What the panel treated as outcome-determinative, and which side it favoured.
Applicant was exposed daily to toxic chemicals without respirator and with skin contact during employment in 1995.
Favours Applicant prevailed
Supported injury AOE/COE finding and permanent total disability.
From the decision · page 7did not give credence to Dr. Hyman's report dated 09/07/2018 as it was based
on the medical reporting of Dr. Shields which in addition to not constituting
substantial medical evidence, was actually inadmissible. Also, applicant
provided credible and unrebutted testimony as to his daily exposure to the toxic
chemicals, especially when doing the deliveries and setting up the solvent sinks.
He was in extremely close and confined proximity to the toxic chemicals and
absorbed them through his skin and by breathing them in, as he wore no
respirator.
Medical reports of applicant's QME Dr. Brautbar and defendant's QME Dr. Hyman found injury AOE/COE and 100% permanent total disability.
Favours Applicant prevailed
These reports were relied upon as substantial medical evidence.
From the decision · page 5On 05/28/2021, this WCJ issued the Findings and Award and Opinion on
Decision finding applicant to have sustained injury AOE/COE and to be 100%
permanently totally disabled based on the findings of Dr. Brautbar and Dr.
Hyman. This WCJ gave no weight to the industrial hygienist report of John
Spencer as it was based on questionable data and samplings. Additionally, no
weight was given the medical report of Dr. Shields as defendant had not
explained adequately the status of this physician in this matter in their trial brief
and that Dr. Shields apparently did not examine the applicant which makes the
report inadmissible pursuant to Sec. 4628(c). As a result, this WCJ did not give
any weight to Dr. Hyman's 09/07/2018 subsequent review and reporting
regarding the report of Dr. Shields. It is from this finding that defendant files
their petition for reconsideration.
Report of Dr. Shields was inadmissible and given no weight as it was obtained without examination and did not meet statutory requirements.
Favours Applicant prevailed
Rejected defendant's attempt to undermine injury and disability findings.
From the decision · page 6is inadmissible pursuant to Sec. 4628(c) as Dr. Shields did not conduct an
examination/questioning of the applicant as is required of a QME pursuant to
Sec. 4060 and 4628(c). Additionally, Dr. Shield's medical report does not
contain the declarations under penalty of perjury required by Sec.'s 139.3 and
4628(j). Even if the medical report of Dr. Shields is admissible, it does not
constitute substantial medical evidence. As stated above, Dr. Shields did not
examine the applicant. Additionally, the underlying hygienist report of John
Spencer which Dr. Shields relied upon is not substantial evidence of applicant's
exposure to the toxic chemicals at Safety-Kleen. The hygienist report is based
upon recorded samplings at the Safety-Kleen warehouse from 1995 which were
performed by Safety-Kleen employees. There was no foundation laid by
defendant that these employees had the requisite training to properly conduct
such samplings, nor was there any reporting as to applicant's particular density
of exposure to the toxic chemicals such as when applicant was servicing the
degreasing/cleaning sinks at the various dealership/repair shop locations.
Applicant's unrebutted testimony indicated he spilled the toxic chemicals on his
skin many times directly and from soaking through his clothing.