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Miller v. Tema Isenmann, Inc.

Supreme Court of Kentucky

March 22, 2018



          COUNSEL FOR APPELLANT: Charles William Gorham The Law Office of Charles W. Gorham

          COUNSEL FOR APPELLEE TEMA ISENMANN, INC.: Carl Martin Brashear Hoskins Law Offices, PLLC



         Appellant, Jeff Miller, worked for Appellee, TEMA Isenmann, Inc., for fifteen years. Miller was diagnosed with and treated for bladder cancer, which he asserts stemmed from exposure to a workplace carcinogen. He sought permanent total disability benefits based upon his assertion that his bladder cancer amounted to an occupational disease. The administrative law judge (ALJ) awarded the benefits Miller sought. TEMA appealed to the Workers' Compensation Board, which vacated and remanded back to the ALJ. On remand, the ALJ awarded the same benefits and the Board vacated and remanded yet again. On TEMA's third appeal, however, the Board affirmed the ALJ. TEMA appealed the Board's decision to the Court of Appeals, which reversed. Miller appeals that decision to this Court as a matter of right. See Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 798 (Ky. 1990); Ky. Const. §115.

         I. BACKGROUND

         TEMA is a German-owned, multi-national company that produces industrial screens. Miller worked for TEMA from 1995 until 2010 as a purchasing agent. Though he was not involved in the actual production process, Miller's office door opened into the plant. Miller's job duties required him to enter the production floor daily to check the inventory. He claims that MOCA, a curing agent, was airborne in the plant.

         MOCA was used by TEMA in its production facility during Miller's tenure (though the company has since stopped using the agent, as the Occupational Safety and Health Administration ordered TEMA to make costly changes to its operations to continue using MOCA). MOCA is scientifically proven to cause cancer in animals and is highly suspected of being a human carcinogen as well. Testimony from a TEMA plant manager described the "closed system" which was in place on the production floor when Miller retired. In this closed system, MOCA was never open to the air and employee exposure is limited. However, Miller and the TEMA manager both testified that this system was only in place from around 2005 onward (only for approximately the last five years of Miller's fifteen-year tenure with the company).

         Prior to implementation of the closed system, TEMA employees added MOCA to the production process manually via an older open-air machine. In using that system, production workers removed bags of MOCA pellets from cardboard drums, cut the bags open with carpenter's knives, and manually poured the MOCA pellets into the machine. This process is how Miller believes MOCA became airborne in the plant, thus leading to his exposure. TEMA, denies that MOCA was ever airborne in the production facility and contends that the facility boasts a favorable record for the safety and health of its employees.

         TEMA monitored workers for MOCA exposure by testing employees' urine. Specifically, the company tested production employees-but never office employees-for exposure once every three months. When a production plant employee tested positive for MOCA exposure, TEMA altered the employee's job duties until MOCA was no longer present in the employee's urine. Because Miller was an office employee, TEMA never tested him for MOCA exposure. However, Miller testified that two to three production employees usually tested positive for MOCA each time TEMA tested employees' urine. The TEMA plant manager testified that he has managed the plant since 2001, and that in that time only two to three employee's ever tested positive for MOCA exposure. At any rate, whether the number was two to three every three months or two to three total, it is undisputed that some number of employees tested positive for MOCA exposure.

         In 2010, Miller retired from TEMA. Later that same year, doctors diagnosed him with bladder cancer. Miller's cancer required the removal of his bladder, radiation, and chemotherapy. On March 29, 2012, Miller filed an Application for Resolution of Occupational Disease Claim, alleging that his cancer was caused by MOCA exposure during his employment with TEMA. On September 13, 2012, the ALJ rendered an opinion determining that Miller's bladder cancer was causally related to workplace exposure to MOCA and awarded permanent total disability and medical benefits. TEMA moved the ALJ to order a university medical evaluation pursuant to KRS 342.315, but the ALJ denied that motion.

         TEMA appealed to the Board, arguing that the ALJ's finding that Miller's bladder cancer was caused by exposure to MOCA was not supported by substantial evidence and that the ALJ erred by refusing to order a university medical evaluation. Concluding that university evaluations are mandatory in occupational disease claims, the Board vacated the ALJ's order and remanded the case, ordering the. university evaluation to be performed under KRS 342.315 and 342.316(3)(b)(4)(b).

