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 a pre-existing leg fracture in 1975 from a motor vehicle accident. This injury was treated without surgery and the Claimant had a good recovery with no ongoing symptoms.

The Claimant testified that after his last thyroid surgery he began suffering from fatigue and what he described as brain fog requiring him to regularly take time off work to offset the symptoms. The Claimant in his testimony admitted to missing as much as an average of one day per week over the last 4 years of his employment. There are differing explanations for the use of that time. The Claimant testified that it was because of the fatigue of job, but also admitted that he was drawing down his leave in anticipation of retirement. The Claimant was never disciplined in his job for his excused absences from work and was not approached by his employer to encourage his retirement. The Claimant in fact testified his family encouraged him to consider retirement at full benefits when he reached the age of 58.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

The Claimant testified in his 2020 deposition differing reasons for the fatigue the Claimant experienced beginning in 2013. The Claimant admitted after his heart bypass surgery he was prescribed Atorvastatin and Metoprolol for his heart condition with known side effects to cause memory loss and fatigue. The Claimant in his 2020 deposition testified he really did not know the cause of his brain fog and fatigue but only that it began after his last thyroid surgery which was less than 4 months after his bypass surgery.

The Claimant testified to other health conditions prior to his alleged work-related injuries. The Claimant was diagnosed with and taking medications for high blood pressure for approximately 20 years. The Claimant was diagnosed with high cholesterol and taking medication for that condition. In November 2012 the Claimant was diagnosed with type II diabetes and was placed on medication.

The Claimant testified he had been a long-term smoker from 1978 to 2011 and as a result experienced shortness of breath and occasional chest pain.

Claimant testified since his retirement walks nearly every day, continues to engage in hunting and fishing as hobbies and will on occasion ride his motorcycle, although not nearly as often as he had in the past. Claimant testified he is currently actively building his family home, which began in September 2019, acting as his own general contractor. Claimant testified his work is slower because of fatigue and he has hired outside help for some of the things he might have done in the past.

The Claimant's wife testified that after multiple surgeries to the Claimant in 2013, first being the bypass surgery followed a few months later with two surgical procedures to remove the Claimant's thyroid, the Claimant tires more easily than before. In her testimony she indicated he does not have the "get up and go" as he did in the past. Mrs. Hanes also testified that the building of their home is on a much slower timeline as they had anticipated because of Mr. Hanes' continued fatigue.

MEDICAL EVIDENCE

The Claimant was examined on November 14, 2014, by Dr. Parmet who performed his examination of Mr. Hanes. Dr. Parmet was provided medical records and performed his examination. Dr. Parmet found certain medical conditions in the Claimant including Hurthle cell thyroid cancer, coronary artery disease post three-way bypass, history of lumbar laminectomy, diabetes mellitus type 2, hypertension and dyslipidemia.

Dr. Parmet opined the frequency and amount of radiation exposure by the Claimant in his work-related activities as alleged is unclear. Dr. Parmet, however, concluded that the Claimant's work activities, exposure to radiation while escorting inmates to medical procedures, including x-rays, would be the prevailing factor in causing his thyroid cancer. Dr. Parmet testified the Claimant had no known risk factors which would predispose Claimant to Hurthle cell thyroid cancer and therefore his work related exposure must, in his opinion, be the prevailing factor. (Claimant's Exhibit No. 3, page 22).

MNKOI 0000811648

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

Dr. Parmet ultimately opined the Claimant had a permanent partial disability of 15 percent of the whole person from his work-related exposure to radiation. Dr. Parmet further opined the Claimant had a 20 percent pre-existing permanent partial disability as a result of his three-way coronary bypass surgery. Dr. Parmet further opined the Claimant had a 10 percent permanent partial disability of the whole person from his pre-existing lumbar surgery in 1988.

Dr. Koprivica examined the Claimant and authored his report. That report and his deposition, which is in evidence. (Claimant's Exhibit 1.) The doctor was asked to comment on the Claimant's industrial disabilities and opine as to the onset of such disability. The claim for compensation alleges an occupational disease on or about August 31, 2008. However, the date of diagnosis of the Claimant's thyroid condition and subsequent need for treatment was May of 2013.

