Lamont Cooper v. Mid-Missouri Mental Health Center

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-130828

Employee: Lamont Cooper Employer: Mid-Missouri Mental Health Center Insurer: Self-Insured Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether employee sustained an accident or occupational disease arising out of and in the course of his employment; (2) if so, whether the work-related accident or occupational disease is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence; (3) whether employer is liable for permanent partial or permanent total disability; (4) whether employer is liable for temporary total disability benefits; (5) employer's liability, if any, for past medical expenses; (6) employer's liability, if any, for future medical expenses; (7) the liability of the Second Injury Fund, if any; (8) whether a 15\% penalty shall be applied to claimant's benefits for employer's alleged violation of § 287.120.4 RSMo; (9) whether costs and attorney's fees shall be ordered under § 287.560 RSMo relative to employer's defense of these proceedings; and (10) potential dependency issues.

The administrative law judge determined as follows: (1) employee sustained an occupational disease (hypersensitivity pneumonitis) arising out of and in the course of his employment on or about July 8, 2007; (2) the prevailing factor in the cause of the occupational disease was the exposure to dust in the work environment beginning on or about July 8, 2007 and continuing through early September 2007; (3) employee is permanently and totally disabled as a result of the occupational disease; (4) employee is not entitled to temporary total disability benefits; (5) employer is ordered to reimburse employee the amount of $\ 232,627.63 for reasonable medical charges for necessary medical treatment; (6) employer is responsible for future medical treatment to cure and relieve employee from the effects of his occupational disease; (7) there is no liability on behalf of the Second Injury Fund; (8) employee's weekly compensation rate (\$254.31) and all benefits to which the employee is entitled are to be increased by 15\% under

Injury No.: 07-130828

Employee: Lamont Cooper

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§ 287.120; (9) employer has not defended these proceedings without reasonable ground in violation of § 287.560 RSMo.

In evaluating the reasonable medical charges for reimbursement, the administrative law judge (ALJ) identified those conditions which resulted from the treatment of hypersensitivity pneumonitis. Certain medical bills were disallowed for reimbursement. Specifically, treatment for lung/breathing problems, diabetic retinopathy, fatigue, diabetes and avascular necrosis of the left hip were found compensable on the basis that large doses of prednisone on a consistent basis is a recommended treatment for hypersensitivity pneumonitis. A known side effect of that treatment are the conditions cited by the ALJ. On that basis, the ALJ found the occupational disease to be the prevailing factor causing these conditions.

The ALJ also addressed potential dependency issues as follows: Angelique Smith and the employee were married in August 1997; were married at the time of the onset of the disease on July 8, 2007; and continued to be married up to and including the time of final hearing.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred as follows:

1. in concluding that employee met his burden of proof that he sustained an occupational disease;
2. that the alleged exposure caused hypersensitivity pneumonitis and employee's problems with lungs, breathing and fatigue;
3. that the employee's use of prednisone was caused by the alleged occupational disease and was the prevailing factor causing employee's diabetes, diabetic retinopathy and avascular necrosis of the left hip;
4. in awarding past medical bills;
5. in finding that employee was permanently and totally disabled as a result of his last injury alone;
6. in finding that employer violated §§ 292.300 and 292.320 RSMo¹ and thereby awarding a 15% enhancement of all benefits awarded.

The Second Injury Fund filed a brief objecting to Second Injury Fund liability. Employee filed a brief urging the ALJ's Award be upheld.

Oral argument was heard before the Commission on January 24, 2018, with counsel for employer, employee and the Second Injury Fund participating.

For the reasons stated below, we modify the award and decision of the administrative law judge only with regard to the 15% enhancement of all benefits awarded under the provisions of §§ 287.120.4, 292.300 and 292.320 RSMo.

1 The ALJ specifically found § 292.310 RSMo was not applicable because there was no evidence that any of the specifically named substances of that section were present. (See Award, page 26, footnote 11)

Applicability of $\S \S 287.120 .4,292.300 and 292.320 RSMo

At issue is whether the provisions of \S \S 287.120 .4,292.300$ and 292.320 apply to the employer's conduct.

