final award denying compensation - missouri labor · 2018-01-18 · compensation law. pursuant to...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-179886

Employee: John Whelehon (deceased) Dependents: Lois Whelehon Employer: The Doe Run Company Insurer: Pacific Employers Insurance Company The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 20, 2017, and awards no compensation in the above-captioned case. The award and decision of Administrative Law Judge Lawrence C. Kasten, issued April 20, 2017, is attached and incorporated by this reference. Given at Jefferson City, State of Missouri, this 18th day of January 2018. LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Employee: John Whelehon Injury No. 00-179886

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ISSUED BY DIVISION OF WORKERS’ COMPENSATION

FINAL AWARD

Employee: John Whelehon (deceased) Injury No. 00-179886 Dependents: Lois Whelehon Employer: The Doe Run Company Additional Party: N/A Insurer: Pacific Employers Insurance Company Appearances: Gary Matheny and Tom Burcham III, attorneys for the claimant. Scott Reid, attorney for the employer-insurer. Hearing Date: Commenced July 27, 2016. Checked by: LCK/kg Completed on August 26, 2016.

SUMMARY OF FINDINGS

1. Are any benefits awarded herein? No. 2. Was the injury or occupational disease compensable under Chapter 287? No. 3. Was there an accident or incident of occupational disease under the Law? No. 4. Date of accident or onset of occupational disease? N/A. 5. State location where accident occurred or occupational disease contracted: N/A. 6. Was above employee in employ of above employer at time of alleged accident or

occupational disease? Yes. 7. Did employer receive proper notice? Undetermined. 8. Did accident or occupational disease arise out of and in the course of employment? No.


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9. Was claim for compensation filed within time required by law? Undetermined. 10. Was the employer insured by above insurer? Yes. 11. Describe work the employee was doing and how accident happened or occupational

disease contracted: N/A. 12. Did accident or occupational disease cause death? N/A. 13. Parts of body injured by accident or occupational disease: N/A. 14. Nature and extent of any permanent disability: N/A. 15. Compensation paid to date for temporary total disability: None. 16. Value necessary medical aid paid to date by the employer-insurer: None. 17. Value necessary medical aid not furnished by the employer-insurer: None. 18. Employee's average weekly wage: Undetermined. 19. Weekly compensation rate: $578.48 for temporary total disability, permanent total

disability and death benefits; and $303.01 for permanent partial disability benefits. 20. Method wages computation: By agreement. 21. Amount of compensation payable: None. 22. Second Injury Fund liability: N/A. 23. Future requirements awarded: N/A.


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STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW

On July 27, 2016, the employee’s widow Lois Whelehon appeared in person and with her attorneys Gary Matheny and Tom Burcham III for a hearing for a final award. The employer-insurer was represented by their attorney, Scott Reid. Also present for the employer was Crystal Saling, an in-house attorney for the employer.

In Injury Number 00-179886, the claimant requested the Claim against the Second Injury Fund be dismissed without prejudice. The Order of Dismissal was entered August 8, 2016.

Injury Number 00–179145 was also set for hearing. The claimant previously settled the

Claim against ASARCO. At the hearing, Ms. Whelehon requested a party dismissal with regard to Doe Run Company, Pacific Employers Insurance Company, and Crawford and Company; and that the Claim against the Second Injury Fund be dismissed. The Order of Party Dismissal and the Order of Dismissal against the Second Injury Fund were entered on August 8, 2016. With regard to Injury Number 00-179886, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows: UNDISPUTED FACTS: 1. The Doe Run Company was operating under and subject to the provisions of the Missouri

Workers’ Compensation Act, and its liability was fully insured by Pacific Employers Insurance Company.

2. On or about April 20, 2000, John Whelehon was an employee of The Doe Run Company and was working under the Workers’ Compensation Act.

3. The employee was at the maximum rate of compensation for temporary total, permanent total, death benefits and permanent partial disability. The rate of compensation for temporary total, permanent total and death benefits is $578.48 per week. The rate of compensation for permanent partial disability is $303.01.

4. The employer-insurer did not furnish or pay any medical aid. 5. The employer-insurer did not pay any temporary total disability benefits. ISSUES: 1. Occupational disease. 2. Notice. 3. Statute of limitations. 4. Medical causation. 5. Claim for previously incurred medical aid. 6. Nature and extent of disability. 7. Claim for nursing services. 8. Attorney’s lien of the employee’s former attorney Mark Moreland.


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EXHIBITS: Employee Exhibits: 1. Medical Records of Dr. Griffin 2. Medical Records of Missouri Baptist Medical Center 3. Medical Records of The Occupational Medical Specialty Center 4. Medical Records of the Heart Health Center 5. Medical Records of Parkland Health Center 6. Medical Records of Dr. Goldring 7. Medical Records of Dr. Haltzman 8. Medical Records of Dr. Hyers 9. Medical Records of Memory Diagnostic Center 10. Medical Records of Jefferson Memorial Hospital 11. Medical Records of Dr. Capapas 12. Records of Veterans Home Nursing Home 13. Medical Records of St. Francois Medical Center 14. Medical Bills 15. August 7, 2007 Deposition of Dr. Doull including his C.V., his March 21, 2007 Report,

Pages from Three Textbooks, Medical Records of Dr. Hyers, and Report from Brenda Russell, R.N.

16. September 24, 2008, October 22, 2008 and September 27, 2011 Depositions of Dr. Stillings; his C.V.; March 18, 2008 and April 26, 2011 Reports; and Listing of Medical Bills

17. November 23, 2009 Deposition of Dr. Doull including his C.V., October 14, 2009 Report, and the Employee’s Death Certificate

18. Deposition of Dr. Godfrey including his C.V., his Report, and the Employee’s Hair Analysis

19. Deposition of Dr. Harrison including his C.V. and Report 20. Doctor’s Data Hair Elements Test Results 21. Medical Records of Mercy Hospital 22. Certificate of Death 23. Photos of the Employee 24. Lead-Antimony-Arsenic Alloys MSDS 25. (See Below) 26. St. Francois County Health Center Water Sample Test 27. Photo of the Employee and Ms. Whelehon 28. Photo of the Employee 29. Photo of the Employee and Ms. Whelehon 30. Federal Minimum Wage from 1955-2014 The employer-insurer objected to Employee Exhibit 25, an article from the Alternative Medicine Review entitled Toxic Metals & Antioxidant on the grounds of hearsay; lack of foundation; and relevancy. The objection was taken under advisement. The objection to Employee Exhibit 25 is sustained and it is not admitted into evidence. Exhibit 25 will remain


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part of the Judicial File for Appellate purposes. Note: In the Claimant’s brief, Exhibit 25 was shown as withdrawn. Employer-Insurer Exhibits: A. Deposition of Dr. Shippen including his C.V., his Report, his Supplemental Report, the

Employee’s Biological Monitoring Records from Doe Run, the Employee’s Hair Analysis, Two Studies and Two Articles.

B. The Employee’s Biological Monitoring Records from Doe Run C. Doe Run Employment Records of the Employee D. OSHA Regulations regarding Lead, Arsenic, & Cadmium E. Air Monitoring Records from Doe Run

The record remained open until August 26, 2016, for the possible admission of the deposition of Jimmy Ivison. On August 25, 2016, the Court received a letter from the claimant’s attorney that the deposition would not be offered. The record was closed on August 26, 2016.

Judicial Notice of the contents of the Division’s files for the employee was taken.

The claimant’s former attorney Mark Moreland filed an attorney’s lien. On November 11, 2016, Mr. Moreland sent a letter to the Court that he would accept $1,500.00 for the reasonable value of his services. In a January 17, 2017 electronic mail, Mr. Matheny agreed to that amount for Mr. Moreland’s attorney’s lien for necessary legal services. WITNESSES: Lois Whelehon, Aaron Miller, David Koczur, and Tim Lewis BRIEFS: The claimant’s proposed Award was received on September 23, 2016. The employer-insurer’s proposed Award was received on September 30, 2016. STATEMENT OF THE FINDINGS OF FACT:

Lois Whelehon testified that she was married to the employee John Michael Whelehon from 1977 until he passed away on January 29, 2009. She was the only dependent of the employee. The employee went to work for ASARCO in 1976 or 1977. He started as a laborer and then became a maintenance man. In 1998, ASARCO become Doe Run. The employee worked for Doe Run performing the same job until he quit in March of 2000.

David Koczur testified that he was employed by ASARCO and Doe Run from 1985 until

2003. He started working for ASARCO in 1985 and in 1998 the operation switched to Doe Run. Tim Lewis testified that he worked at ASARCO until September 1, 1998 when it became Doe Run. He never worked for Doe Run.


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Mr. Koczur and Mr. Lewis testified that the four basic operations at the Glover lead smelter plant where the employee worked were sintering, blast furnace, refining and molding. The main ingredient that went into the sintering process was lead ore from the mines that ASARCO and then Doe Run owned in Southeast Missouri. The lead ore was shipped to the Glover smelter plant to begin the sintering process. The lead ore would be placed in a bin and mixed with other ingredients including coke, iron pyrite, and calcium. It would be fired, which changed it from being sulfide to becoming oxidized, and turned into sinter which resembled volcanic rock. The large sinter chunks where sent to the blast furnace where it was melted down into liquid lead that would run into a pot. It was taken to the refinery and put into cooking kettles to be refined where all the impurities would be taken out by mixing different things including silver and other metallurgy. The finished product would be 99.99 % pure lead unless a different blend was ordered. The lead would be poured into bars or blocks at the molding plant. Mr. Koczur testified the Glover lead smelter plant was heavily regulated including the requirement to monitor workers for lead exposure. They were required by OSHA to perform monitoring. The company did additional testing out in the plant with stationary monitors in different areas to monitor the air quality. The test samples were sent to an OSHA approved ASARCO lab in Salt Lake City. When the plant became Doe Run, the testing went to the same lab. The results determined how much protection workers had to wear. There were different types of respirators including a half-mask respirator which covered the nose and the mouth area. If the exposure showed a greater level than what those respirators were designed for, workers were given a positive pressure respirator which was a full face mask or a helmet with a motor strapped on the belt that had the filters. The employee normally wore the powered respirator. The requirements for wearing protective equipment were driven by OSHA.

Mr. Lewis testified that at ASARCO he was a senior environmental specialist. He monitored for sulfur dioxide pollution outside the plant; tested water well samples; monitored air outside of the plant; operated the water treatment plant; and serviced the blast furnace and sinter plant. Stationary air monitors were placed in the plant and the same type of monitors were attached to workers to test their exposure. The stationary and personal monitors were done on a quarterly basis. Mr. Lewis’ duties included laboratory work for preparing samples for analysis; monitoring the operability of respirators both half-mask and or powered air purifying; and looking at the samples to attempt to reduce exposure.

Mr. Lewis testified that he is familiar with the employee Mike Whelehon. The employee was a maintenance mechanic in the shop assigned generally to area two. In area two, the employee worked around the furnace refinery. He performed a lot of kettle welding and worked a lot of mechanical breakdowns throughout the plant. His duties included replacing motors and conveyor belts; repairing shakers; and putting in new ventilation fans. Besides the sintering, blast furnace, refinery and molding areas, the employee may have been assigned to work in the bag house and the shakers. The bag house is where the flue gases are routed up a stack that passes through 25-30 foot long Gore-Tex bags which collected dust to have less particulate going out the stack. The bags would be replaced and the shakers would be repaired.

Mr. Lewis testified that at ASARCO the employee would have from time-to-time been assigned to the sintering part of the plant, usually during mechanical breakdowns. He worked on


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conveyors and conveyor rollers. The employee would often work around the blast furnace area including replacing furnace jackets and replacing hoses. He was involved in welding work at the blast furnace including any metallic component of the machine to repair cracks or separations of the housing of a device. He spent a large amount of time welding cracks on large kettles that held molten lead. The kettles would often have leftover material in them and the employee would weld on lead contaminated steel which would include other materials. A blast furnace kettle might have more impurities than a refinery kettle. The employee was occasionally assigned to refinery maintenance to repair or replace floor plates and kettle framework. The heavy metal exposure would include lead, cadmium, trace arsenic, and others such as nickel, silver, gold, selenium and thallium. There could be trace amounts of antimony in the refinery part. The employee could have been called upon to repair the molding machines which would have remnants of lead and he would have welded contaminated surfaces with exposure to the same heavy metals.

Mr. Lewis testified that ASARCO was a very heavily regulated industry and required the employees use respirators. The kind of respirator that the employee was required to wear was determined by the personal air monitoring samples for each employee. In the sintering area, there would have been heavy exposure to heavy metals and as a maintenance man the employee would have been required to wear a powered air purifying respirator if there was 500 parts per million per cubic meter of lead exposure. The employee’s exposure often would be much higher and would be in the thousands parts per million based on personal and stationary monitor samples. The powered respirator was supposed to protect him from that and it did to some degree. There would be signs on his face including around the nose, chin, and forehead that not all of the contaminants were being filtered out. The employee wore the half-mask respirator and Mr. Lewis saw contaminants around his nostrils.

Mr. Lewis testified that ASARCO violated the standard on the exterior of the plant. A

decision was made to enclose the sinter plant which kept the dust inside to a much greater degree using devices very similar to the flaps used in a grocery store. The flaps did not allow the dust to be dispersed across the road as much but it increased the employee’s exposure due to less air circulation.

Mr. Lewis testified that the area with the most intense exposure to heavy metals was kettle welding, sinter plant and blast furnace. The employee was doing the bulk of the maintenance work including welding in the blast furnace because he was a leader. The employee got quite a bit of overtime working in the sinter plant. When the furnace went down the area was filled with smoke and fume in very fine particulate which increased emission of heavy metals or other byproducts. There were often heavy accumulations of very fine particulate on steel structures, machines, hand rails, and steps. There was kettle work in both the refinery and the blast furnace. The refinery was a lower exposure area generally than the blast furnace or sinter plant unless there was welding on the large kettles. The company always tried to catch a personal monitor sample of the work exposure when workers were welding on the kettles. There was a problem with hanging fumes, dust and visible welding smoke in the annex area. Eventually a ventilation hood with attached hose was installed but it did not eliminate the problem completely.


