Carl Hanes v. Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 08-124885**

**Employee:** Carl Hanes

**Employer:** Department of Corrections

**Insurer:** Missouri Office of Administration, CARO

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 award and decision of the administrative law judge dated September 15, 2021, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Mark S. Siedlik, issued September 15, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 17th ______ day of August 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

*Rodney J. Campbell, Chairman*

DISSENTING OPINION FILED

Shalonn K. Curls, Member

*Kathryn Swart, Member*

Attest:

*Karla S. Hogg, Secretary*

I have reviewed and considered all of the competent and substantial evidence within the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the award of the administrative law judge (ALJ) should be reversed.

I find the opinions of Drs. Allen Parmet, P. Brent Koprivica, and vocational expert Mr. Tom Karrow all to be credible and persuasive. I believe that the ALJ should have found that 1) employee did provide employer with proper notice; 2) employee is permanently and totally disabled based upon the testimony of Drs. Parmet and Koprivica, as well as Mr. Karrow; 3) employee should also have been found to be entitled to an award for future medical treatment; and 4) the Second Injury Fund is liable to employee due to the synergistic combination of employee's primary occupational disease that he suffered due to radiation exposure at employer, and his multiple preexisting disabilities. Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curlu

Shalonn K. Curls, Member

Employee: Carl Hanes

Injury No. 08-124885

Dependents: N/A

Employer: Department of Corrections

Insurer: Missouri Office of Administration, CARO

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: June 24, 2021

Checked by: MSS/lh

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: August 31, 2008.
5. State location where accident occurred or occupational disease was contracted. DeKalb 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? No.
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: The Claimant alleges exposure to radiation.
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: Whole person.
14. Nature and extent of any permanent disability. None.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

1. Compensation paid to-date for temporary disability: Zero.

1. Value necessary medical aid paid to date by employer/insurer? Zero.

1. Value necessary medical aid not furnished by employer/insurer? Zero.

1. Employee's average weekly wages: To be determined.

1. Weekly compensation rate: $487.69/$446.85

1. Method wages computation: Evidence at trial.

1. Amount of compensation payable: Zero

1. Second Injury Fund liability: Zero

1. Future requirements awarded: N/A

The compensation awarded to the Claimant shall be subject to a lien in the amount of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Eric Lanham.

This case comes on for hearing before Administrative Law Judge Siedlik on June 24, 2021. The Claimant Carl Hanes appeared in person and with his counsel Mr. Eric Lanham. The Employer and Insurer were represented by their counsel Assistant Attorney General Shelly Hinson. The Second Injury Fund was represented by their counsel Assistant Attorney General David McCain.

This case involves injuries alleged on or about the 31st day of August 2008 while the Claimant was in the employ of the Missouri Department of Corrections and allegedly sustained an injury by accident and/or occupational disease arising out of and in the course and scope of employment in DeKalb County, Missouri. At the time of the injuries the parties were subject to the Missouri Worker’s Compensation Law, and the Employer’s liability was insured by the Missouri Office of Administration. Whether the Employer had notice of the injury is in dispute, and a claim was filed. The average weekly wage is to be determined and no benefits have been paid to date.

The issues to be resolved include:

1. Accident;
2. Occupational disease;
3. Notice;
4. Whether the injuries arose out of and in the course and scope of employment;
5. Medical causation;
6. Liability for past medical expense;
7. Future medical care;
8. Compensation rate;
9. The nature and extent of temporary total disability;
10. The nature and extent of permanent partial disability;
11. The liability of the Second Injury Fund.

