Anil Mueller v. Peoplease Corporation

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 15-003742

Employee: Anil Mueller

Employer: Peoplease Corporation

Insurer: National Interstate Insurance

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ).

On January 28, 2015, the employee filed a pro se claim alleging a January 13, 2015 work injury. Employee alleged injury to his whole body due to over-exertion while attempting to hook up a loaded tanker kingpin that day. He described the event as a "heart episode," stating, "I was having erratic heart beats. I was also having chest pains and having a very hard time breathing." On April 1, 2015, the employee's attorney filed an amended claim alleging, "While in the course and scope of employment, employee was working in the maintenance pit under a truck with faulty emissions which exposed employee to large amounts of carbon-monoxide poisoning, causing injury."

The ALJ's award described the disputed issues as:

1) Whether the employee sustained an accident or incident of occupational disease on or about January 13, 2015, and, if so, whether the accident or occupational disease arose out of and in the course of his employment with the employer.

2) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed.

3) Whether the employer and insurer are obligated to pay past medical care and expenses in the amount of $\ 7,912.30.

4) Whether the employee sustained any permanent disability as a consequence of the alleged accident of January 13, 2015, and if so, what is the nature and extent of the disability.

The ALJ found that the employee failed to prove a compensable accident because he "never complained of any possible inhalation concerns on the date of the alleged accident." ${ }^{1}$ He made no affirmative findings regarding the employee's credibility. However, he commented, "Claimant did not have a reason as to why, if he was so sure now the inhalation of fumes caused his alleged event, this possible concern and history was not voiced on the day of the accident." ${ }^{2}$ The ALJ denied all compensation based

[^0]

[^0]: ${ }^{1} Award, p. 9.

{ }^{2} \mathrm{Id}$.

on a finding that "there is no evidence of an accident occurring on January 13, 2015, due to inhalation of fumes while Claimant was at work." ${ }^{3}$ In dictum, the ALJ found that if the employee did sustain a work injury, he failed to prove that the work accident was the prevailing factor in causing his injury.

The employee filed a timely application for review. His attorney alleged that the employee's testimony and medical records, including those documenting employee's emergency room treatment at the Mercy Hospital Springfield, established that the employee suffered a work injury on January 13, 2015, as the result of an unexpected traumatic event that produced objective symptoms of an injury. The employee's application for review further alleged that the hearing testimony and Dr. Hyer's opinion established that the employee's January 13, 2015, workplace injury was the prevailing factor in causing the employee's pulmonary disease and resultant permanent partial disability.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee, currently forty-eight years old, worked for the employer as a welder and mechanic. His work included maintenance and repair of semi-tractor trailer trucks.

The employee sustained a work injury in 2006 relating to the inhalation of carbon monoxide while welding for a former employer. In August 2007, Dr. Stephen Lindahl treated employee for work-related pulmonary bronchitis. The employee sustained no permanent disability related to the 2006 injury and returned to work without restrictions. In 2008 employee passed a Department of Transportation physical examination. In 2011 employee again sustained exposure to toxic fumes while working on a propane and ammonia anhydrous tanker. He suffered heat exhaustion and experienced trouble breathing. The employee testified, "[A]fter I no longer did any more tank work for awhile, I was good again. I went back to [work]-I never did have any other issues after that." ${ }^{4}$

The employee began working for the employer herein, Peoplease Corporation, as a welder and mechanic, in the fall of 2013. Employee diagnosed mechanical problems and performed repairs that routinely involved working underneath trucks parked over an unventilated pit in a cemented area while their engines were running. Employee's work regularly involved exposure to truck exhaust fumes. The employer neither required nor offered to provide the employee a mask or ventilator.

