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HOWARD MORELAND, Claimant-Respondent, vs. EAGLE PICHER TECHNOLOGIES, LLC, Employer-Appellant.

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No. SD31692

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION AFFIRMED. Eagle Picher Technologies, LLC ("Eagle Picher") appeals the award of the Labor and Industrial Relations Commission ("Commission") in favor of Howard Moreland ("Moreland"). We affirm the decision of the Commission.

Factual and Procedural History
Moreland began working for Eagle Picher in 1973. Eagle Picher is involved in the manufacturing of batteries, fertilizer, and boron. Moreland's claim for workers' compensation benefits centered on his employment there from 1984 to approximately 1994 at the facility located at C & Porter Street in Joplin. At this location, Moreland began working in

Building 4, but frequently worked in Building 11. He primarily worked in the department1 in Building 4 that manufactured nickel cadmium and nickel hydrogen components for battery cells, and sometimes worked in the rubber lab. He also worked in close proximity to the plastic shop. Moreland was initially a tank operator; he was promoted after one year to working foreman. Moreland first became ill in the summer of 2005. He sought treatment on June 14, 2005, and subsequently received extensive medical testing and treatment. He was 51 years old at that time. Physicians in Joplin suspected Moreland had multiple myeloma and referred Moreland for treatment to the University of Arkansas. On July 29, 2005, his diagnosis was confirmed at the University of Arkansas Medical Center-Multiple Myeloma Institute (the "Institute"), and a treatment plan was developed. Moreland's last day on the job for Eagle Picher was August 1, 2005. Moreland underwent extensive treatment, including chemotherapy and multiple surgeries. The parties stipulated that Moreland's past medical expenses were $734,586.49 and travel expenses were $17,434.59. Moreland filed a claim for compensation on December 17, 2007, and a hearing was held on August 20, 2010.2 Notice to Employer In 2005, during the onset of Moreland's illness, Jeffrey Dermott ("Dermott") was Moreland's supervisor at Eagle Picher. Moreland testified that in late June 2005, after he first started missing work due to his illness, he kept Dermott informed of his medical condition. Moreland's cell phone records reflect that Moreland frequently called Eagle Picher.
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The nickel cadmium and nickel hydrogen processes were conducted in the same department. Eagle Picher quit making nickel cadmium electrodes in approximately 1992 so the department was then referred to as the nickel hydrogen department. Both Eagle Picher employees and management interchangeably refer to this department as the "nickel cadmium/nickel hydrogen" area or simply the "nickel hydrogen" area. The parties stipulated that the Workers' Compensation Law applicable to this claim was that which was in effect prior to August 28, 2005, when significant amendments to the law took affect.
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particular, on July 29, 2005, Moreland's phone records demonstrated a 15-minute call to Eagle Picher. Moreland testified that on the 29th, he called Dermott after receiving his final diagnosis of multiple myeloma, and told Dermott his diagnosis and that the cause of the disease was exposure to chemicals at Eagle Picher. Moreland explained he told Dermott the cause of his disease because Dermott asked him. Dermott similarly testified that after Moreland began treatment for multiple myeloma, Moreland called him to keep him apprised of his treatment progress. Dermott, however, stated he did not recall Moreland telling him that his multiple myeloma diagnosis was related to his work at Eagle Picher. The parties stipulated that Eagle Picher did not file a report of injury with the Division of Workers' Compensation until after Moreland filed his original claim for compensation on December 17, 2007. Working Environment Moreland and other Eagle Picher employees testified regarding the work environment in Building 4. Moreland testified that after filing his claim, he requested Eagle Picher to identify the chemicals to which he had been exposed while working at Eagle Picher and Eagle Picher produced some Material Safety Data Sheets ("MSD Sheets") for those chemicals. Moreland said those chemicals included benzene, trichloroethylene (TCE), cadmium, nickel, and platinum. Moreland testified he was exposed to benzene as it was used in the plastics in the plastic shop and was also used in the rubber lab. Moreland testified the rubber lab gave off the most fumes, being a "sweet fragrance" like "[m]aybe a flower[]" when the rubber first came out of the icebox and then once it was heated, a licorice smell. The plastic shop and the nickel cadmium/nickel

