Document XMErZyjykR8RyOb1p6MvkQnd

THE HARSHAW CHEMICAL COMPANY 1 HARVARD AVE. CLEVELAND, OHIO 7 21 - S3 August 13* 1965 Kettering Laboratory University of Cincinnati School of Medicine Eden Bethesda Rd. Cincinnati, Ohio Attention: Dr. R. Kehoe Dear Dr. Kehoe: You will recall that in the latter part of 1964, I was in contact with you about the lead poisoning industrial claim filed by a former employee of our Louisville, Kentucky Plant. In the conversa tion, you agreed to act for us as a consultant about this claim. Mr. R.l. McIntosh, attorney for our insurance carrier, con tacted you, and you then reviewed the claim and answered questions about it. Your deposition was then filed as part of our contestation of the claim. Only a few weeks ago we were advised that the hearing had been held this past May, and that the decision was made in favor of the claimant. For your interest, I am enclosing a copy of the de cision, as I think that you will be interested in reading it. I have read your deposition thoroughly, and that, plus other pertinent data show that the claimant had later exposure after our employment; all of this seems to be disregarded.- Our attorney has recommended that we do not ask for a rehearing, as it would be a useless effort. Your contribution was excellent, and Harshaw wishes to thank you for your assistance. ,, - Sincerely yours, ASE/jz Enelosure ' A.S. Eichorn Director of Health, Safety S- Hygiene 0015340 C-32QS3 PLAINTIFF VS. OPINION AND AVARD ASJDirM, 1965 '77L^j'/7/ KENTUCKY COLOR DIVISION 0 THE EABSHAV CIEGIICAL COliPASY Eon. John S. Wise Louisville, Kentucky ATTORNEY FOR PLAINTIFF DEFENDANT Eon. R. I. McIntosh Louisville# Kentucky ATTORNEY FOE DEFENDANT OPINION BY ALVIN B. TRIGG, BOARD MEMBER Tho plaintiff Las asserted a claim of permanent and - total disability resulting from lead poisoning incurred while bo was employed by the defendant chemical company. It is conceded that plaintiff's employment with this named employer terminated in 1957 -- that he did not learn of the lead poisoning condition in his body until late October or early November of 1963 -- that this application for benefits was filed on April 3, 1964. Defendant has interposod a special plea of limitations under S.R.S. 342.316 together with a general denial that claimant's. - disability, if any, is attributable to employment exposure with' the named defe- >t, . jociixcally ^*ndant contends that subsequent to 1957 plain-xff has. engaged in work for other companies with attendant exposure of a.nature capable of producing ih assarted lead poisoning condition and that one or more of those companies should be liable for any benefits accorded this plaintiff. Obviously, if such subsequent exposure capable of producing this condition has occurred in other employment, tho plaintiff's . cause of action against this named defendant must fail* Consequently, KE 0015341 i'.-___ N20389.01 o have find testimony porsuasivo of this coa.tea.tioa by the defendant. In fact, the affirmative evidence strongly militates to th conclusion which wo have reached - that the last exposure'to lead-containing chemicals did, la fact, occur during th period of employment exposure with this defendant ending in 1957. Eavl achieved this factual determination, the law controlling of th various issues, including limitations and liability Is that contained in tho 1950^ Act. .. . ....................- ---------------- --1-~ Although the defendant maintains, with some esspportiag medical proof,, that any lead poison introduced into the plaintiff's body as far bach as 1957 would have been emcreted long before " 195-3 when tho diagnosis, was reached and announced, . yet tho stubborn fact persists that this nan does have lead poison-lag and - there is -no ether persuasive, evidence (beyond surmise} of iator.ezposurj this, coupled with.contra-medical opinion that - the condition la attributable to such initial exposure and tho- an controverted fact that lead poisoning is a slowly progressing " ' condition which may require years boipr culminating In recognisable disability, aeons to validate the. plaintiff's contention of- last ; zpesur source. - .. The osetent of disability is a more troublesome Question and, of course, complicated by tho fact that claimant did sot hsow ' that ho had lead poisoning and worked for other employers, although-' the vidonco indicates that he has had various ailments which caused him pain, discomfort and soma loss of time from work on a fairly ` frequent basis -- which la perspective cloarly appear manifestations of the later diagnosed condition of lead poisoning. However, ia considering his subsequent work history and th lay sad medical fiGs'cmoay adduced, of record it does not appear that oneopt for a conclusion ccich t o ksva reached -- that the last expooure to load-containing cbesicala did. in fact, occur during the period j oi employment oxpOsuro with this doiendaat ending in 1957. Having , aebievod this factual do termination, the law controlling of tho f various issues, including imitations and liability is that j o^t&isod in the 1950, Act* .- -- ............. .......--~~ ' . ixthough the defendant maintains, with seas etsppearfciag nodical proof,, that any load poison introduced la to tho plaintiff's body as far back as 1957 would have been excreted long bfor ' 1963 whoa tho diagnosis, was reached and announced, yot tho :';K ' - v: stubborn fact persists, that this sash does have load poisoning .