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Mr. Lewis was involved in taking samples and sending them to the lab in Utah. He received training from ASARCO in taking the samples and reviewing the data. ASARCO relied on him to review and interpret the data from the lab.

Mr. Lewis described the employee’s work ethic as excellent. He was a hard worker and very conscientious. To his knowledge the employee never violated any safety rules. He was not the kind of person that would cut corners. He was very thorough and conscientious about his personal hygiene.

Mr. Lewis testified that the OSHA regulations established what kind of equipment that

workers had to wear and how often they had to be biologically tested. He always made sure that the employee wore the appropriate safety equipment including the appropriate filters for his exposure, the proper face seals for the edge of his visor, and made sure that the visor seals came up against the face. The purpose of the biological testing was to see how their work environment affected the measurements of lead, cadmium, arsenic, and antimony. The blood samples were primarily for testing related to lead and cadmium, and at times arsenic. Based on an employee’s lead level testing might be done a few times a year, or if it was really elevated as often as every ten days. Generally, OSHA required it to be done quarterly. Arsenic testing was begun the last four or five years that he was at ASARCO. They started testing the air samples for arsenic and eventually looked at cadmium besides the lead.

Mr. Koczur testified that when he started in 1985, the employee was working in the maintenance section. The employee’s duties included working on the mechanical equipment, both maintenance and repair including welding. The maintenance department duties included tearing down and cleaning the furnace. They worked on the equipment in the sintering plant including crushing and mixing drums; the molding area equipment; the refining kettles; and the heating system. The sintering process was the dirtiest of the four processes and there was a lot of dust during the sintering process.

Mr. Koczur testified at ASARCO his job title from 1985 until Doe Run took over in

1998, was an environmental specialist in the health, safety and environmental department. His job duties at ASARCO were taking care of the safety training, providing people with safety equipment; and performing environmental air-quality, soil and water sampling. He was responsible for both environmental compliance and worker’s safety. The environmental side involved protecting areas outside of the plant and the public in general, which involved air sampling for sulfur dioxide and lead. They performed soil sampling to test for lead near the plant and water sampling to make sure that the water that they were discharging met EPA standards. He was responsible for worker safety.

Mr. Koczur testified the amount of required testing for workers was governed by OSHA

standards. The Glover plant was in compliance with OSHA as to their regulations for heavy metal testing. There were air samples from the workers for each individual job and throughout the plant that were sent to the ASARCO lab. The second part of worker safety involved biological monitoring which were OSHA blood testing requirements. The amount of lead in the blood was monitored because it was the main thing the plant workers were protected from. If their blood leads were elevated there was more testing. The blood samples determined whether


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that person needed to wear a respirator and if their blood levels got too high then they had to be removed from the job and put into a less exposed area. They could not be returned to that particular job until their blood level returned below the acceptable level.

Mr. Koczur testified that the elements being tested in biological monitoring were

primarily lead and cadmium and only occasionally arsenic. Under the OSHA standard the samples were required to be taken every three months or six months but the arsenic was taken less often. Testing for arsenic was done on occasion. If an air monitoring sample either on a worker or somewhere in the plant showed the arsenic level to exceed the government standard, then it triggered more testing for the individuals. The Glover plant did not have any problems with high arsenic levels except when they considered bringing lead from their Omaha plant. A lead sample from Omaha was tested and since it exceeded the OSHA level for arsenic the Glover plant did not receive any more product from Omaha. They continued to use local lead. Other than that, the Glover plant did not exceed the arsenic standard. The company tested for arsenic in the same sample for lead and cadmium and were always well below any threat level on the arsenic standard.

Ms. Whelehon testified at work the employee had problems with his skin and his face would break out and bleed. Dr. Griffin diagnosed dermatitis and prescribed medicine which helped but he continued to have problems.

In January of 1993, the employee saw Dr. Griffin due to a rash on his face. The employee used a respirator that had a lot of dust in it. Dr. Griffin diagnosed Rosacea, apparently precipitated by the use of the respirator in a dusty environment. The employee was to minimize the respirator and dusty environment as much as possible. Tetracycline was prescribed. He was to be rechecked if it was not clear in six weeks but that is the only record from Dr. Griffin.

Mr. Lewis testified that the employee continued to be monitored throughout his

employment with ASARCO. If a worker had a reading of 50 or more they were removed from that particular job and placed in a cleaner environment. They were not allowed to go back until their blood lead levels returned to 40. Generally the employee was at or below 30 on his blood lead level. He cannot recall that the employee was ever medically removed from excessive lead exposure. With regard to ever being medically removed for cadmium or arsenic exposure, a lot of the samples came back with no arsenic or cadmium present, but he did have some samples that that registered arsenic and cadmium. To his knowledge the employee never exceeded any of the OSHA removal standards.

Mr. Lewis was not aware of any worker ever being removed from the plant due to

excessive cadmium or arsenic levels. Medical removals at the smelter plant were normally due to lead. To the most degree ASARCO followed those guidelines and would generally move someone to a very low exposure position. Mr. Lewis never worked for Doe Run and has no direct knowledge of the Doe Run safety program. He does not have any firsthand knowledge of the condition of the plant after he left.

Mr. Koczur testified that in September of 1998, ASARCO became Doe Run due to a buyout. The lead processing was essentially the same including sintering, blast furnace, refinery


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and molding. There were some changes regarding the employee’s duties as a maintenance person. Under ASARCO there were a sinter plant team and a blast furnace team. Under Doe Run the maintenance workers got familiar with and could work on all of the equipment. The employee had been assigned at times to work in the sintering part of the plant.

Mr. Koczur testified that when the plant switched from ASARCO to Doe Run his duties

changed. He became the plant safety administrator and continued to work in the workers’ safety department. The environmental part of his job went away and his focus was worker safety.

Aaron Miller testified that he was formerly employed by both ASARCO and Doe Run at the Glover facility. Mr. Miller stopped working for Doe Run in February of 2015. He started working for ASARCO on January 23, 1989 as a mining engineer at the West Fork Mine and then the Sweetwater Mine. In March of 1992 he started working at the Glover smelter plant as a mining engineer and environment compliance officer. At Glover he was the head of the environmental department which included safety responsibilities including worker safety. Mr. Miller testified that when workers arrived at the Glover facility they were in street clothes. They would proceed into the clean side of the locker room and pick up their laundered work clothes. They would take their clean street clothes off, put them in their locker, put the work coveralls on, and then walk around to the dirty side which is where their boots and other work items were located in lockers. They would put their work boots and hard hat on and go to the area where the respirators were. The respirators were washed every day. Their respirators would be taken out of their bin, tested and put on. There were different kinds of respirators and the type of respirator that was required depended upon the area the worker worked. Those requirements were set by OSHA standards and could be dependent upon the worker’s biological monitoring. At lunch they would remove their dirty coveralls and put on clean coveralls. They would wash their hands and face and put covers over their boots and go into the lunch room. It was the same procedure when they left work. They would leave their dirty clothes on the dirty side, shower and get into their street clothes.

Mr. Miller testified that his worker safety responsibilities included fit testing employees, scheduling blood tests, and physicals; and monitoring areas inside and outside of the plant. It was heavily driven by OSHA exposure standards. With regard to monitoring workers during their employment, each job classification was required to have their area monitored. The monitors were put in those areas where people work to determine exposure. The monitors were also put on the employees. Every area of the plant was monitored on a regular basis. The information received from those monitor reports determined what kind of equipment the workers had to use. The level of exposure determined the level of personal protective equipment that was required. The results from the stationary and worker monitors determined how frequently employees had to be biologically monitored.

Mr. Miller testified the main thing that workers were tested for was lead and each time lead was tested so would zinc poly. There were specific requirements for each worker to continue to work in a particular position. The biological testing was primarily blood tests but there were also urine tests.


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Mr. Miller was familiar with the monitoring results in the Glover plant at the time Doe Run operated the plant. There was never a problem with Doe Run exceeding any arsenic or cadmium levels that required addition protection for workers. Under OSHA standards, if a worker’s blood lead exceeded 50 micrograms per deciliter they had to be removed from that work area and put into a low exposure area. The workers could not return to that position until their blood lead level was below 40 on two consecutive tests. Doe Run followed those OSHA requirements throughout his employment. Doe Run went through a voluntary reduction program to perform medical removals at 40 and to return to work at 30 which is 10 points lower than the OSHA standards. It was put that in place in the mid to late 1990s. It was a five-year process to go from 50 to 40. Doe Run used stricter standards than OSHA. Mr. Miller testified at Doe Run he was responsible for the environmental safety in both health and safety departments. The biological monitoring program consisted of sending samples to the ASARCO lab which was used when ASARCO owned the company. Mr. Miller testified that the primary purpose of the employee’s biological monitoring records at Doe Run, and the Doe Run air monitoring records which are Employer’s Exhibits B and E, were related to lead and cadmium. Lead was the primary constituent and cadmium in certain areas was the next highest. Lead smelter regulations included lead, cadmium, and arsenic standards. He received air monitoring reports for the Glover facility which were used to determine the concentration in the area where the employee worked. The concentrations determined what level of personal protective equipment would be appropriate for that area. He was unaware of any tests for antimony. There was arsenic testing listed as AR which was air sample tests on January 18, January 20, 1999 and in March of 1999.

Mr. Miller testified Employer Exhibit B is the biological monitoring results for the employee while at Doe Run. It includes blood lead and other testing. There are not any blood tests results for arsenic, probably because the air sample tests were below the action level for taking additional steps to protect workers from arsenic. Doe Run did not test for antimony. BPD is the symbol for blood lead and that was the employee’s blood lead level for that particular day. BCD is blood cadmium. The results of the biological monitoring would be used to determine if an individual needed to be removed from a work area. Workers were provided annual physicals. If the doctor performing the physical saw something that needed to be followed up, the employee would be referred to other doctors.

The employment records show that the employee started working at Doe Run on

September 1, 1998. In September of 1998, the employee went to an occupational medicine specialty center.

He was diagnosed with bradycardia and was to see his primary care doctor. At that visit the employee had no signs or symptoms regarding lead or cadmium toxicity.

On September 2, 1998, the employee filled out an OSHA Respirator Medical Evaluation. It was noted he would use a half or full face piece type powered air purifying supplied air, self contained breathing apparatus, and not a disposable. The only pulmonary or lung problem circled was pneumonia seven years ago. He circled that he had worked with asbestos when he


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caulked a furnace and worked in a dusty environment working in the sinter plant. He did not have any other hazardous exposures. The employee would be wearing respirators for over four hours a day. He listed carbon monoxide, sulfur and sodium as a special or hazardous condition or toxic substance that he would be exposed to using his respirators.

On September 3, 1998, he filled out a Cadmium Exposure questionnaire. He passed a

FIT TEST Report with a respirator for cadmium. On August 6, 1999, the employee had increasing shortness of breath and thought he was

getting pneumonia. Chest X-ray showed no acute changes from prior X-rays. Medication and an inhaler were prescribed. On August 19 the employee’s bronchitis was improved. A lung function test on September 27, 1999, was normal.

BioTrace Labs in Salt Lake City showed labs drawn for Doe Run at the Glover plant on September 28, 1999. The employee’s lead was normal at 28 with a range of 0 to 50. Cadmium was normal. On October 7, 1999, the employee went to The Occupational Medical Specialty Center for a physical examination. It was a satisfactory examination. The doctor checked that the employee did not have any detected medical condition which would place him at an increased risk for material impairment due to exposure to lead or cadmium; the employee did not exhibit any signs or symptoms which indicate lead and or cadmium toxicity or other effects of lead and or cadmium exposure; and there was no recommended limitations on the employee’s exposure to lead and or cadmium or any special protective measure to be provided to the employee.

Ms. Whelehon testified that her husband started having problems before 2000. Prior to his symptoms, after work they would check their cattle. They did not have a lot of free time due to running a farm operation. When he started developing problems, he stopped working on his farm due to inability to perform tasks. After the symptoms started he mainly watched TV at home. Before he stopped working, the employee thought there was something very wrong with him. The employee used to be a leader at work but fell so far behind that he could not keep up. He had problems with nausea and his skin rash continued to be a problem. Once in a while he would have diarrhea. He was able to dress himself, get ready for work on his own and drive to work but was extremely exhausted. She thought his problems were work related.

On February 3, 2000, the employee had a heart monitor for 30 days. On March 14, 2000, the employee saw Dr. Pieper at the Heart Health Center. The employee did not have bradycardia but has periods of sinus bradycardia. Pacemaker implantation was recommended.

Mr. Koczur testified that at least once a year OSHA performed a walk-through in the

plant and reviewed documentation. During his employment at Doe Run, OSHA did not have any criticisms or areas where it failed to adequately follow the OSHA guidelines or protect its employees. Doe Run was within OSHA standards.

Mr. Koczur testified that to his knowledge no worker had ever been medically removed

for having excessive cadmium or arsenic levels. Any medical removal at the plant would have


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been due to elevated lead levels. The employee was very conscientious, was a hard worker and took safety seriously. The employee kept his equipment in good order and used the equipment that he was supposed to. Mr. Koczur does not remember the employee ever being medically removed from his job or his levels exceeding the OSHA levels either at ASARCO or Doe Run.

Mr. Miller testified that he did not recall any safety incidents with the employee; and is

not aware of the employee being medically removed due to excessive test results for lead, arsenic, cadmium or anything else. He would have been aware of the employee being removed.

