Andrew French v. Bill's Truck Repair, The Larson Group, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-080361

**Employee:** Andrew French, deceased

**Dependent/Claimant:** Melinda French, widow

**Employers:**

- Bill's Truck Repair

- The Larson Group, Inc. d/b/a Mid-America Peterbilt

**Insurers:**

- Bloomington Compensation Insurance Group

- Missouri Employers Mutual Insurance Company

- Standard Fire Insurance Company

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 First Corrected Award and decision of the administrative law judge dated July 23, 2021.¹ The award and decision of Administrative Law Judge, Edwin J. Kohner issued July 23, 2021, 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 ______ 6th ______ day of May 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Reid K. Forrester, Chairman**

**Shalonn K. Curls, Member**

**Rodney J. Campbell, Member**

Attest:

**Secretary**

¹ We note that Stipulation number 17 on page 4 of the Administrative Law Judge's award incorrectly referenced the date of July 24, 2015 as July 24, 2105. This typographical error does not affect the rights of the parties.

Employee: Andrew French

Dependents: Melinda French

Employer: Bill's Truck Repair, The Larson Group, Inc.

Additional Party: Second Injury Fund (Previously Dismissed)

Insurer: Bloomington Compensation Insurance Co, Missouri Employers Mutual Insurance Company Standard Fire Insurance Company

Injury No.: 14-080361

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

Hearing Date: June 2, 2021

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: October 1, 2014
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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee worked as a diesel mechanic for over thirty years for Bill's Truck Service and Mid-America Peterbilt. Employee last worked for Mid-America Peterbilt before being diagnosed with Stage IIIB adenocarcinoma of the lung with metastasis on or after October 1, 2014.
12. Did accident or occupational disease cause death? Yes Date of death? July 24, 2015
13. Part(s) of body injured by accident or occupational disease: Vascular system, Pulmonary system, Lungs
14. Nature and extent of any permanent disability: Death
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

1. Value necessary medical aid not furnished by employer/insurer: 318,944.90
2. Employee's average weekly wages: 1,271.39
3. Weekly compensation rate: $857.59/$464.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

1. Second Injury Fund liability: No

1. Future requirements awarded: As provided above.

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: Ellen E. Morgan, Attorney at Law.

Employee: Andrew French

Injury No.: 14-080361

Dependents: Melinda French

Employer: Bill's Truck Repair, The Larson Group, Inc.

Additional Party: Second Injury Fund (Previously Dismissed)

Insurer: Bloomington Compensation Insurance Co, Missouri Employers Mutual Insurance Company Standard Fire Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

This Workers' Compensation case raises several issues arising out of an alleged workrelated injury in which the Employee, Andrew French, a diesel mechanic, developed lung cancer. The issues for determination are:

1. Did Andrew French's employment as a diesel mechanic cause the development of the occupational disease, lung cancer, from which Andrew French ultimately died on July 24, 2015 ?
2. In whose employment was Employee last exposed to the hazard of the occupational disease, lung cancer, prior to the evidence of disability?
3. On what date was Employee last exposed to the hazard of the occupational disease, lung cancer, prior to the date of disability?
4. Which Employer is liable for benefits to Claimant, Melinda French?
5. If The Larson Group d/b/a Mid-America Peterbilt also known as TGL Peterbilt, also known as Mid-America Peterbilt, (hereinafter "Mid-America Peterbilt") is liable to Claimant, Melinda French, for benefits, which insurance carrier is liable to Claimant, Melinda French, for benefits?

At the hearing, Melinda French, the Claimant, ("Claimant") as well as the widow of Employee Andrew French ("Employee'), testified by way of affidavit and deposition, and offered the depositions of the deceased Employee, taken before his death, the Death Certificate of Employee; Marriage Certificate of Employee and Claimant, Funeral Costs Receipt; Report of Dr. Jerry Meyers; Medical Records from Dr. Sen; Medical Records from Mercy Hospital; Medical records from Dr. Penilla; Billing Records from Mercy East; Billing Records from Mercy Clinic; Billing Records from Dr. Penilla; Medical Records from St. Clare Hospital; Peterbilt Payroll Summaries and Technician Time; and Billing Records from St. Clare Hospital. All of Claimant's Exhibits were admitted without objection.

