BEN BURRIS, Claimant
v.
ANDERSEN CORPORATION, Employer,
and
OLD REPUBLIC INSURANCE COMPANY, Insurance Carrier, Defendants.
No. 5061159
Iowa Workers Compensation
Before the Iowa Workers' Compensation Commissioner
January 23, 2020
Head
Note Nos: 1803, 2502
APPEAL DECISION
JOSEPH
S. CORTESE, II WORKERS' COMPENSATION COMMISSIONER
Claimant
Ben Burris appeals from an arbitration decision filed on
August 30, 2018. Defendants Andersen Corporation, employer,
and Old Republic Insurance Company, insurance carrier,
respond to the appeal. The case was heard on October 18,
2017, and it was considered fully submitted in front of the
deputy workers' compensation commissioner on November 27,
2017.
In the
arbitration decision, the deputy commissioner addressed both
of the affirmative defenses raised by defendants. With
respect to notice, the deputy commissioner found defendants
had actual notice of the toxic compounds with which claimant
was required to work, along with the toxicity of those
compounds. However, the deputy commissioner determined
claimant failed to timely file his claim. More specifically,
the deputy commissioner found claimant discovered his injury
no later than January of 2007, when he proceeded with a
kidney transplant. Because claimant did not file his original
notice and petition within two years of his kidney
transplant, the deputy commissioner found claimant's
petition was untimely and barred by the statute of
limitations in Iowa Code section 85.26.
On
appeal, claimant asserts the deputy commissioner used the
wrong legal test in her statute of limitations analysis and
claimant asserts he timely filed his claim. Claimant further
asserts his exposure to toxic materials while employed by
defendant-employer caused his kidney condition and that he
provided sufficient notice to defendants.
Those
portions of the proposed agency decision pertaining to issues
not raised on appeal are adopted as a part of this appeal
decision.
I
performed a de novo review of the evidentiary record and the
detailed arguments of the parties. Pursuant to Iowa Code
sections 17A.5 and 86.24, those portions of the proposed
arbitration decision filed on August 30, 2018, that relate to
the issues properly raised on intra-agency appeal are
reversed.
FINDINGS
OF FACT
Claimant
began working at Eagle Window and Door (hereinafter
"Eagle Window") as a painter in July of 1983 and
continued to do so through November 11, 2015. (Hearing
Transcript, page 62) Over the course of claimant's more
than 30-year employment at Eagle Window, Eagle Window has had
several owners. From the date of claimant's hire through
1987, Eagle Window was owned by Lancer Corporation; Masco
Corporation purchased Eagle Window in 1987 and were the
owners until the company sold to American Architectural
Products in 1995; from 1995 through 2000, Eagle Window was
owned by American Architectural Products; from 2000 through
2004, Eagle Window was owned by Lensalata Business
Investments; and finally, from roughly 2005 through
claimant's last day of work, Eagle Window was owned by
Andersen Corporation - the named defendant-employer in this
case (hereinafter "Andersen"). (Tr., pp. 91-92)
While
Eagle Window was owned by Lancer Corporation, Masco
Corporation and American Architectural Products, claimant was
stationed to work at a plant on East Ninth Street in Dubuque,
Iowa. (Tr., p. 68) Claimant explained that in the plant's
courtyard were barrels of hazardous waste stacked 10 to 12
barrels high from the plant's previous occupants. (Tr.,
p. 71) At some point in the 1980s, claimant showed up to work
and the barrels had been dumped into a sewer that was
"right outside the lunchroom." (Tr., p. 71)
Claimant also testified there were puddles of hazardous waste
in the courtyard that were four inches deep. (Tr., p. 71)
During
claimant's direct exposure of these chemicals, he was not
provided with any protective or safety equipment or clothing.
