Issued by THE LABOR AND INDUSTRIAL RELATIONS … · This workers' compensation case is submitted to...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

Additional Party:

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion)

Rossie P. Judd

DaimlerChrysler

Old Carco, LLC

Treasurer of Missouri as Custodian of Second Injury Fund

Injury No.: 05-092951

This 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, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to§ 286.090 RS Mo, we affirm the award and decision of the administrative law judge.

Discussion

Employer/Insurer's Motion to Dismiss Employee's Application For Review On September 1, 2017, employee filed a timely application for review in this matter. On November 30, 2017, along with its brief, employer/insurer filed a motion to dismiss employee's application for review. Employer/insurer argues the Commission should dismiss employee's application for review for failure to comply with Commission rule 8 CSR 20-3.030(3)(A), which provides as follows:

An applicant for review of any final award, order or decision of the administrative law judge shall state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. It shall not be sufficient merely to state that the decision of the administrative law judge on any particular issue is not supported by competent and substantial evidence.

Employer/insurer argues employee's application for review fails to comply with the foregoing rule, because employee failed to specifically identify why the administrative law judge's findings and conclusions were not supported by the evidence.

On December 11, 2017, employee filed a responsive brief and explained that she is appealing the issue of the nature and extent of her partial disability because the competent and substantial evidence supports a finding she suffers more than 11.25% permanent partial disability of the body as a whole as a result of her work injury.

In considering employer/insurer's motion, we are mindful of the following admonition from the Missouri courts:

Cases should be heard and decided on their merits. To that end, statutes and rules relating to appeals, being remedial, are to be construed liberally in favor of allowing appeals to proceed. Accordingly we review claimant's application for review in light of a liberal construction of 8 CSR 20-3.030(3)(A).

Injury No.: 05-092951 Employee: Rossie P. Judd

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/sgriggs v. Pacer Indus., 869 S.W.2d 295, 296 (Mo. App. 1994).

After careful consideration, and applying a liberal construction of 8 CSR 20-3.030(3)(A), we are more persuaded by employee's arguments. We conclude that employee's application for review is sufficient to satisfy the Commission's rule. We rule this issue against employer/insurer.

The employer/insurer's motion to dismiss is hereby denied.

Having disposed of employer/insurer's motion to dismiss, and because, after careful consideration, we ultimately agree with the administrative law judge's findings, analysis, and conclusions, we otherwise affirm, and adopt as our own, his award in this matter, without further supplementation or comment.

Conclusion

We deny employer/insurer's motion to dismiss.

We affirm and adopt the award of the administrative law judge.

The award and decision of Administrative Law Judge Edwin Kohner is attached and incorporated herein.

We approve and affirm 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 ao-tb day of June 2018.

DISSENTING OPINION FILED Reid K. Forrester, Member


DISSENTING OPINION

I have reviewed and considered all of the competent and substantial evidence on the whole 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 employee's application for review should be dismissed or, in the alternative, the decision of the administrative law judge should be reversed.

Motion to dismiss: I do not agree that the application for review complies with the specificity required by 8 CSR 20-3.030(3)(A).

In her application for review, employee alleged as follows: "The Administrative Law Judge determined that the claimant's permanent partial disability of her lung function determined the same permanent partial disability of the claimant's body as a whole. The claimant suggests that the permanent disability in her lungs substantially increased the permanent partial disability of her body as a whole. See Martin v. Heckler 748 F2d 1027 (1984) Therefore, the Administrative Law Judge's award is erroneous." (punctuation of original).

In other words, employee alleged in her application for review that the award was "erroneous" because the administrative law judge did not believe employee. Then employee cited a federal Social Security disability case without explaining how such case was applicable to the matter at hand.

I find no real distinction between employee's application for review and other applications for review that this Commission has historically dismissed for a lack of specificity. See Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App. 1999) and Wilkey v. Ozark Care Ctr. Partners, L.L. C., 236 S.W.3d 101, 102 (Mo. App. 2007).

In Smith v. Smiley Container Corp., the petitioner's application for review stated as follows:

The undersigned hereby makes application to the Labor and Industrial Relations Commission of Missouri for a review by the full Commission of the Award on Hearing made by Associate Administrative Law Judge Lawrence Kasten in the above case issued on the 2nd day of December 1998. A copy of the Award is attached hereto for this Commissions [sic] review.

Specifically, Petitioner, Russell Stover Candies, submits that Judge Kasten's determinations regarding the nature and extent of the employee's injury(s) and the employee's permanent partial disability were not supported by substantial evidence.

Petitioner, Russell Stover Candies, hereby requests permission to file a brief and present an oral argument before this Commission at a later date.

The court in Smith upheld the Commission's dismissal of the application for review and stated,

The regulation requires an application for review to state specifically the reason the aggrieved party believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. The regulation explicitly provides it is not sufficient to merely state that the decision on any particular issue is not supported by competent and substantial evidence.


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The unadorned assertion in Employer's application for review that certain determinations of the administrative law judge "were not supported by substantial evidence" is precisely the type of averment the regulation proscribes.

Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App. 1999).

In Wilkey, the application for review stated:

The Award was against the weight of the credible evidence in its finding that the Employee's last injury rendered the Employee permanently and totally disabled; the Award was against the weight of the credible evidence in finding the Employee permanently and totally disabled.

The court again affirmed the dismissal and stated that "Ozark's 'reasons' failed to specifically identify why the administrative law judge's findings and conclusions were not properly supported by the record that was before that judge." Wilkey v. Ozark Care Ctr. Parlners, L.L.C., 236 S.W.3d 101, 102 (Mo. App. 2007).

Here, employee's application for review does not specifically explain why the administrative law judge erred in failing to believe her evidence. I do not agree that the application for review complies with the specificity required by 8 CSR 20-3.030(3)(A) and would dismiss.

Alternatively, I would reverse the administrative law judge's award and find that employee did not establish a compensable injury. The competent and substantial evidence shows that the date of injury was much later than August 26, 2005, and that employee did not suffer from a compensable occupational disease, as defined by statute.

Date of iniury The administrative law judge incorrectly found the date of injury to be August 26, 2005. The date of injury, if there was a compensable injury, was much later than August 26, 2005. The administrative law judge sidestepped the issue by generally stating that employee proved a prim a facie case regardless of the law, either pre-2005 or post-2005. As claimant continued to work for the employer through December 21, 2007, her date of injury could not have been prior to that date.

"An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." Wickam v. Treasurer of the State, 499 S.W.3d 751, 756 (Mo. App. 2016)(quoting Garrone v. Treasurer of State of Mo., 157 S.W.3d 237,242 (Mo. App. 2004)). "It is possible for an employee to have experienced symptoms of and be diagnosed with an occupational disease before the time it becomes disabling and thus compensable." Wickam, 499 S.W.3d at 756 (citing Garrone, 157 S.W.3d at 242).