Dr. Koprivica noted that for purposes of an occupational disease claim in 2008, the sole pre-existing condition is the 1988 low back surgery, for which Dr. Koprivica felt the Claimant had a 10% permanent partial disability as a whole. Dr. Koprivica later amended his opinion on the disability to the lumbar condition to 20% of the whole person if considering the occupational disease arises in 2013. There was no explanation for the Claimant's enhanced disability. The doctor indicated that if the operative date of claim is 2013 for the alleged occupational disease, the Claimant's diabetes mellitus diagnosed in November 2012 would be a pre-existing condition. The doctor found for the alleged pre-existing diabetes mellitus the Claimant had a 5% permanent partial disability of the whole person. The doctor further found that if the operative date for the claim is an occupational disease in 2013, Claimant's multiple bypass cardiac procedure would also be a pre-existing industrially disabling condition and opined the Claimant's permanent partial disability for the cardiovascular disease would be 20% of the whole person.

Dr. Koprivica was of the opinion Claimant's exposure to radiation is sufficient to result in the development of thyroid carcinoma. The doctor felt the Claimant appears to have achieved a cure based on the complete thyroidectomy and subsequent ablation. The Claimant remains on medication to replace thyroid function. Dr. Koprivica felt the ongoing need for the thyroid monitoring and medication is indefinite. The doctor found no specific restrictions resulting from the removal of the Claimant's thyroid, ablation treatment and subsequent ongoing medication for thyroid replacement. Dr. Koprivica felt the nature of the claim is not one which is totally disabling when considered in isolation.

Dr. Koprivica felt if the date of diagnosis and ultimately ripening of the claim was May of 2013, Claimant may be permanently and totally disabled. The doctor's reasoning would be the presence of the pre-existing disability to the lumbar region, 20% of the whole person, where previous opinions were 10%, the disability for cardiovascular disease impairment 20% of the whole person. Pending the opinion of a vocational evaluation, Dr. Koprivica believed the Claimant to be permanently and totally disabled.

The doctor believed and requested the appropriate date from which to determine the extent ofdisability to render further opinions if requested.

In Dr. Koprivica's deposition, the doctor addressed the Claimant's feelings of fatigue as a substantial factor in his reason for his retirement in 2018. Dr. Koprivica opined that the cardiac condition was the primary cause of the Claimant's fatigue, although the thyroid condition was a contributing factor but to a lesser degree (Claimant's Exhibit 1, page 32). The doctor further opined that the thyroid medication if correctly monitored alleviated symptoms of fatigue and believed the prevailing factor for the Claimant's fatigue is the cardiac bypass surgery which predated by mere months the diagnosis and subsequent surgery for the Claimant's thyroid. It is the close proximity in time between the cardiac event and the thyroid surgery which even the Claimant was unable to distinguish as the cause of his fatigue.

Dr. Kibby examined the Claimant on behalf of the Employer and issued a report dated January 21, 2016 (Employer Exhibit B). Dr. Kibby opined low level, background radiation exposure sustained by the Claimant was not the prevailing cause in his thyroid cancer and need for treatment. (Employer Exhibit B, page 6). Dr. Kibby also found the Claimant's potential exposure to radiation would have been low-dose and infrequent. The potential exposure in Dr. Kibby's opinion would not rise to the high level radiation which is associated with the development of thyroid cancer. (Employer Exhibit C, page 17 page 42).

Dr. Kibby was asked to address certain opinions offered by Dr. Parmet and the bases for those opinions. Dr. Kibby testified that Dr. Parmet had based his opinion on the association of Claimant's thyroid condition from outdated research of atomic radiology survivors data, primarily prepared from exposures of military personnel exposed to radiation. Dr. Kibby indicated his opinions were based on medical journals which differentiated the types of thyroid cancer of which Hurthle cell thyroid cancer is one and the type suffered by the Claimant. Dr. Kibby opined the presence of diabetes mellitus has a significant relationship to the development of Hurthle cell thyroid cancer. (Employer Exhibit C, page 16). The doctor further distinguished between the high doses necessary for medical treatment of neck tumors and the low-dose occupational exposure for x-rays. (Exhibit C, page 16). The doctor further distinguish between the high doses necessary at directed tumor sites at high doses administered, for clinical effect, with the potential radiological exposure as alleged by the Claimant. (Exhibit C, page 17).

Dr. Kibby further referenced a 2014 research of an article studying 90,000 radiology technicians over a 24 -year period and distinguished between high incidences of cancer pre1950 and those post-1950. The more recent research would indicate that radiology technicians are not found to have any increased risks of cancer as compared to the general population (Employer Exhibit C, page 18).

