Gregory Clark Applicant
PPG Industries, Inc. Employer
Sentry Cas. Co. Insurer
No. 2016-010868
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
August 7, 2020
Atty.
Robert T. Ward.
Atty.
Paul R. Riegel.
WORKER’S
COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Interlocutory
Order
The
commission reverses the decision of the administrative law
judge. Accordingly, within thirty (30) days from the date of
this decision, the respondent shall pay the following:
1. To the applicant, the sum of sixty-eight thousand, two
hundred fifteen dollars and eleven cents ($68,215.11), less
the amount of costs payable to his attorney; and the sum of
three thousand, nine hundred forty-two dollars and forty
cents ($3,942.40), as reimbursement for out-of-pocket medical
treatment expenses. Beginning September 11, 2020, the
respondent shall make monthly payments to the applicant of
$1,395.33, until the amount of $62,339.20 has been paid in
full.
2. To the applicant’s attorney, Robert Ward, the sum of
thirty thousand, nine hundred fifty-five dollars and
eighty-seven cents ($30,955.87) for attorney fees; the
applicant’s attorney shall notify the applicant and the
respondent of the amount of the costs, and the amount of
costs shall be paid to the applicant’s attorney from
the amount due to the applicant.
3. To 180 Medical, the sum of six thousand, two hundred ten
dollars and no cents ($6,210.00).
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
In
April of 2016, the applicant filed a hearing application
alleging that long-term chemical exposure caused his bladder
cancer, with a date of injury of June 6, 2014. An
administrative law judge for the Department of
Administration, Division of Hearings and Appeals, Office of
Worker’s Compensation Hearings (Division), heard this
matter on September 27, 2018, and August 20, 2019, and issued
a decision dated December 23, 2019, dismissing the
application for benefits. The applicant filed a timely
petition for review.
The
issues before the commission are whether the applicant
sustained an occupational disease (bladder cancer) arising
out of his employment while performing services growing out
of and incidental to that employment due to work exposure to
chemicals; and, if so, the nature and extent of the
applicant’s disability, and the respondent’s
liability for medical expenses. The commission has considered
the petition and the positions of the parties, and has
conducted an independent de novo review of the
evidence. Based on its review, the commission reverses the
decision of the administrative law judge and makes the
following:
Findings
of Fact and Conclusions of Law
The
Applicant’s Work Exposure and Medical Treatment
1.
Prior to the applicant’s bladder cancer issue, he did
not have any significant medical problems. He had never been
a smoker, and he was active and participated in recreational
athletics.
2 Outside the workplace, he had not been
exposed to significant amounts of paints or
solvents.
3 He had no family history of bladder
cancer.
4
2. The
applicant began working for the employer in 1985 as a
“mixer” who followed a recipe to mix liquid
resins and solvents, as well as powdered chemicals, to
produce a batch of paint.
5 He would work at the top of
different size tanks depending on the batch he would
make.
6 Steel pipes would carry resins and
solvents from outside tanks into the tanks where he would mix
the products, and he would open a hatch on the top and add
drum material or 50-pound bags of chemicals, depending on the
product he was making.
7 A mixer ventilator hood dropped down
and would pull material out of the air into a tube when he
was adding chemicals.
8 He would not stand over the hatch
while the material poured in.
9 Once the material was
mixed, he would pump it to a mill tank, which would grind in
the pigments.
10 The applicant did this job for 16
years.
11 In this position, the applicant was
exposed to paints, chemicals, and resins.
[12] Though
the employer did some monitoring during this time, the
applicant participated in the monitoring about twice a year
for the first 10 years; when he would add chemicals, he would
have to “suit up” and put on Tyvek coveralls and
wear a respirator, and the coveralls would cover the
monitor.
13
3.
While working as a mixer, sometimes the applicant would wear
the protective equipment for four to five hours at a time; he
would have to re-suit up for different batches.
[14] Other
workers at other mixers may have been adding chemicals at the
next tank when he would not have the protective equipment
on.
15 The applicant could smell the
solvents in the solvent-based paints.
16 He would have to
take samples of the batches occasionally by opening a hatch
and dipping a cup into the tank.
17 Spills were fairly
common, once or twice a week; once a month there would be a
large spill which could take a half a shift to a whole day to
clean up.
18 As a mixer, the applicant used
consistently and was exposed to Solvent CIX Distilled, SR
Xylene, and SK Methyl isobutyl ketone on a regular
basis.
19
4. The
applicant was also trained as a mill operator where he would
grind solid ceramic material to the level of fineness
required for the product.
20 He started this work
in about 1990 or 1991.
21 The mill was a closed machine
with pipes coming off of it; it was a closed system with
hatches.
22 The hatches were not solidly sealed
and solvent escaped. When working in the mill, the applicant
would transfer a batch into a portable tank by hanging in a
hose off the mill onto the portable tank and then moving it
to the other side of the plant and dumping it into a tank
there; there were covers, but this part of the process was
exposed.
23 The applicant did not use a
respirator to move the tanks.
24
5. In
2001, the applicant transferred to working in the shipping
area as a forklift truck operator.
25 He needed to use a
respirator three or four times a month in
shipping.
26 He did this job until they
eliminated his shift in 2009; he then went to “Can
Coat” in the resin department where he worked with
materials that are used to coat the insides and outsides of
beverage and food cans.
27 In that job, he mixed the
coating, filled totes to be loaded, and filled the wagon to
be shipped.
28 He did this until February of 2010,
and then returned to working as a forklift truck driver, this
time in receiving.
29 In receiving, if there were spills
of materials, he would need to use protective
equipment.
30 He also was exposed to powdered
chemicals in bags that could get ripped or torn, and if he
had to clean up a torn bag, he needed to use a respirator
once or twice per week.
31
6. On
June 6, 2014, the applicant noted blood red urine and sought
medical treatment.
32 He was diagnosed with bladder cancer
and had multiple treatments. The cancer treatments were
unsuccessful, and on April 30, 2015, the applicant had his
bladder removed.
33 The cancer spread to the
applicant’s right kidney, and he also had that
removed.
34 After the kidney removal surgery,
the applicant did not return to work for the employer and
retired on May 1, 2016.
35 The neobladder built for the
applicant does not work well and he needs to use catheters
about four times per day.
36
7. On
April 12, 2016, Dr. Peter F. Leonovicz, III, M.D., FACS, sent
a letter to the applicant’s attorney. He described the
applicant’s treatment and referred to the likely cause
of the applicant’s bladder cancer:
I began caring for Mr. Clark in June 2014 when he was
diagnosed with urothelial carcinoma of the bladder. It should
be noted that he has no lifestyle risk factors to put him at
risk for urothelial carcinoma. Specifically, he does not use
tobacco and never has. His occupation in a paint factory has
led to significant chemical exposure over the years. It is
well described that certain dyes and inks can lead to
urothelial carcinoma. His bladder cancer was very large and
had an exceptionally rapid growth rate with multiple
recurrences requiring resection. He ultimately progressed to
high-grade invasive urothelial carcinoma and underwent
robotic cystoprostatectomy with ileal neobladder by Dr.
Matthew Johnson on 6/2/15. Recovery from this operation is
very long and he was out of work until 10/15/15. In follow-up
surveillance he was then found to have urothelial carcinoma
involving the right ureter and required robotic right
nephroureterectomy on 12/9/15. He was out of work until
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