In both the Wickam and Garrone cases, the employees were diagnosed with carpal tunnel syndrome over a year prior to reaching the point where the carpal tunnel syndrome impaired the employees' earning ability. In both cases, the court held that the proper date of compensable injury was the date the condition affected the employees' earning ability. Wickam, 499 S.W.3d at 758; Garrone, 157 S.W.3d at 240.


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Here, claimant continued to work with her asthma until the employer's plant closed on December 21, 2017. Therefore, claimant's asthma did not affect her earning ability prior to December 21, 2007. Because claimant only ceased to work when her plant closed, there is no real evidence that her condition ever affected her earning ability. However, in any case, the post-2005 Jaw applies to this matter.

Compensable Occupational Disease Employee failed to establish that her working conditions resulted in a compensable occupational disease, as defined by statute.

Section 287 .067.1, RS Mo, defines occupational disease as "an identifiable disease arising with or without human fault out of and in the course of the employment." The section further provides:

Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

Section 287.067.2, RSMo, provides:

An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-today living shall not be compensable.

Here, the competent and substantial evidence does not support a finding that employee's exposure at work was the prevailing factor causing her medical condition and disability. Claimant had asthma as a child and received an inhaler on December 17, 1992. There is no question that employee's exposure to paint fumes, chemical fumes, or cigarette smoke in the workplace exacerbated her asthma condition. However, I find Dr. Jacobs' opinion credible that employee's occupation was not the prevailing factor causing her current condition.

As a pulmonologist, Dr. Jacobs has seen and examined individuals for four decades, including individuals working at all three automobile assembly plants in the St. Louis area, including "a significant number of workers" who worked for employer. Transcript, p. 736. These individuals had the same exposure as employee. Dr. Jacobs has "never seen anybody" who developed occupational asthma from working in the automobile construction industry. Transcript, p. 736. Based on his expertise, Dr. Jacobs opined that claimant "had transient worsening of her previously existing condition, and that's a very different situation from a condition which is caused by the occupation. So the occupation was not the prevailing factor. The occupation was a factor which allowed for transient aggravation." Transcript, p. 735. I find Dr. Jacobs' testimony and opinion of much greater worth than that of Dr. Cohen, an osteopathic neurologist, who does not come close to the pulmonology training or experience of Dr. Jacobs.


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Because employee's employment was not the primary factor in causing both her medical condition and disability, claimant did not have a compensable occupational disease. Therefore, the administrative law judge should not have awarded any compensation pursuant to the Workers' Compensation Law.

In conclusion, I would dismiss or alternatively reverse the administrative law judge's award allowing benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Employee: Rossie Judd

Dependents: NIA

Employer: DaimlerChrysler

Additional Party: Second Injury Fund

Insurer: Old Carco, LLC

Hearing Date: June 22, 2017

Injury No.: 05-092951

Before the Division of Workers'

Compensation Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: EJK/

FINDINGS OF FACT AND RULINGS OF LAW

I. 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: August 26, 2005

5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri

6. Was above employee in employ of above employer at time ofalleged accident or occupational disease? Yes

7. Did employer receive proper notice? Yes

8. Did accident or occupational disease arise out ofand 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: The employee, an automotive assembly line worker, suffers from pulmonary diseases aggravated by her exposure to chemicals, paint, fumes, dust, and second hand fumes from co-employees.

12. Did accident or occupational disease cause death? No Date of death? NIA

13. Part(s) of body injured by accident or occupational disease: Lungs

14. Nature and extent of any pennanent disability: I I .25% Permanent partial disability to the body as a whole

15. Compensation paid to-date for temporary disability: None

16. Value necessary medical aid paid to date by employer/insurer: None

Re;isedForm31 (3/97) Page 1

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd

17. Value necessary medical aid not furnished by employer/insurer? None

18. Employee's average weekly wages: Not determined

19. Weekly compensation rate: $696.97/$365.08

20. Method wages computation: Rate established by agreement

COMPENSATION PAYABLE

21. Amount of compensation payable:

45 weeks of permanent partial disability from Employer

22. Second Injury Fund liability: Yes

13.375 weeks of permanent partial disability from Second Injury Fund

TOTAL:

23. Future requirements awarded: None

Injury No.: 05-092951

$16,428.60

$ 4,882.95

$21,311.55

Said payments to begin innnediately 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 of25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Robert M. Miller, Esq.

WC-32-RI (6-81) Page 2

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd Jujury No.: 05-092951

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Rossie Judd

Dependents: NIA

Employer: DaimlerCbrysler

Additional Party: Second Jujury Fund

Insurer: Old Carco, LLC

lnjuryNo.: 05-092951

Before the Division or,vorkers'

Compensation Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: EJK

This workers' compensation case raises several issues arising out of a work-related injury in which the claimant, an automotive assembly line worker, suffers from pulmonary diseases aggravated by her exposure to chemicals, paint, fumes, and secondhand fumes from coemployees. The issues for determination are: (1) Accident or occupational disease arising out of and in the course of employment, (2) Medical causation, (3) Future medical care, ( 4) Rate, (5) Permanent disability, (6) Date of injury, and (7) Attorney Lien. The evidence compels an award for the claimant for permanent partial disability benefits. The date of injury is the date the claim was filed, because the claimant was aware of the condition and knew that the condition was related to her work on that date.

At the hearing, the claimant testified in person and offered a deposition of Raymond F. Cohen, D.O., and voluminous medical records. The defense offered depositions of Myron H. Jacobs, M.D., and Daniel L. Kitchens, M.D., and medical records from Michael J. Fedak, M.D., (Esse Health).

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 alleged to have been contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

SUMMARY OF FACTS

This then SO-year-old claimant, an automobile assembly line worker, suffered an exacerbation of her preexisting asthma while working for this employer. The claimant has a lifelong history of asthma which she testified was generally well-controlled, although she was allergic to cat dander and other allergens.

She held a mix of jobs at Chrysler but was most often a "floater" temporarily replacing workers on the line who were not at their regular job. The work at Chrysler generally was more strenuous than that which she had done in the past, and the hours were long.

The claimant testified that she developed asthma as a child. In the early 1990's, the claimant suffered from asthmatic episodes requiring medical intervention. On December 17,

WC-32-Rl (6-81) Page 3

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd Injury No.: 05-092951

1992, the claimant received a Proventil inhaler prescription for a severe asthma attack. See Exhibit 1, Health Key Medical Group records. On June 4, 1993, the claimant again reported a severe asthma attack. See Exhibit 1, Health Key Medical Group records. On the same date, the claimant's physical examination reflected "minimal respiratory distress, speaking in full sentences." See Exhibit 1. The claimant testified that before she began her employment with Chrysler, she had symptoms of asthma only occasionally.

