ESTATE OF JESUS S. MADERA, MARIA IBARRA, YESSENIA MADERA, KARINE MADERA, BRIANNA MADERA, AND AZUSENA MADERA, Claimants,
v.
GRANT 4-D FARMS, Employer,
and
IDAHO STATE INSURANCE FUND, Surety, Defendants.
No. IC 2013-017843
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
April 4, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATION
R.D.
Maynard, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Brian Harper,
who conducted a hearing in Twin Falls, Idaho, on August 24,
2015. Claimants were represented by Reed Larsen, of
Pocatello. Paul Augustine, of Boise, represented Grant 4-D
Farms ("Employer"), and State Insurance Fund
("Surety"), Defendants. Oral and documentary
evidence was admitted. Post-hearing depositions were taken
and the parties submitted post-hearing briefs. The matter
came under advisement on February 29, 2016.
ISSUES
The
issues to be decided are:
1. Whether the notice limitations set forth in Idaho Code
§§ 72-701 to 706 bar recovery for any benefits
sought;
2. Whether Jesus Madera sustained an injury from an accident
arising out of and in the course of employment;
3. Whether Jesus Madera incurred a compensable occupational
disease;
4. Whether the condition for which Claimants seek benefits
was caused by the industrial accident or occupational
disease;
5. Whether and to what extent Claimants are entitled to the
following benefits:
a. Past medical care;
b. Temporary disability benefits, (TPD, TTD); and
c. Death benefits;
6. Whether and to what extent Defendants are entitled to an
offset for TTD benefits paid;
7. Whether there exists any qualified dependents of Jesus
Madera, and if so, the extent to which they are entitled to
death income or other benefits;
8. Whether any of dependents' claims are barred by Idaho
Code § 72-440; and
9. Whether the death benefits claim related to an
occupational disease is barred by Idaho Code §
72-448(2).
CONTENTIONS
OF THE PARTIES
Claimants
argue that Jesus Madera contracted and died of lung cancer
from repeated exposure to the pesticide Temik while working
for Employer. His dependents are entitled to appropriate
benefits for this occupational disease. Additionally, on June
4, 2013, Mr. Madera breathed in a large amount of Temik while
crushing boxes which had held the chemical. As a result of
this accident, Mr. Madera suffered pulmonary irritation for
which he sought medical treatment. Claimants are due
appropriate benefits related to this accident.
Defendants
argue Mr. Madera's cancer was not related to his
employment. Claimants are entitled to no death benefits. Mr.
Madera was paid his full salary from the date he was no
longer able to work until the time of his death. His medical
treatment after June 4, 2013 was due solely to his cancer. No
medical and/or temporary disability benefits are due.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1.
Testimony of Maria Avila (Jesus Madera's widow), Jose
Madera (Jesus Madera's brother), and Duane Grant
(Employer's representative), taken at hearing;
2.
Claimants' Exhibits (CE) A through R, (which include the
pre-hearing deposition transcripts of witnesses Alan Mohlman
and Ignacio Cruze – CE L & M respectively –
and a sample particulate respirator as part of CE O),
admitted at hearing;
3.
Defendants' Exhibits (DE) 2, 3, 5, 6, 8, 9, 10, 11 &
16, (which includes the deposition of Jesus Madera – DE
16), admitted at hearing
1;
4. The
post-hearing deposition transcript of Richard Kanner, M.D.,
taken on October 20, 2015;
5. The
post-hearing deposition transcript of Michael Freeman, M.D.,
PhD, taken on November 23, 2015;
6. The
post-hearing deposition transcript of Bart Moulton, M.D.,
taken on November 23, 2015; and
7. The
post-hearing deposition transcript of Donald Workman, M.D.,
taken on December 1, 2015.
All
objections preserved during the depositions are overruled.
Having
considered the evidence and briefing of the parties, the
Referee submits the following findings of fact and
conclusions of law for review by the Commission.
FINDINGS
OF FACT
1. On
June 4, 2013, the deceased, Jesus Madera (Mr. Madera), a
supervisor for Employer's farming operations in Minidoka
County, inadvertently inhaled dust residue of a granular
commercial pesticide, Temik, while in the course and scope of
his employment. Both Mr. Madera and his wife, Maria Ibarra,
informed Employer of the event the next day.
2.
Subsequent to this exposure, Mr. Madera developed headache,
abdominal discomfort, and nausea. He sought care with Brian
Muir, D.O., at the Minidoka Medical Center on June 5, 2013.
After examination, Dr. Muir suggested increasing fluid intake
and released Mr. Madera.
3.
Thereafter, Mr. Madera developed additional symptoms. About a
week after his initial medical visit, Mr. Madera was
hospitalized with recurring pneumonia and bilateral pulmonary
emboli. He subsequently developed deep vein thrombosis in his
left leg.
4.
During the course of his treatment, it was discovered Mr.
Madera had lung cancer. He was under medical care with
several treaters for a number of serious complaints and
complications from his cancer until the date of his death on
November 20, 2013. He was 39 years old. He left behind a wife
and four children – Claimants in this matter.
DISCUSSION
AND FURTHER FINDINGS
5. The
parties agree the main issue for resolution is whether
Claimants have proven a causal link between Mr. Madera's
exposure to Temik and his lung cancer. Without this threshold
link, many of Claimants' other claims need not be
considered.
6.
Claimants have the burden of proving, by a preponderance of
the evidence, all facts essential to recovery on their
claims. Evans v. Hara's, Inc., 123 Idaho 473,
849 P.2d 934, (1993). Proof of a possible causal link is not
sufficient to satisfy this burden. Beardsley v. Idaho
Forest Industries, 127 Idaho 404, 406, 901 P.2d 511, 513
(1995). Claimants must provide medical testimony that
supports a claim for compensation to a reasonable degree of
medical probability. Langley v. State Industrial Special
Indemnity Fund, 126 Idaho 781, 785, 890 P.2d 732, 736
(1995). To prove that a causal relationship is medically
probable requires Claimants to demonstrate that there is more
medical evidence for the proposition than against it.
Jensen v. City of Pocatello, 135 Idaho 406, 18 P.3d
211 (2000). In determining causation, it is the role of the
Commission to determine the weight and credibility of
testimony.
7.
Claimant was afflicted with the rare EML4-ALK mutation
cancer. It forms from a different biological gene mutation
mechanism than the much-more common K-RAS single amino acid
mutation cancer most often seen in smokers. Mr. Madera was
not, and had never been, a smoker.
8.
Claimants argue Mr. Madera's repeated exposures to
Temik
2 over his long career with
Employer caused the EML4-ALK genetic mutation to occur, which
in turn led to his lung cancer. His accident of June 4, 2013
aggravated his condition.
9. The
parties spend considerable time sparring over a number of
details and propositions, such as the years when Temik was
used on the Minidoka farm ground and in what amounts, the
nature and number of times when Mr. Madera was exposed to the
chemical, and the nature and sufficiency of protective
garments/apparatuses he used when working with or around the
chemical. None of these contested claims are pivotal to the
decision and therefore they will not be addressed further,
other than to note that, based upon the totality of the
evidence, it is more likely that Mr. Madera's exposure
over his years of employment was quite limited,
notwithstanding the event of June 4, 2013. Be that as it may,
the causation issue in this matter rests upon expert
testimony and the state of science on this issue, not on Mr.
Madera's level of exposure.
Occupational
Disease
State
of the Science
10. The
following facts are instrumental when evaluating the claim
that Temik was responsible for or caused Mr. Madera's
lung cancer;
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