Ms. Whelehon testified the employee stopped working at Doe Run on March 25, 2000

and was unable to work anywhere after that. Both she and her husband felt like if he could get out of that environment maybe he would get better. As time went by he got progressively worse. She did not notice memory loss at first but there were tell-tale signs that started coming out. He had always been brilliant with numbers and could figure numbers in his head. He went to not being good with numbers. He could no longer do simple addition and subtraction; and had to stop taking care of the checkbook. The employee became quieter. He had extreme tiredness and lethargy; and had to take two or three naps a day. He curtailed his activities quite a bit, was physically unable to fish, and had generalized weakness. Around 2000, he started having problems with his neurological system including headaches and then losing his ability to talk. Ms. Whelehon testified the employee did not have any hobbies involving a lot of cleaning fluids or varnishes; and had no hobby or activity that exposed him to heavy metals outside of work. He did not have a family history of his symptoms; and was the only one of his five siblings to have those types of problems.

On July 14, 2000, the employee had a six week history of dizzy spells. The employee saw Dr. Roubey on February 2, 2001, due to becoming dizzy; and falling and hitting his head on the sink. The employee was admitted to Parkland Health Center. He was pale, felt weak and had an irregular heartbeat. He had the same symptoms twice the past year. He was diagnosed with sick sinus syndrome and a possible pacemaker was recommended. A CT scan of the head was normal. At his request he was transferred to Missouri Baptist Hospital where he was admitted on February 2 due to a complete loss of consciousness. EKG and telemetry monitoring demonstrated symptomatic bradycardia. Dr. Pieper implanted a pacemaker. The employee was discharged on February 6, 2001. On February 28, 2001, the employee saw Dr. Roubey who noted the pacemaker placement for sick sinus syndrome and severe bradycardia.

On April 5, 2001, the employee saw Dr. Hulsey for a long history of shoulder pain, especially the left side. An MRI two years ago showed a small rotator cuff tear. He retired soon thereafter and after that had very little discomfort. His daughter who is a nurse felt he was becoming more atrophic around the upper extremities. The significant medical history showed cardiac disease and arrhythmias. Review of systems showed positive for occasional peripheral edema, loss of hearing and pacemaker placement. Dr. Hulsey diagnosed bilateral impingement syndrome with rotator cuff tear of the left shoulder.


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On June 13, 2001, the employee saw Dr. Roubey with fatigue and mild swelling of the lower extremity. Assessed was hyperlipidemia, high blood pressure and fatigue. He was to check his thyroid and to return in three months. Ms. Whelehon testified that from August 2001 until the employee was put in a nursing home in March of 2004, she had to be with him 24 hours a day, 7 days a week. He did not know where he was and was getting confused. Even during the daytime with the lights on, he would struggle getting around the house. He was confused about where to find things and it got where he couldn’t turn on the tuner for the TV.

On September 6, 2001, the employee saw Dr. Roubey due to forgetting what he was supposed to do for the past 5-6 months; and not having any long-term memory. Dr. Roubey ordered blood and urine tests and a study for dementia. On October 17, the employee saw Dr. Roubey for dizziness. His pacemaker had been adjusted the night before by phone. On December 17, 2001, the employee saw Dr. Roubey with difficulty in expressing his words and forgetting a lot of things. The symptoms started about six months ago and were getting worse. The employee and his family were very concerned about his condition. Assessed was aphasia. The employee was referred to Dr. Goldring, a neurologist, at his request. A head CT performed on December 21 due to history of aphasia and onset of memory loss was normal. Ms. Whelehon testified by January of 2002, she started accompanying the employee on his examinations due to problems expressing himself. She was doing the driving due to getting confused about where he was.

The employee saw Dr. Goldring on January 22, 2002. He reported memory difficulty for

10 months; and difficulty with simple math, finishing sentences, losing his train of thought and forgetting phone conversations. He had an occasional tremor and an occasional brief left supraorbital pain. His symptoms were worse since his stepdaughter and grandson were killed in a motor vehicle accident in the summer of 2001. He did not know if he was depressed. On mental status examination he gave the day and date accurately and quickly, and was able to recite the months in reverse order quickly and calculate how many nickels in $1.30. He knew the current and past president and current vice president. His affect was markedly flattened. Dr. Goldring did not know if the employee had true progressive dementia or possible pseudodementia related to depression. The employee had a great deal of insight into all of his problems which was a bit unusual. He performed much better than anticipated on the mental status testing except for short term recall. Dr. Goldring prescribed Celexa, an anti-depressant.

In February of 2002 an echocardiogram showed normal left ventricular size and function with trace mitral and tricuspid regurgitation. On February 19, 2002, Dr. Goldring stated that the employee had some improvement with memory with Celexa and the prescription was increased. Dr. Goldring performed an electroencephalogram on March 26, 2002. The impression was mildly abnormal electroencephalogram due to presence of generalized slowing. It was a nonspecific finding and may reflect a toxic or metabolic electroencephalopathy of any cause. Clinical correlation was recommended.


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On April 12, 2002, the employee saw Dr. Roubey for worsening headaches and forgetfulness. In April of 2002, a lumbar puncture was performed due to memory loss and difficulty with speech. In May of 2002, the employee had trouble thinking and Celexa was discontinued. On May 6, 2002 the employee saw Dr. Roubey for lower back pain after mowing the grass the day before. Blood work was drawn. Ms. Whelehon testified at the Memory Diagnostics Center in 2002 and 2003 they gave detailed symptomatology to the doctor including trouble processing things; his body was getting very rigid; and he was having severe body jerks. In 2003 the employee needed frequent help dressing. It had gotten to the point which he could not find the bathroom. She would assist the employee with bathing, lay out his clothes and help him dress. From 2001-2003 she talked slowly because he was having trouble processing what she was saying. Everything was becoming confusing to him. He was taking a lot of naps and started having severe headaches.

The employee saw Dr. Haltzman, a neurologist, on May 16, 2002, at Memory Diagnostic

Center after being referred by Dr. Goldring and Dr. Roubey. His chief complaint was memory and concentration problems. His wife and daughter both noted that until July of 2001 the employee was doing well with regard to memory and thinking. During July of 2001 his stepdaughter and step grandson both died in a car accident. Sometime after that he began to have difficulty with recent memory; he had trouble with repeating questions, finishing thoughts, being less able to handle his finances, and being more unsure of himself. He began to lose interest in things. He was felt to be possibly depressed; although he denied depression, at least to his family. Due to issues tolerating Celexa he was put on Wellbutrin which improved his affect, but he still had significant difficulty with memory and concentration. He had difficulty getting words out at times. He has become more dependent and was much more passive but was still able to do things independently. The employee thought he was having trouble with memory which may have started before the death of his stepdaughter and step grandson, but not according to his wife. Dr. Haltzman’s impression was very mild dementia with the cause being unclear. The clinical dementia rating was very mildly impaired. He thought there was some component of an affective disorder but not major depression. There was a question as to whether he was also developing a dementing disorder as well as Alzheimer’s, but it was not entirely clear. He was to return in six months.

Ms. Whelehon testified that in October of 2002 the employee saw Dr. Hyers for asbestos in his lungs and received a settlement from ASARCO related to asbestos.

The employee returned to the Memory Diagnostic Center on November 11, 2002 and saw Dr. Snider. The employee was about the same. On exam the employee had mild postural tremor, left greater than right. On memory examination there was not a significant change and the employee made errors in episodic memory, orientation and concentration. The employee’s mood was improved but his cognitive deficits continued to be present and progressive. Dr. Snider suspected that they were related to underlying very mild dementia and the Alzheimer type that was worsened by the bereavement following the death of his relatives. The differential diagnosis included other dementing illness. In light of his gait difficulties and mild tremor, Lewy Body disease was a possibility. The employee was to return in one year.


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Ms. Whelehon testified that around 2003, their water was tested and it was fine. She did not think there was anything environmental about her home that caused his type of condition.

Ms. Whelehon submitted a water sample to St. Francois County Health Center which was collected on October 22, 2003 and submitted to the State Public Health Center. A November 18, 2003 letter stated that none of the values exceeded the limits to pose any significant health risks. The employee returned to the Memory Diagnostic Center on October 27, 2003, and saw Dr. Snider. His family stated that he had really “gone downhill.” He has a lot of confusion, cannot handle the checkbook, does not want to go out, and needs assistance with dressing. He shuffles when he walks. He has myoclonus several times per day and has staring spells. His appetite was decreased and he had lost 38 pounds. On exam the employee had masked faces and a flat affect. His speech was fluent but output was limited. He could only obey simple commands; had trouble understanding requests; and had postural tremors in the bilateral upper extremities. He had trouble rising from a chair but could walk with his gait being a slight shuffling quality. On memory examination he had no recall of a recent personal event and had limited insight on the way he had come to the Center. On neurobehavioral testing his scores had worsened in all categories. He was in the impaired range in semantic memory and moderately to severely impaired range in episodic memory. He had clear visual spatial defects. Dr. Snider noted that the employee has had significant decline in his cognition in the last year accompanied by marked visual spatial deficits and occasional myoclonus. The most likely diagnosis was Lewy Body disease but Alzheimer’s disease with more involvement of posterior cortical areas was also possible. Differential diagnosis includes dementia secondary to vascular disease. She reviewed the July of 2003 CT scan which was reported as negative. Prior studies had shown some atrophy. Due to the concern about progression, the Aricept dosage was increased. Dr. Snider recommended close monitoring and that the Alzheimer's Association be contacted about respite care assistance and to consider an adult day care. He was to return in one year.

Ms. Whelehon testified that in addition to the seizure in early 2004, the employee was diagnosed with viral encephalitis, and she didn’t think he was going to live.

The employee was admitted to Jefferson Memorial Hospital on February 21, 2004, for

altered mental status and fever. The employee had a history of Parkinson-like symptoms and Alzheimer’s plus Alzheimer’s dementia and a history of a grand mal seizure. Past medical history showed seizure disorder and depression. The employee had a three day history of increasing lethargy and altered mental status. His baseline mental status was the ability to ambulate with assistance and feed himself. His wife gave a history of declining mental status and inability to ambulate for the past three days. The employee was unable to give any history or review of systems due to altered mental status. Dr. Albano assessed fever of unknown origin; altered mental status; Alzheimer’s dementia and Parkinson-like syndrome.

On February 22, Dr. McGarry noted that the employee was known to him from a

previous evaluation on January 27, 2004, where the employee had his first clonic seizure and was started on Dilantin. After his discharge in January of 2004, he was very restless which has increased. Dr. McGarry noted a history of progressive dementia starting about four years ago when he started having difficulties with calculations. He had been evaluated at Barnes Memory


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Loss Clinic where he had a lumbar puncture, EEG and CT scan which were apparently normal and was given a diagnosis of Lewy Body disease. His deterioration had been very rapid over the last three to four months. Over the last week, his speech had deteriorated rapidly and he had been unable to get out of bed, feed himself and ambulate. Dr. McGarry’s summary was four year history of profound dementia, parkinsonian features, and aphasia. Dr. McGarry said that there was deterioration in mental status over the last two weeks due to new medication effect or possible infection in the lung, bladder or central nervous system. Differential diagnoses include cerebrovascular accident, neoplasm, disease progression or subclinical seizures.

A February 23 head CT scan showed mild prominence of central ventricular anatomy

compatible with mild central atrophy. Dr. Cadiz discharged the employee on February 26, 2004. The final diagnoses was viral encephalitis; metabolic encephalopathy, Lewy Body dementia, Parkinsonism, Pneumonia, Myoclonus, right foot ulcer, and normocytic anemia. He was transferred to the Transitional Care Unit and I.V. antibiotics for pneumonia were continued.

Ms. Whelehon testified that when the employee was discharged on February 26, 2004,

the doctor told her that one of the diagnoses was metabolic encephalopathy. The doctor did not go into a lot of detail except that it affected the brain.

The employee was admitted back to the acute unit at Jefferson Memorial Hospital on

March 8, 2004, due to fever. His functional decline was noted to be significant over the past few weeks. Dr. Cadiz stated the differential diagnoses include pneumonia, possibly aspiration, deep vein thrombosis, and central nervous system infection was a remote possibility. A lumbar puncture would be needed if there was no identical focus of infection. Other differential diagnoses are controlled seizure disorder and Lewy Body dementia with Parkinsonism.

The employee saw Dr. McGarry on March 9, 2004. He noted that the employee was

admitted on February 21, 2004, for a fever of uncertain origin and was treated for pneumonia. He was discharged to transitional care on February 26, and since March 6 his temperature went up to 102 degrees with chills and increase in cough. Dr. McGarry stated that the employee had known dementing disorder possibly Lewy Body disease for two or more years, and prior to that diagnosis he had normal CT scan, lumbar puncture and EEG. Dr. McGarry noted additional onset of seizures in January of 2004. In retrospect that his illness may have started about four years ago when he started having memory loss. Over the past several months his deterioration has been very rapid. When Dr. McGarry saw him on January 27, 2004, he attempted to cooperate and had minimal decrease in language fluency, but could say an occasional sentence. Comprehension was decreased; he could carry out a simple command and could name only 50% or less of common objects. Over the last month he had deteriorated rapidly. Most of the time he could not say any intelligible phrases. The employee was still taking food by mouth but it was getting increasingly difficult. He can no longer stand even with the assistance of two people. On examination, the employee was uncooperative; he had no intelligible speech, does not obey commands, and resists the examination. Dr. McGarry stated that the employee has rapidly progressive dementia with Parkinsonian features and seizures and fever of an unknown origin. Dr. McGarry’s differential diagnoses were aspirational pneumonia, atelectasis, DVT, urinary infection, autoimmune disease, cancer, central autonomic failure, and infectious disease of the central nervous system. Dr. McGarry mentioned a possible lumbar puncture.


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Dr. Dommaraju saw the employee on March 9. He noted the employee had Alzheimer’s dementia and Parkinson and was not able to talk or communicate. He was walking prior to the February hospitalization and was later admitted to the transitional care unit to improve his walking. Due to fever as high as 103 degrees, the employee was transferred to the acute care unit. Past medical history was significant for early onset Alzheimer’s dementia, Parkinson, pacemaker placement, BPH, seizure disorder and depression. His assessment was fever due to right lower lobe pneumonia, dementia, and Parkinson disease.

