BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
REGINA SMITH, Surviving Spouse of
:
MICHAEL L. SMITH,
:
:
Claimant,
:
:
vs.
:
:
File No. 1254092
MONSANTO,
:
:
APPEAL
Employer,
:
:
DECISION
and
:
:
ACE USA,
:
:
Head Note Nos.: 1805, 1901, 2902
Insurance Carrier,
:
Defendants.
:
______________________________________________________________________
Regina Smith, Surviving Spouse of Michael L. Smith, claimant, appeals from an
arbitration decision filed September 27, 2013 in which the presiding deputy
commissioner found that Regina Smith, surviving spouse, did not meet her burden of
proving that claimant’s workplace injury was the cause of his death, thus denying Ms.
Smith survivor benefits. The primary issue considered upon appeal is whether
claimant’s previously determined pulmonary/lung condition which had rendered him
permanently and totally disabled constitutes a substantial contributing factor in his
death, thus entitling Regina Smith to survivor benefits. Regina Smith asserts that the
presiding deputy commissioner erred in finding that claimant’s pulmonary lung condition
was not a substantial contributing factor in his death, while defendants, Monsanto and
ACE USA, assert that the findings of the presiding deputy commissioner should be
affirmed. The arguments of the parties have been considered and the record of
evidence has been reviewed de novo.
The presiding deputy commissioner’s denial of survivor benefits in this matter is
primarily based upon the rejection of the opinion of claimant’s treating pulmonologist,
Donald Paynter, M.D., and the adoption of the opinion of Maxwell Cosmic, M.D., who
found the “predominant causative factor” [sic] of death was tobacco use and claimant’s
hereditary problems, specifically the Alpha-1 natitrypsin deficiency.
SMITH v. MONSANTO
Page 2
The presiding deputy commissioner rejects the views from the treating
pulmonologist, Donald Paynter, M.D., who causally relates the Monsanto-related
pulmonary injury to the death of claimant, Michael Smith. This doctor’s causation views
are similar to his views expressed in the last review-reopening proceeding which, on
appeal, awarded claimant permanent total disability benefits. Smith v. Monsanto, File
No. 1254092. (App. Oct 21, 2009) In that decision the division found that although the
worsening of claimant’s lung condition since the arbitration decision was directly
attributable to age and acute flare-ups not directly related to the original work injury, the
worsened condition was work-related in that the original injury lowered claimant’s ability
to overcome the effects of aging and these acute flare-ups. In other words, but for the
original injury, claimant would not have been so severely disabled by a deterioration in
pulmonary function from age and the flare-ups. The appeal decision cited quotes Dr.
Payne as follows:
Mike Smith’s respiratory condition, including the exposures at
Monsanto, placed him at a baseline in 2002 wherein the loss associated
with age and acute flare-ups are to the point in 2007 that Mike has no
reserve and cannot compensate for the loss.
....
If not for the contribution of the exposures at Monsanto, it is likely Mike
would still be working.
(Appeal Decision, page 7)
When asked about the role played by the original work injury or occupational
exposure at Monsanto to claimant’s death, Dr. Paynter again agreed with other doctors
in this case that the immediate cause of death was due to a number of conditions,
including pneumonia and heart failure, which could not be directly attributed to the work
injury at Monsanto. That fact is quite obvious and is not in dispute. However, Dr.
Paynter also expressly opines that the original work injury contributed to claimant’s
death in that his lung condition, including emphysema, rendered him more susceptible
to death from pneumonia and heart failure. It is also important to acknowledge the vital
fact that the pulmonologist agreed that claimant’s smoking was also a significant factor.
Dr. Paynter states as follows:
In summary, Mr. Smith had severe and chronic lung disease based on
his smoking history, hereditary disorder and environmental exposures.
The degree of injury and loss of lung function placed him at significant
jeopardy for complications and death from any additional lung insult
including pneumonia. The effect of the pneumonia causing frank
respiratory failure subsequently impacted his heart’s ability to continue to
function under stress and subsequently resulted in his death. Any and all
SMITH v. MONSANTO
Page 3
contributing factors to his chronic lung disease would thus contribute to his
inability to survive this episode.
