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Arkansas Department of Community Correction v. Barclay

Court of Appeals of Arkansas

April 5, 2017

ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION and ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISIONAPPELLANTS
v.
THERESA BARCLAY APPELLEE

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G500102]

          Charles H. McLemore Jr., Public Employee Claims Division, for appellant.

          Reid, Burge, Prevallet & Coleman, by: Richard A. Reid, for appellee.

          OPINION

          WAYMOND M. BROWN, Judge.

         Appellants Arkansas Department of Community Correction (ADCC) and Arkansas Insurance Department, Public Employee Claims Division, appeal the May 13, 2016 opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed and adopted the November 5, 2015 opinion of the Administrative Law Judge (ALJ), which determined that appellee Theresa Barclay had proven, by a preponderance of the credible evidence, that she sustained a compensable occupational illness or disease which arose out of and during the course of her employment with ADCC. ADCC argues that the decision of the Commission is not supported by substantial evidence. ADCC additionally argues on appeal that the Commission improperly relied on online materials not in evidence to support its findings. Barclay cross-appeals the Commission's denial of an award of temporary total disability benefits. On all points, we affirm.

         I. Background

         Barclay was employed by ADCC at its Osceola facility, initially as a security guard and later as a counselor. She was employed there from 2004 until she was terminated on May 29, 2015. Barclay claims that in 2010 she began experiencing migraine headaches, as well as breathing problems. Due to her physical issues, Barclay missed work on occasion. In May 2011, she sought treatment from her primary care physician, Dr. Chimere Ashley. Dr. Ashley treated the symptoms; however, the migraines continued. In 2014, he referred Barclay to Dr. Scott Snodgrass, a board-certified allergist, for further evaluation. Upon testing, Dr. Snodgrass determined that Barclay is allergic to mold.

         On October 2, 2015, at the hearing on the workers' compensation claim, Barclay contended that she sustained either an injury or an occupational disease arising out of and during the course of her employment with ADCC, which affected her lungs and caused headaches as the result of exposure to mold at the workplace. Barclay further contended that ADCC should be held responsible for all related medical treatment, as well as all continued, reasonably necessary medical treatment; that she was entitled to temporary total disability benefits for dates to be determined at the hearing; and that an attorney's fee should attach to any awarded benefit.

         ADCC asserted that Barclay could not sustain her burden of proving, by a preponderance of the evidence, that she suffered an injury arising out of and during the course of her employment. More specifically, ADCC argued that Barclay could not prove an occupational disease and that she was not disabled as a result of any disease that was due to the nature of her occupation or process in which she was employed within the period previous to her disablement. ADCC also asserted that Barclay suffered from pre-existing conditions which were not work related and that any disablement was due to her non-work related, pre-existing condition. ADCC further argued that Barclay failed to provide written notice to her employer of an occupational disease within ninety days following the first distinct manifestation thereof as required pursuant to Arkansas Code Annotated section 11-9-603(a)(2)(A) (Repl. 2012). In the event that compensability was found, ADCC contended that, due to an aggravation of a pre-existing condition, its liability should be proportionately reduced as set out under Arkansas Code Annotated section 11-9-601(c)(1). As an affirmative defense, ADCC also asserted that Barclay's claim is barred by the statute of limitations.

         At the hearing, Barclay testified that she noticed water leaks and mold at her place of employment when she first began working there. She, and former co-workers, Jeanette Rudditt and JoAnn Tobar, testified that during times of heavy rain, water would leak into the facility and come in under the doors. They further testified that a big storm blew the roof off in June 2014, which led to the growth of more mold. Ronald Beck, testifying as an employee representative, acknowledged that mold was present in the facility prior to the storm in June 2014 and that the mold was still there at the time of the hearing and, due to issues with the insurance company, had yet to be repaired.

         Dr. Snodgrass instructed Barclay not to return to work until after the mold problem had been remedied. He stated that the symptoms would worsen if she returned prior to the mold removal. On December 23, 2014, Barclay took the report to Human Resources and was informed that she did not have enough leave time to miss any more days of work. Consequently, she filed a workers' compensation claim that day, claiming an occupational illness due to mold exposure. The ALJ made the following findings of fact and conclusions of law:

1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim.
2. The stipulations agreed to by the parties are hereby accepted as fact.
3. The claimant has proven, by a preponderance of the credible evidence, that she sustained an occupational illness or disease which arose out of and during the course of her employment with the Arkansas Department of Community Corrections as defined by Ark. Code Ann. § 11-9-601.
4. Additionally, and/or in the alternative, the claimant sustained an inhalant injury as a result of exposure to mold at the workplace, aggravating a preexisting condition, entitling the claimant to appropriate workers' compensation benefits.
5. Respondents are responsible for all outstanding medical and related expenses for treatment of the claimant's work-related injury, and respondents remain responsible for ...

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