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hydrogen area also gave off a lot of fumes. Moreland testified he was also exposed daily to cadmium during the impregnation process.3 Moreland testified that the plastic shop was located immediately next to the nickel cadmium/nickel hydrogen area, where Moreland typically worked. Benzene was in the glue that held different pieces of plastic together. The heating of the glue while plastic was molded would create fumes and circulate throughout the building when fans were operating. Additionally, employees would cut these plastic parts throughout a work day, which created fine, sawdust-like particles. So much dust would fly that it would collect three to four inches deep on the work floor where Moreland worked in the nickel cadmium/nickel hydrogen area. Moreland testified the chemical fumes soaked into his clothing and he had to change his clothes every night when he returned home because his clothes stank of chemicals. Moreland also explained that despite company rules, he commonly ate in the work area because employees were not able to leave if a process was running. Moreland testified that Eagle Picher personnel tested the water from water fountains located near work areas and the results showed the water unfit to drink. This prompted the plant to remove water fountains. Moreland testified he also cleaned out chemicals in a cabinet prior to the remodeling of Building 4, which included zinc, lead, carbon, benzene, nickel, and cadmium. He also testified that he ordered the rubber product used in the processing and that the certificate of compliance or "cert" showing the "recipe" included benzene as an ingredient. Moreland identified being exposed to benzene, trichloroethylene (TCE), nickel, cadmium, and platinum. Moreland also testified that from 1984 until sometime in the early 1990s, he did not wear any respiratory protection and Eagle Picher did not provide him with respiratory protection.

Extensive testimony was given regarding the different work processes, but it is not necessary to recite those processes for disposition of this appeal.

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Moreland also testified that from 1984 to the early 1990s, Eagle Picher failed to provide proper ventilation in the nickel hydrogen area. Moreland explained that prior to the remodeling, which included new ventilation in the early 90s, a tissue could be held up under the ventilation system where the employees worked and the ventilation would not suck up the tissue. In contrast, Moreland explained that after the new ventilation system was installed, it could suck Moreland's hat right off his head and shoot it through the stacks. Moreland testified that he reported the inadequate ventilation system to management numerous times. Moreland also named four

people in management he told about his concerns with the inadequate ventilation hoods in the rubber lab. Moreland further noted that Eagle Picher did not provide him with specialized training in working safely with the chemicals. Moreland explained safety did not become more of an issue until the early 90s. Moreland additionally testified that Jim Morgan, his former supervisor in Building 4, was diagnosed with bone marrow cancer and subsequently died. John Newberry ("Newberry") testified he worked with Moreland in Building 4 in the "nickel hydrogen" "negative room." He testified there were fumes from washing the negative plates with chemicals such as trichloroethylene. Newberry explained the fumes from this

process were mostly contained within the area, but that fumes from other processes in the building would filter through. The washing process included dipping the racks in nitric acid. Yellow smoke would emanate during this process. Newberry testified that visitors to the plant would leave immediately because the fumes burned and tickled their throats. Newberry testified that employees did not wear respiratory equipment while working around these fumes. Kathleen Ogden ("Ogden") testified she also worked with Moreland in Building 4. She testified that although "fans were always going[]" they were not effective in removing fumes and