On January 13, 2015, the employer ordered employee to work on a loaded trailer with mechanical issues. The employee attempted to hook the vehicle up outdoors, but when

[^0]

[^0]: ${ }^{3} Award, p. 9

{ }^{4} Transcript, p. 18

Injury No.: 15-003742

Employee: Anil Mueller

-3-$

he did, "it didn't catch right . . . while I was trying to crank down the handle I was getting exhaust fumes off the tractor." ${ }^{5}$ The employee began to feel sick, spit up and threw up. He decided to move the tractor inside to perform further diagnostics. The tractor's exhaust was cracked, leaking and the truck was smoking. The employee started getting lightheaded and feeling sick. He recalled falling into the pit, climbing out, and then standing in a corner by a heater trying to warm up. A co-worker, Kenny Arnold, told the employee he looked unwell and suggested that he go outside and get some air. After the employee threw up again outdoors, his supervisor Paul Finney, told him to go in the breakroom to see if he would feel better. When the employee sat down at a table in the breakroom, he lost consciousness. In response, the employer summoned emergency medical services (EMS). EMS technicians put the employee on a stretcher and gave him nitroglycerin to revive him. They then transferred employee to Mercy Hospital Springfield's Emergency Department (ED). ED notes recorded employee's complaints of chest pain and shortness of breath. The employee told ED nurse Nicholas Locke that he had vomited and vaguely remembered passing out. ED provider Dr. Ted McMurry found no evidence of cardiac ischemia or injury by ECG or troponin and noted employee "stated he felt the problem was primarily his lungs." ${ }^{6}$ The employee refused admission to the hospital for further evaluation and treatment. He left the hospital against medical advice.

The employee subsequently sought follow-up treatment with his personal physician, Dr. Tarsney, and underwent a pulmonary function test at Ozarks Community Hospital at his own expense. On March 20, 2015, Dr. Tarsney released the employee to return to work at full duty. Dr. Tarsney described the employee's January 13, 2015, occurrence as a "carbon monoxide injury."

When questioned about the discrepancies in the accident description on the employee's original and amended claims, the employee testified that both versions were correct. The employee explained that he began working outside, felt lightheaded, and vomited. He then moved inside to work under the vehicle in the "pit," where he experienced exposure to large amounts of fumes. The employee testified that he could barely talk with EMS technicians after the January 13, 2015, work event and had no clear recollection of what he might have told them.

Employee produced bills he received in the mail from medical providers associated with his transfer by EMS and emergency room treatment at Mercy Hospital Springfield on January 13, 2015. The transcript includes medical records reflecting the treatment that gave rise to these bills. The employee also produced bills for follow-up treatment with Dr. Tarsney, pulmonary testing at Ozarks Community Hospital, and additional diagnostic evaluations at Mercy Hospital on February 20, 2015. The employee testified that, except for a bill for a pulmonary test through Ozarks Community Hospital, all of the statements he produced remained outstanding. The employee testified that the bills he produced were for treatment related to his January 13, 2015, injury.

[^0]

[^0]: ${ }^{5} Transcript, p. 23.

{ }^{6}$ Id., p. 158.

Employee: Anil Mueller

Employer's expert, Dr. Ted Leonard, opined that the employee's January 13, 2015, work event was not the prevailing factor in the onset of any respiratory conditions or illness. He considered the January 13, 2015, occurrence unrelated to the employee's preexisting pulmonary issues. Dr. Leonard opined that the employee had no functional limitations and no permanent partial disability resulting from the January 13, 2015 work event.

Dr. Myron Jacobs opined that the employee suffered occupational injury or injuries that have reduced his pulmonary function but did not declare employee's January 13, 2015 work event to be the prevailing factor in this condition. He stated that employee "felt as though he became essentially well after the January 2015 incident."7

Dr. Thomas M. Hyers opined, "[The employee's] workplace exposures on or about 12-29-2011, 08-02-2012 and 01-13-2015 are the prevailing factors in causing his disability as described in my report of 05-27-2016 [emphasis added]."8 Dr. Hyers' May 27, 2016, independent medical examination report found employee "has suffered progressive restrictive lung disease (smaller than normal sized lungs) as a result of occupational injury from welding and other workplace exposures dating back to at least 2007 [emphasis added]."9 Dr. Hyers assigned 75\% disability due to pulmonary injuries but could not attribute this injury directly or quantify the proportion of damage attributable to employee's alleged 2011, 2012, or 2015 exposures.

Under § 287.020.2, an "accident" is defined as an "unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." "Accident" requires either (1) an unforeseen happening relating to or resulting from a physical wound, or (2) an unordinary act of excessive physical or mental tension, difficult exertion, or a violent or overtaxing effort." Young v. Boone Elec. Coop, 462 S.W.3d 783, 793 (Mo. App. 2015).