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 occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

1. Venue is proper in the County of St. Charles, Missouri.
2. A Claim for Compensation was filed timely.
3. Employers Bill's Truck Repair (hereinafter "Bill's") and The Larson Group d/b/a MidAmerica Peterbilt also known as TGL Peterbilt, also known as Mid-America Peterbilt, (hereinafter "Mid-America Peterbilt") received proper and timely notice of Andrew French's occupational disease, lung cancer.
4. Andrew French died of lung cancer on July 24, 2015.
5. Melinda French and Andrew French were married on August 16, 2012, and were husband and wife on the date of Andrew French's death on July 24, 2015, and Melinda French was actually dependent on Andrew French from August 12, 2012 through the date of Andrew French's death, July 24, 2015.
6. Melinda French has not remarried and is the surviving widow of Andrew French.
7. Decedent, Andrew French, who ultimately died of the disease of lung cancer, was employed in an occupation or process in which the hazard of the disease, lung cancer, existed both at Bill's and at Mid-America Peterbilt.
8. Andrew French was employed by Bill's from May 18, 1989 through June 30, 2006.
9. Andrew French was employed by Mid-America Peterbilt from July 19, 2006 through at least October 1, 2014.
10. Andrew French last physically worked on Mid-America Peterbilt physical premises in St. Charles County, Missouri on October 1, 2014, and was therefore last exposed to the hazard of the disease of lung cancer on October 1, 2014.
11. Andrew French did not perform any work duties for Mid-America Peterbilt nor was he paid his regular salary by Mid-America Peterbilt for the period of August 17, 2014 through August 24, 2014.
12. The Workers' Compensation insurance carrier for Bill's on June 30, 2006 was Bloomington Compensation Insurance Company (hereinafter "Bloomington").
13. The Workers' Compensation insurance carrier for Mid-America Peterbilt from July 19, 2006 through September 30, 2014 was Missouri Employers Mutual Insurance Company, (hereinafter "MEM").
14. The Workers' Compensation insurance carrier for Mid-America Peterbilt from October 1, 2014 through October 1, 2015 was The Standard Fire Insurance Company (hereinafter "Standard").
15. The average weekly wage for Employee at Bill's was $\ 848.20, and the corresponding rate for TTD and death benefits is $\ 565.47.
16. That the average weekly wage for Employee at Mid-America Peterbilt was $\ 1,271.39 and that the corresponding rate for TTD and death benefits is $\ 857.59.
17. The TTD period for Andrew French between October 1, 2014 and July 24, 2105 is 279 days (sic), or a total of $396 / 7 weeks (sic), or \ 34,181.08 (sic) at the TTD compensation rate of $\ 857.59 for Mid-America Peterbilt and $\ 22,538.01 (sic) at the TTD compensation rate of $\ 565.47 for Bill's.
18. The medical expenses for reasonable and necessary medical treatment for Andrew French's injury were $\ 318,944.90 representing;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

Injury No.: 14-080361

- Mercy East (10/1/14 - 7/23/15) - $313,787.90

- Mercy Clinic Internal Medicine - (11/19/14 - 5/13/15) - $1,205.00

- Dr. Sen (9/16/14) - $342.00

- Dr. Penilla (8/18/14 - 9/30/14) - $803.00

- St. Clare Hospital (8/15/14) - $2,807.00

1. The immediate cause of Employee's death was a stroke and metastatic lung cancer was the underlying cause of the stroke.

1. The funeral expenses for Andrew French were $4,239.51 paid by Melinda French.

1. There were no temporary total disability benefits paid to Andrew French by any Employer or Insurer and are now owed to Melinda French.

1. There were no medical benefits paid on behalf of Andrew French by any Employer or Insurer to any medical provider.

1. No death benefits have been paid to Melinda French by any Employer or Insurer.

1. No funeral expenses have been paid to Melinda French by any Employer or Insurer.

PROCEDURAL BACKGROUND

Employee worked for two different employers, Bill's and Mid-America Peterbilt, between May 18, 1989 and October 1, 2014.