         On February 15, 2013, the ALJ ordered Miller to undergo a university medical evaluation to be scheduled by the Department of Workers' Claims (DWC). Six days later, the ALJ entered a follow-up order advising the parties that the DWC had informed him "that there [we] re no university evaluators available for this case at either the University of Kentucky or the University of Louisville, " and that "[f]or that reason, a university evaluation [wa]s not possible." The ALJ thus ordered the parties to confer and agree on an independent medical evaluator. Both parties objected to the opinion of a physician who was not a university employee being given presumptive weight under the statutes.

         Still, the ALJ ordered both parties to produce three names of willing physicians from which the ALJ would choose an evaluator. Miller produced three options, though none of the doctors were oncologists. TEMA asked for an extension of time to continue searching for qualified doctors willing to participate, noting a lack of expertise in cancer diagnosis and treatment among the proposed field of candidates. The ALJ denied TEMA's request and chose one of the physicians offered by Miller, Dr. David Jackson, a physical-medicine-and-rehabilitation physician.

         Dr. Jackson completed his evaluation, and assigned Miller a fifty-eight percent impairment rating pursuant to AMA guidelines. However, Dr. Jackson stated that he had no opinion as to the cause of Miller's cancer. The ALJ again entered an opinion finding that Miller's bladder cancer was caused by exposure to MOCA through his employment with TEMA and awarded permanent total disability and medical benefits.

         TEMA appealed this decision to the Board, and the Board once again vacated and remanded the case to the ALJ. In doing so, the Board first ruled that the ALJ's assertions as to the unavailability of university evaluators lacked sufficient support in the record. The Board required the ALJ to file correspondence from the DWC "memorializing], with specificity, the availability, or lack thereof, of university evaluators in this litigation." The Board then added that even if no university evaluator was willing to participate, the mandatory language of KRS 342.316(3)(b)(4)(b) requires the Commissioner to choose a physician to perform the evaluation. It held the ALJ abused his discretion by not "request[ing] the Commissioner to choose a physician who will act in place of the university evaluator."

         On remand, the ALJ directed the Commissioner to schedule an evaluation. The Commissioner eventually responded with an order asserting that a university evaluation under KRS 342.315 "is impossible and cannot be. scheduled" because the medical schools "have no physician who can or will conduct an examination and offer an opinion." The order also stated that the Commissioner could not schedule an independent examination as required by KRS 342.316, explaining that although qualified doctors had been identified, each declined to participate. "[F]urther delay in deciding the claim, " the Commissioner's order concluded, would be "unreasonable and the matter should proceed to conclusion in the interest of justice."

         The ALJ again entered an opinion finding Miller's bladder cancer to be a compensable occupational disease and awarding permanent total disability and medical benefits. When TEMA appealed for the third time, the Board affirmed the ALJ. Despite the Board's initial insistence on a university evaluation, the Board was satisfied that the Commissioner had fulfilled his statutory and regulatory obligations. The Board also addressed and rejected TEMA's argument that substantial evidence did not support the ALJ's finding that Miller's employment exposed him to MOCA and caused his bladder cancer.

         TEMA appealed to the Court of Appeals, which reversed and remanded. That court disagreed with the Board's conclusion that the Commissioner's sincere attempts to schedule Miller for a medical evaluation were statutorily sufficient. Instead, the Court of Appeals held that the statutory language requires the Commissioner to refer all occupational disease claimants to an unbiased medical evaluator chosen by the Commissioner. "Nothing in the statute, " that court added, "allows for any exception to that legislative mandate." Consequently, the Court of Appeals vacated the decision of the Workers' Compensation Board and remanded the case to the ALJ for a new order requiring the Commissioner to produce a university evaluation, or, "if that is impossible, find an independent and qualified medical expert either by recommendation of the University of Louisville or the University of Kentucky or by independent search for a qualified university medical evaluator from outside these universities." The Court of Appeals, ordered the ALJ to consider this evaluation in making a new determination as to whether Miller had met his burden of proof in showing that he was exposed to MOCA during his employment with TEMA resulting in occupational disease.

          Miller now appeals that decision to this Court as a matter of right. See Vessels, 793 S.W.2d at 798; Ky. Const. § 115. It should also be noted that Miller, as the claimant, "bears the burden of proof with respect to every element of the case." Morrison v. Home Depot, 279 S.W.3d 172, 175 (Ky. App. 2009).

         II. ...

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