Dr. Kibby further found a 2016 study in the Journal of Radiology focused on radiology technicians over a 15 -year period found some increased risks in cancers but primarily tissue

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

cancers of the brain, breast and melanoma. Dr. Kibby did not find increased cancers of the thyroid (Employer Exhibit C, page 20).

Dr. Kibby was provided a history which differed from the Claimant's testimony at trial. Dr. Kibby noted that the Claimant indicated he was shielded most of the time in the radiological suite (Employer Exhibit C, page 25). Further Claimant represented that he was not very often without protection (Employer Exhibit C, page 20). This is in contrast to the Claimant's testimony at trial. Dr. Kibby, as a result, opined that a radiological technician had a significantly diminished statistical probability of contracting thyroid cancer and that the Claimant's limited exposure would approximately approximate 1% of the exposure of an exposed radiological technician. Dr. Kibby felt this potential level of exposure and statistical probability of thyroid cancer from said exposure by the Claimant is insignificant.

VOCATIONAL EVIDENCE

The Claimant was examined by vocational expert Mr. Tom Karrow. Mr. Karrow issued two vocational reports, dated May 29, 2020 and September 10, 2020. In the May 29, 2020 report, Mr. Karrow opined the Claimant was not employable in any type of full-time, gainful work activity due to the restrictions and limitations he has from his thyroid carcinoma as a result of occupational exposure to radiation. In his second report Mr. Karrow opined, "with all of the medical issues Mr. Hanes has identified by Dr. Koprivica, from a vocational perspective he is permanently and totally disabled from all forms of work" (Claimant Exhibit 2, page 49).

Mr. Karrow noted in his interview with the Claimant Mr. Hanes discussed difficulties with concentration and focus, increased dizziness, joint pain and fatigue. Mr. Karrow noted medical experts have opined, in the case of Dr. Koprivica alleged occupational dispute exposure was not totally disabling in isolation but it enhanced the Claimant's pre-existing disability of lumbar pain and cardiovascular impairment. Dr. Koprivica provided no work restrictions from any alleged occupational exposure. Dr. Parmet indicated work was a prevailing factor for the alleged occupational exposure but provided no physical limitations.

Taking into consideration the lack of physical restrictions from the above mentioned physicians, Mr. Karrow opined the Claimant would be limited to sedentary or medium work, and further testified that his examination of the job market in the Bethany, Missouri area was primarily entry-level, unskilled to semiskilled and sedentary to light. Mr. Karrow ultimately concluded Claimant is not employable for any type of full-time gainful work activity due to the restrictions and limitations he has from his thyroid carcinoma as a result of occupational exposure to radiation. Mr. Karrow in his deposition testimony expanded further his opinion and was of the vocational opinion that the Claimant was permanently and totally disabled from all forms of work because of all the medical issues identified by Dr. Koprivica.

The Claimant was examined by vocational expert Kristine Skahan on behalf of the Second Injury Fund on July 6, 2020. A transferable skills analysis was performed where certain job matches were developed. Those job matches included gate guard, assembler, courier delivery driver, and security guard. Ms. Skahan found, based on the survey of jobs available in the Claimant's region, occupations including delivery driver, security officer attendant, cashier, dietary aide and dishwasher, and housekeeping attendant, were all positions within a medium physical demand level.

Claimant was examined by vocational expert Michael Dreiling, who performed his vocational assessment on October 7, 2020. Mr. Dreiling examined the Claimant on behalf of the Employer and Insurer. Mr. Dreiling took into consideration the medical opinions of Drs. Parmet Kibby and Koprivica, and concluded the Claimant was employable in the open labor market. Mr. Dreiling did agree with other vocational opinions of the Claimant being limited to entry-level unskilled types of employment. Dreiling did testify that if one took into account the subjective complaints and the Claimant's descriptions of his level of functioning, the Claimant may not have the vocational ability to become employable. Mr. Dreiling did agree and testified if the Claimant were missing an average of one day per week of employment covering a period of four years, he would likely be deemed unemployable. (Employer Exhibit E, pages 25, 26).

The Claimant had enumerated 11 issues for consideration. It is the Claimant's burden of proof to prove by a preponderance of the evidence their entitlement to benefits under Chapter 287. I find the determination of one issue dispositive of this matter but will address briefly other contested issues.