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dust, but instead caused it to blow back onto the employees. Ogden testified she was familiar with the environment in and around the plastic shop, and the smell of glue was very strong and continuous all day, every day. She also testified that the labels on the containers used to make glue indicated the material was a cancer-causing agent. Ogden testified she received acid burns on her skin and eyes, and she inhaled fumes every day. She stated employees wore aprons, boots, gloves, and glasses, but there was no respiratory protection and no medical monitoring. Additionally, she testified there was no training from Eagle Picher on how to deal with the dust and fumes. Ogden named eight former Eagle Picher employees she believed had died from cancer. Lee Roy Christy ("Christy") testified he worked with Moreland in the nickel cadmium/nickel hydrogen area. He stated that benzene was present in the "strippers" used during the cleaning process. He verified the presence of "thick" fumes from the cleaning process. He additionally verified the presence of fumes and dust--thick enough to pick up with a shovel--from the plastic department, just across the hall from where he and Moreland worked. He verified there was poor ventilation before "good" vents were added in 1992 during the remodeling of Building 4. He testified he was exposed to potassium hydroxide (KOH), which burned his skin, leaving scars. Christy testified he threw a number of containers away each day and would remove the labels before disposal. He further testified he did not know why the labels were removed, but did as he was instructed. Eagle Picher's Investigation Dennis Chiapetti ("Chiapetti"), chemist and Eagle Picher's production supervisor, began working for Eagle Picher in 1986. He testified he worked off and on in Building 4 from 1986 through 2008 conducting lab analyses. Chiapetti testified that after Moreland filed his workers'

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compensation claim, he was directed by Eagle Picher to conduct an investigation concerning Moreland's work environment and the chemicals used in lab analyses in Building 4. He was directed to go back to the MSD Sheets and chemical inventory to determine "[w]hat chemicals were used in the lab, what we did analysis on, the solutions and on the finished product." Chiapetti testified that in the process of doing his investigation, he compiled an analytical procedures manual. As part of that manual, Chiapetti compiled a document entitled, "EP-MS217, Analytical Procedures for Nickel Hydrogen Components and Processes," which was entered into evidence as Exhibit 2. Chiapetti testified that Exhibit 2 was important because it contained "all of the procedures and the chemicals used for lab analysis for these components and solutions[,]" and identified what chemicals were used in lab analysis, going back to the early part of 1986. Chiapetti further testified that the information contained in Exhibit 2, along with his own personal experience in doing lab analysis in Building 4, helped him form an opinion that during the time Moreland worked in Building 4, the chemicals used in the analytical process for nickel hydrogen batteries included potassium hydroxide, nitric acid, hydrochloride acid, ammonium chloride, ethylenediaminetetraacetic acid (EDTA), magnesium sulfate, eriochrome black T, acetic acid, hydrazine sulfate, sodium carbonate, phenolphthalein, methyl orange, and sulfuric acid. On cross-examination, Chiapetti admitted that his investigation did not disclose the procedures and chemicals concerning the manufacturing of nickel cadmium components, nor did he look for the analytic procedures for nickel cadmium. Chiapetti agreed that at one time, the nickel hydrogen department in Building 4 was originally the nickel cadmium department. Chiapetti testified that Eagle Picher quit making nickel cadmium electrodes in approximately

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1992. Chiapetti further admitted that the analytical procedures for nickel hydrogen and nickel cadmium were dissimilar, but testified that benzene was not used in the nickel cadmium or nickel hydrogen processes. Chiapetti also identified three MSD Sheets, which reflected chemicals used in the glue in the plastic shop. Chiapetti testified that none of the chemicals included benzene. However, he agreed that the MSD Sheet for an acrylic adhesive promoter used as an accelerator to set up the glue (Exhibit 13), showed the presence of "dimethylaniline minor . . . also known as benzenamine dimethyl[]"; a benzene-related chemical that has a benzene ring. Chiapetti testified that the certificates of compliance from 1985 to 1995, for the raw rubber, did not contain benzene. Chiapetti agreed that the MSD Sheets for raw rubber stated it had a "Hazardous Decomposition: Carbon monoxide, carbon dioxide, hydrogen cyanide, oxides of nitrogen, trace amounts of aromatic and aliphatic hydrocarbons[.]" After review of some research, Chiapetti stipulated that benzene is an "aromatic hydrocarbon" and has a sweet smell. Chiapetti acknowledged that prior to the remodeling in the 1990s, the work areas in Building 4 were not separated and that fumes could filter through Building 4 from one work area to another. He agreed employees in Building 4 did not wear respirators. Chiapetti testified he had never conducted any respiratory testing in the plant to detect concentration levels of any chemical, nor any chemical testing of any chemicals to determine the effect on dermal or skin exposure, but that the Safety Department had. He testified he did not obtain copies of those reports for his investigation, or copies of the chemical inventories maintained by the Safety Department, which would have shown the chemicals being used at the time of Moreland's exposure.