§ 287.120.4 RSMo:

Liability of Employer Set Out - Compensation Increased or Reduced

Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

§292.300 RSMo:

Employer to provide protection to employees from diseases.

That every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process. (Emphasis ours.)

§292.320 RSMo:

Employees to be furnished with clothing - respirators to be used while at work.

Every employer in this state to which sections 292.300 to 292.440 apply shall provide for and place at the disposal of the employees so engaged, and shall maintain in good condition without cost to the employees, working clothes to be kept and used exclusively by such employees while at work and all employees therein shall be required at all times while they are at work to use and wear such clothing; and in all processes of manufacture or labor referred to in this section which are productive of noxious or poisonous dusts, adequate and approved respirators shall be furnished and maintained by the employer in good condition and without cost to the employees, and such employees shall use such respirators at all times while engaged in any work productive of noxious or poisonous dusts.

The Administrative Law Judge noted that with regard to employer's failure to comply with $\S 292.300$ and/or $\S 292.320, there was no expert testimony on the causation issue. { }^{2}$ (Award, page 26), and then continued:

Nevertheless, § 292.320 requires Employer to provide effective devices, means or methods for the prevention of such industrial or occupational diseases. If Employer would have provided effective devices, means or methods (as required by the statute) then the occupational disease, by definition, would have been prevented. The wording of the statute itself appears to satisfy the causation requirement of $\S 287.120 .4$. (Emphasis in original)

We find that claimant's hypersensitivity pneumonitis was caused by conditions in the employer's workplace and exposure occurred relative to employee's work duties. However, there is an absence of evidence demonstrating the existence of approved and effective devices, means or methods for the prevention of employee's injury; nor is there evidence demonstrating employer's failure to provide such caused employee's injury. Therefore, we are not prepared to conclude if employer had provided a device, means or methods (as required by the statute), then the occupational disease could have been prevented. ${ }^{3} A cause of hypersensitivity pneumonitis is exposure to organic dusts. { }^{4}$ Employee has not proven that an approved and effective device, means or method existed for the prevention of such occupational disease. Furthermore, the evidence is insufficient to establish that employee's hypersensitivity pneumonitis is "incident to [the] work, trade or process," routinely engaged in by this employer, a mental health center.

In sum, we conclude that employee's injuries were not caused by employer's failure to comply with $\S \S 293.300-320. Accordingly, we decline to apply \S 287.120 .4$ to increase the compensation awarded herein.

We modify the award of the administrative law judge. The compensation awarded hereto is not subject to increase by 15 % under $\S 287.120 .4$ RSMo.

Employee is entitled to, and employer is hereby ordered to pay, past medical expenses in the amount of $\ 232,627.63.

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[^0]: ${ }^{2}$ Obviously, the ALJ found earlier in his Award that Dr. Parmet credibly testified as to a link between the exposure in employee's "workplace to large amounts of biological dust and particles" as a causal agent for the hypersensitivity pneumonitis. (Award, page 17) The ALJ's meaning behind the statement on page 26 of the Award which might seem to contradict the earlier conclusion on page 17, was clearly directed to the proof of causation necessary to apply the safety penalty under $\S 287.120 .4 RSMo. Considering the language of \S \S 287.120 .4$ and 292.300-320 together, the issue appears to us to be whether a protective measure could have prevented the causal agent from affecting the employee's health.

${ }^{3}$ Employer's witness, Dennis Elmore, a Certified Industrial Hygienist, testified regarding safeguards against asbestos exposure and that asbestos exposure is not a known cause of hypersensitivity pneumonitis (H. P.), although he conceded there may be other causes for H. P. than microbes. (Tr. page 224) Employee did not provide any expert testimony on the effective means of prevention of hypersensitivity pneumonitis.

${ }^{4}$ Employer's own expert, Dennis Elmore, testified that hypersensitivity pneumonitis is typically caused by an organic dust and asbestos isn't an organic dust. (Tr. page 213, 224)

Employee is entitled to, and employer is hereby ordered to pay permanent total disability benefits at the weekly compensation rate $\ 254.31 since January 11, 2008.

The award and decision of Chief Administrative Law Judge Robert Dierkes, issued June 5, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad 23rd \qquad$ day of February 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., M