7-25-2016; IL Appellate Court "Pops" OccDisease Claim for COPD; David DePaolo of WorkCompCentral RIP; State Work Comp Payout May Not Be The Measure of Employer Liability Under This Administration

Synopsis: IL Appellate Court, WC Division Affirms IWCC Denial of Claim for Lung Issues Allegedly Caused by “Popcorn-Worker’s-Lung.”

Editor’s comment: When it comes to Frye and IL Rule of Evidence 702, all IL WC attorneys on both sides and risk managers/adjusters/brokers should read this precise and well-reasoned but complex Appellate Occupational Disease decision.

In Durbin v. IWCC, issued July 17, 2016, a unanimous Illinois Appellate Court, WC Division ruled an Archer Daniels Midland factory worker failed to establish the compensability of obstructive lung disease because he did not adequately or scientifically link his condition to the workplace exposure to a buttery-smelling chemical compound named Diacetyl.

The majority ruling by Justice Harris accurately pointed out such claims aren’t actually “workers’ comp” rulings—this is an occupational disease claim where the worker has to demonstrate an “exposure” to an arguably deleterious chemical or other substance due to work.

There was no dispute Claimant Durbin worked for Archer Daniels Midland for approximately 30 years. During most of that tenure, Petitioner Durbin claims he was exposed to Diacetyl, a chemical used as butter flavoring that has been occasionally linked to lung problems in workers. Claimant also admitted to being a cigarette smoker.

NIOSH or the National Institute for Occupational Safety and Health has suggested Diacetyl, when used in artificial butter flavoring (as used in many consumer foods), may be hazardous when heated and inhaled repeatedly over a long period. Workers in several factories that manufacture artificial butter flavoring have been diagnosed with bronchiolitis obliterans, a rare and serious disease of the lungs. The cases found have been mainly in young, healthy, nonsmoking males. As with other end-stage lung diseases, lung transplantation is currently the most viable treatment option. However, lung transplant rejection is very common and happens to be another setting in which bronchiolitis obliterans is  expected to occur.

The disease has been called "popcorn worker's lung" because it was first seen in former workers of a microwave popcorn factory in Missouri but NIOSH refers to it by the more general term "flavorings-related lung disease.” People who work with flavorings that include Diacetyl are at risk for flavorings-related lung disease, including those who work in popcorn factories, restaurants, other snack food factories, bakeries, candy factories, margarine and cooking spread factories, and coffee processing facilities.

Either way, Claimant Durbin testified he first began having breathing or lung problems around year 2000 or 2001, and after he retired from ADM in 2003, his problems worsened. Things in the occupational disease litigation sat around for a long time. By the time of the WC arbitration in 2013, Durbin said he was unable to engage in activities that required exertion because he would lose his breath.

Former Arbitrator Zanotti found Claimant Durbin failed to prove an occupational disease caused by a workplace exposure. The Illinois Workers' Compensation Commission panel upheld the Arbitrator’s decision, as did the Circuit Court judge.

The IL Appellate Court, WC Division found the causation opinion of Claimant Durbin's medical expert was not clearly admitted or rejected from evidence under the ruling in Frye and IL Rule of Evidence 702. The majority decision took up the issue to provide clarity and they ruled the opinions were properly excluded from evidence. The Court carefully and thoroughly explained the admissibility of any expert's opinion depends on whether the underlying method used to generate the opinion by the expert is one reasonably relied upon by the experts in the field.

In this case, the Court noted the opinion of Claimant's expert was based on two publications regarding Diacetyl exposure at microwave popcorn plants. The majority opinion ruled the New England Journal of Medicine article upon which the expert relied was peer-reviewed, the Court’s decision further noted that article involved workers with a specific condition known as bronchiolitis obliterans, whereas Claimant Durbin had been diagnosed with chronic obstructive pulmonary disease or COPD.

"While there may be evidence that exposure to Diacetyl can cause bronchiolitis obliterans," the Court said the expert's "leap to finding a causal connection between Diacetyl exposure and COPD is arguably supported only by an editorial." The Court’s ruling said "an editorial in a medical journal is not the equivalent of a peer-reviewed article based upon medical studies" and as such, it is insufficient to [legally] serve as a basis for an expert's opinion on causation.

The Appellate Court’s members further found the medical expert's theory Claimant Durbin suffered a harmful exposure by simply “smelling” a buttery scent was "speculative and lacked support in the relevant scientific literature."

As the only evidence Claimant presented to support a causal link between his work and his COPD was the opinion of this expert, and the opinion was inadmissible, the Court ruled the IL WC Commission's denial of his claim was supported by the evidence in the record.

As defense attorneys, we have numerous claims brought by Petitioner’s attorneys for occupational disease claims. Our common response follows this great decision’s review of such claims—what is the exposure? How long or how much is the exposure? What is the scientific literature supporting a medical condition related to such an exposure? For most OD claims, if the other side doesn’t have a solid expert, the claim is usually going nowhere fast.

We caution our readers and law students and others, the IWCC and courts don’t necessarily need an expert opinion if the relationship is clear and well-settled. That said, they are typically skeptical to leap to contusions, we mean conclusions over causal connection when such claims are presented.

If you are a risk manager or claims adjuster with questions or concerns about OD claims, please send them along and the defense team at KCB&A can provide strong guidance on testing, experts and strategies to best defend such claims.

            ----------------------------------------------------------

Synopsis: God Bless and Keep the Memory of Great U.S. WC guru David DePaolo.

Editor’s comment: David DePaolo, founder, president and chief executive officer of WorkCompCentral, died too early this month. He was 56.