The employee was transferred and admitted to the transitional care unit at Jefferson

Memorial Hospital on March 16, 2004, for physical therapy, occupational therapy, and rehab. Dr. Cadiz noted gait instability. He was initially admitted for mental status change and fever. The source of the infection was pneumonia on the right side. A lumbar puncture showed cerebrospinal fluid of viral encephalitis. During this hospital stay had had some swelling of the lower extremities and a venous Doppler showed a right deep vein thrombosis. On examination, the employee kept his eyes closed, had very limited verbal contact, and would inconsistently answer. He had tremors at rest, especially the hand, with rigidity of the upper extremities. It was noted that if there was no progress, he would need to be transferred to a nursing home. On March 17, Dr. Dommaraju saw the employee for pneumonia. He had Alzheimer’s dementia and Parkinson and is not able to communicate. The antibiotics were continued.

Ms. Whelehon testified that in March of 2004, the employee was placed at St. Francois

Manor Nursing Home due to needing total assistance and not walking.

Dr. Cadiz ordered a Doctor’s Data Hair Element test. The hair was collected from the employee’s head on April 1, was received on April 5, and the tests were completed on April 7, 2004. The toxic elements that were high were Antimony at 0.083 with a reference range of less than 0.066; Arsenic at .18 with a reference range of 0.080; and Titanium was 1.1 with reference range of less than 1.0. Lead and Cadmium were not high. Lead was 0.31 with a reference range of less than 2.0. Cadmium was 0.0054 with a reference range less than 0.15. The essential and other elements that were high were Iodine of 5.8 with a reference range of 0.25 to 1.3; Vanadium at .11 with a reference range of 0.018 to 0.065: Chromium at .46 with a reference range of 0.20 to 0.40. The ratio that was high was Zn/Cu at 21.8 with an expected range of 4-20. The report stated that Antimony, Arsenic, Chromium, Vanadium, Iodine and Titanium were elevated.

Ms. Whelehon testified that she took the hair sample when the employee was in the hospital and strictly followed the directions. The company furnished an envelope to mail it back to them. That was the only hair sample ever taken. None of the treating physicians ever performed any lead poisoning or heavy metal poisoning treatment.

Ms. Whelehon testified as part of her claim for compensation benefits, she is claiming nursing services for 24 hours a day, seven days a week from August 1, 2001 to April 1, 2004, at the Federal minimum wage at the time of $5.15 an hour. From April 1, 2004 up until her husband died on January 29, 2009, she is claiming additional nursing services for eight hours a day while he was in the nursing home to make sure he got the proper care.


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The employee’s original Claim for Compensation was dated on March 23, 2004 and filed with the Division of Workers’ Compensation on April 12, 2004.

Ms. Whelehon testified that neither she nor her husband asked Doe Run to provide any of

the medical treatment that he received before the claim was filed. She was not aware of Mr. Whelehon or anybody on his behalf providing notice to Doe Run that he was claiming that his condition was caused by work until Mr. Moreland did. She does not know when the notice was provided to Doe Run. As far as she knew the first time that notice was provided was when Mr. Moreland filed the claim. It was her belief that that his conditions were caused by heavy metal poisoning from work.

In December of 2004, the employee saw Dr. Pieper for follow up of the sick sinus syndrome with post pacemaker implant with no recurrent episodes of syncope.

Ms. Whelehon testified that in 2005 she and her sister took the employee by wheelchair

to see Dr. Capapas but it was obvious there was not anything she could do for him. The employee saw Dr. Capapas on March 28, 2005. He was wheelchair and bed-bound.

The illnesses showed pneumonia three times since 2004; sick sinus syndrome pacemaker; history of DVT; history of viral encephalitis; seizure disorder with two seizures in 2004 with one a grand mal seizure; parkinsonism; and heavy metal poisoning.

The employee was admitted to the Missouri Veterans Home on January 11, 2006. The admitting history by Dr. Asher showed Lewy Body dementia: Parkinson’s disease associated with dementia; and supranuclear palsy or other degenerative disorder by history. His wife stated that the dementia started about four years ago when he was having difficulty with calculations. Barnes Memory Care diagnosed him with Lewy Body disease. In January of 2004 he had tonic-clonic seizures and a history of viral encephalitis. The employee had worked in a smelter and has been exposed to heavy metals. Dr. Asher diagnosed the employee with dementia secondary to Lewy Body disease by history: Parkinson’s disease associated with supranuclear palsy, and seizure disorder; with other diagnoses. Tertiary diagnosis was toxic metabolic encephalopathy and autoimmune disease. The employee was a total care patient.

Ms. Whelehon testified that if she was not at St. Francois Manor and the Veterans Home the employee was not getting proper care. He reached the point he could hardly swallow. A therapist trained her on the rolling-spoon method of feeding because his brain was not signaling it was time to swallow. The first doctor that gave a diagnosis of heavy metal toxic encephalopathy and talked to her in some detail was Dr. Doull. It was her belief it was work related.

On March 21, 2007, Dr. Doull, M.D., Ph.D., sent a letter to Ms. Whelehon. He included copies of relevant pages from Tietz's Textbook of Clinical Chemistry and Molecular Diagnostics and Basalt's Disposition of Toxic Drugs and Chemical in Man. It was Dr. Doull’s opinion that they provide the most current forensic data on tissue levels after heavy metal exposure. The hair analysis data that Ms. Whelehon provided him indicated elevated levels of antimony, arsenic and titanium, an elevated zinc-copper and zinc-cadmium ratio, and some changes in various metals


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and other elements. The hair analysis was from 2004 which was four years after he retired from a job in which he had been occupationally exposed to heavy metals for over two decades.

Dr. Doull stated that from his two conversations with Ms. Whelehon and the history provided by Brenda Russell R.N., that a differential diagnosis should include heavy metal toxic encephalopathy as a cause of his current symptoms. Heavy metal exposure is a common occupational finding in smelter workers and welders. His elevated levels of arsenic and antimony are most likely related to his involvement with the lead smelter operations and his elevated zinc ratios are suggestive of metal fume fever which is associated with welding operations involving galvanized iron. Normally arsenic and antimony have relatively short half lives compared to lead. Lead and other heavy metals can be deposited in bone and persist there for many years. The combination of antimony and arsenic which were the two highest metals in the hair analysis and the absence of high levels of mercury suggested these levels are not related to dietary intake but are more likely to be caused by his previous occupational exposure. It was Dr. Doull’s opinion based on an exclusionary diagnosis that the employee’s current symptoms and medical condition are the result in part or wholly from his exposure to heavy metals during his employment for over twenty years.

On May 17, 2007, Dr. Bushnell saw the employee for health maintenance. She assessed

dementia secondary to previous toxic chemical and heavy metal exposure.

Dr. Doull’s deposition was taken on August 7, 2007. Part of the exhibits was a summary by Brenda Russell R.N. who stated that occupational toxic encephalopathy should be considered as the underlying etiology for progressive deterioration of motor, cognitive, neurological functional and irreparable neurologic damage. Dr. Doull reviewed the April 1, 2004 hair analysis test which was about four years after the employee terminated his employment at the lead smelter. The hair analysis from Doctor’s Data indicated the actual levels and how they rank in terms of the range they normally see in populations. The antimony and arsenic exceeded that level. The other metals were not all that high. Antimony and arsenic and a number of other metals are common byproducts in lead smelting. The arsenic level was .080 which is quite high and is in the 80 or 90% range; and the antimony level was 0.66 which is about the 70 percentile. Those high levels indicate that the employee had exposure through diet, hobby, environment or occupation. Dr. Doull attempted to exclude sources of exposure and was left with the conclusion that it was probably occupational. It was Dr. Doull’s opinion that the diagnosis was heavy metal toxic encephalopathy which is damage to the brain caused by a toxic agent and heavy metals are known to do that. Assuming that the employee worked in a lead smelter for approximately 20 years and during that time was exposed to heavy metals including arsenic and antimony, it was his opinion that the work was a substantial factor in causing the diagnosis.

Dr. Doull stated that he has seen and treated many cases of heavy metal exposure and is

familiar with the type of symptoms it produces. It was his understanding that the employee initially complained of shortness of breath which is a characteristic of arsenic and antimony exposure. There were central nervous systems effects including dementia which were described in the medical records. It was his opinion that the exposure was occupational and caused the toxic encephalopathy. The symptoms associated with that are brain damage, depression,


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memory loss or confusion. It is very difficult to pinpoint arsenic exposure to any specific symptoms but mental changes are characteristic.

Dr. Doull stated that if there had been blood and urinary levels for arsenic or lead over the period which he was exposed and thereafter, it would give them some indication of what his levels actually were. Hair analysis is not as reliable as urinary and blood testing. It is a very good indicator of chronic long term exposure to heavy metals, particularly arsenic which is the heavy metal that the hair analysis said he was most predominately exposed to long term.

The symptoms that the employee had are similar to dementia or Alzheimer’s, and could be from genetics. The lab results show that the employee had been exposed to arsenic and antimony at higher than normal levels; and the ratio in the hair analysis suggested that he was a welder. Dr. Doull diagnosed heavy metal toxic encephalopathy. He would have made that diagnosis regardless of the suggestion by Nurse Russell. Dr. Doull did not talk to or examine the employee, and did not review any medical records other than the hair analysis. In his report Dr. Doull stated that his current symptoms and medical conditions are the result in part or wholly from exposure to heavy metals. Dr. Doull stated that he cannot answer what percentage of the symptoms is due to the exposure to heavy metals. Dr. Doull saw no data regarding the levels of exposure from the plant including air sampling or OSHA visit measurement.

Dr. Doull stated that the only source of information was the hair analysis and his discussion with Ms. Whelehon. There is not a lot of arsenic in the middle of Missouri. The employee had exposure to lead in his work occupation but by the time he got the data his lead exposure was pretty much gone. Lead is a bone seeker and stays there for years but he did not have any tests regarding his bones. Arsenic is accumulated in other tissues and persists in hair longer than lead. If there is high antimony the source of exposure is likely a smelter. Dr. Doull did not perform any independent research on the lab results, did not contact the lab, and did not talk to any other workers or review any medical records. Blood levels indicate acute exposure and hair levels are valuable for chronic exposure. The levels four years after exposure indicated a period in which the employee was heavily exposed to arsenic and antimony but not lead or mercury. Dr. Doull stated that the employee did not have excessive lead exposure.

Dr. Doull stated that the employee’s wife sent the report from Nurse Russell but he did not verify anything in her report. Dr. Doull did not know if the lab was qualified or dependable, and he would have liked to replicate the test with a second analysis. He did not know who took the sample, anything about the chain of custody, how it was transported to the lab, and if came into contact with any substance before being analyzed. Dr. Doull would change his opinion if the antimony and arsenic values are incorrect. Arsenic is a product associated with lead smelter processing and is often seen in people who work in the smelters. Different types of lead having different arsenic levels. Dr. Doull did not know whether the plant had a low or high arsenic value lead. He did not know if the employee was exposed to arsenic above the OSHA level. Dr. Doull asked the employee’s wife about his work to try to get some idea of the level of exposure, but he did not really learn a lot. She told him that he did not wear a respirator. The only kind of masks that will really prevent exposure is an air supplied mask or a double filter respirator.


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Dr. Doull stated that the main source of information other than his experience was the hair analysis report. In his second conversation with Ms. Whelehon he asked for testing from work but never received it. His diagnosis was an exclusionary diagnosis. The hair sample report was the only source of information Dr. Doull had concerning the employee’s heavy metal exposure. He did not see anything in the records that the employee had ever been removed due to elevated blood lead levels. The lead level was pretty close to normal in the analysis. OSHA requires employees who are exposed to heavy metals to take urinalysis and blood samples on a recurring basis during employment. Hair samples are not used in any biological monitoring. Antimony and arsenic levels in the hair can be confirmed by a urine analysis and as far as he knows that has not been done. Dr. Doull did not have any other testing results or urinalysis reports for the employee other than the hair analysis.

The employee was admitted to St. Francis Medical Center on August 13 and discharged on August 17, 2007 due to stomach issues. The history showed he worked in a lead smelter for 25 years and had been exposed to heavy metals. The past medical history showed Lewy Body dementia, Parkinson disease associated with dementia, supranuclear palsy, and tonic-clonic seizures. Diagnosed was aspiration pneumonia and ileus.

The employee was admitted to St. Francis Medical Center on October 5, 2007, and

discharged on October 16 for pneumonia. The consultation record by Dr. Lavalle for infectious disease showed a past medical history of Lewy Body dementia; Parkinson disease; history of viral encephalitis; deep vein thrombosis; and lead poisoning according to the employee’s wife. The discharge diagnoses by Dr. Asher was pneumonia; Lewy Body dementia felt secondary possibly to heavy metal poisoning; Parkinson disease; arteriosclerotic heart disease; status post DVT; and status post viral encephalitis.

The employee was admitted to St. Francis Medical Center on October 20 and discharged

on October 23, 2007 for recurrent pneumonia. The discharge diagnoses by Dr. Asher were persistent pneumonia felt secondary to continuous aspiration; dementia secondary to Lewy Body; Parkinson disease; ASHD; and status post viral encephalitis. On October 29, 2007, the employee was admitted to Crown Hospice.

Dr. Stillings issued a report on March 18, 2008. He noted that the employee was unable to attend the evaluation because he is totally mentally and physically incapacitated. He has had various disabling medical and neuropsychiatric problems, including heavy metal toxicity with associated neuropsychiatric disease, asbestosis, etc. His wife of 29 years was interviewed. Dr. Stillings reviewed various medical records, records from Doe Run, Claims for Compensation, and the deposition of Dr. Doull.