(Exhibit 1, page 4)
The arbitration decision fails to acknowledge or rebut Dr. Paynter’s opinion in
connecting the work injury to a death caused by bacterial pneumonia. Moreover, the
arbitration decision is found to place excess weight upon the opinions of John Kuhnlein,
D.O., an occupational health physician and Maxwell Cosmic, M.D., another
pulmonologist. Dr. Kuhnlein opines:
I do not believe that it is possible to sort out all these different possible
causes for the significant problems Mr. Smith faced on January 2, 2012, to
determine whether the exposure in 1997 produced permanent lung
disease that caused his demise in January 2012. There are so many
possibilities that occurred, and unfortunately, no autopsy is currently
available to determine the exact cause of death. While possible, based on
my review of the file, there were multiple possible contributing factors to
his death that make it impossible to determine whether the work-related
lung disease was the predominant factor in causing his death, or whether
there were other factors that were more prominent in causing Mr. Smith’s
demise.
(Ex. A, p. 7) Likewise, Dr. Cosmic opines:
But the role of fumes from welding causing emphysema is unsubstantiated
and its role in worsening emphysema is at best minimal. . . . Exposure to
metallic fumes to somehow cause bacterial pneumonia, which responded
to antibiotics in January 1997 does not meet scientific or clinical sense.
Although he stopped doing welding work in 2000, he had relentless
progression of his lung disease as evidence by worsening of FEV1.
....
Michael stopped doing welding job in 2000. He died 12 years later
from pneumonia. He had multiple medical problems which progressed
over several years. The main medical problems were: 1. Severe bullous
emphysema, 2. chronic respiratory failure requiring oxygen therapy, 3.
poor heart muscle function. 4. Vascular disease with arterial occlusion of
blood vessel to the left leg. None of these disease states are related his
occupational exposure to welding fumes. It is my professional opinion that
exposure to fumes from welding was not a substantial factor contributing
to his death.
SMITH v. MONSANTO
Page 4
(Ex. B, pp. 18-19)
There are two clear problems with adoption of the opinions of Drs. Kuhnlein and
Cosmic. First, they challenge the causal connection of the work injury or the
occupational exposure to claimant’s chronic lung disease. Such a challenge is
irrelevant in that such causation findings have already been decided in two final agency
decisions and on judicial review. Defendants are precluded from re-litigating that issue,
as such finding is already the law of this case. Defendants assert that the prior
decisions only concerned the causation of the injury to a medical and disability claim
while the present issue in this case concerns the cause of Smith’s death. However, in
order to arrive at a decision on the medical and disability claim, the division had to
determine if the workplace exposure to dust and other fumes was a cause or significant
contributor of his lung condition and emphysema. The division has already made a final
conclusion on that issue in the January 2006 remand decision. In a subsequent appeal
decision from a deputy level review-reopening decision, there was an added finding of a
causal link of the work injury to claimant’s worsened lung condition and worsened
emphysema at that time. Consequently, defendants now can only challenge the causal
link between claimant’s lung condition and his death.
Defendants further assert that the prior decisions were flawed because they were
based on claimant’s testimony that he quit smoking before working at Monsanto.
Defendants offered evidence from claimant’s spouse that this was untrue and he
continued on occasion to smoke. Also, a lung transplant procedure was rejected due to
evidence of continued smoking. However, defendants cannot, at this late date, relitigate the prior final agency decision based on fraud or new evidence. As recently
pointed out the Iowa Court of Appeals in a similar attempt to overrule a prior agency
decision, the court held that the only means of such re-litigation is to file a petition to
vacate the decision pursuant to IRCP 1.1012 – and according to IRCP 1.1013(1), the
petition must be filed within one year of the decision. (See Footnote, page 6: Mlady v.
Searle Petroleum Inc., No. 3-480/12-2008, Filed December 5, 2013)
Second, the views of Dr. Kuhnlein and Dr. Cosmic also make reference to an
issue of whether the occupational exposure was the “predominate” cause of his death.
Quite frankly, such opinions are irrelevant to a determination in the present matter in
that claimant in this case need only establish and prove that his occupational exposure
was a proximate cause of claimant’s death. It is well-established in Iowa that a cause is
“proximate” when it is a “substantial factor” in bringing about that condition. It need not
be the only causative factor, or even the primary or the most substantial cause to be
compensable under the Iowa workers’ compensation system. Miller v. Lauridsen
Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Blacksmith v. All-American, Inc., 290 N.W.2d
348 (Iowa 1980). The opinions of Dr. Paynter – who also has the most significant
involvement with claimant’s medical condition – has provided medical opinions in
accord with the proper Iowa causation standard. Even Dr. Kuhnlein acknowledges that
the work-related lung disease was possibly a predominant factor, making it logical that if
SMITH v. MONSANTO
Page 5
asked the appropriate question he might have opined the lung disease to be a
substantial contributing factor in claimant’s death. However, because Dr. Kuhnlein was
not asked the appropriate question, it is an unknown. It is therefore concluded that the
medical opinions of Dr. Paynter are more persuasive than the opinions of Dr. Kuhnlein
and Dr. Cosmic and therefore claimant’s spouse has proven by a preponderance of the
evidence that claimant’s death arose out of and in the course of his employment. The
arbitration decision of September 27, 2013 is therefore reversed and survivor benefits
shall be awarded.