Section 287.140.1 provides, in pertinent part:

In addition to all other compensation paid to the employee under this section, the employee shall receive, and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

As we have found, the employee felt unwell, vomited, and passed out at work after working to repair a tractor-trailer parked over an unventilated pit with the engine running

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[^0]: ${ }^{7} Transcript, p. 211.

{ }^{8} Id., p. 283.

{ }^{9} Id., p. 274.

Injury No.: 15-003742

Employee: Anil Mueller

-5-$

on January 13, 2015. After the employee collapsed and lost consciousness, the employer summoned EMS to take the employee to the hospital emergency room. EMS technicians revived employee with nitroglycerin. The hospital's ED treated him for chest pain and nausea. Hospital records also noted the employee's report of shortness of breath and "possible syncopal episode."10 Employee ignored the hospital staff's recommendation of admission for further evaluation and testing. He later pursued follow-up treatment from his family physician.

We credit the employee's uncontroverted testimony regarding his January 13, 2015, work incident. We find the employee's failure to specifically reference inhalation of fumes to EMT and hospital staff as the cause of his condition on the date of the accident understandable given his disorientation after losing consciousness. We find that employee's original and amended claims are not in conflict but instead focus on different aspects of the same occurrence. Based on the evidence in the record, we conclude, as a factual matter, that the employee sustained an accident as defined by $\S 287.020 .2$ on January 13, 2015. Consistent with Dr. Tarsney's and Dr. Hyers' expert opinions, we find that the employee's work exposed him to vehicle exhaust fumes and that he suffered a carbon monoxide injury as a result of this exposure on January 13, 2015.

Employer authorized and approved employee's transportation by EMS to the Mercy Hospital Springfield after employee's collapse at work on January 13, 2015. Employee produced medical records documenting medical services rendered by EMS technicians and ED medical providers that flowed from his work injury. He submitted bills he received from medical providers of $\ 1,586.02 for EMS service and $\ 3,804.50 related to his ED treatment that day. The employer offered no evidence that these medical bills were not reasonable. We find this evidence in the record provides a sufficient factual basis to award the employee past medical for his EMS and emergency room treatment on the date of the injury. See D. Charlene Martin v. Mid-America Farm Lines, Inc., and Dennis Chappel, d/b/a Chappell Trucking, 769 S.W.2d 195 (Mo.1989)

We find that employer did not authorize the employee's subsequent treatment with other medical providers after the employee declined further treatment at the hospital on the date of the injury against medical advice. We, therefore, award no reimbursement for additional bills related to subsequent treatment for the employee's pulmonary and heart conditions produced at the hearing.

There is no evidence in the record to support a finding that the employee's January 13, 2015, accident was the prevailing factor in causing his pulmonary disease. We note that the employee's expert, Dr. Hyers, conceded that other work injuries contributed to the employee's current pulmonary condition. The contention that the employer should be liable for 75 % of the body as a whole related to pulmonary disease based on the last exposure rule under $\S 287.063$, briefly raised in employee's brief, was not referenced in any pleadings or identified as an issue in employee's application for review. The employee, therefore, failed to preserve this issue for our review. Based on these

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[^0]: ${ }^{10}$ Transcript, p. 152.

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findings, we award no compensation for permanent disability related to the employee's January 13, 2015, work injury.

We reverse the award and decision of the administrative law judge.

We find that employee sustained a work-related accident on January 13, 2015, as defined by $\S 287.020 .2$ of the Workers' Compensation Law, consisting of carbon monoxide poisoning.

We award $\ 3,390.52 for the employee's EMS transportation and emergency room treatment related to his work injury on the date of the accident.

This award is subject to a lien in favor of Matthew T. Nagel, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Kevin A. Elmer is attached solely for reference.

Given at Jefferson City, State of Missouri this $\qquad 17^{\text {th }} \qquad$ day of December 2021.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

Employee: Anil Mueller

I have reviewed the evidence, the arguments advanced in the parties' briefs, and considered the entire record. I have reviewed and considered all of the competent and substantial evidence on the whole record.

Based on my review of the evidence and my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the administrative law judge's decision should be affirmed. Therefore, I adopt the administrative law judge's award, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Anil Mueller

Injury No. 15-003742

Dependents: N/A

Employer: Peoplease Corp.

Insurer: National Interstate Ins. Co.

