{"id":"alj-H203243-2024-05-23","awcc_number":"H203243","decision_date":"2024-05-23","opinion_type":"alj","claimant_name":"Kyle Mckaughan","employer_name":"U Of A Division Of Agri","title":"MCKAUGHAN VS. U OF A DIVISION OF AGRI AWCC# H203243 MAY 23, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:4"],"injury_keywords":["back","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MCKAUGHAN_KYLE_H303552_20240523.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCKAUGHAN_KYLE_H303552_20240523.pdf","text_length":56951,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303552 \n \nKYLE MCKAUGHAN, Employee CLAIMANT \n \nU OF A DIVISION OF AGRI, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 23, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by ROBERT  H.  MONTGOMERY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On February  27,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on August  14,  2023,  and  a  Pre-hearing \nOrder  was  filed  on August  18,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n27, 2023. \n 3. The respondents have controverted this claim in its entirety. \n\nMcKaughan – H303552 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $609.00 for temporary total disability benefits and $457.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant suffered a compensable occupational disease in the form of cancer \ndeveloped as a result of his employment with the respondent with a last exposure date of January \n27, 2023. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for a compensable  occupational \ndisease in the form of cancer as a result of his employment with the respondent. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  28, \n2023, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Respondents raise lack of notice as a defense in that the May 26, 2023, AR-C was the \nfirst notice of any alleged work-related injury. \n 6. Whether Claimant is entitled to benefits under A.C.A. §11-9-527. \n The claimant's contentions are as follows: \n“Claimant  contends  he  is  entitled  to  medical  treatment  for  cancer. \nClaimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“The  claimant  alleges  he  contracted  cancer  as  a  result  of  his \nemployment with the respondents. The claimant filed a Form AR-\nC on June 1, 2023, and lists the date of injury as January 27, 2023. \n \nThe  respondents  contend  that  the  claimant  did  not  contract  cancer \nas a result of his employment with the University of Arkansas. The \nclaimant filed a Form AR-C dated May 27, 2023 (Copy attached). \nThe  Form  AR-C  appears  to  have  been  received  by  the  Arkansas \n\nMcKaughan – H303552 \n \n-3- \nWorkers’ Compensation Commission on June 1, 2023.The  Form \nAR-C   was   received   by   Respondent   Public   Employee   Claims \nDivision on June 5, 2023. The respondents would contend that the \nnotice provisions of Ark. Code Ann. §11-9-701 (a)(1) apply to the \nfacts  of  this  claim  and  the  respondents  are  not  responsible  for \ndisability,   medical,   or   other   benefits   prior   to   receipt   of   the \nemployee’s report of injury. \n \nThe   respondents   contend   that   the   claimant   did   not   sustain \ncompensable injuries while in their employ. The respondents have \ncontroverted this claim for benefits. \n \nIn  the  alternative,  if  it  is  determined  the  claimant  sustained  a \ncompensable   injury(ies)   and   is   entitled   to   any   benefits,   the \nrespondents  hereby  request  an  offset  for  all  benefits  paid  by  the \nclaimant’s group health carrier, all short-term  disability  benefits \nreceived by the claimant, all long-term disability benefits received \nby  the  claimant,  and  all  unemployment  benefits  received  by  the \nclaimant. Respondents contend that it would be entitled to a credit \npursuant  to  A.C.A.  §11-9-411  against  any  additional  indemnity \nbenefits that may be awarded to the claimant. \n \nThe  Respondents  reserve  the  right  to  offer  additional  contentions, \nor   to   modify   those   stated   here,   pending   the   completion   of \ndiscovery.” \n \n The claimant in this matter is deceased,  having passed away on December 11, 2023. The \nclaimant’s Certificate of  Death found at Claimant’s Exhibit 2, page 28, indicates the following \ncauses  of  death:  cardiac  failure,  protein  calorie,  malnutrition,  and  multiple myeloma.  The \nclaimant  was  employed  by  the  respondent  as  a Safety Officer  as  he  described  in  his  deposition \ntaken  August  29,  2023.  The  claimant  filed  an  AR-C  with  the  Commission  on  June  1,  2023.  In \nthat  AR-C the claimant was asked to “briefly describe the part of the body and the cause of \ninjury.” The claimant responded, “I developed cancer as a result of my work.” The claimant has \nasked  the  Commission  to  determine  if  he  suffered  a  compensable  occupational  disease  in  the \nform of cancer developed as a result of his employment with the respondent with a last exposure \ndate of January 27, 2023. \n\nMcKaughan – H303552 \n \n-4- \n In the claimant’s deposition roughly three months prior to his death, he testified about his \nwork  duties  for  the  respondent  as  a  Safety  Officer.  In  2014  the  claimant  began  to  work  for  the \nrespondent  university  on  what  he  termed  the  “farm.”  This  was  essentially  the  respondent \nagricultural department’s farms and experimental stations. The claimant’s main office was in \nFayetteville,  but  he  would  also  travel  around  the  state  to  eleven  other  respondent  owned \nlocations.  The  claimant  testified  that  once  a  month  he  would  spend  a  couple  of  days  at  the  off-\nsite  stations  performing  safety  training,  inspections, and  picking  up  chemicals  to  bring  back  to \nthe Fayetteville facility.  \n The claimant was asked in his deposition about handling and accounting for chemicals in \nhis job as a safety officer: \nQ Okay.  And  I  guess – and you’ve mentioned a couple of \ntimes  already  having  to  deal  with  some  chemicals.  You  talked \nabout  that  at  the  lab  audits  and  now  working,  doing  these  farm \ninspections.  Describe  for  me,  Kyle,  if  you  could,  what  you  mean \nby handling the chemicals or accounting for these chemicals. What \nall did that require you to do? \n \nA Okay. Well, if there’s some used up chemicals, say at food \nscience – that’s where my office was at – they  would  send  me  an \nemail and say “Kyle, I got, you know, four liters of acid to pick \nup,” and I’d go pick up the acid. Then I’d put it in this storage \nroom that I have there on the farm. And I’d put the used chemicals \nin  that  storage  room,  and  then  once  a  month,  we  had  an  outside \ncompany come pick up the chemicals to haul off, to get rid of. But \nI  would  just  haul  the  chemicals  to  the  storage  room  but – and  go \nfrom there. \n \nQ And  was  there  a  storage  room  on  each  different  farm  or \nexperiment  station?  