ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION and ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISIONAPPELLANTS
THERESA BARCLAY APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Charles H. McLemore Jr., Public Employee Claims Division, for
Burge, Prevallet & Coleman, by: Richard A. Reid, for
WAYMOND M. BROWN, Judge.
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.
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.
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
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.
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.
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'
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