Additional Party: N/A

Hearing Date: January 26, 2021

Checked by: KAE

Record Closed February 25, 2021

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: January 13, 2015.
5. State location where accident occurred or occupational disease was contracted: Greene 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? No.
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: Claimant alleges injury while working on a truck and being exposed to exhaust fumes.
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: Body as a whole/lungs.
14. Nature and extent of any permanent disability: 0 % body as a whole.
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
17. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
18. Employee's average weekly wages: $\ 640.00

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anil Mueller

1. Weekly compensation rate: $\ 426.67
2. Method wages computation: By stipulation of the parties.

1. Amount of compensation payable:

0 weeks of permanent partial disability from Employer / Insurer: $\ 0.00

Unpaid medical expenses: $\ 0.00

TOTAL: $\mathbf{\$ 0 . 0 0}$

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: Matthew T. Nagel, Esq.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anil Mueller

Employee: Anil Mueller

Injury No. 15-003742

Dependents: N/A

Employer: Peoplease Corp.

Insurer: National Interstate Ins. Co.

Additional Party: N/A

Hearing Date: January 26, 2021

Checked by: KAE

Record closed February 25, 2021

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on January 26, 2021. Attorney Nick Nagrich appears on behalf of the Employer/Insurer. Attorney Matthew Nagel appears on behalf of Claimant, Darin Anil Mueller. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed, closed and submitted to the undersigned on or about February 25, 2021.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about January 13, 2015, Peoplease was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Interstate Insurance Company.

(2) On the alleged injury date of January 13, 2015, Anil Mueller was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(4) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged accident of Anil Mueller, the employee's average weekly wage was $\ 640.00, which is sufficient to allow a compensation rate of $\ 426.67 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $\ 426.67 for permanent partial disability compensation.

(7) No temporary total disability compensation has been provided to the employee.

(8) The employer and insurer have not provided medical treatment to the employee.

The issues to be resolved by hearing include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about January 13, 2015; and, if so, whether the accident or occupational disease arose out of and in the course of his employment with the employer.

(2) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed.

(3) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 7,912.30.

(4) Whether the employee sustained any permanent disability as a consequence of the alleged accident of January 13, 2015 and, if so, what is the nature and extent of the disability.

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of Susan Mueller. In addition, the employee offered for admission the following exhibits:

Exhibit 1

Claim for Compensation

Exhibit 2

Amended Claim for Compensation

Exhibit 3

Photos

Exhibit 4

Mercy Occupational Health

Exhibit 5

Mercy Regional Lung Center

Exhibit 6

Concentra Records

Exhibit 7

Cox EMS

Exhibit 8

Mercy Hospital Springfield

Exhibit 9

Ozarks Community Hospital

Exhibit 10

Mercy Clinic Family Medical Smithy Glynn

Exhibit 11

Pulmonary Consultants

Exhibit 12 Deposition of Dr. Hyers with attached exhibits

Exhibit 13

CoxHealth billing statement

The exhibits were received and admitted into evidence.

The employer and insurer offered for admission the following exhibits:

Exhibit A 60-day Submission of Dr. Ted Lennard

The exhibits were received and admitted into evidence.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Anil Mueller, is forty-seven (47) years of age, having been born on July 8, 1973. Mr. Mueller resides in Springfield, Missouri. In 2008, Mr. Mueller and his wife, Susan, moved to Springfield, Missouri where he began working for Trux. While employed at Trux, Claimant suffered two work injuries which resulted in breathing difficulties and other issues, summarized below.

In or around the fall of 2013, Mr. Mueller acquired employment with the employer, Peoplease at Taylor-Made Truck and Tractor, performing full-time maintenance work. He continued in this employment until his termination. Claimant's job duties included repairing semi tractors and trailers, which included welding. Claimant testified while he was welding, the semitractor trailers were running and he was exposed to exhaust fumes "every day."

Mr. Mueller is currently employed with Ryder Transportation, doing just about "everything." Mr. Mueller works forty-plus hours per week at his current position.