Or  did  you  have  just  one  storage  room  in \nFayetteville or some place? \n \nA I – I just had one there in Fayetteville. And you know, if I \nhad to pick up chemicals, say, in Stuttgart it was a lot cheaper for \nme to pick them up in Stuttgart and take them back to Fayetteville \n\nMcKaughan – H303552 \n \n-5- \nthan  it  was  for  me  to  have  the  company  come  out  to  Stuttgart  to \npick up the chemicals. So I was just trying to save money that way. \n \nQ And if you had to transport those chemicals from, let’s say \nStuttgart back to the storage room in Fayetteville, how would that \nwork? Did you put them in some sort of container that wouldn’t \nleak  and  put  them  in  the  vehicle  and  drive  them  back  up  to \nFayetteville?  Or  would  you – did  you  have  to  do  special  kind  of \nhandling for those kind of things? \n \nA No, they’d be in a box. I mean, I wouldn’t haul anything \nthat  was  dangerous  as  far  as  flammables,  things  like  that.  I \nwouldn’t haul that. But as far as pesticides, herbicides, no, they \nwere in a box or they were secured. But they were in – I wouldn’t \nhaul  anything  inside  my  cab,  inside  my – especially  herbicides, \npesticides,  and  all  that.  That  gets  smelling  pretty  bad.  But – I \nalways  made  sure  that  instead  of  spending  the  night  somewhere, \nI’d make sure – say I went to Stuttgart. I’d make sure I made it \nback to Fayetteville and not have to spend the night anywhere, you \nknow, a hotel or something like that. I wouldn’t care if someone \ntook the chemicals, but I wouldn’t want to get in trouble either so – \n \nQ I  gotcha.  And  when  you  say  these  chemicals  might  have \nbeen in boxes or whatever and they were secured, kind of explain \nto me, what do you mean by that? \n \nA Well, they would just be put in boxes so they wouldn’t roll \nall over the back of the cab. \n \nQ Okay. Would they be – \n \nA.  Boxes or containers. Yes. \n \nQ Would  they  be  taped  up  or  sealed  up  somehow  or  another \nor – \n \nA.  Yes, sir. \n \nQ Okay. \n \nA Yeah. \n \nQ And  would  you – would  you  be – would  you  have  been \nresponsible  for  taping  up  the  boxes  or  securing  the  boxes,  say,  in \n\nMcKaughan – H303552 \n \n-6- \nStuttgart before you started making your trip back to Fayetteville? \nOr did somebody else do that for you? \n \nA If there was no one else available, I’d do it. But usually, I’d \nwant them to do it. I’d want them to secure the boxes. \n \nQ And  if  they  secured  the  boxes  for  you,  I  guess  that  would \nkind  of  help  reduce  your  having  to  handle  them  and  that  kind  of \nthing? Is that right? \n \nA Correct.   Yeah.   The   less   people   that   handles,   yeah, \nchemicals or anything, sharps containers, anything, so... \n \n At the hearing in this  matter the  claimant’s supervisor, Nathan Van  McKinney, was \ncalled as a witness by the claimant. Mr. McKinney is the respondent’s Associate Vice-President \nfor Agriculture. Mr. McKinney gave a description of the storage shed where the claimant would \ntemporarily store chemicals before an outside/third party entity removed them. He described it as \na cinder block building with five or six rooms and estimated it to be about 1,200 square feet. On \ncross  examination  Mr.  McKinney  explained  that  the  building  is  ventilated  with  a  fan  that \nautomatically  comes  on  when  someone  enters  the  building.  Mr.  McKinney  took  over  the  job \nduties  of  picking  up  chemicals  and  biowaste  for  the  claimant  after  he  became  ill  and  unable  to \nwork. \n In  his  deposition  the  claimant  was  asked  about  exposure  to  chemicals  during  his  job \nduties for the respondent and his use of proper protective equipment (PPE) as follows: \nQ As  you  would  have  to  work  or  handle  these  chemicals  at \nthese  various  locations,  besides – you’ve described for me about \nhow  they  would  be  boxed  up  on  occasion  and  you  would  drive \nthem back to Fayetteville. But besides that exercise of transporting \nthe chemicals, were you somehow or another exposed to chemicals \nin  other  aspects  of  your  job,  like  doing  other  things  where  you \nwould come in, have some exposure to chemicals? \n \nA Well,  yeah.  I  mean,  if  there  was  a  spill  in  one  of  the  labs, \nI’d have to go in and clean it up. You know, clean it up properly. \n\nMcKaughan – H303552 \n \n-7- \nI—I—I’d rather do it than someone else do it because I had all the \nproper  PPE  and  all  that  and  disposed  of  it  properly  too – any \nchemical spills. \n \nQ Okay. That – that’s kind of what I was wondering. If you – \nif you ever had to do anything like that with chemicals, would you \nhave – would  you  wear  a  mask  and  gloves  and  that  kind  of \nequipment? \n \nA Yes, sir. \n \nQ I  guess – I  guess  as  a  safety  officer,  you  would  know  the \nimportance of doing it that way. Correct? \n \nA Yeah.  It  wouldn’t  look  good  if  I  went  in  there  without \nsomething. \n \nQ As far as you can remember, did the – did the university or \nfor that matter yourself, did you – were you always provided with \nthat protective equipment that you needed to do your job? \n \nA Yes, sir. \n \nQ I  guess  I’m  wondering,  did  you  ever  have  an  occasion \nwhere you had to do something around all these chemicals and you \ndidn’t  have  a  mask  or  the  appropriate  equipment?  Do  you \nremember ever – that ever happening? \n \nA No. The only – the only thing, I came in contact with some \n– I don’t know if you know what methyl bromide is. They used to \nuse it – it’s outlawed now, but they used to use it a long time ago \nto kill bugs underneath the ground to grow things. It’s highly – I \nthink  the  Jews  used  to  use it  on  the  Germans  a  long,  long,  long \ntime ago, so it’s pretty dangerous. \n \nQ All right. \n \nA But anyway, there was a bottle – we found about five or six \nbottles there in Fayetteville that was really, really old. And I had to \nget rid of them. Well, one of them was leaking a little bit, had this \nfoam coming out of it. And I didn’t have the proper PPE at the \ntime, but then I went and got the proper PPE to shut off the valve. \nBut  any  other  time,  just – just  walking  in  a  building  that  the  vent \nwasn’t  turned  on  yet,  especially  herbicides,  pesticides.  I  don’t \n\nMcKaughan – H303552 \n \n-8- \nknow if you’ve ever been on a farm, but that stuff can smell pretty \nbad if you don’t have a vent on or something like that so... \n \n On direct examination by the claimant’s attorney Mr. McKinney was asked about his \nobservations of the claimant’s PPE use as follows: \nQ Okay.  So  did  you  observe – I  think  you  said  that  you \nobserved  Kyle  doing  his  work  from  time  to  time  transporting \nchemicals. \n \nA Uh-huh. \n \nQ Did you ever observe him with the chemicals when he was \nnot wearing gloves or a mask? \n \nA Yeah. Yes. \n \nQ  Would you say that was – how much of the time would you \nsay that would be? \n \nA I  am  merely  guessing,  but  I  would  say  about  half  the  time \nhe  was  wearing  all  of  the  appropriate  PPE  and  it  feels  like  about \nhalf the time I saw him he was not. \n \n On  cross  examination  Mr.  