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Chiapetti testified that based on his experience, and his investigation of the process of lab analysis in Building 4, benzene had never been used. He also testified he personally never used benzene in lab analysis, did not find benzene had ever been used, never personally saw benzene being used, and never saw benzene at all in Building 4. Chiapetti denied Moreland was exposed to benzene during his employment in Building 4. Chiapetti did not prepare a written report with the results of his investigation, but rather gave an oral report of his findings to Eagle Picher management. William Ideker ("Ideker"), became the Division Director of Health and Safety and Environmental at Eagle Picher in 1992. He testified benzene was not utilized in Moreland's workplace or Building 4, based on the investigation conducted by Chiapetti. Ideker did admit that small quantities of benzene had been used in Building 11, where they conducted a "postmortem" on batteries returned to Eagle Picher to see if they functioned properly. Ideker stated his records showed Moreland had never worked in Building 11.4 Ideker admitted the Hazardous Waste Disposal records of Eagle Picher recorded benzene being sent for disposal three times, twice in 1999 and once in 2004, from Building 11. Ideker was cross examined using the "Environmental Covenant" (Exhibit U) issued by the Missouri Department of Natural Resources ("DNR"). Ideker was asked about the

constituents detected by the DNR that "impact[ed] [the] surface soil exceed[ing] human health screening criteria." Some of these constituents consisted of "polyaromatic hydrocarbons," which included benzoaanthracene, benzoapyrene, and benzolbflorantene. Ideker agreed that

"polyaromatic hydrocarbons" were "benzene compounds," but would not say they were "used at
Moreland testified that when he began working for Eagle Picher in 1984, he began in Building 4, but frequently worked in Building 11 on an overtime basis. After he was promoted to foreman in Building 4, Moreland testified he was in Building 11 on a daily basis. Moreland testified that Building 4 was only about an "alley width from Building 11." They would just go "from door to door."
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Eagle Picher . . . because . . . we're talking about 56 acres of property . . . ." Reports which would have shown the exact location where these constituents or compounds were being used, were not produced by Eagle Picher. Ideker further testified that a fire in September 1991, destroyed Building 54 (the building adjacent to Building 4). He stated Building 54 was the document control center, which would have included the analytical procedures and other pertinent files regarding the chemicals used in Building 4 from 1984 to 1991. The "Analytical Procedures for Nickel Hydrogen" (Exhibit 2) was approved for final use in December 1991. Ideker could not say for certain what documents were used in the initial creation of the analytical procedures, or whether any documents used as a basis for the analytical procedures were lost in the fire. Ideker testified that there were no chemical inventories from 1984 through 1995. He explained that while MSD Sheets were kept, after a chemical was removed from the process, the MSD Sheets were taken down and revised to reflect the new chemicals. He specifically stated that Chiapetti's testimony that chemical inventories were being maintained on a historical basis was incorrect. Ideker indicated written production procedures would have shown what

chemicals were used in Building 4, but that Chiapetti did not pull those procedural documents in the course of his investigation. Ideker further noted that he was not sure whether any of the production procedures prepared before 1991 would have been destroyed in the fire in Building 54. Ideker testified because the industrial hygiene monitoring data documents (Exhibit 5) did not show benzene was being monitored in Building 4 after 1984, which would indicate employees were not using benzene in Building 4. Eagle Picher also did not produce any field studies or lab results to indicate the level of particulates from hazardous chemicals during the time in which Moreland worked in Building 4.