-'A < > - . j and -thoro is '-no ether persuasive. evidence (beyond urais} of ' later.exposure; this, coupled with.coatra-saedicai opinion that- tho condition is attributable to such initial exposure and th'- .' % ; uncontroverted fact that lead poisoning; is a slowly progressing condition which my require years befor culminating in recognisable disability, ceoas to validate tho plaintiff's contention bf'last -J*. * ' esposuro source . * * , * * . >*J . * Tho ox tent of disability is a moro troublesome question- and, -of course,, complicated by tho fact that claimant did not know ' that ho had load poisoning and worked for other employers, although' tho evidonce indicatos that he has had.various ailments which caused I bin pain, discomfort and soma loss of time from work on a fairly frequent basis --* which ia perspective clearly appear manifestations of tho later, diagnosed condition of load poisoning. Eowevor, ia - considering his subsequent work history and th lay and medical - testimony adduced of record it does not appear that except for a -V short period of hospitalisation for which he is entitled to total -partial disability ia excess of ten (105$) per cent to tho body, as a whole from August 10, 1957* ; tV^yyY- 0015343 . y; - =a c A y_;''i:y:'-- '  "At ." , FINDINGS OF FACT - 1. 3 stipulated by the panties sad aotod la t&o foregoing Opinion, ' 2. . That the plaintiff incurred lead poisoning arising V out of and in the course of his employment by the defendant .. company, culminating in a tea (10%) per cent permanent partial disability to tho body as a whole on 10th day of August , \l@57, for which he is entitled to benefits not to exceed four hundred v $ovonbor 15, 1963 and ending November 22, 1963 tor which periods of hospitalisation this claimant shall rocoiva temporary total ` disability benefits. , 3. That subsequent to the aforesaid load orcpcsura - is the employment of this defendant, the plaintiff was not theroaftor opposed-to Xo&d-eoataiaing materials or chemicals capable of pr~ duclag tho asserted disability of load poisoning. 4 RULINGS OF LA* . 1. As stipulated by the parties and noted in th foregoing Opinion. " 2. Thai although claimant's disability was not diagnosed until 1933 as lead poisoning, the evidence rofloats that the disability has ox is tod sine last ii^ir ious exposure and termination of employment with this ciofondant to tho extent of ton (10$) per coni'to tho body as a whole, 3. That th 1956 Workmen's Compensation Act is controlling of this claim and the defenses thereto, v' 1 V 4. That practicable notice of this condition was afforded tho defendant. Inland Steel Company vs, Hoshy (gy.) 355 S. W. 2d 651; lUry Ilolon Coal Corporation vs. Chitwood (y.) 351 S. T. 2d 167. 5. That tho plaintiff was exposed to tho hazards of tho disease in his employment for at least two years before his disability. The controlling 1953 Act only required two years exposure, which was hero presoat. Tho provision that such exposure be immodlately next boforo tho disability was not legis lated until 1060. 6. That the provision for filing such a claim within five years from the last injurious^exposure was cot inserted in our law until tho Harch 22, 1062 Act. - AUAEI)' - ` - It .is . therefore Ordered and-Adjudged by" the Full- Beard, as follows; : .' :. **.'*;.-* j ; -h 1 ' That -the 'special defenses plead by the defendant- are overruled. p-2 * .That.the plaintiff' recover -of the."defendant, as ton'' (10%) per'coat permanent partial disability to the body as .' * -*.- . ,V a whole thq sum 'of Two ($2.SO) Dollars and Sixty Cents per week ; for a period not to exceed four hundred (400) weeks in the aggre gate- from August 10, 1957, excepting ...that plaintiff shall recover- temporary total disability of Thirty Two ($32.00) Dollars per week for .tho two intermittent periods commencing October 24, 1963 and ending November 7, 19G3 and commencing November 15, 1963 and ending November 22, 1963 -- which temporary payments shall be included in the four hundred (400) week aggregate benefits heroic. said -partial disability payment shall be increased to 355 S. W. 2d 651; Mary Melon Coal Corporation vs. Chitwood (Ky,) ffi: 351 S. T. 2d 167. 5. That tho plaintiff was exposed to the hazards of th disease in his employment for at least two years before his disability. The controlling 1053 Act only required two years exposure, which was here presont. The provision that such exposure be immediately next bofore tho disability was not legis lated until 1000. 6. Chat the provision for filing such a claim within five years from the last injurious ^exposure was not inserted in our law until the March 22, 1962 Act. ': "" ' At/AED` " - ' - ' ' . :r c;./- *v It ..;is therefore Ordered and-Adjudged by" the Fall. Board. as follows; 1. That -the fecial defenses plead by the defendant- are overruled. 2* ...That .the plaintiff' recover-of'the.''defendant, as >*>/ ' >41C ton: '(102). |>or' cent permanent partial disability to tho body as; . ._ v ' * ' a whole thq sura'of Two ($2.60) Dollars and Sixty Cents per week \y*tt for a period not to exceed four hundred (400) weeks in the aggro--/ .. gato-.fross August 10, 1957, excepting that plaintiff shall recover-temporary total disability of Thirty Two ($32,00) Dollars per \;;;v week for .tho two intermittent periods commencing October 24, 1963...'. and ending November 7, 1963 and commencing Kovesxbor 15, 1SS3 and ''//R /..-glv// ending November 22, 1963 -- which temporary payments shall-bo ' included in tho four hundred <400) week aggregate benefits herois^j . allowed; said partial disability payment shall be increased to :/ . Sinteoa ($16.00) Dollars per week and the pay period proportionately . roduced; that plaintiff recover interest at six (6%) per coat I/r I- R R 001534.8- per Annum on all past duo installments together with medical and hospital expenditures not to exceed Twenty Five Hundred ($2500.00) Collars and the defendant is credited with any weekly benefit payments and/or teed leal sad hospital benefit payments heretofore a cuido. . f'" FULL BOAXID CCffCURRIXO K& 0015347