McKinney  was  asked  about  the  availability  of  PPE  for  the \nclaimant as follows: \nQ He  told  me  at  his  deposition  that  he  was  provided  by  the \nUniversity  all  of  the  proper  PPE  that  he  needed  to  do  his  job;  is \nthat correct? \n \nA How much do you want me to answer that? I don’t know. I \nsuspect that is the case, but I don’t know. \n \nQ Was there ever a time where Kyle came to you and said he \ndid not have the proper PPE to do his job? \n \nA No, not to me. \n \n On  re-cross  examination  Mr.  McKinney  was  asked  about  the  claimant  being  written  up \nfor not using appropriate PPE as follows: \n\nMcKaughan – H303552 \n \n-9- \nQ During  the  time  that  you  supervised  Mr.  McKaughan,  did \nyou ever have to write him up for not using the appropriate safety \nequipment? \n \nA No, I didn’t \n \nQ Did anybody else that you know of? \n \nA Not that I am aware of. \n \nQ If you knew that Kyle had not been using the proper safety \nequipment, Dr. McKinney, would you have written him up? \n \nA No. \n \nQ Why not? \n \nA I  would  have  given  him  a  reminder  that  he  is  expected  to \nset  a  good  example  and  that  we  need  to  remember  to  wear  our \nmasks and we need to remember to wear our gloves, but I can tell \nyou  for  a  fact  that  you  walk  in  those  labs  and  you  forget,  which  I \ndid  frequently.  You  walk  in  those  labs  and  the  people  who  are \nworking  in  those  labs  are  often  not  using  the  same  protective \nequipment  that  Kyle  would  have  been  expected  to.  So  it’s  just \neasy.  When  you  are  in  a  rush  when  you  are  trying  to  deliver  that \nstuff, it is easy to walk in, pick that stuff up and forget, which I did \nfrequently. \n \n At the hearing in this matter the claimant’s widow, Tonya McKaughan, gave testimony \nthat she had been to the storage shed one time and at that time chemicals were being removed by \na  third  party.  She  testified  at  that  time  that  she  did  not  observe  the  use  of  gloves  or  masks  by \nanyone  present.  The  claimant  testified  in  his  deposition  about  the  onset  of  his  symptoms  as \nfollows: \nQ Okay. So Explain to me, if you can, Kyle, how it was that – \nwhen  did  you  begin  to  notice  any  kind  of  symptoms  or  pain  or \nproblems that led you to go to the doctor to get this diagnosis? And \nkind of describe all that for me. \n \nA Well,  be  honest  with  you,  I  was  at  work  one  day  back – it \nwas  January – it  was  the  end  of  January.  And  I  just  felt  weird  at \n\nMcKaughan – H303552 \n \n-10- \nwork.  So  I  went  up  to  Pat  Walker  there  on  campus  and  took  my \nblood  pressure,  and  it  was  like  220-something  over  100-and- \nsomething. So I went to the emergency room. Luckily, they started \ndoing  blood  tests  and  somehow  I  lost  four  pints  of  blood.  Was \nmissing. You know, wasn’t in my stool; wasn’t in my urine. And \nthey just couldn’t find it. And luckily, there was a lady there that \nknew  a  little  bit  about  multiple  myeloma.  And  they  did  an  MRI \nand they found – my back was bothering me too, and that’s when \nthey  found  that  the  multiple  myeloma  started  eating  way  at  my – \nmy nerves in my back. That – that’s what caused all that – the pain \nin my back. But if it wasn’t for this lady coming by my office and \ntelling me, ‘Kyle, you look like” – sorry my language – “you look \nlike crap,” I probably wouldn’t have went to the doctor. But she \npretty  much  saved – you  know,  could  have  had  a  heart  attack  or \nsomething  like  that.  That  blood  pressure  was  that  high.  So  I  feel \nkind of lucky in some way, but I’m very unlucky in another so..... \n \nQ So that – that day you said sometime at the end of January \nof this year. Right? \n \nA Yes. \n \n The claimant was seen at Mercy Hospital Northwest Arkansas emergency department on \nJanuary  27,  2023,  and  was  admitted  to  the  hospital  at  that  time.  The  claimant  first  saw  Dr. \nPatrick Travis at Highlands Oncology on February 14, 2023. Dr. Travis followed and treated the \nclaimant throughout the remainder of his life. On November 3, 2023, Dr. Travis issued a lengthy \nsummary note detailing the claimant’s multiple myeloma and chronic lymphocytic leukemia, \nwhich  are  exceedingly  rare  conditions  for  one  person  to  simultaneously  have  according  to  Dr. \nTravis. Following is Dr. Travis’ November 3, 2023, summary note: \nMr.  Kyle  McKaughan  was,  at  first  visit,  a  60  y/o  (DOB  3/17/62) \nseen  in  clinic  for  first  time  on  2/14/23  for  initial  evaluation  and \nrecommendations   for   newly   diagnosed   lgG   Lambda   Multiple \nMyeloma  and  CCL,  B-cell  type.  He  was  admitted  directly  from \nMercy  ER  on  1/27  after  presenting  with  uncontrolled  HTN  and \nincidental finding of acute renal insufficiency, hypercalcemia, and \npancytopenia. Of note, he was admitted to NW Medical Center for \nnew-onset  atrial  fibrillation  12/21/22  and  cardioverted  by  Dr. \nSingh  and  placed  on  Eliquis.  TEE  at  that  time  showed  preserved \n\nMcKaughan – H303552 \n \n-11- \nEF  55-60%.  Lab  studies  dated  12/20/22  show  his  hemoglobin  14, \nHCT  42,  Platelet  181K,  Creatinine  0.8  with  BUN  12  and  normal \nelectrolytes.  Subsequently,  labs  on  1/27/23  after  presenting  to  ED \nwith    dizziness,    lightheadedness,    and    hypertension    showed \npancytopenia    (hemoglobin    8.8),    acute    renal    insufficiency \n(creatinine  2.4),  hyponatremia  (sodium  124  likely  secondary  to \npseudohyponatremia),   and   hypercalcemia   (calcium   13)   with \nelevated  total  protein  9.9  and  albumin  2.7.  He  was  transfused \npacked  red  blood  cells  during  hospitalization  for  hemoglobin  6.8. \nHe was given a dose of Zometa on 1/31 for hypercalcemia. Eliquis \nwas  stopped  due  to  thrombocytopenia  with  platelet  in  the  10-20 \nrange.  He  denied  any  signs  of  bleeding.  Workup  included  bone \nmarrow   biopsy   on   1/1/23   (Accession   #10195643)   revealing \nhypercellular marrow (>95%) with CD5+ cell lymphoproliferative \ndisorder,  favoring  CLL,  and  extensive  plasma  cell  involvement \nwith  core  biopsy  >95%  plasma  cells,  lambda  restricted.  Flow \ncytometry  on  plasma  cells  was  negative   for   CD20  but  CLL \npositive for CD20. \n \nFlow  cytometry  for  plasma  cells  also  showed  CD19  negative, \nCD38 detected, CD56 not detected, CD117 (KIT) negative, CD138 \ndetected,  cytogenetics  and  FISH  pending.  US  kidney  and  bladder \non  2/2  was  unremarkable.  Due  to  acute  on  chronic  lumbar  back \npain  he  had  an  XRAY  of  lumbar  spine  on  1/30,  revealing  mild \ncurvature  of  the  mid  lumbar  spine  convex  to  the  left.  