The claimant testified that while working at Chrysler she was exposed to tobacco smoke from co-workers and chemicals used in the process to manufacture motor vehicles. Various medical records from the Chrysler Plant Medical Department from April 5, 1995, through November 15, 2007, reflect significant pulmonary complaints:

3-16-98 audible inspirating and expirating wheezes, exposed to tobacco smoke, left Albuterol inhaler at home; 9-24-98 asthma attack, inhaler empty; 4-20-99 wheezing, coughing, asthma, ran out of Albuterol inhaler; 12-8-99 asthma attack, working in area where other employees are smoking cigars; 11-2-00 complaint of asthma attack from co-worker smoking cigars; 1-21-01 complaint of asthma attack caused by cigarette smoke; 1-31-01 employee wants transfer to another department with low rate of smoking or none; patient complains of having an asthmatic attack which she feels is due to paint department air; employee wants to talk about returning to "chassis" due to fumes on the job; 2-26-01 employee returning to work after being absent 2-14-01 to 2-25-01, diagnosis of exacerbation of asthma due to bronchitis and chemical exposure; 2-26-01 to 3-20-01 due to fumes and smoke 3-21-01 returns to work; 4-11-01 claimant to see company physician for pulmonary evaluation, due to paint fumes, wearing respirator entire shift; 9-20-01 asthma attack, breathing cigar smoke at work, did not have inhaler; 11-26-01 difficulty breathing due to cigar smoke on line, oxygen is 100%, told lungs functioning normally; asthma flare up due to co-worker cigar smoke, respiration even and unlabored; 12-7-02 complaint of sinus congestion and headache, co-workers smoking; 3-5-03 (3-7-03) employee coughing and wheezing after exposed to cigar smoke, oxygen 100% labored respiration but no wheezing; 4-2-03 agitated due to cigar smoke all around causing difficulty breathing, cursing, no wheezing noted; 4-30-03 coughing and wheezing due to tobacco smoke; 5-21-03 returns to work with restrictions ofno smoke exposure; 5-22-03 Claimant in moderate distress, unable to speak, advised to stop using Albuterol inhaler, pulmonary function tests show mild obstructive disease, off work until 6-24-03, no spray painting or working with isocyanates until 10/2/03; 6-25-03 patient with possibly mild reactive airway disease, emotional component, note from Dr. Hammond that "she cannot be exposed to cigarette smoke, paint or

WC-32-Rl (6-81) Page4


paint fumes or she runs the risk of severe asthmatic attack," patient only mildly disabled by mild restrictive lung disease; 7-30-03 cannot wear dual cartridge respirator due to asthma; 6-29-04 Restrictions are helping asthma, restrictions continued; 8-11-04 No longer needs respirator as plant is non-smoking; 2-1-05 Asthma attack due to cigarette smoke at work, going to emergency room; 2-8-05 Unable to work from 2-4-05 to 2-7-05 due to asthma exacerbation due to work-related smoking; 12-16-05 Asthma from smoke coming from vents; 3-8-06 Asthma worse after breathing smoke from co-workers; 6-13-06 Off work 6-3-06 to 6-12-06 due to asthma per Dr. Kirk Nelson, not to work around smokers.

Dr. Hammond reported on December 7, 2001, that the claimant suffers from asthma and her condition worsens when she is exposed to paint fumes, chemical fumes, or cigarette smoke. On February 19, 2002, Dr. Johnson reported that the claimant suffers from chronic asthma worsened by upper respiratory infections and initants. In May 2003, Dr. Hammond reported that due to continued cigarette smoke exposure, the claimant's asthma worsened and that she will require evaluation and treatment by a pulmonologist. On May 6, 2003, Dr. Trotta reported that the claimant had no active lung disease or cardiomegaly. On June 26, 2003, the claimant went to Esse Health with wheezing after exposure to smoke at work. A pulmonary function test revealed that her forced vital capacity was 66 percent of n01mal and her forced expired volume in one second as 65 percent of normal. A note was given for a smoke free environment and a ventilator mask. On July 23, 2003, Dr. Hammond reported that the claimant's asthma has been exacerbated due to fumes and smoke exposure. On February 2, 2005, at Esse Health the claimant's breathing test of peak expiratory flow was 150, 150 and 225 when normal is 391. On May 26, 2006 a chest x-ray by Dr. Ruyle revealed no active lung disease. On February I, 2007, at Esse Health the claimant's breathing peak expiratory flow was 175, 175 and 200 when normal is 391. On May 26, 2009, Dr. Abodeely/ke reported that while the claimant complains of shortness of breath and wheezing, an x-ray of the claimant's chest was negative.

On June 7, 2006, Dr. Nelson conducted a pulmonary evaluation and diagnosed acute exacerbation of allergic asthma and allergic rhinitis. On July 19, 2006, Dr. Nelson diagnosed Moderate Obstructive Airways Disease - Reversible. On August 27, 2009, and July 22, 2010, Dr. Nelson's impression was "acute exacerbation of asthma." On January 11, 2010, the claimant went to St. Mary's Health Center with wheezing and shortness of breath. The claimant was discharged from St. Mary's Health Center on January 14, 2010, with a primary diagnosis of "Asthma Exacerbation" along with Bronchitis, Bulging Discs and Generalized Anxiety Disorder. On January 28, 2010, Dr. Nelson performed a lung function examination and reported that the claimant's lung function was between 50% to 92% of normal. On February 22, 2010, the claimant went to St. Anthony's Medical Center with trouble breathing for two days. The impression at the hospital was acute exacerbation of asthma caused by acute bronchitis. On Februaty 23, 2010, the claimant returned to St. Anthony's Medical Center and was discharged with a diagnosis of "severe asthmatic bronchitis with acute respiratory failure" and "acute exacerbation of chronic pulmonaty disease and asthma per Dr. Nelson." On February 23, 2010, a spirometty evaluation revealed "evidence of marked bronchial hyper-reactivity." See Exhibit I. By April 2, 2014, Dr. Nelson took a medical history from the claimant who "has been honibly

WC-32-RI (6-81) Pages

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd lajury No.: 05-092951

afflicted with severe asthma since about 2008" and he diagnosed "chronic respiratory failure, asthma extrinsic and cough."

