At that point, she went out on sick leave and did not return until August 2002.

The claimant testified that another incident occurred on July 25, 2003, when she went into the ladies restroom and smelled "marijuana" and reported it. She did not suffer any physical symptoms from that incident. However, she was upset. She reported the smell to Jan Logan who advised her that it was simply a deodorizer.

The claimant testified that on July 30, 2003, she was asked to work a break and Kevin Skyles, another employee, lit up a cigar. At that point, she told her supervisor and he switched her with another employee, Bill. When she was transferred to a different position, she was not exposed to cigar smoke. On September 19, 2003 the claimant reported that there were several employees smoking around the entrance to the building, forcing her to walk through them in order to get inside.

With respect to her knees, the claimant testified that her problems began in 1991 at which time she had right knee arthroscopic surgery. On April 1, 2004 the claimant's knee problems returned with swelling in both knees when she was placed on a job which required her to get in and out of a van. She stated that the job required her to sit on a pad which was on studs and then run a cable through the van. She testified that during this time, she had restrictions which included no bending, squatting, lifting over 30 pounds, but they were not honored and therefore she had to go out on sick leave.

On November 14, 2005 the claimant testified that Dr. Schaberg recommended a total right knee replacement, which was performed on December 11, 2005. She returned to work around May 2006 and testified that her knee pain was better following the surgery, but the swelling was still sporadic.

The claimant testified that she returned to the body shop and had the same work restrictions after the knee replacement that she had while on the van job, which were again violated. This caused her to be "frozen" from the neck down and on September 9, 2006, she went to plant medical and received an injection.

The claimant testified that on February 15, 2011 she was removed from her position because her work restrictions could not be accommodated. In 2012, she was placed on NJAWR (no job available with restrictions) until November 2012, when she was put on a job in the chassis depa