Severe \nspondylosis  at  L2-L3  with  mild  changes  were  seen  at  L1-L2  and \nL3-L4.   Subsequently,   he   had   MRI   of   Lumbar   spine   without \ncontrast   showing   large   disc   bulge   with   posterior   spondylitic \nridging  that  impressed  on  anterior  thecal  sac  L2-L3.  Moderate  to \nsevere  narrowing  of  the  thecal  sac  and  crowding  of  cauda  equina. \nHe  was  seen  by  Dr.  Castellvi,  neurosurgery,  who  did  not  think \nsurgical  intervention  indicated.  Denied  any  change  in  bowel  or \nbladder  habits.  Pain  was  controlled  with  oxycodone  5  mg  oral  at \nnight.   Completed   4   days   of   pulsating   dexamethasone.   UPEP \ninpatient  showed  total  protein  of  7513  with  lgG  lambda  band.  A \ncomplete  SPEP  was  not  done  inpatient.  He  was  found  to  be  B12 \ndeficient and started on B12 supplement. \n \nLabs on first visit in clinic showed WBC 10 with ANC 2.4 (likely \nelevated  WBC  due  to  recent  steroids  with  no  signs  of  infection), \nHbg 6.4, HCT 18.5, Pit 20K, Cr 2.3 with NA 132 and Ca 7.3 with \nalb 2.5 (corrected Ca 8.1), TP11, LD 393, and Alk phos 60. \n \nHis  overall  course  was  further  complicated  by  hemolytic  anemia \nsecondary  to  antibody  production  from  his  Chronic  Lymphocytic \n\nMcKaughan – H303552 \n \n-12- \nLeukemia  precipitating  on  his  red  blood  cells.  Because  of  this \nemergent  initial  treatment  was  geared  at  treating  the  Chronic \nLymphocytic  Leukemia.  Starting  with  Cytoxan  and  Rituxan  and \nthen   expanding   his   treatment   to   include   drugs   for   multiple \nmyeloma.  Unfortunately,  although  slowing  his  hemolytic  anemia \nwe were never able to completely squelch the hemolysis. Also, we \nonly  barely  made  headway  on  his  myeloma.  Keeping  in  mind  he \nhad  profound  disease  in  his  marrow  (>95%)  and  extramedullary \nextension to disease involving the nerve roots of the cauda equina. \n \nThe lifetime risk of Multiple Myeloma is 0.76% Correspondingly, \nthe  risk  of  Chronic  Lymphocytic  Leukemia  is  0.39%.  Looking  at \nthese  two  rare  B-cell  malignancies  the  risk  of  developing  both  at \nthe   same   time   would   be   exceedingly   rare.   The   chance   of \ndeveloping  these  malignancies  de-novo   without  environmental \ninfluence would likely be impossible. \nEnvironmental  influence  leading  to  both  Multiple  Myeloma  and \nChronic   Lymphocytic   Leukemia: Agent   Orange   exposure   in \nVietnam, Camp Lejeune water exposure, and Roundup exposure. \n \nDay in and day out Mr. McKaughan transported a variety of toxic \nchemicals,    corrosive    agents,    heavy    metals,    pesticides,    and \nherbicides.   Many   of   the   chemicals   Mr.   McKaughan   handled \nextensively  and  transported  are  carcinogenic.  After  visiting  with \nMr. McKaughan extensively and reviewing the chemical exposures \nhe  has  had,  it  is  clear  that  this  was  secondary  to  work  exposure \nleading  to  his  malignancies.  Mr.  McKaughan  is  at  this  point \ncompletely  and  totally  disabled.  He  has  months  of  recovery  from \nhis  nearly  life-ending  treatment,  a  treatment  required  because  of \nthe  complexity  of  his  dual  malignancies.  These  malignancies  will \ndefine his life for the foreseeable future. \n \n*** \nSubsequent  to  the  first  summary  I  complete  Mr.  McKaughan  was \nhospitalized    with    a    catastrophic    cardiovascular    event    with \ncombination  of  stroke  and  heart  attack.  I  want  to  state  again,  had \nMr. McKaughan not spent such an extensive time exposed to these \ncarcinogenic chemicals this would not have happened. \n \n In  Dr.  Travis’  November  3,  2023,  summary  note  he  also  discusses  belief  that  the \nclaimant’s job duties of handling hazardous waste as described above was the cause of the \nclaimant’s two exceedingly rare and simultaneous cancers. \n\nMcKaughan – H303552 \n \n-13- \n Dr.  Travis  was  deposed  on  January  19,  2024.  That  deposition  has  been  admitted  into \nevidence as Joint Exhibit 1. Dr. Travis has been board certified in oncology but was at the time \nof the deposition board eligible in oncology because of required testing during the COVID time \nperiod that he was unable to perform. Dr. Travis  is a founding member of Highlands Oncology \nand  has  been  a  participating  member for  26  or  27  years.  During  Dr.  Travis’  deposition  he \nextensively  discussed  the  two  types  of  cancer  afflicting  the  claimant  and  both  doing  so  at  the \nsame time being such a rare event.  \nQ Okay.   Explain   to   me   how   that   would   work   for   the \npopulation. \n \nA So, if you – right now, if you did – went to the database and \nyou look to see about patients who have both the diagnosis of CLL \nand multiple myeloma, what you would find is that there are cases, \nbut they’re very, very rare. So, most of the time those are listed as \nwhat’s called case reports. There’s not enough to study a group. \nThere’s single cases that are listed. If you look at those cases, most \nof  those  are  because  the  B-cell  clone,  the  cell  that  went  bad \nbecause  of  malignancy,  it  has  somewhat  waffled  between  chronic \nlymphocytic leukemia and multiple myeloma. The most common – \nI’m going to try not to get too far into the weeds. But the most \ncommon is where you have an AGA secreting CLL, so that’s the \nantibody it makes, the IGA, and then it matures or transforms over \ntime and you also have multiple melanoma, but the cell clone, the \nbad cell, is the same. Kyle was different. He had two independent \ncell  clones  that  developed  a  malignant – malignancies  at,  we \nbelieve,  the  same  time.  The  reason  that  we  believe  that  they \noccurred at about the same time is that because both were causing \ncatastrophic  problems  and  it  would  have  been  unlikely  for  him  to \nsurvive  very  long  with  either  of  them.  So, extrapolating  back,  we \nthink  that  that – they  occurred  at  the  same  time.  Kyle  is  one  of \nmaybe less than 10 case reports of that that I can find ever and that \ngoes back to some things that came out of Chernobyl even. This is \nrare. I don’t think you can extrapolate the statistical chance that \nthis would occur from those independent numbers. \n \n Dr. Travis also testified about the claimant’s use of PPE as follows: \n\nMcKaughan – H303552 \n \n-14- \nQ Did  Kyle  tell  you  he  was  using  the  proper  protective \nequipment when he was handling these compounds? \n \nA He told me that’s what he told you, but he wasn’t. \n \nQ So he told you he was not using it? \n \nA Correct. \n \nDr.  Travis  is  also  of  the  belief,  as  shown  in  his  deposition  testimony,  that  the  claimant  was \nhandling these chemicals extensively as he was asked about in his deposition as follows: \nQ Okay. Now, when you – in your letter, you suggest that he \nhandled  these  chemicals  extensively.  