Ms. Whelehon reported that her husband was employed by ASARCO and Doe Run for

about 23 years. He was an extremely hard working person, sometimes working 16 hours per day, 7 days per week for ASARCO. In the late 1990s, he was physically and mentally unable to continue working overtime for Doe Run, and began declining due to the conditions of his employment and the work environment. The employee worked in a lead smelting plant and was chronically exposed to heavy metals, including lead, arsenic, and antimony on a daily basis and during overtime in a closed-in smelting furnace area. His job also involved welding repairs to


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lead kettles, exposure to welding fumes in poorly ventilated areas, and exposure to thick smoke from burning of materials and waste products in the smelting furnaces. He consumed well water on the job for 16 years until bottled water was provided because the well lines were contaminated. He took a daily shower on the work premises in the same well water.

The employee had onset of various symptoms, including extreme fatigue, headaches, a declining mental ability, short-term memory problems, nausea, abdominal cramping, chronic dermatitis, and shortness of breath. He was eventually diagnosed with bradycardia and sick sinus syndrome, necessitating the placement of a pacemaker in February of 2001. His symptoms were rapidly progressive over the years, to the point where, from a physical and mental standpoint, he became functionally incapacitated. The progression of the symptoms led to an early retirement in May of 2000. During the next 1-2 years, his medical and neuropsychiatric condition progressively deteriorated to the point where he had difficulty ambulating due to rigidity with muscle weakness, word finding problems, disorganized thought patterns, and clinical depression. He began uncontrollable involuntary muscle jerking of his extremities. In 2004, the employee had a grand mal seizure and was hospitalized. Post-discharge, his physical and mental conditions further deteriorated, and he was hospitalized four weeks later for pneumonia. He did not respond well to treatment, and a neurologist, based on a spinal tap, diagnosed him with encephalitis. He was discharged to St. Francois Manor Nursing Home, where he received 24 hour-a-day assisted living. In January of 2006 he was transferred to the Missouri Veterans Home. For the past few years, the employee had been nearly totally bedridden. He is unable to communicate and rarely makes eye contact. He chokes and aspirates on foods, fluids, and his saliva.

Ms. Whelehon stated that at no time did any medical facility perform testing for toxic metal poisoning. In 2004, she requested a hair analysis which revealed high levels of heavy metals, including arsenic, antimony, and titanium. The family history was negative for Parkinson's disease, dementia, Alzheimer's disease, other neurologic diseases and psychiatric disorders.

Dr. Stillings diagnosed the employee with dementia, cognitive, NOS, with other neurologic deterioration; and major depressive disorder, chronic. It was Dr. Stillings' opinion that the conditions of Mr. Whelehon's employment at ASARCO/Doe Run are the substantial factor in causing him to experience the above listed diagnoses. It was his opinion that the employee is permanently and totally disabled by those medical conditions.

Dr. Stillings' deposition was taken on September 24, 2008. In his report, Dr. Stillings stated that the employee was chronically exposed on a daily basis to heavy metals including lead, arsenic and antimony but he did not review any exposure levels on an acute basis or the total chronic exposure from his employment. Dr. Stillings did not have any specific monitoring data that told him what kind of conditions the employee was exposed to. Dr. Stillings said that in looking at his clinical condition in the absence of any other cause that would reasonably explain his problems, it was clear that exposure to those particular toxic heavy metals was the cause. He did not have any monitoring data on exposure to antimony, arsenic or lead.


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Dr. Stillings stated that on an acute basis and ignoring chronic exposure and chronic effects of heavy metals, he cannot point to any single incident where the employee exceeded the permissible OSHA limits for lead, cadmium, arsenic or any other materials. Arsenic may be a byproduct of the general process or the repair/maintenance that the employee performed. He does not know if the Glover plant used high or low arsenic content lead.

It was Dr. Stillings’ opinion that the employee’s symptoms are consistent with dementia and that the exposure of many years is the overwhelming etiologic persuasive element in the case. He thought the encephalopathy was more related to arsenic and maybe antimony instead of lead and other heavy metals. It was his opinion that there was not any specific level of exposure to develop a clinical syndrome. Some people are more susceptible than others. It was Dr. Stillings’ opinion that the conditions of his employment at Doe Run were a substantial factor in causing the diagnosed conditions. Dr. Stillings stated that working in a smelter plant in as a welder, the employee was exposed to a lot of heavy metals and not just lead, arsenic, and antimony. Dr. Stillings needed to look up which metals were present at Doe Run.

Dr. Stillings’ deposition was continued on October 22, 2008. It was Dr. Stillings’ opinion that the employee’s cumulative exposure to the byproducts of lead smelting through his retirement in May of 2000 resulted in the dementia, cognitive, NOS, with other neurologic deterioration; and Major Depressive Disorder, chronic. It was his opinion that those diagnoses were sufficient for the employee to be totally disabled even if he did not have asbestosis. Dr. Stillings did not know whether the employee had Lewy Body disease and normally that is diagnosed after death. He did not think the employee had Alzheimer’s because there was no dementia, Alzheimer’s, or neurodegenerative kind of conditions in his family pedigree, and the clinical picture was inconsistent with Alzheimer’s.

Dr. Asher filled out the employee’s Death Certificate for the January 29, 2009 date of death. He listed Parkinson’s disease and ASHD as the immediate causes of death.

Ms. Whelehon testified that to her knowledge, her husband was never medically removed

from his employment due to high lead, arsenic or cadmium levels. Her husband's death certificate’s diagnosis did not mention heavy metal poisoning. She did not have an autopsy performed.

Ms. Whelehon testified that when her husband was at the nursing homes from March 2004 to January 29, 2009, she helped him every day. She is requesting an award of permanent total disability benefits from March 25, 2000 until the date of death on January 29, 2009; and is requesting death benefits from January 29, 2009, up until her death. She is requesting burial expenses in the amount of $5,000 and $321,613.39 in medical bills incurred for the treatment related to his injury and disability.

On October 14, 2009, Dr. Doull issued a supplemental report after Ms. Whelehon sent the

death certificate; hair analysis, the reports from Dr. Stillings and Linda Graham, R.N.; and the medical records subsequent to his original March of 2007 report. It was Dr. Doull’s opinion that the employee’s toxic metal disease was a substantial contributing cause/factor in his death. Heavy metal poisoning is not usually associated with Parkinson's disease. The employee had


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been diagnosed with dementia, aphasia and other neurodegenerative conditions which have been linked with chronic exposure to arsenic, lead and other heavy metals. The employee was diagnosed with ischemia and a pacemaker was implanted to treat his bradycardia. Most of the heavy metals such as lead, arsenic, antimony and cadmium have been shown to damage the hematopoietic system and cause cardiovascular disease. Dr. Doull concluded that the employee exhibited symptoms of heavy metal poisoning consistent with his 20 year occupational exposure, and that was confirmed by the results of the heavy metal hair analysis in 2004.

Dr. Doull’s second deposition was taken on November 23, 2009. The additional medical records he reviewed indicated the employee was suffering from dementia and other central nervous systems disorders. It was his conclusion that the exposure to the metals in the smelter, particularly antimony and arsenic, contributed in some part in the cause of his death. Dr. Doull attributed his problems and ultimate death to arsenic and antimony exposure during his employment. The employee worked in the smelter for around 20 years, and his symptoms developed somewhat close to the time of his retirement in 2000. He had central nervous system and cardiovascular effects which are characteristic of heavy metal poisoning including arsenic, lead, antimony and cadmium. Heavy metals are known to cause toxic heavy metal encephalopathy and cardiovascular symptoms. Central nervous symptoms are characteristic of toxic heavy metal encephalopathy. His symptoms suggested exposure to heavy metals in addition as part of his occupational duties.

When asked if the occupational exposure was a substantial contributing factor to the employee’s disease and ultimate demise, Dr. Doull did not know how much the toxic encephalopathy contributed to his central nervous system problems but it was certainly a major factor in his subsequent downhill progression.

Dr. Doull stated that in the 2004 hair analysis test, the result for arsenic was .18

micrograms per gram; and for that lab was in the 80% range. Their reference range is 0.080 so the level of arsenic that was detected was about twice the level it should be. Dr. Doull testified that the 7th edition of Disposition of Toxic Drugs and Chemical in Man states that arsenic concentrations in normal hair tissue are .307 milligrams per kilogram which is higher than the employee’s sample. It appeared the employee had less arsenic in his hair than the normal finding in the textbook. There are no other hair samples and no urine or blood sample showing arsenic levels during his Doe Run employment. He had no urine or blood samples after he left his employment showing heavy metal levels. Dr. Doull asked for but did not see OSHA air sampling data from the plant.

Dr. Doull testified that there are three things required in order to diagnose causation.

First is an agent capable of producing an effect. Second, there must be a susceptible individual. Third, and most important, is an exposure which exceeds the threshold for that toxic effect to occur. In the employee’s case there were two agents capable of producing adverse effect which were arsenic and antimony, and humans are susceptible to those effects. The issue is really whether there was an exposure that exceeds the threshold. Dr. Doull based his conclusion mainly on the description of the symptoms seen in the employee and the hair analysis which was confirmatory.


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Dr. Doull testified that the arsenic level in the hair report was below what was considered normal in the textbook. The only exposure data that he has is the hair sample. The last thing to have causation is an exposure level that exceeds a known level of a certain effect. Dr. Doull stated that it sounded correct that the blood lead level required to cause encephalopathy in adults is a ballpark level of a 100 micrograms per deciliter. Dr. Doull reviewed two blood lead tests at Doe Run which were normal. He has no data showing his blood lead levels exceeded a 100 micrograms per deciliter during his employment; and the hair lead analysis was normal. Dr. Doull thought lead may have contributed to his problem but there was no proof that he was overexposed to lead.

Dr. Doull stated that toxic level for arsenic is not known and confirmed that he had no

information that the employee exceeded the toxic level for arsenic during his employment. Dr. Doull made an assumption that the employee was over-exposed based upon the symptoms reported by Ms. Whelehon. It would have been very helpful to have biological proof of tissues from the employee and air sampling from the state but he did not have either one. Dr. Doull did not have any proof that the employee exceeded threshold levels for lead or cadmium.

Dr. Doull stated that there was not an autopsy performed to determine whether the

employee had Parkinson’s disease, Alzheimer or Lewy Body diseases; and that would have been very helpful to diagnose those conditions. Any person exposed to any heavy metal at levels exceeding the threshold limit value set by OSHA for occupational exposure is likely to show symptoms of exposure. Dr. Doull had no information that the employee was exposed to levels exceeding the OSHA guidelines during employment at Doe Run. He did not get any data that would have indicated the exposure levels and whether it exceeded those levels. Dr. Doull did not receive any industrial hygiene data that would have given some indication of exposure.

Dr. Doull stated that the constellation of symptoms plus the hair analysis made it very

likely that there was a relationship between his occupation and his symptoms. The fact that there was an elevated level of arsenic and antimony at the time of the hair analysis said to him that the employee had higher levels than he should have several years before. Dr. Doull did not look at any studies that show antimony and arsenic stay in the hair for four years. The arsenic level was well below the normal range in the textbook, but it was twice the level for the laboratory.

Dr. Stillings issued a supplemental report on April 26, 2011, after reviewing the hair analysis; the death certificate; and Dr. Doull’s October of 2009 report and November of 2009 deposition. It was Dr. Stillings’ opinion that the employee’s exposure to the toxic heavy metals which have been established as being present in elevated levels (arsenic and antimony) is a major and substantial contributing cause of the employee’s dementia and neurodegenerative disorders of the nervous system, ultimately resulting in his death. Dr. Stillings’ second deposition was September 27, 2011. When asked if he relied on any other biological monitoring data, blood sample or other lab report in forming his opinion other than the hair analysis, Dr. Stillings did not really see anything else of significance in terms of laboratory values; and that the clinical data is probably more important than a laboratory value.

When asked if he reviewed any records that showed that the employee was exposed to any chemical above a level known to toxicity by his standard, Dr. Stillings testified that if there


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is chronic exposure for 23 or 25 years in a lead smelting plant with other heavy metals present there is a sufficient exposure level. Having an air sample would show acute exposure and not chronic exposure. Dr. Stillings thought the data supported that the employee was exposed at a toxic level. His diagnoses and causation opinions would not change even without the hair test which showed elevated levels of arsenic, antimony and titanium.

Dr. Stillings stated that heavy metals tend to go to fatty tissues or tissues with mineral like bone but no performed a bone or brain sample. An autopsy is not necessarily the only way to verify Alzheimer’s because the different dementias can be distinguished from Alzheimer’s based on clinical criteria. He did not think there was an in-depth and precise application of clinical knowledge in making the diagnosis. Dr. Stillings thought the doctor who signed the death certificate would have realized that Parkinson’s is not obtained from heavy metal poisoning.

Dr. Stillings stated that there was data that supported high exposure repairing smelting pots many times. The employee had a chronic exposure in areas that are known to have heavy metal concentrations but he did not know the levels that the employee was exposed to over the 25 years. Dr. Stillings stated that OSHA standards are not absolutely necessary with regard to toxic heavy metal exposure. He deferred to Dr. Doull in terms of recommended levels but not in terms of causation or diagnosis.

With regard to the hair sample test taken four years after employment; Dr. Stillings stated that heavy metals can stay in hair a long time so it is something that should be integrated into the overall conclusion, but he would not strictly and solely rely on that. Lead stays in hair samples longer than antimony or arsenic.