On October 21, 2014, Employee filed a Claim for Compensation, Injury Number 14-080361. Employee named both Employers, Mid-America Peterbilt and Bill's, in his Claim, alleging injuries to his vascular system, pulmonary system, and lung cancer. The alleged date of injury are dates up to and including August 8, 2014. The matter was heard for Final Award on June 2, 2021. The claimant, Melinda (Mindy) French was represented by Attorney Ellen E. Morgan. Mid-America Peterbilt and its Workers' Compensation carrier for the period of September 19, 2006, through September 30, 2014, MEM, was represented by attorney Patrick McHugh. Mid-America Peterbilt and its Workers' Compensation insurance carrier from October 1, 2014, until September 30, 2015, Standard, were represented by attorney Robert Frayne. Bill's and its' Workers Compensation insurer carrier, Bloomington, were represented by attorney Steven Quinn. All Exhibits were entered without objection from any party. After Employee died on July 24, 2015 his surviving widow, Melinda French, was substituted as the proper party, as the claimant, in this matter.

EXHIBITS

The following Exhibits numbered 1 through 16 were offered by the claimant and received into evidence without objection:

Claimant's Exhibits

1. Andrew French Deposition

a. Vol. 1 - 4/29/15 - 85 pages

b. Vol. 2 - 5/13/15 - 101 pages

1. Death Certificate - 1 page

1. Marriage Certificate - 1 page

WC-13-R1 (6-51)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

1. Melinda French affidavit - 4 pages
2. Funeral Costs Receipt - $\ 4,239.51 - 1 page
3. Dr. Jerry Meyers Report $-4 / 24 / 20-5$ pages
4. Medical Records - Dr. Sen - 9/16/14 - 32 pages
5. Medical Records - Mercy STL - 10/1/14 to 7/23/15 - 3183 pages

a. pages 1-200

b. pages 201-400

c. pages 401-600

d. pages 601-800

e. pages 801-1000

f. pages 1001-1200

g. pages 1201-1400

h. pages 1401-1600

i. pages 1601-1800

j. pages 1801-2000

k. pages 2001-2200

I. pages 2201-2400

m. pages 2401-2600

n. pages 2601-2800

o. pages 2801-3000

p. pages 3001-3183

1. Medical Records - Dr. Penilla 246 pages
2. Billing Records - Mercy East - 10/1/14 to 7/23/15 - \$313,787.82 - 100 pages
3. Billing Records - Mercy Clinic - 11/19/14 to 2/13/15 - \$1,205.00 - 10 pages
4. Billing Records - Dr. Sen - 9/16/14 - \$684.00 - 7 pages
5. Billing Records - Dr. Penilla - 9/30/14 - \$213.00 - 4 pages
6. Medical records - St. Clare Hospital - 69 pages
7. Mid-America Peterbilt Payroll Summaries and Technician Time - 14 pages
8. Billing Records - SSM St. Clare - St. Clare Hospital (8/15/14) - \$2,807.00

The following Exhibits numbered 17 and 18 were offered and admitted into evidence as an aid to the Court jointly by all parties.

Joint Exhibits

1. Hearing Stipulations List
2. Issues List

Employee testified by deposition on April 29, 2015 and May 13, 2015. Employee was aided in his deposition by his wife, the claimant, due to the difficulty of Employee testifying and recollection as a result of his lung cancer worsening. The claimant was also sworn in as a witness and testified in those depositions.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

Injury No.: 14-080361

Employee graduated from high school in 1975 and attended Rankin Technical College where he obtained a diesel mechanic certification. Employee testified that he never smoked in his life besides an occasional cigar when fishing. Employee was employed his entire adult working career as a diesel mechanic once he obtained his diesel mechanic certification from Ranken Technical College. Employee worked at Mid-America Peterbilt in Earth City, Missouri, between 1980 and 1989. Employee worked on engines as a diesel mechanic while at Peterbilt, most of his work was done indoors and occasionally the engines would be running. At some point during the period Employee worked at Peterbilt, pipes were installed to help draw out diesel exhaust fumes.