(Tr., pp. 72-73) He was eventually given a respirator in
1987. (Tr., p. 73)
In the
late-1980s or early-1990s, claimant and several of his
co-workers were instructed by a supervisor to attend a
physical due to suspected exposures to the improperly
disposed chemicals and waste. (Exhibit B, pp. 11-13;
[Deposition Tr., pp. 44-46, 51]; Tr., p. 99) The physician
who performed the physical, Dr. Krish, discovered blood in
claimant's urine. (Ex. B, p. 12 [Depo. Tr., pp. 46])
Claimant then transferred treatment for his kidney condition
to his primary care provider, John Whalen, M.D. (Def. Ex. B,
pp. 13-14 [Depo. Tr., pp. 50-53])
Claimant
began feeling poorly due to his kidney condition in 1994 or
1995. (Ex. B, p. 12 [Depo. Tr., p. 47]) Claimant continued
various forms of conservative treatment with Dr. Whalen
through the remainder of the 1990s and into the early 2000s,
but he eventually required a kidney transplant in 2007.
(See Joint Exhibit 1, pp. 1-11; JE 3) After the
transplant, claimant returned to work at Eagle Window and
continued working through November 11, 2015.
On that
date, claimant's condition deteriorated to the point that
he was unable to work due to excessive swelling. (Tr., p. 82)
Claimant's wife transported him to the hospital, where
claimant was immediately started on dialysis. (Tr., p. 83)
Claimant did not return to work, and at the time of the
hearing, he remained on dialysis for nine hours a day, seven
days a week. (Tr., p. 86) As a result, I find November 11,
2015, was the day claimant became actually incapacitated from
performing his job.
In his
deposition, claimant testified he believed it was the dumping
of hazardous materials from 1983 through 1987 and his
continued exposure through the year 2000 at the East Ninth
Street plant that caused his kidney disease. (Ex. B, p. 8
[Depo. Tr., pp. 30, 32]; Tr., p. 89) Claimant specifically
denied being exposed to any sort of toxic waste or material
after 2000 when Eagle Window moved to a new location on
Kerper Boulevard in Dubuque after being purchased by American
Architectural Products. (Ex. B, p. 8 [Depo. Tr., p. 30]
Consistent
with claimant's deposition testimony is the opinion of
Gregory Peterson, D.O., who was asked by claimant's
attorney to address the causal relationship between
claimant's work-related exposures and his kidney
condition. Dr. Peterson, after evaluating claimant, reviewing
his medical records, and reviewing a 1992 environmental and
industrial investigation report, opined that claimant's
kidney condition was the result of exposure "to the
myriad of toxic substances at the work site" in the
1980s and 1990s.1 (JE 4, pp. 2-3) Dr. Peterson reaffirmed
his opinion at hearing, explaining that claimant during this
time was exposed to "quite significant" levels of
industrial solvents, toxic substances, and volatile organic
compounds, which are known to cause kidney disease. (Tr., pp.
13-14)
Like
Dr. Peterson, claimant's kidney physician of more than
two decades, John Whalen, M.D., also opined it was
"highly likely" that claimant's membranous
glomerulonephritis was secondary to his exposure to various
carbons and toxic chemicals while working at Eagle Window.
(JE 6)
Defendants
obtained the opinion of Peter Matos, D.O. (JE 5) Dr. Matos
was asked by defendants to address whether claimant's
exposures from 1983-2000 to EYYC Benzene Tolvel Xlol toxic
waste played any causal relationship in the development of
his kidney disease. (JE 5, p. 4) Contrary to the opinions of
Dr. Peterson and Dr. Whalen, Dr. Matos opined that he did not
believe claimant's alleged exposures between 1983 and
2000 played any causal relationship in the development of his
kidney disease. (JE 5, p. 5)
Ultimately,
with respect to claimant's exposure from his date of hire
through 2000, I find the causation opinions of Dr. Peterson
and Dr. Whalen to be more persuasive than those of Dr. Matos.
The opinions of Dr. Peterson and Dr. Whalen more closely
align with the timeline and progression of claimant's
exposures and the development of his kidney condition. Dr.
Whalen also had the benefit of treating claimant from the
onset of his kidney disease in the early 1990s through his
kidney transplant and dialysis.
At
hearing, claimant's testimony broadened the timeframe
during which he alleged he was injuriously exposed to harmful
chemicals. More specifically, he testified he had continued
exposure to toxic chemicals after 2000 when Eagle Window
moved to a new location on Kerper Boulevard in Dubuque after
being purchased by American Architectural Products. (Tr., p.
75) Claimant testified his exposure to...