I  guess  I  just  want  to  ask \nwhat – describe  what  you  mean  by  extensively,  if  you    mean \nanything by that. \n \nA I mean that that was a day in and day out that that was his \njob that he described rolling out on taking the family back home on \nholiday  trips  because  he  had  to  run  somewhere  and  pick  some \nchemicals up and transport them and then go back home  and pick \nthe  family.  But  I  think  it  was – I  think  he  handled  them  a  great \ndeal. \n \nQ But daily or weekly or do you know? \n \nA I don’t know. \n \n When  asked  in  his  deposition  about  any specific herbicides  the  claimant  mentioned  Dr. \nTravis stated, “I don’t recall that at all.” Dr. Travis was also asked about any specific chemicals \nmentioned by the claimant as follows: \nQ Okay.  Your  letter,  your  summary  note,  it  doesn’t  really \nmention any specific chemicals that I can see. You just talk about a \nvariety of toxic chemicals, agents and that kind of thing.  \n \nA Yes, sir. \n \nQ So, do you recall from your notes or discussions with Kyle \nany specific kind of chemical or product? \n \n\nMcKaughan – H303552 \n \n-15- \nA You’re asking me to make a big leap. If you have a list of \n30  chemicals,  herbicides,  pesticides  and  there’s  a  significant \nnumber of them carcinogens, I can’t make a leap as to which one \nwas the carcinogen in question. \n \nQ Well,  my  question  is,  did  Kye  ever  relate  any  specific \nproduct or chemical or herbicide to you? \n \nA Just what was on the list. No, sir. \n \nQ Okay.  Did  he  ever  relate  to  you  any  specific  day  or  time \nwhere  he  felt  like  he  was  exposed  to  any  of  those  specific \nchemicals or herbicides? \n \nA No, sir.  \n \n The list referred to by Dr. Travis is found at Claimant’s Exhibit 1, pages 88 and 89. \nApparently,  both  lists  were  marked  and  written  upon  by  Dr.  Travis.  His  marks  were to note \nsubstances that were carcinogens. The claimant’s widow also gave testimony about the list as \nfollows: \nQ All right. And at some point did you take a list of chemicals \nto Dr. Travis? \n \nA I did because the very first thing he asked us, the very first \nthing he asked when we walked into the exam is, “Do you work \nwith chemicals?” \n \nQ And where did you get the list of chemicals? \n \nA From a manifest from the pickups from the HAZMAT team \nthat  comes  out  and – Heritage.  They  always  have  to  sign  a \nmanifest  and  it  is  when  they  pick  up  and  the  weight  of  the \nchemicals and Kyle would have to sign off on it. \n \nQ All right. So on Page 88 of the Claimant’s Medical Exhibit, \nwe have this list signed here by Dr. Travis? \n \nA Uh-huh. \n \nQ Is that the list you gave him? \n \n\nMcKaughan – H303552 \n \n-16- \nA It is. \n \nQ And Page 89, is that also what you gave him? \n \nA Yes. \n \n It  is  certain  from  Dr.  Travis’  summary  note  and  deposition  that  he  believes some \nsubstances the  claimant  was  exposed  to  through  his  work  with  the  respondent  caused  his  two \nexceedingly rare simultaneous cancers.  \nQ Doctor,  in  your  opinion,  are  there  any  other  things  or \ncauses that could have caused Kyle’s cancers? \n \nA I think that having two separate clones, two separate B-cell \nclones  that  likely  become  malignant  in  close  proximity  to each \nother,  that  it  was  some  toxin  exposure  that  led  to  that.  I  think  it \nwould be unlikely to find a cause where you would support that it \nwas just a de-novo occurrence. \n \nQ So,  is  the  answer  to  the  question,  no?  You  don’t  think \nanything else could have caused it? \n \nA I think it was toxin. \n \n The  respondent  in  this  matter  paid  for  and  received  a  medical  opinion  dated  December \n16,  2023,  from  Henry  F.  Simmons,  Jr.,  MD,  Ph.D.,  who  is  a  toxicologist  and  physician  at \nUAMS. Dr. Simmons’ report can be found at Respondent’s Exhibit 1, pages 1-14. Following is a \nportion of Dr. Simmons’ report which includes his disagreement with Dr. Travis’ views on \ncausation as follows: \n4.  At  the  request  of  Mr.  Robert  Montgomery,  an  attorney  for  the \nArkansas    Insurance    Department,    I    reviewed    the    following \nmaterials  related  to  Mr.  Kyle  McKaughan  who  died  of  multiple \nmyeloma and chronic lymphocytic leukemia in 2023: \n a. Medical records of Dr. Patrick Travis \nb.   Depositions   of   Dr.   Patrick   Travis   and   Mr.   Kyle \nMcKaughan \n c. Summary Letter of Dr. Travis dated 11/3/2023 \n d. Email from Mr. Robert Montgomery dated 1/4/2024 \n\nMcKaughan – H303552 \n \n-17- \ne.  Statements  of  coworkers  Lance  Maples  and  Vaughn \nSkinner \n f. U of A SAREC 2023 Pesticides Used in Season (a list) \n \n5. My purpose in so doing was to evaluate toxicological causation \nopinions rendered by Dr. Travis regarding Mr. McKaughan’s death \nfrom my standpoint as a medical toxicologist. In brief, I concluded \nthat the etiology of his concomitant multiple myeloma and chronic \nlymphocytic leukemia is unknown and that to link it to workplace \nchemical  exposure  as  described  in  the  materials  that  I  reviewed  is \nspeculation.  Opinions  that  I  hold  within  a  reasonable  degree  of \nmedical and toxicological probability appear as impressions in the \nparagraphs that follow. However, if more data becomes available, I \nreserve the right to amend my views to the extent it warrants. \n \nBackground \n6.  Mr.  Kyle  McKaughan  was  60  years  old  when  he  began  feeling \nbad  in  January  of  2023  and  was  found  to  have  hypertension, \nelevated  calcium,  hypertension,  renal  dysfunction  and  anemia.  By \n2/14/23  he  had  been  referred  to  an  oncologist,  Dr.  Patrick  Travis, \nwith  a  newly  diagnosed  very  unusual,  dual  lgG  lamda  multiple \nmyeloma   and   B-cell   type   chronic   lymphocytic   leukemia.   A \ncomprehensive  evaluation  was  undertaken  to  identify  existing \ncomplications  and  choose  an  optimal  therapy.  Unfortunately,  his \ndisease was aggressive and he died in December of 2023. \n \n7.  His  past  medical  history  included  no  significant  medical  or \nsurgical  diseases.  He  was  a  nonsmoker,  but  he  had  drunk  some \nalcohol and he had used  smokeless tobacco products for 40 years. \nHis  father  had  had  lung  cancer.  He  had  never  served  in  the \nmilitary.    His    occupational    history    included    predominately \noccupational safety roles since the early 90s excluding a couple of \nyears in the insurance business. In 2011 he began working for the \nUniversity of Arkansas. \n \n8. Based upon his deposition Mr. McKaughan held two positions at \nthe  University  of  Arkansas  related  to  environmental  health  and \nsafety  that  in  part  included  work  in  areas  where  chemicals  were \nstored or used. During the first, from some point in 2011 to 2014, \nhe  monitored  research  laboratories  to  assure  proper  labeling  and \nstorage  of  chemicals  as  well  as  compliance  by  personnel  with  use \nof proper protective equipment (PPE). If a chemical spill occurred \nin  a  laboratory  setting,  he  would  clean  it  up  using  appropriate \ntechnique  and  dispose  of  waste  the  right  way  as  he  ordinarily  had \nall the proper PPE with the exception of one occasion. \n\nMcKaughan – H303552 \n \n-18- \n \n9.  