Bean v. Reynolds Consumer Products, 042921 ARWC, G806384

Case DateApril 29, 2021
CourtKansas
MICHAEL BEAN, EMPLOYEE CLAIMANT
v.
REYNOLDS CONSUMER PRODUCTS, EMPLOYER RESPONDENT NO. 1
and
INDEMNITY INS. CO. OF NORTH AMERICA/ SEDGWICK CLAIMS MG’T SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT NO. 1
STATE OF ARKANSAS, DEATH & PERMANENT TOTAL DISABILITY TRUST FUND NO. 2
CLAIM No. G806384
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
April 29, 2021
         Hearing conducted before the Arkansas Workers’ Compensation Commission, Administrative Law Judge (ALJ) Mike Pickens, on January 29, 2021, in Little Rock, Pulaski County, Arkansas.           The claimant was represented by the Honorable Laura Beth York, Rainwater, Holt & Sexton, Little Rock, Pulaski County, Arkansas.           Respondent No. 1 was represented by the Honorable Michael E. Ryburn, Ryburn Law Firm, Little Rock, Pulaski County, Arkansas.           Respondent No. 2, represented by the Honorable David L. Pake, waived appearance at the hearing.           OPINION           Mike Pickens, Administrative Law Judge          INTRODUCTION          In the Amended Prehearing Order filed September 29, 2020, the parties agreed to the following stipulations, which they affirmed on the record at the hearing:
1. The Arkansas Workers’ Compensation Commission (the Commission) has jurisdiction over this claim.
2. The employer/employee/carrier-TPA relationship existed at all relevant times including May 1, 2018 when the claimant alleges, he began having symptoms of an occupational illness or disease which caused permanent damage to his kidneys and lungs.
3. The claimant’s average weekly wage (AWW) is sufficient to entitle him to the maximum 2018 weekly compensation rates of $673.00 for temporary total disability (TTD), and $521.00 for permanent partial disability (PPD) benefits.
4. The respondents have controverted this claim in its entirety.
5. The parties specifically reserve any and all other issues for future determination or hearing.
(Commission Exhibit 1 at 1-2; Hearing Transcript at 7). Pursuant to the parties’ mutual agreement, the issues litigated at the hearing were:
1. Whether the claimant has sustained a compensable occupational injury or disease injury within the meaning of the Arkansas Workers’ Compensation Act (the Act), the symptoms of which began on or about May 1, 2018.
2. If the claimant’s alleged occupational injury or disease is deemed compensable, whether and to what extent the claimant is entitled to medical and indemnity benefits.
3. Whether the claimant’s attorney is entitled to a controverted fee on these facts.
4. The parties specifically reserve any and all other issues for future litigation and/or determination.
(Comms’ Ex. 1 at 2; T. 7).          The claimant contends that on or about May 1, 2018 he began having symptoms which ultimately led to a diagnosis of pauci-immune Anti-Neutrophilic Cytoplasmic Autoantibody (ANCA) Vasculitis, also known as Granulomatosis with Polyangiitis (GPA), and formerly known as Wegener’s Disease. He also contends he was diagnosed with silicosis. The ANCA vasculitis affected the claimant’s lungs and kidneys, and he ultimately underwent a kidney transplant. He contends his lung disease, kidney failure, and kidney transplant were the direct result of exposure to silica at the respondent-employer, Reynolds Consumer Products (Reynolds). He contends he sustained “a compensable occupational or disease injury to his kidneys and lungs,” and that he is entitled to medical, and TTD benefits, and his attorney is entitled to a controverted fee. If the Commission awards TTD benefits to the claimant, and Respondent No. 1 is deemed to be entitled to a credit on any and all short-term disability (STD) benefits for which the claimant may have applied and received from any and all third-parties, the claimant contends his attorney’s fee should be calculated based on the total amount of TTD benefits awarded before any credit is subtracted. The claimant reserves all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 2-3; T. 11; 89-90).          