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Dr. Allen Parmet's Testimony Dr. Allen Parmet ("Dr. Parmet"), a specialist in occupational medicine, testified that in reviewing Moreland's case, he was of the opinion that Moreland's exposure to chemicals at his employment was the cause of his multiple myeloma. Specifically, he testified that benzene, cadmium, lithium, platinum, nickel, and trichloroethylene contributed to the development of Moreland's multiple myeloma. He further explained the toxicity of each of those chemicals. He testified that Moreland was exposed to these chemicals without regular respiratory protection, that he was more exposed to those chemicals than members of the general population, and that this exposure to these airborne chemicals was a substantial factor more likely than not in contributing to his myeloma. In reaching this conclusion, Dr. Parmet identified factors in epidemiology regularly recognized by physicians when considering whether there is a casual connection between an agent and a disease--the "Hill criteria." He then applied the Hill criteria to Moreland's case. Dr. Parmet also explained that the Occupational Safety and Health Administration ("OSHA") regulation for benzene exposure is one part per million upon an eight-hour, timeweighted average. If one has an open tank with a liquid, some of that liquid will simply escape into the atmosphere as a vapor and unless one does something to prevent it by either covering the tank or using a very special kind of surface ventilation system, it will escape into the atmosphere and enter the workers' breathing space. Dr. Mauricio Pineda-Roman's Testimony Dr. Mauricio Pineda-Roman ("Dr. Pineda"), Moreland's treating oncologist, testified extensively to the protocol treatment that Moreland underwent at the Institute. He also identified the cause of Moreland's multiple myeloma as exposure to chemicals at his employment, noting

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Moreland was only 51 years old; whereas, other patients typically present with multiple myeloma in their 60s. Dr. Bernard Goldstein's Testimony Dr. Bernard Goldstein ("Dr. Goldstein"), a professor of medicine at the University of Pittsburg Graduate School of Public Health and School of Medicine, and also a physician, toxicologist, and hematologist, testified on behalf of Moreland. Dr. Goldstein testified he had studied benzene toxicity and published close to one hundred papers or reviews upon the subject since the 1960s. Dr. Goldstein also specifically published and instructed members of the federal judiciary on issues concerning toxicology and, in particular, the issue of causation and whether chemical agents should be deemed to have caused or contributed to the development of multiple myeloma. Dr. Goldstein testified that benzene was reasonably probable to be a cause of multiple myeloma based upon epidemiological data,5 bioassays (experiments on laboratory animals), and mechanistic data.6 Dr. Goldstein testified that these sources of information are recognized by the International Agency for Research on Cancer and could be applied to substantiate that benzene caused multiple myeloma. Dr. Goldstein further testified that he was 90 percent sure benzene causes multiple myeloma. Dr. Goldstein also explained that he considered "reasonable

probable" to mean "more than 50 percent." Dr. Goldstein explained that benzene is a well-known potent hematological toxin; it was originally noted--since 1897--to cause human aplastic anemia, which is a failure of production of blood cells by the bone marrow. In the 1970s, after a conclusive study, the scientific
Dr. Goldstein testified epidemiological data concerns statistical studies in which researchers attempt to document past exposures of a chemical agent upon a class of individuals.
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Dr. Goldstein explained mechanistic data refers to accepted medical principles confirmed by medical research.

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community finally and fully accepted benzene as a cause of adult leukemia. This led to an extensive review of the earlier epidemiological literature on benzene and multiple myeloma, and in a combined analysis of seven pertinent studies, reported statistically significant association between benzene and multiple myeloma. Since this publication, numerous other studies have reported elevated risks of multiple myeloma associated with benzene exposure. Dr. Goldstein explained several of these recent studies. Dr. Goldstein reported7 that multiple myeloma is considered to be a non-Hodgkin's lymphoma, a cancer that has been clearly demonstrated to occur in benzene-exposed laboratory animals, with ample evidence showing the same effect in humans. Dr. Goldstein additionally reported that the mechanistic evidence in support of the ability of benzene to cause cancer of plasma cells has gotten even stronger in the past twenty years. Benzene exposure clearly causes chromosomal damage to human lyphocytes as evidenced by studies of exposed workers, as well as laboratory animals. Dr. Goldstein explained: "[T]here can be no question that exposure to benzene causes damage to human lymphocyte chromosomes, including a variety of genetic abnormalities that are known to increase cancer risk." Dr. Goldstein testified that multiple myeloma is an identifiable disease and it is reasonably probable that exposure to benzene, either by air or dermal absorption, or both, is a substantial factor to cause the compounding of cells that lead to multiple myeloma. Dr. Goldstein disagreed with Dr. Jonathan Borak's contention that obesity was a cause of multiple myeloma. Dr. Goldstein found that Moreland's obesity, if anything, explained the causal connection between benzene toxicity and multiple myeloma. Occupational physicians

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Dr. Goldstein's entire July 8, 2010 report, was entered into evidence as "Exhibit 2."