At  that  time,  personnel  discovered  five  or  six  cylinders  of \nmethyl bromide, an outdated soil fumigant. When one was noted to \nbe  leaking,  Mr.  McKaughan,  based  on  his  training  and  expertise, \nrealized that he did not have the proper PPE. However, he acquired \nit, closed the leaking valve, and completed the cleanup. \n \n10. By 2014, Mr. McKaughan, according to his job description had \nbecome     an     Agricultural     Safety     Officer     with complex \nresponsibilities  related  to  training  others  (40%),  compliance  with \nregulations  (40%),  and  on-site  activities  (20%).  The  last  included \ninvestigation    of    work-related    accidents    and    inspection    of \nmachinery  around  the  state.  A  coworker,  Vaughan  Skinner,  who \nworked  with  him  for  years  wrote  that  although  Mr.  McKaughan \nsometimes   transported   stored   pesticides    and   chemicals   for \ndisposal,  he  never  saw  him  handle  them  or  “do  anything \ninappropriate regarding safety.” Another coworker, Lance Maples, \nwho    worked    with    Mr.    McKaughan    for    about    10    years \npredominantly in indoor settings described him as one who “taught \nand followed proper safety procedures in all areas of his job to his \n[own] and others utmost safety.” \n \n11. In his deposition, Mr. McKaughan testified that probably once \nper   month,   he   would   travel   from   his   Fayetteville   office   [as \nAgricultural  Safety  Officer]  to  other  stations  to  do  training  and \nwould  sometimes  transport  unwanted  chemicals  back  to  a  storage \nroom  in  Fayetteville  for  pickup  by  a  disposal  service.  However, \npesticides  and  herbicides  “especially”  were  never hauled  in  the \ncab.  Although  these  agents  were  usually  taped  up  or  sealed  in \nboxes to prevent their rolling in the back of the truck, he would do \nit himself if others were  not available.  It should be noted that Mr. \nMcKaughan did not make these excursions in his own vehicle. \n \n12.  In  a  summary  letter  dated  11/3/2023,  Dr.  Travis  noted  that \n“After visiting with Mr. McKaughan extensively and reviewing the \nchemical  exposures  he  has  had,  it  is  clear  that  [his  diagnosis]  was \nsecondary to work exposure leading to his malignancies.” In the \ndeposition, Dr. Travis strongly emphasized that this condition was \nso rare that it represented only “one of maybe less than ten case \nreports” in presumably the world’s oncology literature extending \nback  to  the  Chernobyl  affair  of  1986!  [17]  [Chernobyl  of  course \nwas  a  radiation  disaster  in  Ukraine  in  1986.]  In  further  support  of \nhis view, he noted in his summary letter that some people exposed \nto  Agent  Orange,  a  herbicide  used  in  Vietnam;  to  water  at  Camp \nLejeune,  a  military  base  in  North  Carolina;  and  to  Roundup,  a \n\nMcKaughan – H303552 \n \n-19- \nherbicide  containing  glyphosate  had  developed  multiple  myeloma \nor chronic lymphocytic leukemia but he did not say simultaneously \nin those cases. \n \nImpressions \n13.  I  have  great  respect  for  Dr.  Travis’  clinic  assessment  and \nmedical   care   of   Mr.   McKaughan.   However,   those   areas   are \nindependent of toxicological causation analysis. In my opinion the \ncause of Mr. McKaughan’s cancer is unknown, particularly given \nthat his case is “one of maybe less than ten case reports” in the \nworld’s oncology literature as referenced by Dr. Travis extending \nback to Chernobyl in 1986 which involved radiation as opposed to \nchemical exposure. \n \n14.  Toxicological  insults  including  cancers  begin  with  exposure. \nHowever,   exposure   is   only   an   opportunity   for   absorption. \nFurthermore,  absorption  or  uptake  must  be  sufficient  to  exceed \nbody defenses and cause irreparable harm. [threshold] In addition, \nexperience  as  reported  in  the  literature  must  sufficiently  support \nthe   conclusion   that   a   strong   connection   exists   between   the \ncompound   and   the   observed   disease.   [literature   support]   The \ndisease  should  also  occur  at  such  a  time  that  the  exposure  is \ntemporally eligible to be its cause. Finally, within reason, it should \nbe  possible  to  exclude  other  potential  causes  of  the  disease. \n[differential diagnosis] \n \nDr.  Travis  cannot  identify  the  “carcinogen  in  question”  or \ndegree of exposure.  \n15a.  Although  Dr.  Travis  once  had  access  to  a  list  of  perhaps  30 \nchemicals,  by  the  time  of  his  deposition  he  was  unable  to  name  a \nsingle one and specifically could not identify the “carcinogen in \nquestion.” [26] He also did not list any specific compounds in his \n11/2/2023  summary  letter.  Even  had  he  been  able  to  name  a \ncompound  or  compounds,  he  would  still  have  been  unable  to  say \nwhen  the  patient  was  exposed  or  for  how  long.  Accordingly,  he \nwould  still  not  know  how  much  of  any  specific  chemical  the \npatient  absorbed,  much  less  if  it  was  enough  to  cause  any  injury. \nThus, from the beginning the answers to questions about exposure, \nabsorption  and  exceeding  thresholds  were  never  answered  by  Dr. \nTravis. \n \n15b. There is certainly no evidence that any of Mr. McKaughan’s \nbody  fluids  or  tissues  were  ever  shown  to  be  contaminated  with \nany   chemical   present   at   any   site   where   the   patient   worked. \nHowever,  it  must  be  noted  that  such  studies  would  not  be  part  of \n\nMcKaughan – H303552 \n \n-20- \nany  routine  clinical  investigation  and  the  time  to  conduct  them \nwould have passed by the time of his diagnosis. \n \n16.  Of  course,  Mr.  McKaughan  did  have  exposures  to  various \nworkplace   chemicals   as   described   in   his   job   description,   his \ndeposition  and  by  his  coworkers,  but  he  had  been  trained  to  deal \nwith them and based upon his testimony he did so in an appropriate \nway  which  would  limit  absorption  and  reduce  the  potential  for \ntoxicity at the job site. \n \n17.  The  use  of  appropriate  personal  protective  equipment  or  PPE \nby  design  limits  the  absorption  of  chemicals  that  occurs  with \nexposure.  Dr.  Travis,  when  asked  if  someone  could  safely  handle \nthe  chemicals  on  the  aforementioned  list  while  wearing  PPE \nanswered, “Likely so.” [23/24] I think it logical that a long-time \nsafety  officer  like  the  patient  should  be  considered  protected.  Dr. \nTravis’  letter  of  11/02/2023,  unlike  his  deposition  [24],  says \nnothing about Mr. McKaughan failing to wear PPE when handling \nchemicals. \n \n18.  Mr.  