Respondent No. 1 contends the claimant cannot meet his statutory burden of proof in demonstrating he has sustained a compensable occupational disease or illness. They contend the claimant’s ANCA vasculitis is a rare auto-immune disease of unknown etiology and, therefore, is idiopathic in nature, and does not constitute a “compensable injury” pursuant to the Act. Respondent No. 1 denies the claimant’s ANCA vasculitis was caused by silica exposure at work. They further contend that neither the claimant or anyone acting on his behalf notified Reynolds of the alleged occupational disease injury within 90 days as the applicable statute requires. Respondent No. 1 contends ANCA vasculitis has no known cause, and there exists no credible medical evidence the claimant’s condition is work-related. Finally, Respondent No. 1 contends it is entitled to a statutory credit/dollar-for-dollar offset pursuant to Ark. Code Ann. Section 11-9-411, against any and all TTD benefits the claimant may be awarded in an amount equal to the amount of STD benefits for which the claimant applied and received from any and all third-party(ies) related to his ANCA vasculitis. (Comms’n Ex. 1 at 3; T. 11-12; 90-92).          Respondent No. 2 waives its right to appear at the hearing and defers to the outcome of the litigation. Both Respondent Nos. 1 and 2 specifically reserve any and all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 3).          STATEMENT OF THE CASE          The claimant, Mr. Ricky Bean (the claimant), is 37 years old. He has a high school diploma, and a two (2)-year certificate in auto mechanics from Quapaw Technical College. His employment history consists of working at a golf course, Mountain Valley Water, the Arkansas Department of Corrections (ADC), General Cable, and Reynolds. (T. 14). The claimant testified he began working at Reynolds in Malvern, Arkansas in June of 2016. (T.15).          The claimant’s job title at Reynolds was “utility worker.” This job, just as it sounds, required him to perform a number of different job duties such as using a front-end loader to feed one (1) or two (2) of the furnaces in the cast house, and to work outside of the cast house using a forklift to load, or to “maybe cut grass, but not very often.” He also spent time in the air-conditioned break room when his services were not required for periods of time. The claimant testified he was not constantly in the cast house, which is where he worked when he was using the front-end loader to feed alloy materials into the furnaces. He testified further the cast house was not a closed structure, but was a building that was opened to the outside on both ends, which allowed air to flow through the building. He testified that, “When you are a utility, a lot of the times you would be in the break room, which he said is both air conditioned and filtered. (T. 16-17; 52-54; 75).          As mentioned above, one (1) of the claimant’s job duties at Reynolds was using a front-end loader to feed one (1) or two (2) of the eight (8) furnaces used in making aluminum coils. (T.16-17; 75). The claimant testified he would add 300 pounds of zinc, iron, “silica,” and/or copper into the furnace for each batch of aluminum being produced. (T. 18-20). He also testified he spent most of his time in the cast house where he was using the front-end loader to feed “silica”, zinc, iron, and copper alloys into the furnaces. (T. 22-25). The claimant himself testified his work duties were different every day, and he was not running, or feeding alloy elements into a furnace “every single day.” (T. 24-26).          The claimant testified that “before May of ’18…sometime in April, maybe…I don’t have an exact date”, while he was working on #5 furnace, the #4 furnace was being torn down. The claimant testified that outside contractors had come into the plant and replaced all eight (8) of the furnaces at least once since he started working at Reynolds in June of 2016. He testified it takes a few weeks to tear down and replace a furnace. He testified that when the furnaces are replaced, silica dust is in the air and covers everything near the furnace being torn down. He testified he “was there several days when that was takin’ place” in late April and early May of 2018 where he was exposed to silica dust. (T. 24-28).          When his attorney asked him if his alleged exposure happened in “one day”, the claimant responded, “No. No. No.” He said while he believed it took “a few weeks…maybe a month” to tear down a furnace, he was “not real sure on that either.”...

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