Regina Smith, as surviving spouse, is seeking benefits as a result of the workrelated death of her husband, Michael L. Smith. Such benefits are available under
Chapter 85, Code of Iowa because a work injury is defined in the statute to include
death as a result of injury. Iowa Code section 85.61(5)(a).
As Ms. Smith has proven by a preponderance of the evidence that her husband’s
death resulted from his work-related pulmonary condition, the extent of such benefits
must be determined.
Defendants are liable for the expenses of the deceased employee's last illness.
(Iowa Code sections 85.27 & 85.29). Defendants are liable for burial expenses of
decedent in an amount calculated by this division consisting of 12 times the statewide
average weekly wage at the date of death. (Iowa Code section 85.28). Defendants
also must pay into the Second Injury Fund of Iowa the sum of $12,000.00, if the
employee died with dependents, or $45,000.00, if no dependents survived the
deceased employee. (Iowa Code section 85.65)
Also, weekly benefits are also available from defendants for surviving
dependents of a deceased employee. Such benefits are paid in the same amount and
manner as work injuries or occupational diseases, except that the benefits are paid to
the surviving spouse for life or until remarriage or to dependent children or incapacitated
adults dependent upon the decedent at the time of death, if a spouse does not survive
the decedent. (Iowa Code sections 85.31 and 85.43) A surviving spouse is
conclusively presumed dependent unless there has been a willful desertion of decedent
by the spouse. (Iowa Code sections 85.41(1) and 85A.6)
It is concluded that defendants shall pay burial benefits pursuant to Iowa Code
section 85.28. Defendants shall pay the applicable Iowa Code section 85.65 death
assessment to the Second Injury Fund of Iowa of $12,000.00. The facts have also
demonstrated that the surviving spouse of claimant, Regina Smith, is entitled to weekly
death benefits from the date of the death of Michael L. Smith on January 2, 2012 and
continuing thereafter for the remainder of her life or until her remarriage.
While penalty benefits were made an issue at the arbitration hearing, there is no
claim for penalty benefits upon appeal.
SMITH v. MONSANTO
Page 6
ORDER
IT IS THEREFORE ORDERED that the arbitration decision of the presiding
deputy filed on September 27, 2013 is REVERSED and the following ordered:
Defendants, Monsanto and ACE USA, shall pay unto Ms. Regina Smith weekly
death benefits at the rate of two hundred sixty-five and 92/100 dollars ($265.92) per
week from January 3, 2012 and continuing thereafter for the remainder of her life or until
remarriage.
Defendants, Monsanto and ACE USA, shall receive credit against this award for
the previous voluntary payments of weekly death benefits made since January 3, 2012,
if any.
Defendants, Monsanto and ACE USA, shall pay burial expenses as required
pursuant to Iowa Code section 85.28, with applicable interest.
Defendants, Monsanto and ACE USA, shall pay unto the Second Injury Fund of
Iowa a death assessment pursuant to Iowa Code section 85.65 in the amount of twelve
thousand and 00/100 dollars ($12,000.00).
Defendants shall pay accrued weekly benefits in a lump sum.
Defendants shall pay interest on unpaid weekly benefits awarded herein
pursuant to Iowa Code section 85.30.
Defendants shall pay the costs of this matter and of the appeal, including the
preparation of the hearing transcript.
Defendants shall file reports with this agency on the payment of this award
pursuant to administrative rule 876 IAC 3.1.
Signed and filed this ____18th _______ day of March, 2014.
CHRISTOPHER J. GODFREY
WORKERS’ COMPENSATION
COMMISSIONER
SMITH v. MONSANTO
Page 7
Copies To:
Mr. Thomas M. Wertz
Attorney at Law
PO Box 849
Cedar Rapids, IA 52406-0849
twertz@wertzlaw.com
Mr. Mark A. King
Attorney at Law
505 5th Ave., Ste. 729
Des Moines, IA 50309-2390
mking@pattersonfirm.com
Michael Mauro
Iowa Labor Commissioner
1000 East Grand Ave
Des Moines, IA 50319
michael.mauro@iwd.iowa.gov
Treasurer State of Iowa
Second Injury Fund of Iowa
1st Floor Lucas Building
Des Moines, IA 50319