The claimant had several pulmonary evaluations. The term FYC as used in pulmonary evaluations means forced vital capacity, and FEY! means forced expired volume in one second. See Dr. Jacobs deposition, pages 31, 32. Dr. Jacobs opined that a normal response to these evaluations is 80 percent to 120 percent. See Dr. Jacobs deposition, pages 31, 32. The term is FEYI/FYC reports how much air is blown out and the speed that the air is blown out. See Dr. Jacobs deposition, page 32.

On June 26, 2003, a pulmonary evaluation at Esse Health reported:

FYC 66%, FEYl 65%, FEYl/FYC 97%.

Esse Health gave the claimant a note for a smoke free environment and a ventilator mask on June 2.6, 2003.

On July 19, 2006, a pulmonary evaluation from Dr. Nelson reported pre-bronchodilator:

FYC 71% FEY! 67%

After receiving the bronchodilator the FYC and FEY! were normal which indicates a moderate obstrnctive airways disease which was reversible.

On January 28, 2010, Dr. Nelson again performed a pulmonary evaluation revealing:

FYC 61% FEY! 57% FEYI/FYC 92%.

On September 22, 2011 Dr. Jacobs performed a pulmonary evaluation revealing:

FYC 64% pre-bronchodilator FEY! 60% pre-bronchodilator FYC 47% after the bronchodilator FEY! 49% after the bronchodilator.

Dr. Jacobs compared his pulmonary evaluation from 2011 with the pulmonary evaluation performed by Dr. Nelson on July 19, 2006 and testified that the lung function result in Dr. Jacobs' evaluation showed significantly worse lung function than the lung function result in Dr. Nelson's evaluation. See Dr. Jacobs deposition, page 42.

WC·32·Rl (6--81) Page 6

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd InjuryNo.: 05-092951

On May 27, 2012, Washington University Physicians performed a pulmonary evaluation revealing pre-bronchodilator values ofFVC 68%, FEVl 64% and FEVl/FVC 97%, and postbronchodilator values ofFVC 64%, FEVl 62%, and FEVl/FVC 96%.

Dr. Cohen examined the claimant in 2015 and opined that due to her medical condition of asthma up through 8-25-06 the claimant has an occupational disease permanent partial disability of 60% of the person as a whole at the chest level and a preexisting disability of 10% of the person as a whole at the chest level. Dr. Jacobs opined that the claimant has a 10% permanent partial disability of the body as a whole as a result of her pulmonary condition. See Dr. Jacobs deposition, page 27. Dr. Jacobs opined that this 10% permanent partial disability may have developed during her employment at Chrysler. See Dr. Jacobs deposition, page 28. Dr. Jacobs fmther opined that the claimant's medical condition deteriorated "significantly transiently" because of her time working at the Chrysler plant. See Dr. Jacobs deposition, page 29.

The claimant made regular visits to the Chrysler in-plant Medical Department complaining of asthma-like symptoms which she associated with exposure to smoke and fumes. She became particularly upset when she learned that Chrysler had a non-smoking policy which Chrysler was clearly failing to enforce.

She testified that this continuing exposure to smoke and fumes irritated her asthma to the point where she came under on-going regular treatment for shortness of breath, coughing, chest pain, and other pulmonary symptoms. On a nutnber of occasions the symptoms required inpatient or out-patient medical care and regular treatment through the use of medications and inhalers provided by Dr. Hannnond at Health Key (which later became and remains Esse Health). In addition, she is referred to Dr. Nelson, a lung specialist, whose office she continued to see during and after her work at Chrysler.

At some point between December 2007 and when the Fenton plant closed in mid-2009, she was offered the opportunity to apply to transfer to a different Chrysler location but that would have involved her moving to a different state and, in addition, by that time she had concluded that she could no longer continue working in an automobile assembly plant. She then applied for, and received Social Security Disability Insurance ("SSDI") effective in 2009 or 2010 and she then also qualified for Medicare. The claimant has not sought employment since she voluntarily terminated from Chrysler and relinquished her seniority by virtue of the buy-out and believes that she carmot work so lives on her SSDI payment.

The claimant testified that she is now extremely sensitive to a long list of irritants, that she can barely leave the house for concerns over being exposed to some circumstances which could cause a pulmonary crisis. Most recently, she has required knee surgery and continues to have the pulmonary and 01thopedic problems which she developed during the course of her life, paiticularly during her period of employment at Chrysler.

The claimant was asked whether there was some paiticular significance to August 26, 2005, which was the date of occupational disease which has been pleaded. She could not explain the use of that date since she continued to work until December 21, 2007, had been diagnosed with asthma many years eai·lier, had no change in her job assignments on or around that date, and she concluded years earlier that her work at Chiysler was aggravating her pulmonary problems.

WC-32-RI (6-81) Page 7


She also testified that there were jobs at Barnes which she did not like, that she had at least one stress reaction while at Barnes, and that she kept working at Chrysler up until the 2007 layoff despite her pulmonary and orthopedic complaints. She testified that she told her medical providers that she had been injured in a motor vehicle accident on one or more occasions, or otherwise injured while not at work, then, in fact, she was injured on the job but presented her medical history to their providers so that she would receive medical care through insurance benefits provided by her employer.

She testified that her layoff on December 21, 2007, was part of a larger plant layoff. She also testified that she had been told as a child that she had asthma, but the asthma never completely went away and that she had an inhaler when she was hired at Chrysler. She testified that Chrysler had never enforced the non-smoking ban at any point during her employment so agreed that if she was exposed, that she was exposed up to the date when she last actively worked in the plant on December 21, 2007.

The claimant testified that she was under no work restrictions on account of her asthma prior to working at Chrysler, that she had no work limitations of any kind before working at Chrysler, that she was able to work at Chrysler from 1995 until 2007, that she had not sought employment after she left Chrysler, and that her more recent knee surgery was a subsequent injury or condition.

In addition to her lung and low back conditions, the claimant has a history of injuries to both ankles, has arthritis in both ankles and has been advised that she may need ankle surgery.

The claimant completed the 9th grade in 1973, did not later obtain a G.E.D., and testified that she has some limitation when it comes to clerical tasks. Her most significant prior employment (before Chrysler) involved the work from 1985 to 1995 at Barnes Hospital in St. Louis. She held several jobs at Barnes including that of a Certified Nurse Aide although at one point she was assigned to a job on the floor which required her to read and understand medical records, but found that she could not handle this job due to her lack of education. While working at Barnes, she experienced one or more episodes of stress, has a history of anxiety and depression, and she was apparently dissatisfied with some aspects of her job at Barnes. In order to increase her income and benefits, she applied and was hired at Chrysler in 1995. She continued to work at Chrysler until December 21, 2007, when she took a buy-out after an extended layoff.

Raymond F. Cohen, D.O.