On May 18, 1989, Employee began working at Bill's as a diesel mechanic. Employee testified in his deposition that engines would occasionally be running inside the garage service bays during his time at Bill's. At the start of Employee's tenure at Bill's no ventilation system was in place. Employee testified that ventilation hoses were eventually installed. Employee was eventually promoted to a supervisor during his time at Bill's, but he remained working in the garage. Employee testified that as many as six tractors could be parked in the service bays at Bill's. Employee left the employ of Bill's on June 30, 2006.

Employee began working at Mid-America Peterbilt on July 19, 2006, as a diesel mechanic. Employee testified that approximately twenty tractors could fit in the service bays at Mid-America Peterbilt. The engines of the trucks at Mid-America Peterbilt would be idling for up to several minutes outside the facility to check for oil leaks and exhaust leaks. Employee testified that Mid-America Peterbilt did not have a system for capturing exhaust from the service bays in the garage. Employee testified that he complained to the owner and a manager about the lack of ventilation at the facility; Employee believed there was a safety concern due to the lack of ventilation. Employee last physically worked at Mid-America Peterbilt on October 1, 2014. See Stipulation 10.

The Claim for Compensation filed by Employee's attorney claims Employee sustained permanent injury to his vascular and pulmonary systems, as well as developed lung cancer, as a result of repetitive and prolonged exposure to diesel fumes in the course of his employment as a diesel mechanic. The Employee's testimony supported his claim. Bill's, Mid-America Peterbilt, MEM, Bloomington and Standard all filed timely Answers generally denying all of the allegations of Employee's Claim for Compensation.

The Order substituting as Claimant Employee's surviving spouse, Melinda French, was approved on August 11, 2015.

Employee was employed in an occupation or process in which the hazard of the disease, lung cancer, existed both at Bill's and at Mid-America Peterbilt. See Stipulation 7.

Employee did not have difficulties with his lungs prior to October 1, 2014, nor did he receive any treatment for any condition of his lungs prior to October 1, 2014. In September 2014, Employee began to experience leg pain. He presented to Dr. Gregorius Penilla, at Health First, who sent Employee to SSM St. Clare. See Exhibit 9. Ultrasounds were performed at SSM St. Clare Hospital revealed blood clots in both legs. Employee was prescribed Xarelto, and it was recommended he wear special hosiery to aid with the blood clots. See Exhibit 8a.

WV-12-81 (6-81)

Page 7

Injury No.: 14-080361

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

On September 30, 2014, Employee returned to Dr. Penilla complaining of memory difficulties and problems controlling his emotions. Dr. Penilla believed he was having an anxiety attack and prescribed Zoloft. See Exhibit 9.

On October 1, 2014, Employee attempted to clock in at work, but he could not remember how to do it. He managed to finally clock in, and worked for 4 (four) hours for Mid-America Peterbilt on October 1, 2014. After 4 (four) hours at work on the clock at Mid-America Peterbilt on October 1, 2014, Employee left work and went directly to Mercy Hospital's Emergency Department where he was admitted to the hospital due to bilateral leg pain, headache, visual disturbance in his left eye, and tingling on the right side of his body. A CT scan of the head revealed a 2.7 cm. hypodensity in the medial posterior aspect of the left temporal node. The differential diagnoses at that time were a cerebrovascular accident, a transient ischemic attack in the alternative, intracranial hemorrhage, and anxiety.

On October 4, 2014, Employee suffered a second stroke. On October 7, 2014, a mediastinoscopy revealed Stage IIIB adenocarcinoma of the lung with metastasis. Employee suffered a third stroke as he woke up from anesthesia after this biopsy.

Employee remained at Mercy Hospital until October 14, 2014, whereupon he was discharged to Mercy Rehab. See Exhibit 8g. Employee attended physical therapy until December 19, 2014. See Exhibit 8p. Employee then underwent a series of chemotherapy treatments for his lung cancer and his other cancer-related conditions through Mercy Hospital or its related entities.

