John Whelehon v. The Doe Run Company

Employee: John Whelehon (deceased) Injury No. 00-179886

Dependents: Lois Whelehon

Employer: The Doe Run Company

Additional Party: N/A

Insurer: Pacific Employers Insurance Company

Appearances: Gary Matheny and Tom Burcham III, attorneys for the claimant. Scott Reid, attorney for the employer-insurer.

Hearing Date: Commenced July 27, 2016. Checked by: LCK/kg Completed on August 26, 2016.

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? N/A.
5. State location where accident occurred or occupational disease contracted: N/A.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Undetermined.
8. Did accident or occupational disease arise out of and in the course of employment? No.

1. Was claim for compensation filed within time required by law? Undetermined.
2. Was the employer insured by above insurer? Yes.
3. Describe work the employee was doing and how accident happened or occupational disease contracted: N/A.
4. Did accident or occupational disease cause death? N/A.
5. Parts of body injured by accident or occupational disease: N/A.
6. Nature and extent of any permanent disability: N/A.
7. Compensation paid to date for temporary total disability: None.
8. Value necessary medical aid paid to date by the employer-insurer: None.
9. Value necessary medical aid not furnished by the employer-insurer: None.
10. Employee's average weekly wage: Undetermined.
11. Weekly compensation rate: $\ 578.48 for temporary total disability, permanent total disability and death benefits; and $\ 303.01 for permanent partial disability benefits.
12. Method wages computation: By agreement.
13. Amount of compensation payable: None.
14. Second Injury Fund liability: N/A.
15. Future requirements awarded: N/A.

On July 27, 2016, the employee's widow Lois Whelehon appeared in person and with her attorneys Gary Matheny and Tom Burcham III for a hearing for a final award. The employerinsurer was represented by their attorney, Scott Reid. Also present for the employer was Crystal Saling, an in-house attorney for the employer.

In Injury Number 00-179886, the claimant requested the Claim against the Second Injury Fund be dismissed without prejudice. The Order of Dismissal was entered August 8, 2016.

Injury Number 00-179145 was also set for hearing. The claimant previously settled the Claim against ASARCO. At the hearing, Ms. Whelehon requested a party dismissal with regard to Doe Run Company, Pacific Employers Insurance Company, and Crawford and Company; and that the Claim against the Second Injury Fund be dismissed. The Order of Party Dismissal and the Order of Dismissal against the Second Injury Fund were entered on August 8, 2016.

With regard to Injury Number 00-179886, 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. The Doe Run Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Pacific Employers Insurance Company.
2. On or about April 20, 2000, John Whelehon was an employee of The Doe Run Company and was working under the Workers' Compensation Act.
3. The employee was at the maximum rate of compensation for temporary total, permanent total, death benefits and permanent partial disability. The rate of compensation for temporary total, permanent total and death benefits is $\ 578.48 per week. The rate of compensation for permanent partial disability is $\ 303.01.
4. The employer-insurer did not furnish or pay any medical aid.
5. The employer-insurer did not pay any temporary total disability benefits.

1. Occupational disease.
2. Notice.
3. Statute of limitations.
4. Medical causation.
5. Claim for previously incurred medical aid.
6. Nature and extent of disability.
7. Claim for nursing services.
8. Attorney's lien of the employee's former attorney Mark Moreland.

1. Medical Records of Dr. Griffin
2. Medical Records of Missouri Baptist Medical Center
3. Medical Records of The Occupational Medical Specialty Center
4. Medical Records of the Heart Health Center
5. Medical Records of Parkland Health Center
6. Medical Records of Dr. Goldring
7. Medical Records of Dr. Haltzman
8. Medical Records of Dr. Hyers
9. Medical Records of Memory Diagnostic Center
10. Medical Records of Jefferson Memorial Hospital
11. Medical Records of Dr. Capapas
12. Records of Veterans Home Nursing Home
13. Medical Records of St. Francois Medical Center
14. Medical Bills
15. August 7, 2007 Deposition of Dr. Doull including his C.V., his March 21, 2007 Report, Pages from Three Textbooks, Medical Records of Dr. Hyers, and Report from Brenda Russell, R.N.
16. September 24, 2008, October 22, 2008 and September 27, 2011 Depositions of Dr. Stillings; his C.V.; March 18, 2008 and April 26, 2011 Reports; and Listing of Medical Bills
17. November 23, 2009 Deposition of Dr. Doull including his C.V., October 14, 2009 Report, and the Employee's Death Certificate
18. Deposition of Dr. Godfrey including his C.V., his Report, and the Employee's Hair Analysis
19. Deposition of Dr. Harrison including his C.V. and Report
20. Doctor's Data Hair Elements Test Results
21. Medical Records of Mercy Hospital
22. Certificate of Death
23. Photos of the Employee
24. Lead-Antimony-Arsenic Alloys MSDS
25. (See Below)
26. St. Francois County Health Center Water Sample Test
27. Photo of the Employee and Ms. Whelehon
28. Photo of the Employee
29. Photo of the Employee and Ms. Whelehon
30. Federal Minimum Wage from 1955-2014