DePaolo was riding his motorcycle—a Honda 250 that he had nicknamed "The Sewing Machine"—in the Santa Monica Mountains near Malibu Hills, California on Sunday afternoon. He veered right into shoulder of Yerba Buena Road, hitting a dirt embankment shortly after 4 p.m., according to a report in the Ventura County Star.

The cause of the accident and DePaolo's death was still under investigation as we go to press.

We remember David calling KCB&A about 5 years ago and asking to be able to use our articles and assistance for the WorkCompCentral wonderful publication. We have always treasured our working relationship with David and this wonderful national industry resource and encourage all WC industry folks to consider subscribing to it.

DePaolo obtained a Juris Doctor from Pepperdine University School of Law in 1984, a Master’s in Business Administration from California Lutheran University in 1997 and a Bachelor of Arts in English from San Diego State University in 1981. He practiced as a workers' compensation defense attorney and as a sole practitioner, before founding WorkCompCentral in 1999. DePaolo is survived by his wife Anne, daughter Nichole and son Anthony.

A public memorial service for David DePaolo will be held Saturday, Aug. 6 at the Camarillo Airport in Southern California. The memorial service is scheduled for 1-5 p.m. at Channel Islands Aviation Hanger 265 on Durley Avenue. From U.S. Highway 101, exit Los Posas Road southbound, turn right on Pleasant Valley Road and right on Airport Way to Durley Avenue.

DePaolo was a pilot who often blogged about his adventures in "41 Mike," a 1979 Beechcraft Bonanza. He also volunteered for Angel Flight, a charity that provides transportation for families with medical emergencies. In lieu of flowers, the family would appreciate donations to Kids Chance of California or Angel Flight.

For planning purposes, persons wishing to attend the services are asked to email or call Valeria Garcia at vgarcia@workcompcentral.com or 805-484-0333, ext 127. Your editor may be there—let us know if you plan on attending.

            -----------------------------------------------------------

Synopsis: State Work Comp Payout May Not Be The Measure of Employer Liability Under This Administration.

Editor’s comment: We were mildly amazed to see a Federal Judge ordered an IL employer to make a payment of $350,000 in “restitution” to decedent’s family following a worker's death. We are uncertain how the federal judge measured the proper amount in restitution that appears to us to be “additional damages” over and above the statutorily required state workers’ comp payout. We have no true idea if court-ordered “restitution” would be a benefit covered under a typical workers’ comp insurance policy—the insurance brokers among our readers might want to reply with their thoughts. Some of our readers assume the extent of state WC benefits is your only concern when a worker suffers an untimely death in your workplace—this assumption may not be accurate in light of rulings like this one.

News from South Beloit, IL confirms a federal judge has ordered a scrap-processing company based in Rockford to pay $350,000 in “restitution” to the family of a man killed in year 2014 at one of its plants. Behr Iron & Steel Inc. also was placed on five years of probation under the sentence handed down in U.S. District Court for the Northern District of Illinois, based in Chicago.

Federal prosecutors charged the company with violations of OSHA or Occupational Safety and Health Administration requirements in connection with the untimely death of decedent Reynaldo Hernandez-Ortega, following a March 2014 accident at Behr’s plant in South Beloit. Decedent Hernandez-Ortega, 39, was cleaning a discharge pit for a metal-shredding machine when his arm was caught and he was pulled into machinery, the Rockville Register Star reported. Behr's plant recycles items such as refrigerators and cars. Behr Iron & Steel Inc. was cited for one serious and seven willful safety violations by the U.S. Department of Labor’s Occupational Safety and Health Administration following the death in March of a worker at the company’s scrap metal shredding and sorting facility in South Beloit.

A willful violation is committed with intentional disregard for the law’s requirement or “plain indifference to employee safety and health.” A serious violation is determined if death or serious physical harm could result from a hazard an employer knew or should have known exists. According to OSHA, Behr Iron & Steel knowingly exposed Hernandez-Ortega and at least three other workers to highly dangerous equipment with no safeguards during cleaning operations. Hernandez-Ortega and other workers were responsible for shoveling metal scrap material accumulated in a shredder discharge pit onto a conveyer system as part of their cleaning duties. OSHA found when workers entered the pit, the conveyor was running and the OSHA requirement to “lock out” the shredder, or ensure that no energy flowed to the machine, was not being followed.

"This isn't the turn of the century. This should never happen in 2014 in this country," U.S. Magistrate Judge Iain D. Johnston claimed during the sentencing. The company already paid Decedent’s family $268,000 through a workers' compensation settlement and $19,369 in workers' compensation expenses, according to court documents. We cannot find that settlement listed on the IWCC’s website but not it appears very low based on normal exposures/benefits due in an IL WC death claim.

In addition, the company paid $520,000 in fines to the federal Occupational Safety and Health Administration, and agreed to correct 36 safety violations.

If you need assistance defending OSHA claims, Brad Smith of KCB&A is our top defense team member and knows the ropes. You can reach Brad at bsmith@keefe-law.com.

            -------------------------------------------------------------

Synopsis: Short but Sweet Update on Indiana Worker’s Comp from Kevin Boyle, J.D.

Editor’s comment: We were somewhat surprised to hear the IN WC Board has provided notice effective Monday, August 1, 2016, the mileage reimbursement rate is increasing from $0.36 per mile to $0.38 per mile.

If you have questions or concerns on any IN WC claim, please direct them to our IN Defense Team Leader Kevin Boyle, Esq. at kboyle@keefe-law.com.