Prior to sustaining the alleged work injury of January 13, 2015, Mr. Mueller suffered several injuries and/or medical conditions, including alleged exposures dating back to at least 2007. These prior medical conditions, injuries, and/or accidents include:

- 2007 work-related injury: From 1999 through 2008, Claimant was employed at Stoughton Trailer in Wisconsin. Claimant's job duties included welding, which Claimant believed caused lung injury over time. Claimant testified in September 2006, he developed a cough with left upper chest pain, as well as a tingling, burning sensation at times; abdominal pain; and a feeling of general malaise or fatigue. As a result, Mr. Mueller missed 14 days of work. On February 27, 2007, Mr. Mueller underwent an Individual Pulmonary Function Test which indicated a mild restriction. (Exhibit 4). On August 3, 2007, Dr. Stephen A. Lindahl diagnosed Claimant with work-related pulmonary bronchospastic disease. (Exhibit 4).

- 2011 work-related injury: In December 2011, Claimant suffered from another lung injury after being exposed to ammonia while employed at Trux. Claimant testified this exposure was an ongoing issue from November 2011 through January 2012. Claimant described this injury as an inhalation injury, which resulted in breathing difficulties. At

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anil Mueller

Injury No. 15-003742

the time of the final hearing, Mr. Mueller had a pending workers' compensation claim,

injury number 11-11116, in relation to this matter.

- 2012 work-related injury: On August 2, 2012, Claimant testified he suffered another

work-related injury while employed at Trux. Claimant testified this injury was related

to heat exhaustion which caused him to have trouble breathing and focusing. Claimant

testified this resulted in another workers' compensation claim, injury number 12-

10243, which was still pending at the time of this Final Hearing.

Accident

On January 13, 2015, while engaged in employment and performing his work duties with

Peoplease, Mr. Anil Mueller was allegedly performing maintenance on a tractor, which was

running. At this time, Mr. Mueller alleges he began to feel sick and vomited.

Because of the nature of the issues with the truck, it was brought inside and placed over the

pit for Claimant to work on the brakes. According to Mr. Mueller, there was exhaust coming out

of the truck and the building was full of smoke. Thereafter, Claimant stated he vomited again.

Claimant was instructed to go outside and get some air. Once outside, Mr. Mueller testified

he vomited again. Claimant was then advised to proceed to the break room. Claimant believes at

that time, he lost consciousness and emergency services were dispatched. As a consequence of this

incident, Mr. Anil Mueller alleged he sustained an inhalation injury, causing injury to his lungs.

Medical Treatment

Claimant first testified when EMS arrived to the scene on January 13, 2015, he could not

really talk to them. However, on cross-examination, Claimant admitted he advised EMS he was

experiencing chest pain, difficulty breathing, pain into his left arm, and an erratic heartbeat.

(Exhibit 7). Further, Claimant testified he was outside working on getting a trailer up when he

began having chest pain. While Claimant explained he had experienced ammonia exposure in

2011, he failed to note any possible exposure to the tractor fumes that day as a possible culprit to

his alleged current condition.

Claimant was transferred to Mercy Hospital Springfield. (Exhibit 8). Here, Claimant

complained of chest pain, pain radiation toward his left arm, shortness of breath, and prior

vomiting. (Exhibit 8). Medical records from Mercy Hospital Springfield do not indicate that

Claimant made complaints of inhaling any fumes this day. (Exhibit 8). In fact, Claimant indicated

his symptoms began while trying to hook up a trailer. (Exhibit 8). This led to the initial belief that

Claimant possibly had a heart episode. (Exhibit 8). Claimant's clinical impression was determined

to be chest pain. (Exhibit 8). Thereafter, Claimant refused transfer to a patient floor and left the

hospital against medical advice. (Exhibit 8).

On January 15, 2015, Mr. Mueller presented to Mercy Clinic-Smith Glynn Callaway with

complaints of chest pain. (Exhibit 10). At that time Claimant indicated he had a history of ammonia

inhalation and heat exhaustion, but he was doing okay at that time. (Exhibit 10). At this visit, Dr.

Tarsney indicated Claimant's EKG had an abnormal showing of Q waves in lead 3 with an x-ray

without concerning findings. (Exhibit 10). During this visit, Claimant indicated he was concerned

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anil Mueller

Injury No. 15-003742

about a lung injury in reference to the 2011 incident; however, he did not indicate he was concerned

with any injury in relation to the January 13, 2015 incident. (Exhibit 10). Claimant stated he wanted

to proceed with a spirometry. (Exhibit 10). Mr. Mueller was diagnosed with left-sided chest pain

after cranking a trailer with his right arm. (Exhibit 10).