The employer-insurer objected to Employee Exhibit 25, an article from the Alternative Medicine Review entitled Toxic Metals \& Antioxidant on the grounds of hearsay; lack of foundation; and relevancy. The objection was taken under advisement. The objection to Employee Exhibit 25 is sustained and it is not admitted into evidence. Exhibit 25 will remain

part of the Judicial File for Appellate purposes. Note: In the Claimant's brief, Exhibit 25 was shown as withdrawn.

A. Deposition of Dr. Shippen including his C.V., his Report, his Supplemental Report, the Employee's Biological Monitoring Records from Doe Run, the Employee's Hair Analysis, Two Studies and Two Articles.

B. The Employee's Biological Monitoring Records from Doe Run

C. Doe Run Employment Records of the Employee

D. OSHA Regulations regarding Lead, Arsenic, \& Cadmium

E. Air Monitoring Records from Doe Run

The record remained open until August 26, 2016, for the possible admission of the deposition of Jimmy Ivison. On August 25, 2016, the Court received a letter from the claimant's attorney that the deposition would not be offered. The record was closed on August 26, 2016.

Judicial Notice of the contents of the Division's files for the employee was taken.

The claimant's former attorney Mark Moreland filed an attorney's lien. On November 11, 2016, Mr. Moreland sent a letter to the Court that he would accept $\ 1,500.00 for the reasonable value of his services. In a January 17, 2017 electronic mail, Mr. Matheny agreed to that amount for Mr. Moreland's attorney's lien for necessary legal services.

Lois Whelehon, Aaron Miller, David Koczur, and Tim Lewis

The claimant's proposed Award was received on September 23, 2016. The employerinsurer's proposed Award was received on September 30, 2016.

Lois Whelehon testified that she was married to the employee John Michael Whelehon from 1977 until he passed away on January 29, 2009. She was the only dependent of the employee. The employee went to work for ASARCO in 1976 or 1977. He started as a laborer and then became a maintenance man. In 1998, ASARCO become Doe Run. The employee worked for Doe Run performing the same job until he quit in March of 2000.

David Koczur testified that he was employed by ASARCO and Doe Run from 1985 until 2003. He started working for ASARCO in 1985 and in 1998 the operation switched to Doe Run. Tim Lewis testified that he worked at ASARCO until September 1, 1998 when it became Doe Run. He never worked for Doe Run.

Mr. Koczur and Mr. Lewis testified that the four basic operations at the Glover lead smelter plant where the employee worked were sintering, blast furnace, refining and molding. The main ingredient that went into the sintering process was lead ore from the mines that ASARCO and then Doe Run owned in Southeast Missouri. The lead ore was shipped to the Glover smelter plant to begin the sintering process. The lead ore would be placed in a bin and mixed with other ingredients including coke, iron pyrite, and calcium. It would be fired, which changed it from being sulfide to becoming oxidized, and turned into sinter which resembled volcanic rock. The large sinter chunks where sent to the blast furnace where it was melted down into liquid lead that would run into a pot. It was taken to the refinery and put into cooking kettles to be refined where all the impurities would be taken out by mixing different things including silver and other metallurgy. The finished product would be 99.99 % pure lead unless a different blend was ordered. The lead would be poured into bars or blocks at the molding plant.

Mr. Koczur testified the Glover lead smelter plant was heavily regulated including the requirement to monitor workers for lead exposure. They were required by OSHA to perform monitoring. The company did additional testing out in the plant with stationary monitors in different areas to monitor the air quality. The test samples were sent to an OSHA approved ASARCO lab in Salt Lake City. When the plant became Doe Run, the testing went to the same lab. The results determined how much protection workers had to wear. There were different types of respirators including a half-mask respirator which covered the nose and the mouth area. If the exposure showed a greater level than what those respirators were designed for, workers were given a positive pressure respirator which was a full face mask or a helmet with a motor strapped on the belt that had the filters. The employee normally wore the powered respirator. The requirements for wearing protective equipment were driven by O