On February 19, 2015, Dr. Cohen, an osteopathic neurologist, took a medical history of the claimant's complaints and her rendition of her exposure to smoke and fumes during her employment, reviewed the claimant's medical records, and conducted a physical evaluation of the claimant. The claimant repo1ted that she had missed various periods of time due to her asthma and at one point entered a stress program which was available through her union. Her complaints and history to Dr. Cohen were largely consistent with her testimony.

WC-32-Rl (6-81) Page 8


On physical examination, Dr. Cohen noted that there was swelling and laxity in both ankles and inability to walk on her heels and toes. He found spasm and tenderness in her low back, and wheezing in both lungs. Dr. Cohen's neurological examination revealed slight weakness in the S 1 muscles and intact sensory function, except for some increase in pain over the S 1 dermatome. The rest of his examination was negative. Dr. Cohen did not perform pulmonary function studies or order that any be done.

Dr. Cohen opined that the claimant had an occupational disease of her lungs due to exposure to secondhand smoke, fumes, dust and other industrial products which resulted in severe exacerbation of asthma with COPD with chronic bronchitis. See Dr. Cohen deposition, page 12. Regarding the alleged August 29, 2006, low back injury, he testified that the claimant had severe aggravation of her preexisting lumbar degenerative disc and degenerative spine disease with right lumbar radiculopathy and lumbar strain-sprain. See Dr. Cohen deposition, page 13. Dr. Cohen also testified that the claimant had preexisting childhood asthma, preexisting lumbar strains/sprains and severe bilateral ankle instability with bilateral ankle arthritis with .possible need for ankle reconstrnction on the right. See Dr. Cohen deposition, pages 13-16.

Dr. Cohen opined that the claimant suffered from a 60% permanent partial disability from exposure at work plus an additional 10% preexisting pulmonary permanent partial disability. See Dr. Cohen deposition, page 13. In addition, with regard to her low back, he rated the primary injury at 15% permanent partial disability of the body with a preexisting 20% permanent partial disability of the body (which was a 10% reduction in the disability figure he expressed in his written report regarding her 2006 injury and a 10% increase in the preexisting disability described in that same report). See Dr. Cohen deposition, page 14. Dr. Cohen opined that the claimant suffered from a 50% preexisting permanent partial disability to each ankle from severe bilateral ankle instability from osteoarthritis. See Dr. Cohen deposition, page 16. Dr. Cohen opined that due to a combination of disabilities, that the claimant was permanently and totally disabled. See Dr. Cohen deposition, page 17.

Dr. Cohen later reviewed a medical report from Dr. Kitchens and a vocational rehabilitation report from Benjamin Hughes and issued supplemental reports stating that those repmts did not change his opinions as previously stated. On April 18, 2017, Dr. Cohen issued an additional supplemental report in which he corrected several mistakes in his initial report and added some additional comments concerning the synergistic impact of the two primary injuries and the claimant's preexisting disabilities.

Dr. Cohen testified that the claimant's past and current low back problems affect her ability to work as do the complaints and finding in her ankles. Dr. Cohen testified that the claimant continued to work until late 2007 when she retired. See Dr. Cohen deposition, page 31. Dr. Cohen testified that the claimant had no physician-imposed restriction based upon her asthma condition before 1995, that he has not seen the claimant since the one occasion in 2015, that the claimant was not working under any physician-imposed restrictions before August 29, 2006, and that she hadn't required narcotic medication before that date. See Dr. Cohen deposition, pages 43, 44. Dr. Cohen opined that the condition of the claimant's ankles has remained the same between 2005 and today, and that he would defer to the opinion of a vocational specialist concerning the claimant's working ability and that his opinions were based in part on the claimant's subjective complaints and history. See Dr. Cohen deposition, pages 50, 51.

WC-32-RJ (6·81) Page 9

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd

Daniel L. Kitchens, M.D.

Injury No.: 05-092951

On April 6, 2016, Dr. Kitchens, a board-certified neurosurgeon who specializes in spinal surge1y, reviewed the claimant's medical records, took a medical history from the claimant and conducted a physical examination. Dr. Kitchens was not asked for nor did he express an opinion regarding the claimant's pulmonary condition. His findings were summarized in an award issues in Iajury Number 06-083051 and will not be summarized in this award.

Myron H. Jacobs, M.D.

On October 17, 2011, Dr. Jacobs, a pulmonologist, obtained a detailed history from the claimant concerning her allegations of exposure to secondhand smoke, fumes, and other pulmona1y irritants in the context of her preexisting asthma, and examined the claimant. Dr. Jacobs also reviewed the available medical records including hospital records, the records from the employer's Medical Department, the records of the claimant's PCPs and an IME report. After reviewing the claimant's medical history, physical examination, pulmonary function tests, pulmonary stress test, and the extensive medical records, Dr. Jacobs concluded that the claimant's exposures at Chrysler caused her to develop more frequent exacerbations of her asthma, that these attacks required increased frequency of treatment, and that the claimant was still symptomatic. He opined that she had a transient worsening of her condition during the time she was employed at Chrysler but that she did not develop occupational asthma as a result of that employment. See Dr. Jacobs deposition, page 20. Dr. Jacobs opined that the claimant was 10% permanently and partially disabled from a pulmonary standpoint. See Dr. Jacobs deposition, page 22.

Dr. Jacobs testified that he has examined and treated individuals claiming pulmonary disease secondary to work exposure throughout his career and this experience included treating employees of all three current ( or former) automobile assembly plants in the St. Louis area (Ford, General Motors, and Chrysler). See Dr. Jacobs deposition, page 6. He opined that the claimant had underlying asthma both as a child and as an adult and that the claimant had transient worsening of her asthma while at work but nothing to suggest any pe1manent worsening. See Dr. Jacobs deposition, page 19.

Dr. Jacobs opined that the claimant's preexisting asthma was transiently worsened by some substance, or substances, at Chrysler but that she did not have occupationally induced asthma by definition. See Dr. Jacobs deposition, pages 19, 20. Dr. Jacobs testified that by definition ccupational asthma is asthma which is caused by a work exposure not asthma which preexisted and which might have been aggravated by occupational exposure. See Dr. Jacobs deposition, page 20. For that reason, Dr. Jacobs opined that the claimant's occupation was not the prevailing factor causing her current condition. See Dr. Jacobs deposition, pages 20, 25, 26.

