Document jg29xR5RzmxJ6Q9K1eyDv8joO

Cleveland Corporate Insurance #18 aklsnd* Calif. 6. A. Lacey V- December 10, 1973 Redacted Mr. Malone baa asked m to wits to yon in connection with the above Workmen's Compensation file. indicated that I should respond to several points in yew letter of October 17* 1973, expressing concern over the handling of the case by liberty Mutual. Redacted W&k respect to the Application filed with the Division of Iratetrial Accidents on October H, 1973* we have noted that this constitutes the first filing of a claim for Workmen's Compensation death benefits by the claimant's widow. Mrs is now requesting that the state of California recognise that her husband's death occurred as a result of a disability arising out of an in the course of his employment with Sherwin- Williams. The specific cause of death is alleged to be exposure to toxic femes. Therefore, she is requesting recovery of Workmen's Compensation total disability benefits for the period of her husband's alleged occupa tional disability. She is also requesting that burial expenses be paid as well as the payment of Statutory Workmen's Compensation benefits for herself and two minor children as survivors of the deceased* Redacted Redacted The previous claim was filed by Kaiser Hospital. Under California law, Kaiser is entitled to file a claim for reimbursement of those expenses incurred by the employee upon a determination that Mr< death was, in fact* due to an Industrial disability. Although Kaiser had al ready filed an application in this claim to cover their interest it obviously follows that the widow must comply with the formal statutory provisions before her entitlement to Workmen's Corapensation benefits can be adjudged. That is the purpose of her Application. Redacted Ion have pointed at that the deceased employee did receive Gompany disability benefits as well as California State Disability Benefits. We can anticipate that if the widow's claim for death due to occupa tional causes is recognised* the state of California will offset any Workmen's Compensation temporary total disability benefits awarded to the deceased employee fey the mount of other compensation already paid. With respect to the Initial filing of this claim, you are aware that the basis for Kaiser's filing was the report of January 2S by Dr. Stettner. That medical report was the initial notice that Mr. s hospital!- Redacted zation for over two months might have been due to an exposure in the course and scope of his employment. Dr. Stettner*s description of the disability was as follows: "Probable injury secondary to inhalation of noxious fumes". N40589 0007-SWP-005504021 CONFIDENTIAL \ . It should be noted that Dr. Stettner indicates a probability rather than a eerfesdnty la his diagnosia. In view of the fact tfeat ha had no oppor* Redacted tuaity to ascertain the facts of Mr< exposure prior to writing this report his opinion may be only a conjecture. The proof of Dr. Stettner *a opinion Is certainly the predominant issue in this claim, at the present tine* We have received ssiRs^i^^^sfcfr^ Liberty Mutual in connection with '' this matter. Acceding to our file liberty Mate# did attest to obtain the opinion of a ooE^petent lung specialist following your initial notice to then that an occupational claim night arise out of lfe> unfortunate death. This was Dr. Mannit who, unfortunately, was hilled in an automobile accident subsequent to completing his review of the claim, but prior to rendering a written report to Mutual. In view of the fact that Liberty Mutual was net able to-get the report that they had hoped to receive from Dr. Ifannel it was their opinion that it would . , A be best to await the filing f a few#. claim by : prior to 1 Redacted requesting an pinion from another specialist. We are rexuouant to criti cise this handling of the claim. At the tins, there had baam no applies^ , tion by either the widow or ty the Kaiser Hospital* Any unnecessary inves tigation of this matter by Liberty Mutual raised the possibility of pre cipitating a claim, feu should hpaow that in a meating with Liberty Mutual*s representatives here in Cleveland In <lhne 1973 the possibility of a claim being filed by the Haiser Hospital was considered. We were aware that such a claim might cause the widow to ''got on the bandwagon**. In retrospect, there does not seem to be anything which could be done to actually prevent Kaiser from filing their claim. Dr. Manual's notes would be of questionable value in the defense of this claim. We have been involved in circumstances similar to this In other claims. It is almost universally the position of legal authorities that the handwritten notes of the deceased physician, which offer no Specific conclusions or discussion .of the facts, are of minor substantive or inter pretive value. Therefore, we do not believe that Liberty Mutual's failure to immediately obtain these notes is fatal to the defense of the claim. We would anticipate that Liberty Mutual will now attempt to get the opinion of another medical refute that of Dr. Stettner. It is also probable that thav will investigate the conditions at the plant in the area where Hr. was employed. It my be necessary to develop a position that the exposure alleged by Dr. Stettner *s report did not actually exist and that Mr. death was due to other factors noted in the death certificate. Redacted We have reqaesuaa naan Liberty Mutual keep this Department and your office apprised of say new developments in this case. We anticipate that they will also advise whether or not there are mattersH>n which we can be of tanee to then in devising a defense of this JDSicnj ecs BJMalone RRBruhn 0007-SWP-005504022 CONFIDENTIAL