As I have mentioned, some employers often employ the “blame game” to point fingers at every potential cause other than their own liability when it comes to workers’ comp. Yet, the truth is far more powerful than anything else.
I recently represented a client who suffered a deliberating lung disease after years of working as a welder and mechanic for Vulcan Materials Company. Prior to becoming disabled, my client had been recognized for perfect attendance, and regularly put long hours of overtime. In the course of performing his welding duties, he was exposed on a daily basis from fumes emanating from the melting of metal and silica dust generated by the excavation of granite and its processing. My client was required by his employer, Vulcan, to wear a mask on the job to protect his from inhaling fumes and dust, and he did so. However, the mask was neither fitted to his face nor sealed.
Around November 2014, my client went to an allergist to complain of a persistent cough. After the first visit, his cough did not stop. The doctor later determined that he has pulmonary fibrosis. He was then referred to a pulmonologist, who opined that my client’s condition was most likely occupational lung disease. Thus as of February 2015, he was medically certified as unable to continue working. The same month, Vulcan’s claims manger, who became aware of my client’s condition, requested my client’s medical records, and sent it to another doctor. The doctor, who did not examine or speak to my client, but told the claims manager that he did not think the employee’s claims were work-related. Furthermore, the employer’s doctor never provided a report or any documentation to corroborate his decision.
Nonetheless, the claim manager handled the case as a short-term disability claim, and not as a workers’ compensation claim. Only on March 2016, six weeks before my client’s workers’ compensation hearing was scheduled, did Vulcan send my client for an independent medical examination (“IME”). The doctor, who conducted the IME, admitted that my client’s symptomatology had become more pronounced over recent years during which he was exposed to dust and fumes, and that his condition could be related to his occupational exposure.
In an unusual critical order for a workers’ compensation case, the administrative law judge (ALJ) blasted the granite quarry’s handling of the case of my client. The judge said the company handled a claim “in a cavalier fashion with little or no regard for the well-being” of my client. While the employer tried to emphasize that my client did not state he was seeking workers’ compensation benefits when discussing with its representatives, the ALJ judge found the argument absurd. The judge noted that my client was a good worker, who has no expertise in workers’ compensation claims, and put his trust in the Employer to take proper care of him. Furthermore, the employer, with many years in the industry, should have recognized this claim as a worker’s compensation claim.
In addition to its failure to recognize this claim as a worker’s comp claim, the company also repeatedly missed deadlines, and attempted to avoid a fee award by citing a belatedly consulted doctor’s opinion that my client’s disease is not work-related. The judge wrote, “had the employee not heard that he needed to file his claim within one year from his date of injury, it could have been easily time-barred As a result, the ALJ granted my client’s claims for workers’ compensation for an aggravation of pre-existing condition, and compensable occupational disease.
I could not have been more pleased with this outcome. The case was a refreshing reminder of the most important cornerstone of my legal career: honesty. As an experienced workers’ compensation attorney, any time the blame game begins, I am glad to fight hard for each and every client because I know that I have the truth on my side.
Below is an article by Greg Land appearing in the Fulton Daily Report this week:
ALJ Blasts Quarry in Workers’ Comp Award
Greg Land, Daily Report
Correction appended below.
In an unusually critical order for a workers’ compensation case, an administrative law judge blasted a granite quarry’s handling of the case of a worker who was left with a debilitating lung disease after years of working as a welder and mechanic.
In awarding weekly disability benefits totaling more than $200,000 spread over up to 400 weeks, plus medical expenses and an additional 25 percent of all income benefits in attorney fees, the judge said Vulcan Materials handled the claim “in a cavalier fashion with little or no regard for the well-being” of its employee, a Cuban émigré who had been recognized for perfect attendance and who routinely put in long hours of overtime.
Judge Charles Spalding said Vulcan’s failure to investigate into the man’s claims or read his medical records, and repeated missed deadlines, threatened to push the employee—a man with little education and limited English—beyond his own deadline to claim his benefits.
“Had the employee not heard that he needed to file his claim within one year from his date of injury,” wrote Spalding, “it could easily have been time-barred. Although the employer has provided the employee with disability benefits, [he] was nearly lulled into a situation where any claim for medical treatment would have been foreclosed.”
The company’s efforts to avoid a fee award by citing a belatedly consulted outside doctor’s opinion “borders on the insulting, if indeed that border is not crossed,” wrote Spalding.
“I’ve been doing this for 16 years, and you just don’t see workers’ compensation judges going after [an employer] like that,” said Julie Poirier, who represents plaintiff Raul Fernandez. “This was really a scathing order.”
Vulcan’s attorney, Carlock, Copeland & Stair partner Chris Whitlock, was not available, and queries to Vulcan’s Birmingham, Alabama, headquarters were not immediately returned.
According to court filings and Spalding’s award order, Fernandez spent his days working on machinery in the “pit” of a granite quarry in Norcross, one of the hundreds of sites Vulcan operates around the country. When he was not in the pit, he worked in the nearby welding shop.
Fernandez, 68, was routinely exposed to clouds of granite dust containing silica, as well as to fumes from the welding rods. Although he was issued a mask, “it was neither fitted to his face nor sealed, allowing for the inhalation of dust and fumes,” Spalding’s order said, and was not equipped with any breathing aids but consisted “solely of microfiber filter media.”
Spalding’s order noted that the quarry used water trucks and other devices in an effort to keep the dust down, but employees were still exposed to it during the milling, loading and transport of the granite.
Fernandez saw an allergist in 2014 complaining of a persistent cough, and in February, 2015 a CT scan revealed that he had an enlarged heart and moderate pulmonary fibrosis. The treating doctor reported that his condition was “most likely occupational lung disease,” and certified him as medically unable to continue working due to pneumoconiosis, lung disease caused by the inhalation of dust.
Vulcan’s claims manager requested Fernandez’s medical records and, in July, sent them to Dr. Allen Goldstein, a pneumoconiosis expert employed by Birmingham’s Industrial Health Council, a nonprofit that performs testing and other services for industrial clients. Goldstein did not examine or speak to Fernandez, but told the claims manager he did not think the man’s claims were work-related. Goldstein never provided a report or any documentation to substantiate his decision, and the judge dismissed his opinion as inadmissible hearsay.
The claims manager handled the case as a short-term disability and not as a workers’ compensation claim. Only in March 2016, six weeks before Fernandez’s worker’s comp hearing was scheduled, did Vulcan send Fernandez for an independent medical examination.
The results of that exam were “equivocal at best, and can even be read to support [Fernandez’s] theory of medical causation,” the judge wrote.
Fernandez’s May 3 hearing lasted at least six hours, Poirier said. In his June 23 award, Spalding awarded Fernandez the maximum allowable temporary disability benefits of $525—half of what he made on the job—for up to 400 weeks, plus a 15 percent penalty on any untimely benefits. He also ordered that Vulcan cover all of Fernandez’s medical expenses, including mileage, copays and deductibles, and reimburse him for any prior medical expenses the company did not cover. He awarded attorney fees of 25 percent of all income benefits Fernandez is to receive.
The judge allowed Vulcan to set off any disability payments it had already made during the pendency of the case.
Poirier said that the weekly payments, which will total $210,000 until they expire after up to 400 weeks, as long as he continues to be disabled and meets all other statutory requirements, are “probably the smallest part of the award. He’s on oxygen, he’s on medication—he’s always going to be disabled.”
This article has been changed to reflect a correction. The initial version mistakenly reported that an injured worker, Raul Fernandez, was awarded $525 per week in disability payments for 400 weeks.The award is a temporary one, extending up to 400 weeks.