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consider body fat to be susceptible to benzene toxicity, which would explain the higher risk among females. Eagle Picher's counsel objected to Dr. Goldstein's testimony on grounds that it did not meet the minimum standard required of expert testimony by section 490.065.8 Counsel objected at the deposition and renewed the objection at the time Dr. Goldstein's deposition was offered into evidence at the hearing. Dr. Jonathan Borak's Testimony Dr. Jonathan Borak ("Borak"), a physician and toxicologist, reviewed Moreland's case at the request of Eagle Picher. He testified that epidemiological studies had not been established indicating benzene exposure was a chemical cause of multiple myeloma, and disputed whether other chemicals identified by Dr. Pineda and Dr. Parmet were causes of multiple myeloma. Dr. Borak had various criticisms of the opinions of Drs. Pineda, Parmet, and Goldstein regarding their conclusions that Moreland's multiple myeloma was caused by the chemicals at Eagle Picher. Commission's Award The Administrative Law Judge ("ALJ") awarded Moreland $752,021.08 in unpaid medical expenses, and permanent and total disability benefits at a rate of $397.45 per week from August 1, 2005 through the remainder of Moreland's lifetime. Additionally, the ALJ awarded Moreland a 15 percent penalty of all past medical expenses, past permanent total disability benefits, and future permanent total disability benefits based upon Eagle Picher's violations of sections 292.300, 292.310 and 292.320. The award further determined that: (1) Eagle Picher failed to timely file a report of injury; (2) Dr. Goldstein's testimony met the standard required of expert testimony; and (3) Moreland suffered an occupational disease as defined by section
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All references to statutes are to RSMo 2000, unless otherwise indicated.

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287.067.1. The Commission affirmed the ALJ's award and decision, and incorporated the findings into the Commission's award. This appeal followed. Eagle Picher raises four points on appeal alleging the Commission erred in finding: (1) Moreland filed a timely claim for compensation; (2) the testimony of Dr. Goldstein met the standard for admissibility of expert testimony; (3) Moreland sustained an occupational disease; and (4) Eagle Picher violated workplace safety statutes.9 The primary issues presented for our determination are whether competent and substantial evidence supported the Commission's findings that: (1) Moreland filed a timely claim for compensation; (2) the testimony of Dr. Goldstein met the standard for admissibility of expert testimony; (3) Moreland sustained an occupational disease; and (4) Eagle Picher violated workplace safety statutes.

Standard of Review
As set forth in article V, section 18 of the Missouri Constitution, judicial review of the Commission's10 award is a determination of whether the award is "supported by competent and substantial evidence upon the whole record." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003) (internal quotation marks omitted). Pursuant to section 287.495.1, this Court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
Eagle Picher's briefing deficiencies make our job more difficult. Eagle Picher's brief contains numerous Rule 84.04 violations. For example, Eagle Picher's statement of facts is improperly argumentative and does not impart an understanding of relevant facts, in violation of Rule 84.04(c). Also, each of Eagle Picher's points relied on do not comply with Rule 84.04(d)(2). By way of example, Eagle Picher's first point relied on reads: "THE COMMISSION ERRED IN FINDING THAT RESPONDENT TIMELY FILED A CLAIM FOR COMPENSATION." We also note Moreland's brief violates Rule 84.04(i) in that his argument fails to include specific references to the record. While these violations have made our review more difficult, neither brief is so deficient as to impede our disposition on the merits. Findings of the ALJ adopted by the Commission and incorporated into the Commission's decision are reviewed by the appellate court as the findings of the Commission. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 505 (Mo.App. S.D. 2011).
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(1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; [and] (4) That there was not sufficient competent evidence in the record to warrant the making of the award.

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