I find the Claimant has failed to meet his burden of proof to establish that he has sustained an accident or occupational disease pursuant to 287.020 .2 or 287.067.1. The definition of accident deals with an unexpected traumatic event or unusual strain identifiable by time and place of the occurrence and producing at the time objective symptoms of an injury caused by a specific event during this single work shift, RSMO 287.020.2. Occupational disease is defined as an identifiable disease arising with or without human fault and out of and in the course and scope of employment, RSMO 287.067.1.

Claimant has provided no evidence to establish any singular event to indicate that his alleged injuries arose out of and in the course and scope of his employment by accident and that issue is determined in favor of the Employer and Insurer. The Claimant through the bulk of their proof seems to allege that exposure by occupational disease which as the Claimant's proof would establish began on or about 1991 and ended on or about 2008. I find for purposes of this proceeding the operable date for the Claimant's alleged occupational disease to be 2013 when the Claimant's alleged condition became disabling or affecting his ability to perform ordinary tasks. It is at that time the Claimant, while being examined, treated and ultimately undergoing multiple bypass surgery, was found to have a defect in his thyroid. Closer examination of the Claimant's thyroid led to the diagnosis of Hurthle cell cancer of the thyroid. Claimant underwent two surgical procedures, an ablation treatment and his thyroid was removed. The Claimant was

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

placed on Synthroid to counteract the removal of the thyroid and at time of trial the Claimant has been deemed cancer free.

I find the 2013 date the appropriate determination of the alleged occupational disease as opposed to the alleged date of 2008 when the Claimant allegedly was first exposed to any radiological exposures.

I find however that pursuant to 287.067.1, the Claimant has failed to meet his burden of proof that he has been exposed to an occupational disease which would require a demonstration of greater risk of exposure to the disease at work than other persons have in ordinary life, and also to show that the exposure was a prevailing factor in causing any illness.

Finally Claimant did not sufficiently provide evidence to prove that his thyroid cancer arose out of and in the course and scope of employment. Claimant as set forth in his testimony that in his job as a Department of Corrections employee from 1991 through 1998 he was charged with taking inmates for medical visits and procedures. Claimant testified that when x-rays were involved in the visit they could occur anywhere from 2 to 3 times per week from 1993 to 1998 without detail. The Claimant alleged, he frequently was not provided protective gear. This testimony at trial is in contrast to that provided to Dr. Kibby who testified the Claimant had related to him that he more often than not was protected and/or shielded from any radiation. Nevertheless, the Claimant's testimony does not establish the nature of the exposure, the duration of exposure, the frequency of the exposure, and radiation levels which he may have been subjected.

This has led to medical evidence varying in degree of specificity as to the nature and cause of the Claimant's Hurthle cell carcinoma.

Dr. Parmet in his testimony agreed that the Claimant was never monitored; therefore, the extent of exposure was unknown, and the doctor had no evidence to base any degree of frequency of exposure. The Claimant's recollection of frequency does not provide any more than speculation as to the number of times and provides no evidence of levels of exposure. Dr. Parmet had to agree that his conclusions were based on the representations of the Claimant and the doctor had no objective measure to determine to what extent the Claimant was ever actually exposed. Dr. Parmet further opined that he knew of no other contributing cause to the Claimant's Hurthle cell carcinoma and therefore it had to have been his work-related exposure.

Dr. Koprivica testified that since the Claimant's exposure was not monitored nor documented the extent could not be determined. That being said, the Claimant's own representations of his exposure were the only available evidence for which the doctor to opine. Dr. Koprivica testified that association of something does not equal causation. Dr. Koprivica found that taking inmates into an x-ray suite would not be conclusive evidence that such activity was a cause of the Claimant's thyroid cancer. (Claimant Exhibit 1, page 39)

Contrary to the Claimant's testimony at trial, the Claimant represented to Dr. Kibby that the Claimant would often stay by the radiology technologist and frequently would wear a lead apron. Dr. Kibby opined the degree of radiation Claimant was allegedly potentially exposed to was not the prevailing factor for his development thyroid cancer. Dr. Kibby's opinion was based

11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

on the Claimant's medical history which included risk factors of Hurthle cell thyroid cancer such as diabetes mellitus. Dr. Kibby in his testimony cited medical research that Hurthle cell thyroid cancer is significantly related to diabetes mellitus which Claimant was diagnosed with in 2012. (Employer Exhibit C, page 16 & 17), (Employer Exhibit B, page 4).