The evidence at trial consisted of the testimony of the Claimant and the Claimant’s wife, Ms. Kendra Hanes in person, together with the following exhibits:

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

Claimant's Ex. 1 Dr. P. Brent Koprivica's deposition with exhibits

Claimant's Ex. 2 Mr. Tom Karrow's deposition with exhibits

Claimant's Ex. 3 Dr. Allen J. Parmet's deposition with exhibits

Claimant's Ex. 4 Medical records

Claimant's Ex. 5 Billing records

Claimant's Ex. 6 Employment records of the Missouri Department of Corrections

Claimant's Ex. 7 Employee's calendar from 1993 through 1997

Claimant's Ex. 8 Letters from Collection Agencies

Claimant's Ex. 9 Medical mileage

Claimant's Ex. 10 Photos of construction progress of Employee's house

The Employer and Insurer offered the following exhibits:

Employer/Insurer Ex. A Deposition of Carl Hanes

Employer/Insurer Ex. B Report & CV of Dr. Kibby

Employer/Insurer Ex. C Deposition of Dr. Kibby

Employer/Insurer Ex. D Report & CV of Michael Dreiling

Employer/Insurer Ex. E Deposition of Michael Dreiling

Employer/Insurer Ex. F Wage Statements of Carl Hanes

The Second Injury Fund offered the following exhibits:

SIF Roman Numeral i 9/21/20 deposition of Kristine Skahan

SIF Roman Numeral ii 3/16/20 deposition of Carl Hanes

All of the above-mentioned exhibits were admitted into evidence with any objections therein noted and overruled. The Administrative Law Judge was asked to and took judicial notice of the Division of Workers' Compensation records.

Claimant testified he is at the time of trial 61 years old, born March 14, 1960. The Claimant had worked for the Missouri Department of Corrections beginning in 1989 as a Corrections Officer I. In 1991 the Claimant became the transportation officer and as part of those duties the Claimant was charged with transporting inmates to and from court appearances and medical appointments. Claimant testified that the majority of his duties as a transportation officer was taking inmates to local hospitals for specialist care or to obtain x-rays or other medical visits. Claimant testified he occupied this position from 1991 through 1998. Claimant thereafter was promoted to Corrections Officer II, and supervised transportation of inmates, and did less inmate transport. In 2008 the Claimant was promoted to Corrections Officer III where he supervised personnel and no longer was involved in the transportation of inmates. The Claimant continued in that position until his retirement in 2018.

The Claimant testified in his duties as transportation officer he was exposed to radiation on average once each work day from 1991 through 1998, and after becoming a supervisor was still exposed to radiation at medical visits with the frequency of perhaps once a week until 2008.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

Claimant was promoted to Corrections Officer III August 31, 2008 after which he no longer engaged in transporting inmates.

The Claimant testified that when transporting inmates for x-ray visits his duties were to remain between the inmate and the medical technician to provide safety to hospital staff. Claimant testified he was not always afforded protection from the x-ray machines and did not always seek shelter behind the barrier with the x-ray technician. The Claimant was not provided a dosimeter to measure the amount of radiation to which he was exposed.

The Claimant in February 2013 underwent a cardiac catheterization, and later bypass surgery to provide relief for the blockage of the left anterior descending artery. The Claimant underwent that procedure on February 12, 2013, and remained off work recuperating for 12 weeks.

In the period preceding the Claimant's bypass procedure, a diagnostic CT scan detected a nodule on the Claimant's thyroid. The biopsy was performed and found to be Hurthle cell thyroid cancer. Claimant had surgery in June 2013 where doctors removed part of his thyroid, and later in a second surgical procedure in July 2013 removed the rest of the Claimant's thyroid. In September 2013 the Claimant underwent a radioactive iodine ablation at the site of the thyroid to aid in the prevention of recurrent thyroid cancer. The Claimant was later placed on daily medication of Synthroid to replace the thyroid hormone. The Claimant had no complications from his thyroid surgery and returned to work as a Corrections Officer III full-time and full duty with no permanent medical restrictions from his thyroid cancer.

The Claimant had pre-existing conditions of ill to which he testified. The Claimant had a 1988 work-related back injury which resulted in surgery and a settlement. Claimant testified after he recovered from surgery he returned to work full-time, full duty without permanent restrictions. The Claimant testified he was not comfortable attempting to lift more than 70 pounds and continued to have back pain which prevented his involvement in certain tasks. Claimant testified he would no longer ride his motorcycle more than 90 minutes or stand on concrete if it could be avoided to limit the pain in his back. The Claimant also testified to limited ability to drive great distances.

Claimant further testified to