Dr. Stillings stated that with the motor, sensory, memory, cognition, and speech difficulties it was clear that the employee had global dementia far in excess of Alzheimer’s. A loss of swallow response is not seen in Alzheimer’s and indicated a far more devastating neurodegenerative condition. Dr. Stillings stated that the employee’s lead level was not elevated but that is a laboratory finding which should not be equated with a clinical diagnosis. He did not disagree with Dr. Doull that the known concentration of lead in blood to cause encephalopathy is 100 micrograms per deciliter in the blood but the employee’s case cannot be reduced to one blood test. His case is a chronic exposure of around 23-25 years. He is familiar with OSHA standards that are set to allow a person to be exposed or to have a blood lead level of 50 micrograms per deciliter and based upon a 40 year work life at 40 hours a week as being an acceptable exposure level. Dr. Stillings stated that the employee worked 90-100 hours a week. It was Dr. Stillings’ opinion that the exposure was the prevailing and the direct and proximate cause of his neurodegenerative disease and the neurodegeneration resulted in his death.

On June 21, 2013, Dr. Godfrey, a pathologist, issued a report and his deposition was

taken on July 30, 2014. Dr. Godfrey’s source of information was the records that he reviewed. He reviewed the hair elements toxicological evaluation; the March of 2008 evaluation by Dr. Stillings; the depositions of Dr. Stillings in September and October of 2008; the Certificate of Death; the October of 2009 evaluation by Dr. Doull; the November of 2009 deposition of Dr.


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Doull; the April of 2011 evaluation by Dr. Stillings; and the deposition of Dr. Stillings in September of 2011.

Dr. Godfrey noted that the employee’s job involved extensive occupational exposure to

various heavy metals, most notably by performing frequent welding repairs of ore processing kettles. He was exposed to various fumes and other waste products in poorly ventilated areas of the plant. His retirement was prompted by the onset and progression of a spectrum of neuropsychiatric symptoms including decreased cognitive skills with loss of memory. In 2004, four years after his retirement Ms. Whelehon submitted samples of his hair for a toxicological analysis. This study detected the presence of various potentially toxic heavy metals, with evaluations above the reference ranges for several including antimony and arsenic and levels within the reference ranges for several including lead and cadmium. It was Dr. Godfrey’s opinion that there is no causal relationship between exposure to lead and heavy metals to Parkinson’s, Alzheimer’s disease, and Lewy Body disease.

Dr. Godfrey did not review any records from Memory Diagnostic Center, Dr. Goldring,

Medical Arts Clinic, Allied Behavioral Consultants, Missouri Baptist Hospital, and Jefferson Memorial Hospital. He did not review any biological monitoring data for the employee during the time he was employed by Doe Run. Dr. Godfrey was not familiar with the type of safety devices that lead smelter workers were required to have including respirators. He did not see any company reports regarding what exposure level of various heavy metals that the employee was subject to and has not seen any information on what the employee’s blood lead levels were during his employment with Doe Run. Dr. Godfrey stated that he did not think it was necessary to know the definite exposure level to establish whether a condition was caused by exposure. He thought that an opinion could be given based upon cumulative knowledge of a work environment and the findings of physicians with experience in those areas. He was significantly influenced and deferred to the clinical opinions of Dr. Stillings and Dr. Doull who have greater experience and who had much more extensive evaluations of the employee.

Dr. Godfrey testified that a hair sample taken four years after last working was a relatively crude method of accurately measuring past exposure. The measurements of heavy metal exposure would vary depending on duration of time and the tissue sample. That was the only biological data he had for heavy metal toxicity. It was his opinion that the employee’s occupational exposure during the course of his work at the smelter plant was a substantial contributing factor to the diagnosis of a neuropathological disorder or disease associated with heavy metal or lead poisoning; and it was on a cumulative basis without any attempt to assign any proportionate responsibility for ASARCO and Doe Run.

Dr. Godfrey stated that it would require an exhumation of the body to make a definite

indisputable diagnosis that the employee had sufficient levels of lead in his body to produce the neuropathologies commonly associated with heavy metal and lead poisoning. Dr. Godfrey was able to formulate opinions with respect to various pathologies including heavy metal poisoning


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without resorting directly to an exhumation of the body. The histories he obtained through Dr. Stillings are consistent with heavy metal poisoning. Dr. Godfrey saw no evidence of an abnormally high exposure to lead, antimony or arsenic outside of employment. Neurocognitive impairment due to neurotoxicity is one of the several organ systems that are most notably impacted by lead exposure and other heavy toxic metals. Occupational exposure to heavy metals has known association with metabolic encephalopathy while dementias accompanying Parkinson's disease, Alzheimer's disease, and Lewy Body disease do not.

Dr. Godfrey stated that he was in essential agreement with the toxicological evaluation by

Dr. Doull. Toxicologic hair analysis of heavy metals correlates with chronic rather than acute exposure, and best reflects the time interval when the hair was being formed for growth. The findings in the sample taken four years after retirement do not represent the levels of analysis such as lead that would have been reached during his employment years.

Dr. Godfrey stated that the employee’s cause of death should more appropriately have been designated as "Metabolic encephalopathy" due to or as a consequence of "Occupational heavy metal exposure." It was his opinion that the occupational heavy metal exposure was a substantial contributing factor for the metabolic encephalopathy. Dr. Godfrey was skeptical of the designation of Parkinson's Disease as the cause of death. Parkinson’s dementia, Alzheimer's dementia and Lewy Body dementia are not associated with chronic occupational heavy metal exposure. Dr. Godfrey stated that since no autopsy was performed, none of these alternative considerations for dementia can now be definitively evaluated because only a neuropathologic evaluation of the brain can provide confirmatory diagnosis.

Dr. Harrison issued a report on April 17, 2014. His deposition was taken on November 12, 2014. His report was based on a review of records. Dr. Harrison diagnosed the employee with dementia, cognitive, NOS, with other neurologic deterioration; major depressive disorder, chronic; and severely physically and mentally disabled. Based on the medical history, record review, and family history, and the assumption that he was exposed to lead and other heavy metals at his place of employment, it was Dr. Harrison’s opinion that the exposure to heavy metals at ASARCO/Doe Run was the substantial factor in causing his diagnoses. Dr. Harrison stated that there is a lot of research on the chronic exposure of lead and heavy metals causing primarily cardiovascular, neurologic and cognitive function disorders to different body systems. The assumed chronic level of exposure for 20-30 years was the substantial factor.

It was Dr. Harrison’s opinion that the employee was permanently and totally disabled; that the diagnosed conditions caused him to die; and were a significant contributing factor into his early death; and the hypothetical exposures related to lead and heavy metals was a substantial factor in causing his death.

Dr. Harrison would defer to Dr. Doull with regard to acute and chronic exposures. When

asked if he agreed with Dr. Doull that the primary problems were due to exposure to arsenic and antimony; Dr. Harrison stated that based on the employment history those contributed and could have been the primary cause. Dr. Harrison did not remember seeing documents that showed what the employee’s blood levels or air monitoring data were during his employment at Doe


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Run. He does not know whether the employee’s blood lead levels ever exceeded the OSHA levels for being removed from work at any time during his employment with Doe Run.

Dr. Harrison stated that long-term low level of blood lead has been shown to cause

significant issues. Dr. Harrison agreed with Dr. Doull that in order to diagnose causation there has to be an agent that is capable of producing the effect; there has to be a susceptible individual; and there has to be an exposure that exceeds the threshold for the toxic event to occur. Dr. Harrison has not reviewed any data showing an exposure level exceeding the known threshold for toxicity. It was Dr. Harrison’s opinion that even though someone that is exposed below what is considered to be a normal level it can cause symptoms including dementia and cognitive dysfunction.

Dr. Harrison stated that there are studies that link heavy metal and lead exposure to a

variety of symptoms including cognitive function, and if dementia is a spectrum of cognitive function that is an easy path to link that to heavy metal and lead exposure. For causation purposes there are studies that if blood levels get above a certain level there is a statistical correlation between exposure and a particular condition. There are acute exposures with blood levels of greater than 80 that cause cognitive symptoms; and cardiovascular and blood pressure problems. There are chronic exposures over an extended period of time where a person can be asymptomatic or have very nonspecific symptoms that develop into more permanent disabilities.

Dr. Shippen issued a report on August 26, 2015. His deposition was taken on December

3, 2015. Since 1978, he has done consulting work for the lead industry. The OSHA standards were promulgated in 1978. He helped employers implement the OSHA standards which were instituted in early 1979. The allowable limits of exposure for air and blood were outlined. The original standard had an upper limit of 80 micrograms per dL. If an employee exceeded that and was medically removed, they could come back to work at 60 micrograms. There was a step down process over five years and the final standard was the absolute removal level of 60 micrograms per dL or an average of 50 over six months. Any worker who exceeded any of the limits was removed from lead exposure until the blood lead returned to 40. The gold standard for monitoring lead workers is blood lead levels and an accompanying ZPP designed to look at biologic effects on the blood heam forming system as a backup test to the blood lead.

Dr. Shippen testified that the OSHA standards requires personal and area air monitoring at plants with lead exposure. If the levels are above 50 micrograms per cubic meters, the OSHA regulations are instituted. If levels exceed 50 micrograms per cubic meter then environmental controls or personal protective equipment had to be implemented to protect workers which include respirators including high-level full face air respirators or half face or full face non powered air respirators. The purpose was to keep the blood lead level below 40. Dr. Shippen performed yearly physicals and did physical exams on any employee that had elevated blood leads or had to be medically removed from exceeding guidelines under the OSHA standard.

The OSHA standard was that if the blood leads were below 40, workers should be able to

work for lifetime in a lead exposed job without material level of impairment of health which means without significant adverse health sequelae. The OSHA biological monitoring standards


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were adopted so that a worker working 40 hours a week for an entire 40-year work career would not sustain any material impairment of health or any significant health decrements.

The employee worked for ASARCO and the Doe Run Company for approximately 23

years as a maintenance employee. He performed many jobs including welding and furnace repair that would have exposed him to lead and traces of other metals; and might have included trace amounts of arsenic and antimony. Periodically, there may have been cadmium compounds and if elevated it would have triggered special cadmium physicals and testing. The employee would have been intermittently exposed to areas of the smelter that required maintenance, usually during shutdown of operations in order to repair equipment. In all these operations he was required to wear a full face, full head covered powered air purified respirator that had the highest ratings for control of inhalation of work environmental exposures. It is possible that he was exposed to elevated levels from time to time, but only for short intervals. There was no evidence he was exposed to excessive levels of lead or other heavy metals for prolonged periods due to the use of the personal protective equipment and because his jobs for repair were constantly changing to different areas within the plant and usually when those operations were not actively in production.

Dr. Shippen testified that Doe Run monitored for arsenic, cadmium, and lead. Dr.

Shippen’s review of Doe Run’s air monitoring data showed variable high levels of lead in the furnace operation. Cadmium and arsenic were all below detectable or OSHA permitted exposure levels. The employee was not required to undergo OSHA required tests for either exposure. Dr. Shippen reviewed the employee’s biological data during his employment and the plant physicals. There was no arsenic level that exceeded the OSHA standard for permitted exposure levels on any of the testing. The employee never had to do any testing or special physical exams. None of the exposure records support a finding that the employee suffered from toxic exposure to arsenic. The employee’s blood cadmium and urinary cadmium were below OSHA’s permitted exposure level that required any intervention.

Dr. Shippen testified that there were no elevated levels documented at Doe Run during

the employee’s last two years of employment. He did not have any abnormalities or complaints on any of his physicals or lab tests. Deposition Exhibit 4 was the employee’s blood lead levels measured during employment. The ZPP levels fluctuated and some were above the 100 standard but the ZPP level has never been shown to be associated with any specific impairment of health. The results over 100 showed he had some small incidental exposures that would have caused his ZPP to fluctuate. His blood lead levels varied from 28 to 35 from September of 1998 until March of 1999. Blood lead tests are the gold standard for monitoring lead exposure in workers. All of the employee’s blood lead levels were within the acceptable range during his employment at Doe Run. All of the employee’s biological testing that he saw was within the normal limits under the OSHA standards. There was no documented exposure to excessive levels of any heavy metal. During his employment at Doe Run the employee’s blood lead level never exceeded the OSHA level of 40. He was never medically removed from his job due to any elevated exposure.

Dr. Shippen testified that none of the employee’s treating physicians listed heavy metal

exposure as a possible cause for his medical problems; and did not conduct or order any heavy metal screening or testing. Not only did they not test for heavy metal exposure, there is no


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mention of any heavy metal poisoning treatment in the medical records. The only mention of heavy metals is a history that he worked at a smelter, and none of the treating physicians listed heavy metal poisoning or toxicity in their diagnosis.

Dr. Shippen has studied lead, cadmium and arsenic. Arsenic is not stored to any great

extent in the body and is rapidly execrated and does not build up in tissues like cadmium and lead. He has never had a reason to study antimony.

The hair analysis ordered by Dr. Cadiz was done at the request of Ms. Whelehon.

Despite the employee’s rapidly declining health and mental status, no further tests for toxic metal was entertained by any of his treating specialists. It was Dr. Shippen’s opinion that there was misinterpretation of the hair analysis testing and the consistently repeated reliance on a single toxicological test, the Doctor's Data Hair Analysis. The test was done four years after the occupational exposure. Since many of the tests require relatively recent exposure, the validity of test values to reflect long past exposures may not be valid. An average hair sample for a male in a length of ½” to 1” would represent exposure during the previous couple of months. The reported values and the data on the test were completely misinterpreted by all the claimant’s experts. The interpretation that there was excessive levels are incorrect. Based on Dr. Doull’s own textbook, the levels in the hair never came close to the toxic levels listed.

Dr. Shippen testified that the use of the hair analysis as a single, unconfirmed test was not even recommended by Doctor's Data and required back up testing. The report stated that "Careful consideration of the limitations should be made in the interpretation of the results of hair analysis. The data provided should be considered in conjunction with symptomatology, diet analysis, occupation and lifestyle, physical examination and the results of other analytical laboratory tests." It further stated "Caution: The contents of this report are not intended to be diagnostic and the physician using this information is cautioned against treatment based solely on the results of this screening test."