On March 27, 2015, Employee returned and was re-admitted to Mercy Hospital, two days after a chemotherapy treatment had begun. He was unable to text and had difficulty getting out of bed; he also had blood in his urine. During this hospitalization Employee had several episodes of syncope. Physical therapy was continued during this hospitalization, he was discharged on April 9, 2015.

On July 18, 2015, Employee returned to Mercy Hospital was readmitted, due to left facial droop and unsteady gait. He had fallen at his home and had unable to stand up. See Exhibit 8m. He suffered another stroke on July 21, 2015. Hospice care was recommended. He was discharged from the hospital, and ultimately passed away at his home on July 24, 2015. The Death Certificate read that Employee died of a stroke as a consequence of underlying metastatic lung cancer. See Exhibit 2 and Stipulations 4, 7 and 19.

Employee and the claimant were married on August 16, 2012, and were husband and wife on the date of Andrew French's death on July 24, 2015, and the claimant was actually dependent on Employee from August 12, 2012 through the date of Employee's death, July 24, 2015. The claimant has not remarried and is the surviving widow of Employee. The claimant affirmed she was married to Employee as of October 1, 2014, and was his wife on the date of Employee's death, July 24, 2015, and has not remarried. See Stipulations 5 and 6 and Exhibit 4. The claimant was Employee's only dependent; Employee had no natural children or adopted children. See Exhibit 1a, page 16, and Exhibit 1b, page 169. Employee's 28-year-old stepson (as of May 13, 2005, see Exhibit 1b, page 170) through Employee's marriage to the claimant was not

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

Injury No.: 14-080361

dependent on Employee. See Exhibit 1b, pages 169-170. The claimant is Employee's only dependent.

The period of temporary total disability ("TTD") for Employee due to his lung cancer was October 1, 2014, until the date of his death, July 24, 2015. The TTD period for Andrew French between October 1, 2014, and July 24, 2015, is 297 days, or a total of 42 3/7 weeks, or 36,386.32 at the TTD compensation rate of 857.59 for Mid-America Peterbilt and 23,992.08 at the TTD compensation rate of 565.47 for Bill's. No TTD benefits were paid to Employee and those TTD benefits are now owed to Claimant. Stipulation 17 agreed upon by the parties contained a mathematical error (279 days instead of 297 days). See Stipulations 17 and 21.

The reasonable and necessary medical expenses for the treatment of Employee's lung cancer as stipulated by the parties in Stipulation 18 totaled $318,944.90 representing:

- Mercy East (10/1/14 - 7/23/15) - $313,787.90

- Mercy Clinic Internal Medicine - (11/19/14 - 5/13/15) - $1,205.00

- Dr. Sen (9/16/14) - $342.00

- Dr. Penilla (8/18/14 - 9/30/14) - $803.00

- St. Clare Hospital (8/15/14) - 2,807.00

The claimant paid Employee's funeral expenses in the amount of 4,239.51. See Stipulation 20.

The death benefit from July 25, 2015, the day after Employee's death, to the date of Hearing, June 2, 2021, is 305 5/7 weeks, or 262,177.51 at Mid-America Peterbilt's death benefit rate of 857.59, and 172,872.25 at Bill's death benefit rate of 565.47.

Dr. Jerry Meyers reviewed the deposition transcripts of Employee dated April 29, 2015 (Exhibit 1a) and May 13, 2015 (Exhibit 1b), and Employee's work records, and reviewed Employee's medical records from SSM Health First, Mercy Rehab Hospital and Mercy Hospital. See Exhibit 6, pages 1 and 5. Dr. Meyers opined that the cause of Employee's cancer was his prolonged and repetitive exposure to diesel exhaust in the course of his work as a diesel mechanic. Dr. Meyers opined there were no other occupational or non-occupational factors that were causal in Employee's development of his lung cancer, and that the length of time Employee was exposed to diesel fumes (35 years, See Exhibit 6, page 1), was sufficient to cause his lung cancer. Dr. Meyers opined he was unable to determine exactly when Employee's lung cancer began, but that in 2000 Employee had a normal chest X-ray and there was no cancer present then. Dr. Meyers opined that Employee's lung cancer was no doubt present in September 2014 when Employer first presented with bilateral deep vein thrombosis followed by the subsequent series of strokes. The deep vein thrombosis and series of strokes were due to a hypercoagulable state associated with Employee's occult lung cancer which also contributed to his death. Dr. Meyers opined that the toxicity of diesel fumes, in addition to causing lung cancer, is well recognized and described in many peer reviewed articles in medical literature. All of Dr. Meyers' opinions were given within a reasonable degree of medical certainty. See Exhibit 6.