McKaughan  testified  that  he  not  only  wore  proper  PPE \nwhen necessary but that he would obtain it if he did not have it. As \na  case  in  point,  when  personnel  encountered  an  unusual  material, \nmethyl  bromide,  instead  of  handling  it  unprotected,  he  acquired \nproper PPE first and only then safely shut down the leak. Thus, the \nintensities of any exposure were limited which in turn limited any \nabsorption and any potential effects. \n \n19. Mr. McKaughan’s testimony also does not support Dr. Travis’ \ntestimony  that  his  patient  had  workplace  exposures  to  chemicals \n“day in and day out.” [24] Mr. McKaughan instead testified that he \nmade  trips  to  the  field  probably  on  only  a  monthly  basis  as \nopposed “to day in and day out.” Furthermore, the chemicals he \npicked   for   disposal   during   these   excursions   based   upon   his \ntestimony   were   transported   in   sealed   boxes   in   the   bed   of   a \nuniversity  truck  as  opposed  to  his  private  vehicle.  Once  again, \nreducing   not   only   the   frequency   of   exposures   but   also   their \nmagnitudes in this fashion would be expected to lower his risk. \n \nDr. Travis has insufficient literature to support his assignment \nof causation to Mr. McKaughan’s work. \n20a.  Because  the  case  [near  simultaneous  multiple  myeloma  and \nchronic lymphocytic leukemia] is so “rare” in Dr. Travis’ words, \nrepresenting  perhaps  only  “one  of  maybe  less  than  ten  case \nreports” in the world’s oncology literature dating back to 1986 [38 \n\nMcKaughan – H303552 \n \n-21- \nyears]  its  cause(s)  is  uncertain,  the  time  it  takes  the  disease  to \nappear after an exposure is uncertain, etc. \n \n20b.  For  example,  even  if  Dr.  Travis  had  identified  a  particular \nchemical  which  he  has  not  [26]  and  even  if  he  could  demonstrate \nsignificant  exposure  and  absorption  which  he  cannot,  without \nliterature  establishing  the  casual  connection  between  the  chemical \nand the dual disease he could not make a causal connection.26 \n \n20c.  As  another  example,  even  if  Dr.  Travis  knew  when  the  dual \nmalignancy  developed  which  he  does  not  [19/20]  he  would  still \nhave  to  know  when  the  meaningful  exposure  to  a  toxicant  took \nplace to be sure that it was temporally eligible to be the cause and \nit would take literature to establish that time frame. \n \n20d.  Dr.  Travis  likening  Mr.  McKaughan’s  exposures  as  he \ndescribed  them  to  [32]  unspecified  events  involving  a  defoliant, \nAgent  Orange,  used  in  Vietnam  decades  ago  and  to  contaminants \nin the water supply in Camp Lejeune in North Carolina over many \nyears [32] seems did not resolve any unknowns in my view. \n \nDr. Travis cannot eliminate other causes of Mr. McKaughan’s \ncancer unrelated to his job. \n21a.  Multiple  myeloma  and  chronic  lymphocytic  leukemia  are \nmore  common  with  advancing  age.  [17]  The  patient  was  60  years \nold. \n \n21b. Multiple myeloma and chronic lymphocytic leukemia in some \ncases “clearly” develop without obvious toxin exposure in some \nfashion. [18] \n \n21c. Everyone in the world is exposed to “carcinogens” and it is \n“hard to know what to what degree those things cause cancer.” \n[21,22] \n \n21d. There may be about 36,000 new cases of multiple myeloma in \n2023  [20]  and  in  my  opinion  there  is  little  reason  to  believe  that \nmany had jobs like Mr. McKaughan. \n \n21e.  The  lifetime  risk  of  myeloma  is  0.76%  and  of  chronic \nlymphocytic  leukemia  is  0.39%.  That  is  7.6  and  3.9  people  out  of \n1000  over  a  lifetime  respectively  and  in  a  country  of  300,000,000 \nmillion people that will turn out to be quite a number. \n \n\nMcKaughan – H303552 \n \n-22- \n21f.  How  a  person  actually  “contracts  the  disease”  [multiple \nmyeloma  or  chronic  lymphocytic  leukemia  separately  or  together] \nis unknown. [18] As I interpret this statement, Dr. Travis states that \nthe exact nature of the inciting molecular mechanism of the disease \nremains uncertain. \n \n22. In summary, given the above information, I concluded that Mr. \nMcKaughan’s dual hematologic malignancy cannot be attributed to \nhis    workplace    exposure    within    reasonable    medical    and \ntoxicological  certainty.  A  specific  causal  agent  or  set  of  causal \nagents  cannot  be  identified.  The  steps  Mr.  McKaughan  routinely \ntook  to  protect  himself  as  an  Agricultural  Safety  Officer  appear \nimpressive and effective. The condition as described by Dr. Travis \nis extremely rare. The available literature is insufficient to establish \na causal connection. Alternate causes cannot be excluded. \n \n On February 19, 2024, Dr. Travis authored a letter to “To Whom It May Concern.” \nFollowing is the body of that letter: \nMr.  McKaughan  developed  two  aggressive  B-cell  malignancies. \nThey  were  diagnosed  simultaneously  and  the  speed  with  which \nthey were progressing suggests that they occurred at the same time. \n \nThe  development  of  both  at  the  same  time  makes  an  outside \nexposure  inciting  carcinogenesis  likely.  No  one  else  in  his  family \nor  close  proximity  developed  a  malignant  process.  Therefore,  it \nwould not be an exposure common to the household. \n \nMr.  McKaughan  worked  with  a  series  of  toxic  chemicals  at  the \ntime  of  development  of  these  malignancies.  It  is  my  medical \nopinion   that   these   exposures   led   to   the   development   of   his \nmalignancies. \n \nFor many years there was an ongoing battle over cigarettes being a \ncause for lung carcinoma. The questions were raised as to how you \ncould  prove  that  these  patients,  who  smoked,  did  not  have  other \nexposures. Intuitive reasoning and common sense lead us to realize \nthat cigarettes are directly linked to lung cancer long before it was \naccepted as true. \n \n Here,  the  central  question  is  whether  the  claimant  suffered  a  compensable  occupational \ndisease in the form of cancer developed as a result of his employment with the respondent. Those \n\nMcKaughan – H303552 \n \n-23- \ncancers specifically being simultaneous multiple myeloma and chronic lymphocytic leukemia. It \nis without doubt those conditions led to the claimant’s death on December 11, 2023.  \nIn  defining  this  cause  of  action,  Ark.  Code  Ann.  § 11-9-601(e)(1)(A)  (Repl.  2012) \nprovides: \n(A) “Occupational disease”, as used in this chapter, unless the context otherwise \nrequires, means any disease that results in disability or death and arises out of and \nin  the  course  of  the  occupation  or  employment  of  the  employee  or  naturally \nfollows  or  unavoidably  results  from  an  injury  as  that  term  is  defined  in  this \nchapter. \n \nA  causal  connection  between  Claimant’s  job  and  the  disease  must  be  established  by  a \npreponderance  of  the  evidence.   Id.  §  11-9-601(e)(1)(B).    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206  S.W.2d  442  (1947).    