Dr. Shippen stated that even though the claimant’s experts thought the employee suffered

from heavy metal toxicity, none of them ordered or performed any diagnostic blood testing for heavy metals including antimony or arsenic which would have been more accurate to confirm the supposed exposure. Dr. Shippen did not believe that Dr. Doull or the other doctors had any understanding of the actual data results being completely normal for all the metals tested. None of them had any additional information on actual past exposure to the elements in question. It was his opinion that their conclusions were not supported by any objective testing.

Dr. Shippen stated that a review of the hair sample test results were all within the normal

range for the average population. The hair sample showed normal levels of arsenic, antimony lead, and every other element. The antimony level was within the normal expected range for the average unexposed population. Unlike lead and cadmium, arsenic is not stored for that long. The arsenic levels in his hair have nothing to do with his employment and are due to his diet or environment. Arsenic and antimony are not considered heavy metals.

Dr. Shippen testified that toxicology profile for antimony shows that it is not likely to

cause neuropsychological, brain damaging, central nervous system or adverse neurologic effects.


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Cardiovascular effects occur only at the highest levels of exposure. In his experience, antimony rarely comes up as a problem in lead smelting plants because it is such a small fraction of the metals that are smelted. There was no chance that high levels of antimony would be achieved in any worker that was protected from lead exposure with a respirator, particularly those with powered air purifying respirator types. The safe permitted exposure levels for inhalation are 10 times higher than the permitted exposure levels for lead (500 micrograms whereas lead is 50 micrograms per meter squared). With the antimony levels in the plant being so far below the OSHA permitted exposure level, and given that antimony is not likely to result in the type of health effects the employee suffered, Dr. Shippen stated that antimony exposure can be ruled out as the cause of his problems.

Dr. Shippen stated that the primary element that the employee was exposed to during his

employment was lead. Both lead and cadmium are stored and slowly released and would have shown up in the hair as a biomarker of past exposure. If the employee had substantial lead storage in his bones from long exposure to high lead levels, then the slow release from bone would be circulating to the hair follicles. If he had excessive exposure to lead or cadmium, those levels in the hair sample would have been high and would have been well above the normal ranges. The hair analysis showed both lead and cadmium to be well below the median levels for the average healthy population. The reference level for lead was up to 2.0 for unexposed workers, the employee’s lead measurement was 0.31 micrograms per gram. Dr. Shippen agreed with Dr. Doull that lead was not a significant finding in the hair sample.

Dr. Shippen testified that the cadmium level was within the normal range and his

cadmium hair sample level was one-third of the reference range of a normal average population. If he had a lot of stored cadmium from being exposed at higher levels, he would have had cadmium that built up in his tissues. His level of cadmium is very low compared to the average unexposed person in the population which shows that his lifetime exposure had to be very low. The urinary and blood cadmium for the employee were within the OSHA acceptable levels.

Dr. Shippen stated that in his 37 years experience initially examining and following lead

exposed workers, he has never seen or read of a published case of "chronic lead encephalopathy" resulting in full-blown dementia in long-time workers or retirees. The description of "lead encephalopathy" have only been reported in acute, very high levels of lead exposure, usually well above 100 ug/dL. Highly exposed individuals that get overt lead poisoning have symptoms that includes anemia, lead lines on the gums, significant abdominal symptoms of pain, colic, constipation, weakness and cognitive dysfunction and findings of brain swelling on MRI. The OSHA standard for lead is medical removal if blood lead level exceeds 60 ug/dL or an average of 50 ug/dL for six month average. The employee’s blood lead level ranged from 28-34 ug/dL during Doe Run Company testing. Physical examinations, lab testing, and pulmonary function testing were all normal.

Dr. Shippen testified that there is significant literature regarding long-term lead workers

and neuropsychological functioning that suggests relatively minor changes in most basic neurologic functions. There is a double blind study which is the gold standard for scientific finding comparing lead industry workers to unexposed steel workers. Dr. Parkinson a physician representative for a steelworker’s labor union conducted the study. The Parkinson Study is the


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only double blind study ever done to assess full neuropsychological functions in chronically exposed workers, some with over 25 years exposure. The study conclusion was that if there are lead decrements in memory, thinking or nerve conduction they are basically reversible when the blood lead levels come back down in the safe OSHA ranges. There was no significant difference between lead workers and unexposed steel workers of similar backgrounds. The study included workers exposed to not just lead, but also to cadmium, arsenic and every other heavy metal associated with lead smelting. There was no significant relationship between exposure at a lead smelter plant and neuropsychological functioning; and no correlation to the kind of problems that the employee was having.

Dr. Shippen testified that there is a medical study of a very large well-tested group of

highly exposed South Korean lead industry workers. The study was conducted by Brian Schwartz and ten other authors. South Korea did not have OSHA standards so there were a large number of highly exposed lead workers with exposure levels exceeding the OSHA standard levels. The study shows that in workers who exceeded the OSHA standard, there were no significant objective neuropsychological brain damaging effects after a lifetime of working at high exposure levels. The study is significant because it graphically shows the minor, if any, effects on workers working long periods of time and over large exposure ranges. It showed some changes in basic neuropsychological functions, but overall the results demonstrate relatively mild changes and no changes to suggest any form of lead encephalopathy or significant brain damage. All the Schwartz study workers had much higher levels of exposure to heavy metals than the employee. The findings are absolutely devastating from a standpoint of trying to draw a picture of heavy metal exposure causing encephalopathy and brain degeneration.

Dr. Shippen testified that the conclusion by many of the non treating physicians that heavy metal exposures, confirmed by the hair analysis test, was causally related to the brain damage and dementia lacked scientific credibility. The conclusion is not supported by available plant environmental or lab testing; and is not supported by well known toxicological literature on brain encephalopathy reported from lead intoxication.

Dr. Shippen testified that in all of his years of experience examining and treating long-

term lead industry workers he has never seen any worker with anything remotely similar to the employee’s symptoms, clinical picture and rapidly progressive brain disease. He has never examined or treated any worker with the kind of conditions suffered by the employee including workers that were exposed to much higher levels than in plants today that are subject to the OSHA standard.

Dr. Shippen testified that there is literature on lead exposure causing encephalopathy but

it requires an elevated blood level at an extremely high level above 150. Some textbooks say the blood lead level above 100 would put a person at risk for developing encephalopathy. There are very few case reports of anyone having acute encephalopathy below 150. The employee never came close to having levels in the 100-150 range. Dr. Shippen testified that there is no description in any toxicology reference book that lists "Chronic Heavy Metal Encephalopathy" as the result of long-term heavy metal exposure. Acute Encephalopathy has been described for lead, but it only occurs at the time of severely elevated lead levels well over 150 ug/dL, rarely


35

encountered in today's exposure controlled workplaces. The employee’s available records all show acceptable levels under the OSHA standard for lead.

Dr. Shippen testified that not one of his treating physicians ever listed heavy metal

toxicity as a diagnostic possibility in the employee’s hospital records. It was Dr. Shippen’s opinion that the employee’s clinical course and death was not likely the result of exposure to heavy metals at his jobs with ASARCO and Doe Run Company. The global problem with and damage to the employee’s brain is not linked in any known study to heavy metal exposure. The known cases of heavy metal encephalopathy occur at times of very high exposure levels, not two, three or four years after exposure. Heavy metal encephalopathy would require exposure levels far in excess of those endured by the employee and at levels above encountered in lead industry plant exposures. The medical records and physicals during his employment did not contain any abnormal findings or any complaints of memory or thought problems. There is no objective record of the employee having any type of memory or cognitive problem during his employment.

Dr. Shippen testified that there was one repeated finding of abnormal spinal fluid that

was basically ignored by the claimant’s expert physicians. The finding of abnormal spinal fluid suggests a chronic inflammatory process and was probably a viral infection. In 2002, Dr. Goldring performed a lumbar puncture. Although cultures for bacteria and fungi were negative, the inflammatory findings went undiagnosed and no further testing was performed. When the employee was at Jefferson Memorial Hospital in 2004 a second lumbar puncture was performed which indicated viral encephalitis. Dr. McGarry suggested infection as a possible cause of his progressive and severe deterioration; and rapidly progressing dementia. Dr. McGarry mentioned several diagnostic scenarios including Creutzfeldt-Jakob Disease (Mad Cow Disease) that results in rapid generalized brain degeneration, seizures, neuro-muscular difficulties, speech impairment, and pneumonia from aspiration that can occur over several years. It results in gradually increasing cognitive dysfunction followed by widespread multiple system malfunction. The diagnosis is determined by autopsy and since there is no autopsy it was not known if he had that disease or widespread damage from viral infection or other specific area of his brain damaged from one type of infection or a disease process.

Dr. Shippen testified that the employee had multiple infections with abnormal lumbar

punctures occurring over several years. After the employee was hospitalized in 2004 and diagnosed with viral encephalopathy with inflammation, his problems accelerated. He had a very rapid progression to multiple central nervous system breakdown and global brain dysfunction. Viral infections can cause serious brain damage which would explain his rapid progression of deterioration and could explain many of his earlier progressive dementia that was clinically given various diagnoses such as Lewy Body disease and Alzheimer's disease. The lost function in his extremities, coordination, speech, swallowing and basic functions is not part of Parkinson’s and is not part of classic Alzheimer’s. Those symptoms relate to a more widespread damage throughout the brain that is more likely related to infection, trauma or cancer. Several years after retirement, a neuropsychological test showed that he only had mild to moderate changes in his thinking, memory and processing and not severe type of symptoms that occurred later and rapidly developed after he suffered from viral infections. Dr. Shippen stated that encephalitis, or brain inflammation, can do tremendous damage to the brain structure and


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function. From the 2004 hospitalization onward the employee had a rapid decline in all areas of brain function to the point he was unable to speak, swallow normally or move his extremities purposefully.

It was Dr. Shippen’s opinion that the rapid decline to complete dependence for total care over 3-4 years is not characteristic of typical Alzheimer's disease, Lewy Body dementia or Parkinson's disease. It was Dr. Shippen’s opinion that it was much more likely that the employee had viral encephalitis that may have been present before 2002 at the time of his first abnormal lumbar puncture by Dr. Goldring. Since brain encephalitis can cause significant, serious brain damage, it is likely to have played a significant role in his sad demise of rapid decline and death. The repeated documented objective diagnoses of brain infection can explain the employee’s diseases and decline to his death. None of these scenarios would be the result of past heavy metal exposure.

It was Dr. Shippen’s opinion that the employment at Doe Run and any exposure the employee might have had to heavy metals including lead, cadmium, arsenic and antimony was not a substantial factor and had no connection in causing his death. It was his opinion that the employee’s death was brought on by multiple medical problems that occurred three to four years after his employment associated with the infections documented in his hospital records. RULINGS OF LAW: Issue 1. Occupational Disease; and Issue 4. Medical Causation. It is disputed on or about April 20, 2000 that the employee sustained an occupational disease arising out of and in the course of his employment; and that the employee’s injury and death was medically causally related to the alleged occupational disease. Section 287.067.1 RSMo states that occupational disease is defined to mean an identifiable disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable except where the diseases follow as an incident of occupational disease as defined in the section. The disease need not to have been foreseen or expected but after contraction it must appear to have had its origin in a risk connected with the employment and flowed from that source as a rational consequence. Under Section 287.067.2 RSMo, an occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in Section 287.020.2 and 287.020.3 RSMo. An occupational disease is not compensable merely because work was a triggering or precipitating factor. Section 287.020.2 RSMo states that “An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.”


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Under Section 287.020.3 RSMo a compensable injury arises out of and in the course of the employment; and must be incidental to and not independent of the relation of employer and employee. An injury shall be deemed to arise out of and in the course of employment only if it is reasonably apparent after considering all of the circumstances that the employment is a substantial factor in causing the injury; and it can be seen to have followed as a natural incident of work; and it can be fairly traced to the employment as a proximate cause; and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non employment life. The burden of proof is on the claimant to prove all material elements of his or her claim. See Marcus v. Steel Constructors, Inc., 434 S.W.2d 475 (Mo. 1968) and Walsh v. Treasurer of the State of Missouri, 953 S.W.2d 632,637 (Mo. App. 1997). The claimant has the burden to prove that the injuries and death arose out of and in the course of employment. See Smith v. Donco Construction, 182 S.W.3d 693, 699 (Mo. App. 2006).

Mr. Lewis testified that ASARCO was a very heavily regulated industry. The regulations required the use of respirators, and the employee would have been required to wear a powered air purifying respirator. The employee was a hard worker, very thorough and conscientious about his personal hygiene, and never violated any safety rules. Mr. Lewis always made sure that the employee wore the appropriate safety equipment including the appropriate filters. The employee’s blood lead level was generally at or below 30. Mr. Lewis cannot recall that the employee was ever medically removed from work due to excessive lead exposure. The employee never exceeded any of the OSHA standards for cadmium or arsenic exposure. Mr. Lewis was not aware of any worker ever being removed from work due to excessive cadmium or arsenic levels. Since he never worked for Doe Run, Mr. Lewis has no direct knowledge of their safety program.

Mr. Koczur testified the Glover lead smelter plant was heavily regulated including the

requirement to monitor workers for lead, cadmium and occasionally arsenic. Air quality monitoring on the personnel and out in the plant was performed. Biological monitoring of the employees through OSHA blood testing requirements was performed. The Glover plant did not have any problems with high arsenic levels; and was always well below any threat level on the arsenic standard except for the sample from their Omaha plant. During his employment at Doe Run, the plant did not have any incidents where it failed to adequately follow the OSHA guidelines or protect its employees. To his knowledge no worker had ever been medically removed for having excessive cadmium or arsenic levels. Any medical removal would have been due to elevated lead levels. The employee was very conscientious, was a hard worker, took safety seriously and used the equipment that he was supposed to. The employee normally wore the powered respirator, and always kept his equipment in good working order. Mr. Koczur did not remember the employee ever being medically removed from his job or his levels exceeding the OSHA levels either at ASARCO or Doe Run.