Dr. Jacobs testified that he has been treating and examining individuals in the St. Louis area for four decades and he has never seen any individual who developed occupational asthma as a result of working in the automobile assembly industry. See Dr. Jacobs deposition, page 21. Dr. Jacobs opined that the 10% permanent partial disability rating is a rating of overall pulmonaiy function, not a rating of permanency which is a result of her exposure at Chrysler. WC-32-RI {6-81) Page IO


See Dr. Jacobs deposition, page 22. Dr. Jacobs opined that the prevailing factors causing the claimant's disease were her preexisting asthma, her allergic disorder, increasing obesity, underlying anxiety and depression, and that she is probably developing obstructive sleep apnea. See Dr. Jacobs deposition, pages 25, 26.

Dr. Jacobs testified that he could not determine when the claimant's asthma worsened, because he had not examined her before 2011 and that some features of her pulmonary disease could have developed before, during, or even after her employment at Chrysler. See Dr. Jacobs deposition, pages 27, 28. He testified that the significant worsening of the claimant's condition because of her time working at Chrysler was a significant transient worsening although he granted that the word "transient" is not in his written reports. See Dr. Jacobs deposition, pages 29, 30.

When questioned concerning the significance of the pulmonary function testing, Dr. Jacobs testified that the fact that the claimant's breathing did not improve after she was given a bronchodilator is unusual and suggests that, as the technician observed, she was giving poor or inconsistent effort during the testing whereas when she had previous testing by others, that she had the predicted improvement when she was given the bronchodilator. See Dr. Jacobs deposition, page 34.

Dr. Jacobs testified that the claimant was not working under any physician-imposed restrictions in regard to her asthma prior to August 26, 2005, that she did continue to work until sometime in 2007, almost two years after the date of injury which she picked for her date of injury and that the wide variation in pulmonary testing results is uncommon when a person is functioning normally. See Dr. Jacobs deposition, pages 43-45.

COMPENSABILITY

"In a workers' compensation case, the statute in effect at the time of the ittjury is generally the applicable version." Anderson v. Veracity Research Co., 299 S.W.3d 720, 725 (Mo.App. W.D. 2009). The claimant filed her claim for occupational disease on August 26, 2005. It would certainly be strange to conclude that the claimant filed a claim for compensation before the date of injury. However, the facts suggest that the claimant proved a prima facie case of occupational disease regardless of the date of injury, looking at the requirements pre-2005 and post-2005.

In general, "the Workers' Compensation Law distinguishes between two general categories of compensable injuries: (1) injuries by accident; and (2) injuries by occupational disease." State ex rel. KCP & L Greater Missouri Operations Co. v. Cook, 353 S.W.3d 14, 18 (Mo.App. W.D. 2011).

The criteria for the compensability of an injury by occupational disease are set forth in section 287 .067, which provides in relevant part that:

1. In this chapter the tetm "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed

WC-32-Rl (6-81) Page 11


outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

2. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable. Lankford v. Newton County., 517 S.W.3d 577, 583-84 (Mo. Ct. App. 2017), reh'g and/or transfer denied (Feb. 8, 2017), transfer denied (Apr. 4, 2017).

A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate. Dawson at 716; Sellers v. Trans World Airlines Inc., 776 S.W.2d 502, 504 (Mo. App. 1989); Sheehan at 797. The opinion may be based on a doctor's written report alone. Prater v. Thorngate, Ltd., 761 S.W.2d 226, 230 (Mo. App. 1988). "A medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion sufficient probative force to be substantial evidence." Silman v. Montgomery & Associates, 891 S.W.2d 173, 176 (Mo. App. 1995); Pippin v. St. Joe Minerals Corp., 799 S.W.2d 898,903 (Mo. App. 1990). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop 'N Save Warehouse Foods, 855 S.W.2d 460 (Mo. App. 1993); Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo. App. 1992); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo. App. 1986). An administrative law judge may not constitute himself or herself as an expert witness and substitute his or her personal opinion of medical causation of a complicated medical question for the uncontradicted testimony of a qualified medical expert. Wright v. Sports Associated, Inc., 887 S.W.2d 596 (Mo. 1994); Bruflat v. Mister Guy, Inc., 933 S.W.2d 829,835 (Mo. App. 1996); Eubanks v. Poindexter Mechanical, 901 S.W.2d 246, 249-50 (Mo. App. 1995). However, even uncontradicted medical evidence may be disbelieved. Massey v. Missouri Butcher & Cafe Supply, 890 S.W.2d 761, 763 (Mo. App. 1995); Jones v. Jefferson City School Dist., 801 S.W.2d 486,490 (Mo. App. 1990).

The claimant testified that she developed asthma as a child. The Health Key Medical Group records reflect that the claimant received a Proventil inhaler on December 17, 1992, and that on June 4, 1993, the claimant reported having a severe asthma attack. See Exhibit 1. On June 4, 1993, the claimant had "minimal respiratory distress, speaking in full sentences" based on Barnes Hospital records. See Exhibit 1. Both forensic medical experts opined that the claimant had a preexisting asthma and Dr. Cohen opined that the claimant suffered from a 10% preexisting permanent partial disability from her preexisting asthma.

WC-32-RI (6-81) Page 12


Both forensic medical experts opined that the claimant suffered an exacerbation of her preexisting asthma due to the smoke and fumes at her work. Dr. Cohen opined that the exacerbation resulted in a vast increase of her preexisting asthma, and Dr. Jacobs opined that the exacerbation was reversible and transient.

The medical records in evidence in this case demonstrate that the claimant suffered occasional asthmatic episodes before commencing her work for this employer in 1995, but the frequency increased dramatically during her tenure at this employer. In addition, various physicians performed pulmonary function tests to measure the claimant's pulmonaiy capacity between 2003 and 2012. The fact that the claimant had no prior pulmonary function tests suggests that her prior condition was not sufficiently severe to merit pulmonaiy function testing before her employment with this employer. While a prior baseline pulmonary function test would be very enlightening, the fact is that the tests are not performed unless there is a significant deficiency on a clinical basis. The pulmonary function test from 2012, four and a half years after leaving this employer suggests that the claimant's pulmonary function has a permanent deficiency. Dr. Cohen opined that the claimant's work was the prevailing factor causing the exacerbation of this pulmonaiy capacity. Dr. Jacobs opined that the claimant's work could be a factor in her declining pulmonaiy capacity, but not the prevailing factor. He opined that the deterioration could have been before, during, or after her employment with this employer.

The evidence suggests a correlation between the claimant's declining pulmonary condition and the commencement of her employment with this employer, and the postemployment tests appear to be relatively consistent with the pulmonruy function testing during her employment with this employer. The pulmonary function testing reflects reduced pulmonary capacity after exposure to her working conditions for this employer. Given this correlation and Dr. Cohen's testimony that the claimant's employment with this employer was the prevailing factor causing the exacerbation of the claimant's asthma, the claimant has presented a prima facie case.

Asthma is certainly an "ordinaiy disease oflife" which affects many people in the absence of work exposure. The label of an ordinaiy disease of life does not necessarily defeat a claim for occupational disease where a claimant's employment carries with it the hazard of contracting that disease which is greater than the hazard which the worker encounters in nonemployment life. Thus, for the claimant to prevail here, she must establish that her employment for this employer created this increased hazard. It is clear that during the period of the claimant's employment at Chrysler, she experienced a significant increase in asthma symptoms which frequently required the use of medication. The medical history also demonstrates substantial symptoms requiring out-patient treatment, and on some occasions, in-patient treatment. In particular, the medical records in evidence suggest that the working environment was key in the exacerbation of her condition. In fact, the medical records reflect recommendations from medical providers to use equipment to reduce the claimant's exposure to the smoke and fumes at work. Thus, the record demonstrates an exposure to a disease at work which was greater than, or different from that which affects the public generally, and that there is a recognizable link between some distinctive feature of the job which is common to diseases of that sort. In addition, the disease appears to have its cause as a risk connected to the employment and which flowed from that employment as a rational consequence.

WC-32-Rl (6.81) Page 13


Therefore, the claimant has established the compensability of her occupational disease.

FUTURE MEDICAL CARE

Pursuant to Section 287 .140.1, an employer is required to provide care "as may be reasonably required to cure and relieve from the effects of the injury." This includes allowance for the cost of future medical treatment. Pennewell v. Hannibal Regional Hospital, 390 S.W.3d 919,926 (Mo. App. E.D. 2013) citing Poole v. City of St. Louis, 328 S.W.3d 277, 290-91 (Mo. App. E.D. 2010). An award of future medical h·eatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the workrelated injury. Id. Future care to relieve [ an employee's] pain should not be denied simply because he may have achieved [maximum medical improvement]. Id. Therefore, a finding that an employee has reached maximum medical improvement is not necessarily inconsistent with the employee's need for future medical treatment. Id.

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of preexisting conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511,519 (Mo.App. W.D 2011 ). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id The fact that the medication or h·eatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Id. Application of the prevailing factor test to dete1mine whether medical treatment is required to h·eat a compensable injury is reversible error. Id. at 521.

In this case, Dr. Cohen opined:

Although it is my opinion that she is at MMI, she is going to need medical care for the remainder of her life for her pulmonary condition. I would defer the cost of her h·eatment to Dr. Kruzalski who is treating her for the pulmonary condition. She may also need to be hospitalized during acute severe attacks of the asthma and those costs would also need to be included. In regard to her low back, it would be reasonable for a formal pain management consultation for medications for her severe low back and right leg pain. See Dr. Cohen repo1t February 19, 2015.

However, Dr. Cohen offered no opinion whether the above medical treatment recommendations flowed from the occurrence. The other forensic medical experts did not opine that the claimant's future medical care requirements flowed from the occurrence. Therefore, based on the evidence of record, the claimant failed to prove that her future medical requirements flowed from the occurrence and the claim for future medical care is denied.

PERMANENT DISABILITY

Workers' compensation awards for permanent paitial disability are authorized pursuant to Section 287.190. "The reason for [an] award of permanent paitial disability benefits is to compensate an injured party for lost earnings." Rana v. Landstar TLC, 46 S.W.3d 614,626 (Mo. App. W.D. 2001 ). The amount of compensation to be awarded for a PPD is determined pursuant WC-32-Rl (6-8J) Page 14


to the "SCHEDULE OF LOSSES" found in Section 287.190.1. "Permanent partial disability" is defined in Section 287.190.6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." Id. A pe1manent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. Id. "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." Id. "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." Id. In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. Id.

The claimant testified that while working at Chrysler she was exposed to tobacco smoke from co-workers and chemicals used in the process to manufacture motor vehicles. The employer's plant medical department records from April 1995 through November 2007 support her testimony.

Both forensic medical experts opined that the claimant suffered an exacerbation of her preexisting asthma due to the smoke and fumes at her work. Dr. Cohen opined that the exacerbation resulted in a severe aggravation of her preexisting asthma, chronic obstructive pulmonary disease, and chronic bronchitis. He opined that the exposure to cigarette and cigar smoke, paint fumes, dust, and other industrial products at work caused a severe aggravation of her preexisting asthma and was the prevailing factor causing those conditions. See Dr. Cohen deposition, page 12. As a result, he opined that the claimant suffered a 60% permanent partial disability from her working conditions and had a 10% preexisting permanent partial disability from her preexisting asthma. See Dr. Cohen deposition, page 13. Dr. Jacobs opined that the exacerbation of her asthma was reversible and transient and that the prevailing factors of her condition were preexisting asthma, an allergic disorder, increasing obesity, and underlying anxiety and depression. See Dr. Jacobs deposition, page 25. He opined that the claimant had a 10% permanent partial disability from her asthma due to those factors. See Dr. Jacobs deposition, pages 22, 27.

About a year after the date of injury, on July 19, 2006, a pulmonary evaluation from Dr. Nelson reported pre-bronchodilator FVC 71% and FEVl 67%. Subsequent pulmonary testing reflected decreased pulmonary capacity after the claimant left the employment for this employer in December 2007. For instance, on May 27, 2012 Washington University Physicians performed a pulmonary evaluation which showed pre-bronchodilator values ofFVC 68%, FEVl 64% and FEVI/FVC 97%, and post-bronchodilator values ofFVC 64%, FEVl 62% and FEVI/FVC 96%. See Exhibit I.

The 2006 pulmonary testing best reflects the claimant's residual pulmonary capacity after the date ofinjmy, but before she left the employ of this employer. The combination of the prebronchodilator FVC 71 % and FEVI 67% readings averages 69%. Dr. Jacobs, a pulmonologist, testified that normal ranges are between 80% and 120% of expected response. If 80% is normal, 69% reflects a residual capacity of 86.25% or a loss of 13.75%. The claimant's preexisting permanent partial disability appears to be relatively minor given the few instances in which she required medical intervention and is best approximated at a 2.5% preexisting permanent partial

WC-32-RI {6-81) Page 15


disability from her preexisting asthma. The net result of the claimant's disability from her working conditions is therefore an 11.25% permanent partial disability.

Therefore, the claimant is awarded an 11.25% permanent partial disability referable to her pulmonary capacity as an unscheduled permanent partial disability.

SECOND INJURY FUND

To recover against the Second Injury Fund based upon two permanent partial disabilities, the claimant must prove the following:

(1) The claimant has a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment;

(2) The percentage of disability attributable to the preexisting disability equals a minimum of 50 weeks of compensation for a body as a whole injury or 15 percent for a major extremity injury. There must be a single preexisting permanent partial disability that meets the thresholds to trigger the fund's liability;

(3) The combined disability is substantially greater than the disability that would have resulted from the last injury considered alone. Treasurer of the State of Missouri, etc., v Witte, Slip Op., 414 S.WJd 455,462 (Mo.Banc 2013).

When these requirements are met, the employer at the time of the last injury is liable for only the degree of disability that would have resulted from the last injury if there was no preexisting disability. Id at 462, 463. All preexisting injuries must be considered in calculating the amount of compensation for which the fund is liable. However, there is no threshold requirement/or the last injury. Id at 463. In that case, the court found that there must be a single preexisting permanent partial disability that meets the thresholds to trigger the fund's liability and there is no threshold requirement/or the last injury. Additionally, all preexisting injuries must be considered in calculating the amount of compensation for which the fund is liable. Id.

Section 287.220.1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (I) The employer's liability is considered in isolation - "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;" (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and ( 4) The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

The claimant worked for an additional two years plus for this employer after the date of injury in this case, and only stopped working when the employer's plant closed. She received a substantial settlement for the termination of employment, and she turned down the employer's offer to provide a position in a similar plant in a different state.

WC-32-Rl (6·81) Page 16

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd Iojury No.: 05-092951

Based on the entire record, the claimant suffered a compensable work-related iajury in 2005 resulting in an 11.25% permanent partial disability referable to her pulmonary capacity as an unscheduled permanent partial disability ( 45 weeks). At the time the last injury was sustained, the claimant had a 15% pre-existing permanent partial disability to the right ankle (23.25 weeks), a 10% pre-existing permanent partial disability to the left ankle (15.5 weeks), a 10% pre-existing permanent partial disability to the low back (40 weeks), and a 2.5%% preexisting permanent partial disability referable to her pulmonary capacity as an unscheduled pe1manent partial disability (10 weeks). The permanent partial disability from the last injury combines with the preexisting permanent partial disability to create an overall disability that exceeds the simple sum of the permanent partial disabilities by 10%.

The credible evidence establishes that the permanent partial disability from the last injury combined with the preexisting permanent partial disabilities to create a greater overall synergistic disability than the simple sum of the individual disabilities. Dr. Cohen opined, "[S]he needs to be restricted from any work in which she has to do any standing greater than one hour without being allowed to take a change-of-position break, no walking greater than half a city block without stopping to rest, no climbing or ladder work, and no walking on inclines or uneven surfaces. Because of the synergistic effect from the disability in her lungs and lumbar spine, she would have great difficulty doing these types of activities." See Dr. Cohen medical report, April 18, 2017. The claimant testified credibly about significant ongoing complaints associated with these iajuries. The claimant changed how she performs many activities due to the combination of the problems.

Therefore, the Second Injury Fund bears liability for 13.375 weeks of permanent partial disability benefits.

ATTORNEY LIEN

The claimant's former legal counsel, Harvey I. Feldman, withdrew from representation of the claimant one month before the Missouri Supreme Court entered an order accepting his surrender of his license to practice law in this state for violation of certain Rules of Professional Conduct on May 29, 2012. In withdrawing from representation, Mr. Feldman stated, "The undersigned asserts a lien for past services rendered and will file same forthwith with the court." Mr. Feldman's Motion to Withdraw was approved by an Administrative Law Judge on May 2, 2012, with a statement, "So Ordered." On October 15, 2012, Mr. Feldman filed a document entitled "Attorney's Lien for Prior Legal Services First Supplemental Lien". That document requested reimbursement for expenses of a medical evaluation from Dr. Shawn Berkin in the amount of$525.00 which he expended on June 22, 2012, according to a check attached to the document. Mr. Feldman did not appear at the hearing or present any other indication of the legal services that he perfo1med for the claimant. The record does not show any medical evaluation of Dr. Berkin was offered or received in evidence.

There are two legal issues regarding Mr. Feldman's request for compensation for legal services performed. The first issue concerns Mr. Feldman's lack of a license to practice law, which was smTendered on May 29, 2012, pursuant to an order of disbarment. It would appear that Mr. Feldman seeks reimbursement for legal services rendered when he held a license to

WC-32-RI (6-81) Page 17

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Rossie Judd htjuryNo.: 05-092951

practice law, before May 29, 2012. On this matter, our comts have held that the disbarment does not bar recovery for services rendered prior to disbarment.

The ... theory is that disbarment acts as an automatic te1mination of employment by operation oflaw, much like death or disability. Under this theory, an attorney is allowed to recover for the reasonable value of services rendered prior to disbarment so long as he was not disbarred for misconduct associated with the case. Rutenbeck v. Grossenbach. 867 P.2d 36 (Colo.App.1993); Eisenberg v. General Motors Acceptance Corp .. 761 F.Supp. 20 (E.D.Pa.1991); Stein v. Shaw. 6 N.J. 525, 79 A.2d 310 (1951); Guanil v. Moore-McCormack, 67 Misc.2d 368, 322 N.Y.S.2d 926 (Sup.1971); Tiringer v. Grafenecker. 38 Misc.2d 29,239 N.Y.S.2d 567 (Sup.1962) .... We find the ... line of cases to be well reasoned. If the rule were otherwise, the imposition of discipline by the state bar would also have the unintended effect of retroactive monetary punishment. "The purpose of disciplinary action is not to punish the attorney, but rather to protect the public." In re Sabath 662 S.W.2d 511,512 (Mo. bane 1984). Attorney Hoare does not seek to recover directly from Plaintiff, and his recovery of fees will not diminish any award to Plaintiff. Further, he was disbarred for reasons wholly umelated to this case. We conclude that in this situation, Plaintiff's attorney is not precluded from recovering attorneys' fees by virtue of his disbarment. Thus, the trial court did not err in awarding attorneys' fees. Pollock v. Wetterau Food Distribution Grp., 11 S.W.3d 754, 773 (Mo.App. E.D. 1999)

Accordingly, Mr. Feldman's loss of his license to practice law does not pose an absolute bar to his recovery for legal services provided before his disbarment.

Secondly, but more importantly, no evidence was received in evidence to suppo1t any compensation for legal services rendered to the claimant by Mr. Feldman. All of the above information was based on research of the undersigned based on judicial notice of the records of the Missouri Division of Workers' Compensation, the Missouri Supreme Comt, and the Missouri Bar's list of licensed attorneys. The evidentiary record reveals no repmt revealing any medical evaluation from Dr. Berkin. Based on the lack of evidence to support a finding of compensation for legal services rendered to the claimant, Mr. Feldman's application for an attorney's lien for legal services rendered in connection with the proceedings must be denied.

On the other hand, 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: Robert M. Miller, Esq.

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