In  setting \nparameters concerning such a claim, the statute further reads: \nAn employer shall not be liable for any compensation for an occupational disease \nunless  .  .  .  [t]he  disease  is  due  to  the  nature  of  an  employment  in  which  the \nhazards of the disease actually exist and are characteristic thereof and peculiar to \nthe  trade,  occupation,  process,  or  employment  and  is  actually  incurred  in  his  or \nher  employment.    This  includes  any  disease  due  to  or  attributable  to  exposure  to \nor contact with any radioactive material by an employee in the course of his or her \nemployment[.] \n \nId.  §  11-9-601(g)(1)(A).    An  occupational  disease  is  characteristic  of  an  occupation,  process  or \nemployment where there is a recognizable link between the nature of the  job performed and an \nincreased risk in contracting the occupational disease in question.  Sanyo Mfg. Corp. v. Leisure, \n12  Ark.  App.  274,  675  S.W.2d  841  (1984).    Such  diseases  are  generally  gradual  rather  than \nsudden in onset.  Hancock v. Modern Indus. Laundry, 46 Ark. App. 186, 878 S.W.2d 416 (1994). \n\nMcKaughan – H303552 \n \n-24- \nIf the claimant fails to establish by a preponderance of the evidence any of the requirements for \nestablishing  compensability,  compensation  must  be  denied.   Mikel  v.  Engineered  Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \n Unfortunately,  the  claimant  in  this  matter  passed  away  prior  to  the  hearing.  His \ndeposition was taken prior his death and I find him to be a credible witness. Both parties in this \nmatter focused on the claimant’s use of PPE and the time spent with substances that cause \ncancer. There were witnesses that I have mentioned throughout this opinion and some that I have \nnot mentioned at all, all of which have some word to say about both the claimant’s use of PPE \nand his time spent with carcinogenic substances. After a review of all the testimony in evidence, \nI find that the claimant used PPE the vast majority of the time when it was required. That was the \nessence  of  his  deposition  testimony.  Others  did  observe  him  not  wearing  PPE, but  there  is  no \nevidence  that  he  was  handling  a  specific  substance  that  required  him  to  do  so  at  that  time.  No \nwitness identified a specific substance that required PPE and stated that the claimant wasn’t \nwearing it while handling that specific substance.  \n Mr. McKinney did testify that he was not wearing all the appropriate PPE about half the \ntime  he  saw  him.  However,  within  that  same  statement  he  says  he  was  merely  guessing.  Mr. \nMcKinney never identifies any specific substance or circumstance that the claimant should have \nhad  a  certain  PPE  and  did  not  while  using  any  certain  substance  or  combination  thereof.  Mr. \nMcKinney engaged in speculation and conjecture in his statements about the claimant’s PPE use. \nAll  claims  for  workers'  compensation  benefits  must  be  based  on  proof.  Speculation  and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dept of Correction v Glover, 35 \nArk. @ 32, 812 S.W. 2\nnd\n 692 (Ark. App. 1991); Deana Constr. Co. v Herndon, 264 Ark 791, 595 \nS.W. 2\nnd\n 155 (1979). \n\nMcKaughan – H303552 \n \n-25- \n As  to  the  claimant’s  time  spent  with  cancer  causing  substances,  he  testified  in  his \ndeposition that it was a few days a month that he did so at the satellite locations. However, I am \ncertain  he  spent  some  fair  amount  of  time  doing  so  at  the  main  Fayetteville  location.  The \nclaimant’s supervisor, who took over his toxic disposal job duties during the claimant’s illness, \ntestified  that  it  took  an  average  of  about  10  hours  per  week  to  deal  with  the  chemicals.  The \nclaimant also spent time in the storage shed doing inventory that Mr. McKinney did not do, but I \nthink  Dr.  Travis’  “day  in  and  day  out”  testimony  and  statement  greatly  overestimates  the \nclaimant’s time spent with toxic chemicals. \n The  claimant  has  never  alleged  any  exposure  to  a  certain  or  specific  chemical  or  a \ncombination of chemicals that he believes to have caused his dual cancers. Instead, the case put \nforward  is  that  there  are  lots  of  toxic substances that  he  was  around  and  that  must  have  caused \nhis  dual  cancers.  Not  even  Dr.  Travis  can  identify  any  specific  or  any  combination  of  specific \nsubstances  that  are  shown  to  cause  such  a  rare  cancer  combination  that  the  claimant  had.  Dr. \nTravis’ causation opinion is based upon speculation and conjecture. There is no proof of any \nsubstance or combination of substances for the claimant’s condition. I find the greater weight of \nevidence is that the cause of the claimant’s dual simultaneous cancers is unknown. Dr. Simmons’ \nreport  in  great  detail  supports  that  position.  I  believe  his  expertise  and  analysis  of  the  facts \ndeserves greater weight than that of Dr. Travis, and as such, I find the claimant is unable to prove \nby  a  preponderance  of  the  evidence  that  he  suffered  a  compensable  occupational  disease  in  the \nform of cancer developed as a result of his employment with the respondent. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \n\nMcKaughan – H303552 \n \n-26- \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  14,  2023,  and  contained  in  a  Pre-hearing  Order  filed August  18,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable occupational disease in the form of cancer developed as a result of his employment \nwith the respondent, with his last exposure date of January 27, 2023. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  medical  treatment  as  he  was  unable  to  prove  his  occupational  disease  in  the  form  of  cancer \ncompensable. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  temporary  total  disability  benefits  as  he  is  unable  to  prove  his  alleged  occupational  disease \ncompensable. \n 5.  The  claimant  has  failed  to  prove his attorney is entitled to an attorney’s fee in this \nmatter. \n 6. The respondent’s issue of lack of notice as a defense is moot. \n 7. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  benefits  under  A.C.A §11-9-527  as  the  claimant  is  unable  to  prove  that  he  sustained  a \ncompensable occupational disease. \n ORDER \n Pursuant to the above findings and conclusions, I have no alternative but to deny this \n\nMcKaughan – H303552 \n \n-27- \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303552 KYLE MCKAUGHAN, Employee CLAIMANT U OF A DIVISION OF AGRI, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED MAY 23, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Ark...","fetched_at":"2026-05-19T22:54:39.207Z","links":{"html":"/opinions/alj-H203243-2024-05-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MCKAUGHAN_KYLE_H303552_20240523.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}