On March 20, 2015, Claimant was released by Dr. Tarsney to return to work at full duty as a result

of a carbon monoxide injury on January 13, 2015. (Exhibit 10). This March 20, 2015, visit was the

first time a medical record indicated any carbon monoxide injury in relation to the alleged January

13, 2015 incident.

Independent Medical Examinations

Ted A. Lennard, M.D.

On April 7, 2020, Ted A. Lennard, M.D. provided a review of Claimant's records and opinion

as to any disability related to Claimant's alleged January 13, 2015 incident at the request of the

Respondent. (Exhibit A). Dr. Lennard noted that none of Claimant's records indicate any

pulmonary exposures on January 13, 2015. (Exhibit A). In fact, Dr. Lennard pointed out that

Claimant complaints only included chest pain, pressure, mild shortness of breath, and nausea.

(Exhibit A).

After review of Claimant's records, Dr. Lennard opined the alleged January 13, 2015 work

accident was not the prevailing factor in the onset of any respiratory conditions or illnesses.

(Exhibit A). Therefore, there were no functional limitations or disabilities resulting from the

incident either. (Exhibit A).

Thomas M Hyers, M.D.

Dr. Hyers performed an independent medical examination on behalf of the claimant on

May 27, 2016 in relation to his three separate alleged injuries. (Exhibit 12, pages 7, 9). As

previously discussed, this included the subject injury, and the 2011 and 2012 injuries. At the time

of this examination, Dr. Hyers took a history from Claimant, reviewed various medical records,

and performed a physical examination. (Exhibit 12).

Dr. Hyers reviewed Claimant's February 27, 2007 spirometry, which indicated mild

restriction; therefore, considered abnormal. (Exhibit 12, pages 15-16, 50). Between February 2007

and February 2015, there was no known pulmonary testing. (Exhibit 12, page 51). Claimant's

February 5, 2015 diagnostic exam revealed Claimant had a diagnosis of "restriction." (Exhibit 12,

pages 18-19). Claimant underwent another pulmonary function test on May 27, 2016 (Exhibit 12,

page 19). Dr. Hyers confirmed Claimant's lung capacity was slowly getting worse. (Exhibit 12,

pages 19-20).

Dr. Hyers testified he believed Mr. Mueller suffered an inhalation injury after welding

inside of a tank and exposed to anhydrous ammonia in 2011. (Exhibit 12, page 25). He also testified

Claimant suffered another injury to his pulmonary system on August 2, 2012 after being exposed

to elevated temperatures. (Exhibit 12, pages 27-28). Dr. Hyers also opined that Claimant's work

activities on January 13, 2015 was the prevailing factor in causing another injury to Claimant's

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anil Mueller

Injury No. 15-003742

pulmonary system. (Exhibit 12, pages 28-29). Dr. Hyers consistently testified as to three separate, specific, traumatic dates of injury in 2011, 2012, and 2015.

In light of his examination and evaluation of Claimant, Dr. Hyers was unable to apportion his allotted 75% disability to any of Claimant's alleged three separate accidents, including the subject accident and injury. (Exhibit 12, pages 27). Specifically, Dr. Hyers testified he was unable to assign any specific permanent partial disability percentage to Claimant's alleged 2011, 2012 or 2015 exposures for which Claimant had filed claims. (Exhibit 12, pages 27, 41-44, 53, 57-58). Dr. Hyers also testified his determination of Claimant's 75% permanent partial disability rating was based not only on the 2011, 2012, and 2015 exposures; but all exposures dating back as far as 2007 as well. (Exhibit 12, page 58-59). However, Dr. Hyers was unable to determine that any one exposure was the prevailing factor in causing Claimant's disability described in his May 27, 2016 report. (Exhibit 12, pages 42-44).

On June 15, 2017, Dr. Jacobs performs a pulmonary function test. (Exhibit 11). This exam demonstrated mild restrictive defect with impairment gas transfer, but no clinically significant obstruction to airflow. (Exhibit 11). Further, Claimant's six-minute walk test and Simple Pulmonary Stress Test were also normal. (Exhibit 11).