W0-32-81 (6-81)

Page 9

The claimant bears the burden of proving that not only did an accident occur, but it resulted in injury to him. Thorsen v. Sachs Electric Co., 52 S.W.3d 611, 621. (Mo. App. W.D. 2001); Silman v. William Montgomery \& Associates, 891 S.W .2d 173, 175 (Mo. App. E.D. 1995); McGrath v. Satellite Sprinkler Systems, 877 S.W .2d 704, 708 (Mo. App E.D. 1994). For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. Silman, supra. The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause, and extent of disability when the facts fall within the realm of lay understanding. Id. Medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause-andeffect relationship between the complained-of condition and the asserted cause. McGrath, supra. Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor, in the absence of expert opinion, is the finding of causation within the competency of the administrative tribunal. Silman, supra at 175,176 . This requires claimant's medical expert to establish the probability claimant's injuries were caused by the work injury. McGrath, supra. The ultimate importance of the expert testimony is to be determined from the testimony as a whole and less than direct statements of reasonable medical certainty will be sufficient. Id.

Employee worked as a diesel mechanic between 1980 and 2014. On October 1, 2014, a mediastinoscopy was performed, and the pathology report revealed Stage IIIB adenocarcinoma of the lung with metastasis. Prior to October 1, 2014, Employee worked full-time and had not been diagnosed with lung cancer.

Dr. Meyers opined that the cause of Employee's cancer was his prolonged and repetitive exposure to diesel exhaust in the course of his work as a diesel mechanic. Dr. Meyers opined there were no other occupational or non-occupational factors that were causal in Employee's development of his lung cancer, and that the length of time Employee was exposed to diesel fumes ( 35 years, see Exhibit 6, page 1), was sufficient to cause his lung cancer. Dr. Meyers opined that Employee's lung cancer was no doubt present in September 2014 when Employee first presented with bilateral deep vein thrombosis followed by the subsequent series of strokes. The deep vein thrombosis and series of strokes were due to a hypercoagulable state associated with Employee's occult lung cancer which also contributed to his death. See Exhibit 6.

Based on Dr. Meyers' findings, the Employee's employment as a diesel mechanic caused his exposure to diesel fumes, which led to the development of the lung cancer, from which Employee ultimately died on July 24, 2015. Employee was employed in an occupation or process in which the hazard of the disease, lung cancer, existed both at Bill's and at MidAmerica Peterbilt. See Stipulation.

Based on the weight of the evidence, the claimant prevails on this issue. Employers and Insurers did not present any contrary evidence.

"When an employee is injured by a distinct event that occurs at a particular point in time, determining the date of injury is straightforward." Guinn v. Treasurer of State, 577 S.W.3d 847, 851 (Mo. App. S.D. 2019). However, the same is "not true of an occupational disease, by which an employee is injured through a process that occurs gradually over time." Id. As such, Section RSMo 287.063 .3 sets forth when the statute of limitations begins running for an occupational disease claim in different terms: the statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure. Hayden v. Cut-Zaven, Ltd., 614 S.W.3d 62 (Mo. App. 2020) (citing Lawrence v. Anheuser Busch Cos., Inc, 310 S.W.3d at 250-51 (Mo. App E.D. 2010)

Generally, a condition caused by an occupational disease "becomes apparent when an employee is medically advised that he or she can no longer physically continue in the suspected employment." Id, citing Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416 (Mo. App. W.D. 1988) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003))

An employee can suffer an injurious exposure prior to becoming disabled. Hayden at 63, citing Garrone v. Treasurer of State of Missouri, 157 S.W.3d 237, 244 (Mo. App. E.D. 2004) (citing Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 429 (Mo. App. 1965)). However, "the injurious exposure does not become a compensable injury until it becomes disabling." Id. Given that there must be competent and substantial evidence of this link, the claimant is entitled to rely on a physician's diagnosis of his condition rather than his own impressions. Id.

