MOUNT VERNON – St. Clair County Associate Judge Julie Katz improperly awarded lifetime benefits to Ameren Illinois journeyman Ricky Duncan of Waterloo, workers’ compensation judges ruled on Dec. 6.
They found Duncan blamed two brief exposures for breathing problems that had affected him since 1999.
His claim for benefits stated that in 2013, he and another worker had to rupture a cast iron line they found three feet below ground.
Liquid ran out, and they continued working at the spot for 20 minutes.
Duncan called a supervisor to report a tight chest and a rusty taste in his mouth.
The supervisor came to the site and took him to St. Elizabeth’s in Belleville.
A doctor prescribed drugs, told him to see his physician in three days, and released him to light duty.
In five days, he saw physician Adele Roth, who had first prescribed an albuterol inhaler for him in 2002.
She told him to keep using it.
He returned in two weeks and Roth referred him to Washington University pulmonologist Peter Tuteur.
Tuteur diagnosed his condition as “irritant induced bronchial reactivity.”
He found no history of allergies, asthma, or symptoms.
Tuteur declared the condition permanent and irreversible in 2014, and Duncan went off work and on disability.
Investigators for Ameren taped Duncan at an Elks Lodge barbecue in Fairview Heights, wrapping hot dogs and hamburgers at a smoking grill.
He unloaded bicycles from a pickup truck and jumped down. He walked the grounds and stood with a cigarette smoker.
Next day, they taped him moving picnic tables.
Pulmonologist Thomas Hyers of St. Louis examined Duncan for Ameren and found unlabored respiration.
Hyers rejected Tuteur’s diagnosis and wrote that Duncan would need ongoing care and medication for asthma, “which is not a work related condition.”
Duncan returned to work 13 days later.
Sixteen days after that he smelled mercaptan, the odorant added to natural gas, in an Ameren crew room.
His chest tightened and his vocal chords swelled.
He went outside but diesel trucks were lined up and idling so he went back inside.
Someone called for an ambulance, which arrived and took him to St. Elizabeth’s.
Emergency room doctor Pankaj Kaul wrote that Duncan looked pretty comfortable.
“Good air entry bilaterally,” Kaul wrote.
Kaul kept Duncan overnight and discharged him the next day, finding his symptoms improved overnight.
Duncan claimed workers’ compensation for both exposures, and arbitrator Edward Lee took the case.
Pulmonologist Hyers testified that the work incidents triggered asthma attacks without significantly changing Duncan’s condition.
Duncan’s counsel David Nelson of Belleville sent Duncan’s medical records to Tuteur six weeks before Tuteur’s deposition.
The records showed Duncan complained of pulmonary symptoms on 15 or 16 separate occasions from 1999 to 2013.
Tuteur stuck with his diagnosis, but arbitrator Lee recommended denial, finding the testimony of Hyers more compelling.
Lee found Duncan claimed significant and unabated symptoms but was quite active outdoors and was exposed to fumes without impairment or difficulty.
The state workers’ compensation commission adopted his recommendation.
Duncan appealed to circuit court, where Katz ruled in his favor.
Ameren appealed to a workers’ compensation panel of five judges, one from each of the state’s appellate court districts.
They reversed Katz without quoting her or explaining her reasons beyond stating that she found the decision was against the manifest weight of the evidence.
Fourth District Justice Peter Cavanagh wrote that it would be reasonable to suppose that Tuteur asked Duncan if he previously had breathing problems and Duncan answered falsely.
“Even so, one might have expected that Dr. Tuteur would have wanted to see Duncan’s medical records before venturing an opinion on causality,” Cavanagh wrote.
He wrote that Hyers apparently reviewed the records before forming his opinion.
He wrote that it was reasonably defensible to believe Hyers over Tuteur and it wasn’t clearly evident that Tuteur was more credible than Hyers.
“It is unclear what the difference is between irritant induced bronchial reactivity and asthma,” he wrote.
“We do not mean to present ourselves as having medical expertise but until a further explanation is provided, the distinction between asthma and bronchial reactivity could come across to a reasonable trier of fact as being semantic.”
He found no evidence that 20 minutes of exposure to a foul smelling toxic liquid was an extraordinary event in the life of a gas journeyman.
“If on its own his asthma grew worse or more sensitive as he entered his sixties, there might come day when solvents and fumes started bothering him,” he wrote.
“We are unaware of any expert testimony, nor does Duncan cite any, that asthma in its natural progression never worsens with age.”
Justices Thomas Hoffman of the First District, Donald Hudson of the Second, William Holdridge of the Third, and John Barberis of the Fifth concurred.
William Lemp of Webster Groves, Mo. represented Ameren.