Mr. Miller gave detailed testimony regarding the procedures to protect the employees

from heavy metals including the use of respirators. The worker safety responsibilities were heavily driven by OSHA exposure standards. Lead smelter regulations included lead, cadmium, and arsenic standards. There was never a problem with Doe Run exceeding any arsenic or


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cadmium levels. Doe Run used stricter standards than the OSHA requirements. The biological monitoring results for the employee while at Doe Run included blood lead and other testing. The employee did not have any blood test results for arsenic, probably because the air sample tests were below the action level. Doe Run did not test for antimony. Mr. Miller did not recall any safety incidents with the employee; and is not aware of the employee being medically removed due to excessive test results for lead, arsenic, cadmium or anything else.

Ms. Whelehon testified that to her knowledge the employee was never medically

removed from his employment due to high lead, arsenic or cadmium levels. Dr. Doull stated that heavy metal exposure is a common occupational finding in lead

smelter workers and welders; and arsenic is a product associated with that industry. Dr. Doull diagnosed the employee with heavy metal toxic encephalopathy. Assuming that the employee was exposed to heavy metals including arsenic and antimony, it was Dr. Doull’s opinion that the occupational exposure was a substantial factor in causing the heavy metal toxic encephalopathy; and that his symptoms and medical conditions were the result in part or wholly from heavy metal exposure. It was his opinion that the toxic metal disease was a substantial contributing cause or factor in the employee’s death; and the exposure to the metals, particularly antimony and arsenic, contributed in some part in the cause of his death.

Dr. Doull stated that the 2004 hair analysis showed that the antimony and arsenic

exceeded the level found in normal populations. The arsenic level was twice that level and arsenic and antimony were up around the 80 to 90% range for that lab. The elevated levels of arsenic and antimony are most likely related to the exposure in the lead smelter. Dr. Doull did not have any data regarding the exposure levels from the lead smelter, did not know the arsenic value of the lead, and did not know if the employee was ever exposed to arsenic above the OSHA level. The only data he had was the hair analysis, and the levels he had four years after exposure indicated a period in which the employee was heavily exposed to arsenic and antimony but not lead or mercury. Dr. Doull would change his opinion if the antimony and arsenic values are incorrect. The Disposition of Toxic Drugs and Chemical in Man textbook shows that arsenic concentrations in normal hair tissue are higher than the employee’s sample. The arsenic level in the hair analysis was below normal in the textbook. Hair analysis is not as reliable as urinary and blood but is a very good indicator of chronic long-term exposure to heavy metals, particularly arsenic.

Dr. Doull did not really know a lot about the employee’s exposure and never received

testing regarding his heavy metal exposure. He did not see that the employee had ever been removed due to elevated blood lead levels. Antimony and arsenic levels in the hair can be confirmed by a urine analysis but as far as he knows that has not been done.

Dr. Doull testified that in order to diagnose causation there must be an agent capable of

producing an effect; there must be a susceptible individual; and most importantly there must be an exposure which exceeds the threshold for that toxic effect to occur. In the employee’s case, the two agents capable of producing adverse effect were arsenic and antimony; and humans are susceptible to those effects. The real issue is whether there was an exposure level that exceeded a threshold or known level of a certain effect.


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Dr. Doull testified that the only exposure data that he had was the hair sample. There were no other hair samples; there were no urine or blood samples showing arsenic levels during his employment; and there were no urine or blood samples that showed heavy metal levels after he left employment. Dr. Doull did not have any air sampling data. The required blood lead level to cause encephalopathy in adults is around 100 micrograms per deciliter; and the employee’s blood lead tests at Doe Run were normal. Dr. Doull did not have any data that showed the employee’s blood lead levels exceeded 100 micrograms per deciliter during his employment. Dr. Doull thought lead may have contributed to his problems but there was no proof that he was overexposed to lead and the hair analysis for lead was normal. He did not have any information that the employee exceeded the arsenic toxic level during his employment. Based upon the symptoms reported by Ms. Whelehon, Dr. Doull made an assumption that the employee was over-exposed. It would have been very helpful to have biological and air samples. He had no data that showed the exposure levels and that it exceeded those levels.

Dr. Stillings diagnosed the employee with dementia, cognitive, NOS, with other neurologic deterioration; and major depressive disorder, chronic. It was his opinion that as a result of those conditions, the employee was permanently and totally disabled and the neurodegeneration resulted in his death.

It was Dr. Stillings’ opinion that the employee was chronically exposed on a daily basis

to heavy metals including lead, arsenic and antimony; and that the cumulative exposure resulted in the above diagnoses. The encephalopathy was more related to arsenic and maybe antimony and not lead and other heavy metals. It was Dr. Stillings’ opinion that the exposure to toxic heavy metals in elevated levels (arsenic and antimony) is a major and substantial contributing cause of the dementia and neurodegenerative disorders of the nervous system, ultimately resulting in death. It was his opinion that the occupational exposure was a substantial factor in causing the diagnosed conditions; and was the prevailing cause of his neurodegenerative disease.

Dr. Stillings did not have any specific monitoring data on exposure to antimony, arsenic or lead; did not review any exposure levels on an acute or total chronic basis; and cannot point to any single incident where the employee exceeded the permissible OSHA limits for lead, cadmium, arsenic or any other metals. Dr. Stillings stated that OSHA standards are not absolutely necessary with regard to heavy metal exposure. He did not know the specific heavy metals that the employee was exposed to at Doe Run. Other than the hair analysis he did not see any other laboratory values that were significant. The clinical data was probably more important than a laboratory value. Twenty three years of chronic heavy metal exposure in a lead smelting plant was a sufficient exposure level for toxicity without knowing the levels.

It was Dr. Godfrey’s opinion that the extensive occupational exposure to various heavy metals during the course of his work at ASARCO and Doe Run was a substantial contributing factor to the diagnosis of a neuropathological disorder or disease associated with heavy metal or lead poisoning; and was on a cumulative basis without any attempt to assign any proportionate responsibility. Dr. Godfrey did not review all of the medical records and did not review any biological monitoring data at Doe Run. Dr. Godfrey was not familiar with the safety devices that lead smelter workers were required to use including respirators; did not see any reports regarding the employee’s exposure level of various heavy metals; and did not see what the employee’s


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blood lead levels were during employment at Doe Run. Dr. Godfrey stated that he can give an opinion based upon the cumulative knowledge of a work environment and the findings of physicians with experience in those areas. Dr. Godfrey was significantly influenced by and would defer to the clinical opinions of Dr. Stillings and Dr. Doull.

Dr. Godfrey stated that the only biological data that he reviewed regarding heavy metal toxicity was the hair sample which is a relatively crude method of accurately measuring past exposure. The toxicologic hair analysis of heavy metals correlated with chronic and not acute exposure. The findings do not represent the levels of analysis such as lead that would have been reached during his employment. Dr. Godfrey stated that the cause of death should have been designated as metabolic encephalopathy due to or as a consequence of occupational heavy metal exposure. It was his opinion that the occupational heavy metal exposure was a substantial contributing factor for his metabolic encephalopathy.

Dr. Harrison diagnosed the employee with dementia, cognitive, NOS, with other neurologic deterioration; major depressive disorder, chronic; and severely physically and mentally disabled. Based on the medical history, record review, family history, and assumption that the employee was exposed to lead and other heavy metals, it was Dr. Harrison’s opinion that the chronic exposure to heavy metals at ASARCO/Doe Run was the substantial factor in causing the diagnoses. It was Dr. Harrison’s opinion that the employee was permanently and totally disabled; the diagnosed conditions were a significant contributing factor and caused him to die; and the hypothetical exposures related to lead and heavy metals were a substantial factor in causing his death.

Dr. Harrison stated there is a lot of research on the chronic exposure of lead and heavy

metals causing primarily cardiovascular, neurologic and cognitive function disorders. A hair analysis revealed high levels of heavy metals, including arsenic, antimony, and titanium. Dr. Harrison did not see documents as to what the employee’s blood levels or air monitoring data were during his employment at Doe Run; and did not know whether the his blood lead levels ever exceeded the OSHA levels for being removed from work during his employment with Doe Run.

Dr. Harrison agreed with Dr. Doull that to diagnose causation there has to be an agent

capable of producing the effect; a susceptible individual; and exposure that exceeds the threshold for the toxic event to occur. Dr. Harrison has not reviewed any data showing an exposure level exceeding the known threshold for toxicity. There are chronic exposures over an extended period of time where a person can develop symptoms that turn into more permanent disabilities, even with being exposed below a normal level.

Dr. Shippen testified that there was no evidence the employee was exposed to excessive levels of lead or other heavy metals for prolonged periods due to his use of the personal protective equipment. Doe Run monitored for arsenic, cadmium, and lead. The air monitoring data showed variable high levels of lead in the furnace operation but cadmium and arsenic were below detectable or OSHA permitted exposure levels. Since the arsenic levels were below OSHA’s levels, the employee never had any testing or special physical exams. Dr. Shippen reviewed the employee’s biological data and the plant physicals. His blood and urinary


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cadmium were below OSHA’s permitted exposure level that required any intervention. All of the blood lead levels were within the acceptable range. Dr. Shippen noted that all of the employee’s biological testing was within the normal limits under the OSHA standards and there was no documented exposure to excessive levels of any heavy metal at Doe Run. The employee was never medically removed from his job due to any elevated exposure. None of the treating physicians listed heavy metal exposure as a possible cause for his medical problems; did not order any heavy metal screening or testing; and did not list heavy metal poisoning or toxicity in their diagnosis. The hair analysis was done at the request of Ms. Whelehon; and despite his rapidly declining health and mental status, no further tests for toxic metals were performed.

It was Dr. Shippen’s opinion that the hair analysis testing was misinterpreted and there

was repeated reliance on that single toxicological test. The reported values and the data that there were excessive levels are incorrect and were completely misinterpreted by all the claimant’s experts. The hair sample test results were all within the normal range for the average population for arsenic, antimony lead, and every other element. Even though the claimant’s experts thought the employee suffered from heavy metal toxicity, none of them ordered or performed any diagnostic blood testing for heavy metals including antimony or arsenic which would have been more accurate to confirm the supposed exposure. None of them had any information on actual past exposure to the elements in question.

The toxicology profile for antimony shows that it is not likely to cause

neuropsychological, brain damaging, central nervous system or adverse neurologic effects. Cardiovascular effects occur only at the highest levels of exposure. Antimony rarely is a problem in lead smelting plants due to it being a small fraction of the smelted metals. Antimony is not likely to result in the employee’s type of health effects. If there were substantial levels of lead and cadmium they would have shown up in the hair analysis as a biomarker of past exposure but it showed lead and cadmium to be well below the average healthy population.

It was Dr. Shippen’s opinion that the conclusion by many of the non treating physicians that heavy metal exposures confirmed by the hair analysis test was causally related to the brain damage and dementia lacked scientific credibility. That conclusion is not supported by available plant or lab testing; and is not supported by well known toxicological literature on brain encephalopathy reported from lead intoxication. Dr. Shippen has never seen any lead industry worker with anything remotely similar to the employee’s symptoms, clinical picture and rapidly progressive brain disease. Lead exposure causing encephalopathy requires an elevated blood level at an extremely high level above 150. Some textbooks indicate that with a blood lead level above 100 there is risk for developing encephalopathy. The employee was always at acceptable levels and never came close to levels in the 100-150 range.

It was Dr. Shippen’s opinion that the employee’s clinical course and death were not likely the result of exposure to heavy metals at Doe Run Company. Heavy metal encephalopathy occurs at times of very high exposure levels and not several years after exposure. The medical records and physicals during his employment did not contain any abnormal findings or any complaints of memory or cognitive problems. In 2004 the employee was diagnosed with viral encephalitis which is brain inflammation that can cause tremendous damage to the brain


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structure and function. After being diagnosed, the employee had a very rapid progression to multiple central nervous system breakdown and global brain dysfunction. A viral infection explains the rapid progression of deterioration and could explain many of his earlier progressive dementia symptoms that were clinically given various diagnoses including Lewy Body disease and Alzheimer's disease. It was Dr. Shippen’s opinion the documented brain infection/viral encephalitis explained the employee’s rapid decline and death.

It was Dr. Shippen’s opinion that the employee’s employment at Doe Run and any exposure to heavy metals including lead, cadmium, arsenic and antimony was not a substantial factor and had no connection in causing his death.

Based on a thorough review of the evidence including the records and the testimony of Ms. Whelehon, Mr. Lewis, Mr. Koczur, and Mr. Miller, I find that the opinions of Dr. Shippen are very persuasive and are more persuasive than the opinions of Dr. Doull, Dr. Stillings, Dr. Godfrey and Dr. Harrison. I find that the claimant failed to satisfy her burden of proof on the issues of occupational disease and medical causation. I find that Mr. Whelehon’s employment was not a substantial factor in causing his medical condition(s), injury, disability or death. I find that the claimant failed to prove that the employee’s medical condition(s) were clearly work related, were incidental to the relation of employer and employee, and could be fairly traced to the employment as a proximate cause. I find that the employee did not sustain a compensable occupational disease or injury that arose out of and in the course of his employment. I find that the employee’s condition(s), injuries, disability, his medical treatment and death were not medically causally related to the alleged occupational disease. Given the claimant’s failure to prove that the employee sustained a compensable occupational disease and her failure to prove a medical causal connection between the employee’s medical condition(s) and symptoms and the alleged occupational disease, the claim for compensation is denied. Therefore, the remaining issues of notice, statute of limitations, claim for previously incurred medical aid, nature and extent of disability, claim for nursing services and attorney’s lien of the employee’s former attorney are moot and will not be ruled upon. Made by: _______________________________________ Lawrence C. Kasten Chief Administrative Law Judge Division of Workers' Compensation

final award denying compensation - missouri labor · 2018-01-18 · compensation law. pursuant to...

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