Sections 287.063.1 and 287.063.2, RSMo Cum.Supp. 2005, provide:

1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo.
2. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease for which claim is made regardless of the length of time of such last exposure. Brune v. Johnson Controls, 457 S.W.3d 372 (Mo. App. 2015)

Following the standard set forth in Section 287.063.3, RSMo 2005, "the moment it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure" is the date of injury in an occupational disease claim. As such, the date of injury for Employee is October 1, 2014.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

Injury No.: 14-080361

Employee was diagnosed with Stage IIIB adenocarcinoma of the lung with metastasis after October 1, 2014. The date of injury for the occupational disease contracted by Employee is October 1, 2014.

The parties stipulated that Andrew French last physically worked on Mid-America Peterbilt physical premises in St. Charles County, Missouri on October 1, 2014, and was therefore last exposed to the hazard of the disease of lung cancer on October 1, 2014, even if he only worked for four hours on October 1, 2014. Because Dr. Meyers concluded that the cause of Employee's lung cancer, the lung cancer that led to his death, was Employee's prolonged exposure to diesel fumes. Andrew French last physically worked on Mid-America Peterbilt physical premises in St. Charles County, Missouri on October 1, 2014, and was therefore last exposed to the hazard of the disease of lung cancer on October 1, 2014.

Employee was last exposed to the diesel fumes that caused his death from lung cancer on October 1, 2014 as the parties stipulated in Hearing Stipulation No. 10. Therefore, the Employer liable for the death of Employee, and therefore all death, TTD, funeral and medical expense to the claimant, is Mid-America Peterbilt. Section 287.068.2, RSMo 2016.

As Employer, Mid-America Peterbilt, is responsible for liable for the death of Employee, and therefore all death, TTD, funeral and medical expense to the claimant, the next issue to be reached is whether the responsible insurance carrier for Peterbilt is Standard or MEM. The parties stipulated that Employee was last physically worked on Mid-America Peterbilt physical premises in St. Charles County, Missouri on October 1, 2014. See Stipulation 10. Employee was exposed to the hazard of the disease, lung cancer, at Mid-America Peterbilt (See Stipulation 7) and was therefore last exposed to the hazard of the disease of lung cancer on October 1, 2014. See Stipulation 10. Employee worked on October 1, 2014, but had to leave his shift after four hours to go to Mercy Hospital. The Workers' Compensation insurance carrier for Mid-America Peterbilt from Midnight on October 1, 2014 through October 1, 2015 was Standard. Standard began insuring Mid-America Peterbilt for its Workers' Compensation liabilities at Midnight on October 1, 2014. See Stipulation 14. Employee worked 4 (four) hours on October 1, 2014 for Mid-America Peterbilt on October 1, 2014. This evidence would conclude that Standard Fire Insurance Company bears liability for the compensation payable to the claimant.

Counsel for Standard Fire Insurance Company submitted a well-written brief contending that the employee experienced disability before October 1, 2014, based on his extensive treatment for other conditions, notably blood clots and deep vein thrombosis (DVT):

> In the case at bar, the first evidence of disability all occurred prior to 10-1-14, the date of injury, whether the Court determines it to be 8-17-14, 8-18-14, 8-19-14, 9-10-14 or 9-30-14. It has been stipulated that the Claimant missed work from 8-17-14 through 8-24-14 without pay from his Employer. The Employee also saw Dr. Penilla during that week on 8-18-14 and 8-19-14 for symptoms.

WC-32-8.1 (6-81)

Page 12

**Employee:** Andrew French

**Injury No.:** 14-080361

related to his DVTs. This missed week of work should be construed as evidence of disability.