Dr. Kibby further testified that the Claimant's potential exposure would have been low-dose and would not arise to high-level radiation which is associated with the development of thyroid cancer. (Employer Exhibit C, page 17, page 42). Dr. Kibby noted that radiation associated with development of Hurthle cell thyroid cancer would be in the form of radiotherapy which is a high dose of radiation directed at treating a specific area for the purpose of causing the clinical effect. (Employer Exhibit C, page 36). Medical research found that low-dose radiation would not be associated with the development of thyroid cancer. Dr. Kibby noted that occupational groups like radiology technicians who are exposed to low levels of radiation daily did not have an increased risk of thyroid cancer. (Employer Exhibit B, page 5). Dr. Kibby specifically found the Employee's diagnosis of Hurthle cell thyroid cancer was not work related. Dr. Kibby found that other personal factors such as his health history and diabetes mellitus, rather than radiation exposure was the cause of the Claimant's condition.

Notice

Employees are required to "report all injuries immediately to the employer by advising employer personally... Within 30 days... The case of occupational illness or disease, within 30 days of the time he or she is reasonably aware of the work relatedness of the issue or illness. RSMO 287.420.

In this case the Claimant filed a report of injury on April 17, 2015. While the Claimant was of the belief that his employer had actual notice of his alleged radiation exposure, Claimant testified that it was not until the Claimant was made aware by a physician that his work-related exposure may have been the cause of his thyroid cancer. The Claimant received surgical treatment for the removal of his thyroid in 2013. Claimant's report of injury was filed April 17, 2015.

I find the Claimant has failed to timely provide notice to his employer of an alleged occupational disease pursuant to Missouri statute.

Medical Causation

I find based on the above-mentioned discussion of the physicians who have examined the Claimant and offered opinions of disability that the Claimant has failed to meet his burden of proof to establish an occupational disease from any work-related exposures. I find the testimony of Dr. Parmet lacking in specificity and his ultimate opinion that the Claimant had no other known causes of potential conditions which would lead to thyroid cancer and thus the Claimant's alleged exposure at work must be the prevailing cause. Dr. Parmet was either not asked or unaware that Claimant's type of thyroid cancer has a significant correlation to diabetes mellitus, a condition present in the Claimant. Finally, the opinions of Dr. Koprivica as well as that of Dr. Parmet are based on the representations of the Claimant as to the occurrences of the alleged exposure without documentation of any medical visits or nature of the visit. Further there was no

12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

evidence to establish any levels of potential radiation for which the Claimant may have been exposed. It is for those reasons and others set forth above, I find Dr. Kibby's opinions more credible and convincing. Dr. Kibby found the Claimant's diabetes to be a significant factor in the contraction of Hurthle cell thyroid cancer. Also Dr. Kibby in his testimony referred to multiple studies of radiation exposure and determined the Claimant was not likely to contract cancer from his work activities.

Medical Expense and Future Medical Treatment

The Claimant admitted in his testimony that he never requested his employer provide medical treatment or pay for same and used his employer-provided insurance for all medical treatment. Further, the Claimant used accrued leave time in lieu of requesting workers' compensation benefits.

Future Medical

I find that the evidence indicates that the Claimant will need maintenance medication for his thyroid removal. However, based on my previous finding that Claimant has not met his burden of proof to establish an occupational disease for which the employer is responsible makes the issue of future medical treatment moot.

The Nature and Extent of Disability and the Liability of the Second Injury Fund

As I have previously determined and set forth the Claimant's failure to meet his burden of proof to establish an occupational disease compensable under the Act, I further find the issues of nature and extent of disability and the liability of the Second Injury Fund moot. While doctors have opined that the Claimant's degree of disability from the thyroid cancer could reasonably be expected to be 15% of the whole person, the Claimant after his surgical treatment for his cancer in 2013 returned to and continued working until his retirement in 2018. The more convincing evidence of the Claimant's employability is that of a light or sedentary nature but that the Claimant was in fact employable.

The Claimant had from an occupational disease alleged in 2013 pre-existing conditions involving a prior low back surgery in 1988 and pre-existing diabetes. The presence of these pre-existing conditions when combined with the degree of disability attributed Claimant's thyroid cancer would not by the greater weight of evidence render the Claimant permanently and totally disabled.

I find for the reasons set forth above the Claimant failed to meet his burden of proof to establish an accident or occupational disease under the definitions provided in the Missouri Worker's Compensation Law and for that reason the Claimant's Claim for Compensation must be denied.

13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carl Hanes

Injury No. 08-124885

I certify that on Sep 152021

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.

By: Ghami Ganser


Made by: Mark Siedlik

Mark S. Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation