2018 WL 1089728
(Mo.Lab.Ind.Rel.Com.)
Full Opinion: [Lamont Cooper v. Mid-Missouri
Mental Health Center]
Code(s): Medical Causation, C003; Safety Violation/Penalty, C011; Occupational Disease, C038
Factual
Background:
Employee claimed
an occupational disease arising out of and in the course of his employment by
way of exposure to dust containing biological particles that gave rise to a
diagnosis of hypersensitivity pneumonitis.
Claimant worked as a janitor for Mid-Missouri Mental Health Center. As a part of his duties during July to
September 2007, he cleaned large amounts of dust throughout the first and
second floors of the mental health center during two construction projects. The
first project was for the removal of asbestos contaminated material, and the
second was to repair parts of the building’s sewer system. Subsequent to the exposure, the claimant
developed red eyes, cough, and fatigue.
He was ultimately diagnosed with hypersensitivity pneumonitis, which was
treated with prednisone. Prolonged use
of prednisone led to significant health issues including eye problems, fatigue,
diabetes, and avascular necrosis of the left hip.
ALJ Decision:
Employer appeals
the ALJ decision awarding employee benefits, specifically the ALJ’s finding of
a 15% penalty for violations of §§ 287.120.4, 292.300, and 292.320 RSMo. Employer argues the award of
said penalty is not supported by substantial and competent evidence due to the
employee’s failure to provide evidence demonstrating the existence of approved
and effective devises, means or methods for the prevention of the employee’s
injury, nor was there evidence presented that the employer’s failure to provide
such caused Mr. Cooper’s injury.
Analysis/Holding:
The Commission
determined the ALJ’s award of a 15% penalty for failure to comply with §§ 287.120.4, 292.300, and
292.320 RSMo. was unsupported by law.
Specifically the Commission noted that the ALJ used circular reasoning
in its award of the 15% penalty. In its
opinion, the trial court determined that, as the Employer failed to provide
protective clothing, it could be assumed that, had said protective clothing
been provided, the occupational disease would not have occurred. However, the Commission noted a lack of
evidence supporting the assumption that clothing/equipment exists that would
have prevented the claimant’s hypersensitivity pneumonitis. There existed no evidence at the final
hearing level which would show that there exists technology to protect the
employee from the risks of hypersensitivity pneumonitis and further no evidence
of a causal link between the Employer’s failure to provide the
clothing/equipment and the development of the occupational disease. Finally, the Commission also noted that there
was no evidence presented on the part of the Employee which would support a
claim that the Employee’s hypersensitivity pneumonitis is “incident to [the]
work, trade, or process,’ routinely engaged in by this employer, a mental
health center.”
The Takeaway:
In cases where
an occupational disease has been alleged and the employer has failed to provide
protective clothing/equipment, an award of a 15% penalty pursuant to §§ 287.120.4, 292.300, and
292.320 RSMo. shall not be sustained unless
the employee can demonstrate technology exists to prevent the occupational
disease and that the specific
occupational disease suffered by the employee is incident to the work, trade,
or process, routinely engaged by the employer.