| IN RE: DONALD E. MATHIS | ) | DOCKET NO. 58,195 |
| ) | ||
| Claim No. S-330114 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Donald E. Mathis, by
- Springer, Norman and Workman, per
- Leonard Workman (Withdrawn)
- Employer, Evans Products Company, by
- Schwabe, Williamson, Wyatt, Moore and Roberts, per
- William Replogle and James Huegli
- Eddie Albert Quick
- dba C and K Shake Mill,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- John R. Dick, Assistant
This is an appeal filed by the employer on December 1, 1980, from an order of the Department of Labor and Industries dated November 21, 1980, which allowed the claim against the self-insured employer, Evans Products Company. Reversed and remanded.
DECISION
Pursuant to RCW 51.51.104 and RCW 51.52.106, this matter is before the Board for review and decision on timely Petitions for Review filed by the claimant, Donald E. Mathis, and the employer, Evans Products Company, to a Proposed Decision and Order issued on April 16, 1982, in which the order of the Department dated November 21, 1980 was affirmed.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
With one significant exception, the issues presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order. While we are in agreement with our industrial appeals judge's determination that Evans Products Company bears certain responsibilities to the claimant regarding his occupational disease, the Proposed Decision and Order does not deal [2] with the responsibilities of his other employer, Eddie Albert Quick, dba C and K Shake Mill. Careful review of the deposition of Dr. Michael F. Mullarkey reveals that he treated the claimant for his asthma from October 16, 1978 until June 25, 1979. During this period, Donald Mathis worked for the self-insured employer, Evans Products, was off work, worked briefly at a grocery store where he was not exposed to cedar dust, and then worked for Eddie Albert Quick where he was again exposed to cedar dust. Because he was attending physician during this critical period, Dr. Mullarkey is in the best position to form opinions regarding the relationship between claimant's cedar dust-induced asthma and employment with Evans Products Company and Eddie Albert Quick. In addition, Dr. Mullarkey's opinions are entitled to great weight in view of his qualifications which include certification and fellowship in national professional societies for doctors specializing in internal medicine, allergy and immunology.
The clear import of Dr. Mullarkey's testimony is that Mr. Mathis, as a result of a cedar dust allergy, developed asthma during the course of his employment with Evans Products Company. Following his termination with Evans Products on November 6, 1978, claimant's asthmatic condition resolved and would have remained essentially asymptomatic had he continued to work at the grocery store. Finally, it was the doctor's opinion that claimant's subsequent exposure to cedar dust during his employment with Eddie Albert Quick caused the claimant's asthma to become worse and symptomatic.
Consideration of the testimony analyzed in the Proposed Decision and Order and the opinions expressed by Dr. Mullarkey leads us to the conclusion that claimant has two compensable occupational disease claims. Mr. Mathis developed asthma as a result of exposure to cedar dust during the course of his employment with Evans Products Company, and said company is responsible for any benefits attributable to exposure occurring on or before November 6, 1978. Following [3] termination of employment with Evans Products, claimant in late 1978 became asymptomatic and his condition attributable to cedar dust exposure during his employment at Evans Products Company had resolved. Evans Products' responsibility for claimant's asthmatic condition terminated at the end of 1978 when he became asymptomatic. As a result of subsequent exposure to cedar dust while working for Eddie Albert Quick, claimant's asthmatic condition has reoccurred and progressed to the point that it was significantly more disabling and difficult to treat than it had been during his employment with Evans Products Company. Any benefits accruing as a result of claimant's exposure to cedar dust subsequent to his employment in the grocery store should be the responsibility of Eddie Albert Quick.
The parties in briefs and memorandums have referred to a number of Decisions and Orders issued by the Board dealing with the apportionment of responsibility for occupational diseases between self-insured employers and the state fund. While we believe that the principles as set forth in Harry S. Lawrence, Dec'd, Docket No. 54,394 (1980), Forrest Pate, Docket No. 58,399 (1982), Winfred E. Hanninen, Docket No. 50,653 (1979), and Delbert Monroe, Docket No. 49,698 (1978), are correct, we also believe that those principles simply are not applicable to the facts of this appeal. In each of the appeals alluded to, the claimant suffered from a condition which had progressed over a number of years while engaged in continuous employment in which the harmful exposure existed. There were no discreet incidents followed by resolution of symptoms as there is here, but rather a continuation of exposure over a period of time during which the employer was initially covered by the state fund and then subsequently became self-insured. In this appeal, we have two clearly delineated exposures to cedar dust giving rise to the occupational disease of asthma, which exposure periods were separated by a period when the claimant was completely symptom-free and was in employment which [4] produced no asthmatic condition.
Careful consideration of the Proposed decision and Order, review of the entire record before us, and consideration of the petitions for review lead us to the conclusion that the Department's order of November 21, 1980 should be reversed in order to assign responsibility to the responsible employers for claimant's separate conditions attributable to his separate exposures during the course of his employment with both Evans Products Company and Eddie Albert Quick. The occupational condition resulting from Mr. Mathis' exposure to cedar dust while employed with Evans Products Company prior to November 6, 1978, gives rise to a compensable claim for an occupational disease which is the responsibility of that company. The condition attributable to cedar dust exposure during the claimant's employment by Eddie Albert Quick which commenced in December of 1978 should be the responsibility of that employer.
FINDING OF FACT
Based upon a careful review of the entire record, this Board finds as follows:
1. On January 22, 1979, the claimant herein, Donald E. Mathis, filed a report of accident wherein he alleged the occurrence of an industrial injury resulting from cedar dust inhalation while employed by Quick enterprises, dba C and K Shake Mill. This claim was assigned Claim No. H-459060. On July 7, 1979, the claimant herein Donald E. Mathis, filed a second report of accident against Quick Enterprises, alleging an occupational disease incurred on October 16, 1978 while the claimant was employed by Quick Enterprises, dba C and K Shake Mill. This claim was assigned Claim No. H-599586. Both claims were accepted and time loss and medical payments were made with state funds on behalf of Quick Enterprises. On August 22, 1979 the Department issued an order directing the Claim No. H-459060 against Washington Shake be allowed as an industrial injury as an aggravation of a pre-existing condition. On August 24, 1979, a representative of Washington Shake sent a letter to the Department of Labor and Industries, which was interpreted as a protest and request for reconsideration of the August 22, 1979 Department order. [5]
On November 26, 1979, Sid Willuweit of the Department of Labor and Industries sent a memorandum to the Fred S. James Company, on behalf of self-insured employer, Evans Products, notifying the Fred S. James Company that both claim numbers H-459060 and H-599586 were to be handled as self-insured claims, to be assigned to Evans products. On March 18, 1980 Fred S. James, on behalf of Evans Products, notified the claimant that it had been assigned both claims and that the first time-loss payment would be paid by the self-insured employer for the time period beginning November 23, 1979. On June 30, 1980 Fred S. James, administrator for the self-insured employer, notified the Department that it was requesting denial of the claim because the claimant was not disabled at Evans Products, so there was no compensable claim as to Evans Products. On June 30, 1980, the self-insured employer informed the claimant that the company was denying the claim on the basis that the claim was not timely filed with the self-insured employer, nor was it a compensable occupational disease.
On November 21, 1980, the Department issued an order allowing the claim number S-330114 against Evans Products, the self-insured employer, as an industrial injury. On December 1, 1980, the Board of Industrial Appeals received a notice of appeal, filed on behalf of the self-insured employer, from the Department order of November 21, 1980. On December 11, 1980, the self-insured employer filed an amended notice of appeal with the Board of Industrial Insurance Appeals. On December 31, 1980, the Board issued its order granting the appeal, subject to proof of timeliness because the order appealed from was not available at that time. The appeal was assigned Docket No. 58,195. On April 10, 1981, the claimant moved to join Eddie Quick, dba C and K Shake Mill, as a party to the appeal. On April 16, 1981 Industrial Appeals Judge Henry W. Huntsman issued an order joining Eddie Albert Quick, dba C and K Shake Mill, as a party to this appeal.
