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Noxious fumes and yellow smoke caused claimant's non-Hodgkin's lymphoma (multiple myelomas) and made him unemployable, according to a new decision from the Court of Appeals, which affirmed an award of PTD benefits.
The award included safety penalties and past medical benefits for over $734,000, which included chemotherapy and surgeries. The southern district case is Moreland v Eagle Picher Technologies LLC, 2012 Mo. App. Lexis 396, decided 3-21-2012.
The court of appeals declined to disturb findings of credibility based on competing experts whether or not claimant was exposed to specific chemicals such as benzene. Claimant worked for a business in Joplin that manufactured battery cell components. His employment ended in 2005, and he testified regarding noxious conditions which existed two decades earlier. Claimant testified he stank of chemicals and his clothes were soaked, dust was 3-4 inches deep on the floor, and no respiratory protection existed. The employer's expert denied claimant had any benzene exposure but did not have copies of chemical inventories nor had he obtained any sampling.
The Commission rejected a statute of limitations defense based on claimant's testimony that he had provided notice in 2005 and the employer neglected to file a timely report. Claimant introduced evidence of cell phone records to support his assertion that he called his employer.
The court of appeals affirmed a safety penalty for "numerous safety violations" noting testimony from several co-workers who verified noxious conditions at the company. The employer presented "no evidence that its employees were protected from hazardous materials from 1984 to 1994." A fire had destroyed the employer's document control center. The court noted 8 fatalities among workers from cancer.
In addition to affirming the finding that the employer violated safety rules, the court went on to criticize the employer for violating numerous rules regarding its appellate brief.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
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