At this time, Dr. Jacobs disagreed with Dr. Hyers' opinion Claimant now suffered from 75% disability due to his alleged pulmonary injuries as Mr. Mueller had continued to work full-time until his employment was terminated. (Exhibit 11).

Dr. Jacobs provided an updated report dated May 22, 2019. (Exhibit 11). In this report, Dr. Jacobs opined Claimant suffered from bronchospasm/asthma-like condition. (Exhibit 11). As such, he believed Claimant should use drugs such as long-acting beta agonist, inhaled corticosteroid, and possible anticholinergic inhaled preparation. (Exhibit 11). In fact, Dr. Jacobs never, in any of the reports, found Claimant's alleged January 13, 2015 incident the prevailing factor in Claimant's condition.

Dr. Hyers also reviewed the medical report authored by H. William Barkman, M.D., M.S.P.H., in preparation of his deposition. However, Dr. Barkman's opinions and reports should not be considered as substantive evidence as Dr. Barkman was not deposed, nor was his report submitted pursuant to Section 287.210.7 RSMo. Dr. Hyers testified in regard to the contents of the reports authored by Dr. Barkman. On September 7, 2017, Claimant presented to Dr. Barkman for an independent medical evaluation. (Exhibit 12). During Claimant's exam, he noted his history of multiple alleged inhalation injuries. (Exhibit 12). Mr. Mueller also noted he had been working full time without restrictions until May 15, 2017, when he was laid off. (Exhibit 12). Dr. Barkman opined that outside of his welding fume exposure in 2006, there was no medical documentation of work-related pulmonary disease. (Ex. 13-9). Further, Dr. Barkman opined Claimant was at maximum medical improvement. (Exhibit 12).

Present Complaints

Claimant's present complaints include pressure in his head and neck region, breathing issues, headaches, and body cramps in his hands. Claimant stated he believes he also fatigues easily and cannot work like he used to because of his lungs. According to Susan Mueller, Claimant's

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anil Mueller

Injury No. 15-003742

snoring has gotten worse since 2015. She also believed Claimant stops breathing at times while sleeping.

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

There are two initial issues which are both dispositive of this claim. First, there was no accident. Second, Claimant has failed to prove, if there was an accident, the accident was the prevailing factor in causing injury to Claimant.

Under Section 287.020.2 RSMo., an "accident" is defined as an "unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." In the present case, there is no evidence of an accident occurring on January 13, 2015 due to inhalation of fumes while Claimant was at work. The Young court explained "'accident' requires either: (1) an unforeseen happening relating to or resulting from a physical wound ["unexpected traumatic event"], or (2) an unordinary act of excessive physical or mental tension, difficult exertion, or a violent or overtaxing effort ["unusual strain"]." Young v. Boone Elec. Coop., 462 S.W.3d 783, 793 (Mo. Ct. App. 2015).

As repeatedly mentioned throughout the medical records, including the EMS records and hospital records, Claimant never complained of any possible inhalation concerns on the date of the alleged accident. However, now Claimant alleges multiple times he vomited and that the building the truck he was working on was full of smoke. One must wonder, if these were the events of this day, why had this not been brought to the attention of his medical providers the day of the alleged event.

In fact, Claimant's complaints led medical professionals providing care to Claimant for his injuries to "work up" Claimant for a possible cardiac event. Specifically, Claimant complained of chest pains, and numbness in his arm and shoulder. Claimant did not have a reason as to why, if he was so sure now the inhalation of fumes caused his alleged event, this possible concern and history was not voiced on the day of the accident. The only inhalation event Claimant mentioned on January 13, 2015, was his previous alleged injury back in 2011, mentioning that event multiple times.

As such, Claimant has not proven an accident occurred on January 13, 2015, as required by Section 287.020.2 RSMo. Therefore, no further examination of the present case is required as this is dispositive of the claim.

The Court concludes that Mr. Mueller has failed to meet his burden in proving there was an accident. Therefore, this Court finds and orders the employee's permanent partial disability in relation to the January 13, 2015 alleged incident 0%. The Court further concludes the employee is not entitled to the payment of medical bills in the amount of $7,912.30.

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I certify that on **5-28-21**, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

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**May**

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**May**

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**May**

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Made by:

**Kevin A. Elmer**

*Administrative Law Judge*

*Division of Workers' Compensation*

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