2. Evans Products Company's notice of appeal filed on December 1, 1980, was filed within 60 days of the date on which the Department's order of November 21, 1980 was communicated to said company.
3. As a direct and proximate result of exposure to cedar dust during the course of his employment with Evans Products Company from April 1, 1976 through November 6, 1978, the claimant, Donald E. Mathis, developed a condition diagnosed as cedar dust asthma.
4. Subsequent to November 6, 1978 and prior to commencing employment with Eddie Albert Quick, dba C and K Shake Mill (also referred to herein [6] as Washington Shake Mill) in December of 1978, claimant was not exposed to cedar dust and his occupational disease of cedar dust asthma contracted as a result of his exposure to cedar dust at Evans Products Company resolved and became symptom-free; and brief other employment during this period produced no asthma condition.
5. As a result of cedar dust exposure between April 1, 1976 and November 6, 1978, claimant contracted a disabling occupational condition diagnosed as cedar dust asthma which required medical treatment.
6. Claimant, Donald E. Mathis, at the time he commenced employment with Eddie Albert Quick, dba C and K Shake Mill, was symptom free, required no medical treatment for cedar dust asthma, and was not suffering any disability as a result of that condition.
7. Claimant, Donald E. Mathis, as a result of exposure to cedar dust while in the course of employment with Eddie Albert Quick, dba C and K Shake Mill, from and after December 1978, contracted a condition diagnosed as cedar dust asthma which condition was disabling and required medical treatment.
8. Claimant, Donald E. Mathis, was not advised until approximately June 15, 1979 by a physician that his asthma was causally related to exposure to cedar dust during the course of employment.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, this Board concludes as follows:
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
- Claimant contracted a compensable and disabling occupational disease within the meaning of the Workers' Compensation Act while engaged in the course of his employment at Evans Products Company.
- Claimant contracted a compensable and disabling occupational disease within the meaning of the Workers' Compensation Act while engaged in the course of his employment with Eddie Albert Quick, dba C and K Shake Mill, also herein referred to as Washington Shake Mill.
- Claimant filed timely applications for benefits relative to the occupational condition contracted as a result of exposure to cedar dust during the course of his employment with both Evans Products Company and with Eddie Albert Quick, dba C and K Shake Mill, also herein referred to as Washington Shake Mill. [7]
- The self-insured employer, Evans Products Company, is fully financially responsible for any benefits attributable to the claimant's exposure to cedar dust on and prior to November 6, 1978, but such responsibility terminated with claimant's employment by Eddie Albert Quick in December of 1978.
- Eddie Albert Quick, dba C and K Shake Mill, also herein referred to as Washington Shake Mill, is fully financially responsible for all benefits attributable to the occupational condition arising out of the claimant's exposure to cedar dust subsequent to his employment with said employer in December of 1978.
- The order of the Department of Labor and Industries dated November 21, 1980 is incorrect and will be reversed, and this claim will be remanded to the Department with direction to enter an order allowing under Claim No. S-330114, a claim for the occupational disease diagnosed as cedar dust asthma against Evans Products Company, a self-insured employer, for all benefits attributable to the claimant's exposure prior to November 6, 1978 and for no benefits subsequent to the claimant's employment by Eddie Albert Quick in December of 1978; to allow under Claim Nos. H-459060 and H-599586 which are to be consolidated, claimant's occupational disease diagnosed as cedar dust asthma resulting from claimant's exposure to cedar dust during the course of his employment with Eddie Albert Quick, dba C and K Shake Mill, and to charge said employer with responsibility for all benefits attributable to cedar dust exposure subsequent to employment in December of 1978; that following allowance in each of these claims, the Department shall take such further action as may be authorized or indicated by law.
It is so ORDERED.
Dated this 30th day of August, 1982.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALL Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member