It can also be said that first evidence of disability occurred on 8-18-14, 8-19-14, 9-10-14 or 9-30-14 when medical treatment was rendered by Dr. Penilla and Mercy Hospital. There is sufficient evidence in those medical records that the complaints of the Employee and treatment recommended were directly related to the ultimate diagnosis of lung cancer. The Employee was prescribed an ankle brace, compression socks and medications (Xarelto and Naprosyn) for complaints that ultimately lead to his death. Xarelto is used to treat blood clots and deep vein thrombosis (DVT). The use of these devices and medications allowed the Employee to continue working. The ability of the Employee to work and earn wages were dependent upon the use of these treatment modalities.

As the DVT and stroke symptoms progressed (all before 10-1-14), he eventually went to Mercy Hospital on 10-1-14 where they identified the lung cancer several days later (pages 82-83). That record noted a "4-5 day history of right sided numbness/clumsiness with confusion. Woke up 5 days ago with entire right side sensation of 'sleeping'. Numbness persisted over last 4 days. Right arm is more clumsy. Right arm 'overshoots' things when reaching, unable to clock in at work. Forgetting stuff at home, headache for 3 days. Blurry vision; Assessment (page 87): Numbness on right side of body, facial drooping. DVT diagnosed 1.5 months ago. Suspect brain mass rather than CVA."

Lastly, Dr. Jerry Meyers specifically found that "the lung cancer was no doubt present in Sept 2014 when he first presented with bilateral DVT followed by series of strokes." He goes on to say, "These were due to hypercoagulable state associated with his lung cancer which also contributed to his death." This medical opinion supports the complaints and treatment recommended by Dr. Penilla and Mercy Hospital which affected the earning capacity of the Employee prior to 10-1-14.

There is clear documentation from his doctors of prescribed medical devices for his DVT, along with meds for DVT, all prior to 10-1-14. This allowed him to manage symptoms and continue working and he said it was helping. The DVT (vascular disorder) was a symptom of his undiagnosed lung cancer, along with the stroke(s). Lack of oxygen and blood clotting were clear symptoms/sequela, and Employee's own doctor links all of this together with/to the lung cancer. He condition progressively worsened, culminating with his stroke symptoms which began 4-5 days before his emergency room visit on 10-1-14.

The test is not only missing time from work, but anything that "harms his earning capacity." The recommended treatment in August 2014 and September 2014 clearly helped manage his DVT symptoms so that he could continue to function in and out of work. The wearing of the medical support devices and taking prescription medication is tantamount to a medical brace/assistive device.

WC-32-81 (6-81)

Page 13

(evidence of disability) and designed to allow someone to continue to work/function. This allowed the Employee to continue to function which avoided a "change or altering" of his work duties. Certainly, the DVT condition was a "harm to his earning capacity." This is no different than a hand or elbow injury where a doctor prescribes a brace. As the DVT symptoms progressed, along with his stroke symptoms (all before 10-1-14), he eventually went to the hospital on 10-1-14 where they identified the lung cancer several days later. See Standard Fire Brief.

The difficulty with that contention is that the forensic medical evidence concluded that the Employee died of lung cancer and contains no opinion that the lung cancer caused any of those conditions. The sole forensic expert in this case concluded that the lung cancer was "no doubt present in September 2014, he first presented with bilateral deep vein thrombosis followed by a series of strokes. These were due to a hypercoagulable state associated with his occult lung cancer which also contributed to his death." See Exhibit 6. The report did not conclude that the Employee's hypercoagulable state was caused by his lung cancer. The Employee had multiple serious conditions, however the evidence suggests that the disability before October 1, 2014, resulted from the employee's hypercoagulable state and that the Employee also had an undiagnosed lung cancer. Had there been forensic medical evidence to support a conclusion that the undiagnosed lung cancer caused the employee's hypercoagulable state and his disabling condition before October 1, 2014, the result may have been different.

Therefore, the evidence compels a conclusion that Standard Fire Insurance Company, as the Workers' Compensation insurer carrier for Mid-America Peterbilt on October 1, 2014, bears all liability for the medical care, TTD, death benefits, and funeral expenses flowing from Employee's occupational illness and death to Claimant. RSMo Section 287.068.1 and RSMo Section 287.068.2, Brune v. Johnson Controls, 457 S.W.3d 372 (Mo. App. 2015).

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation |