{"id":"full_commission-H303552-2024-11-06","awcc_number":"H303552","decision_date":"2024-11-06","opinion_type":"full_commission","claimant_name":"Kyle Mckaughan","employer_name":"U Of A Division Of Agriculture","title":"McKAUGHAN VS. U OF A DIVISION OF AGRICULTURE AWCC# H303552 November 06, 2024","outcome":"granted","outcome_keywords":["remanded:1","granted:6"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/McKaughan_Kyle_H303552_20241106.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"McKaughan_Kyle_H303552_20241106.pdf","text_length":18139,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H303552 \n \nKYLE McKAUGHAN, EMPLOYEE    CLAIMANT \n \nU OF A DIVISION OF AGRICULTURE,  \nEMPLOYER                                                                           RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                                                                       RESPONDENT \n \nOPINION FILED NOVEMBER 6, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN BROOKS, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed May 23, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on August 14, 2023, \nand contained in a Pre-hearing Order filed August 18, \n2023, are hereby accepted as fact.  \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that he sustained a compensable \noccupational disease in the form of cancer developed \n\n \nMcKaughan-H303552        2  \n \n \nas a result of his employment with the respondent, with \nhis last exposure date of January 27, 2023.  \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment as \nhe was unable to prove his occupational disease in the \nform of cancer compensable.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to temporary total \ndisability benefits as he is unable to prove his alleged \noccupational disease compensable.  \n \n5. The claimant has failed to prove his attorney is entitled \nto an attorney’s fee in this matter. \n \n6. The respondent’s issue of lack of notice as a defense is \nmoot.  \n \n7. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to benefits under A.C.A \n§11-9-527 as the claimant is unable to prove that he \nsustained a compensable occupational disease. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n\n \nMcKaughan-H303552        3  \n \n \n Therefore, we affirm and adopt the May 23, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant failed to prove by a preponderance of the evidence \nthat he sustained a compensable occupational disease in the form of \ncancer, that the Claimant failed to prove by a preponderance of the \nevidence that he is entitled to medical treatment, that he failed to prove by a \npreponderance of the evidence is entitled to temporary total disability \nbenefits as a result of his form of cancer, that Claimant has failed to prove \nhis attorney is entitled to an attorney’s fee, and that the Claimant has failed \nto prove by a preponderance of the evidence that he is entitled to benefits \n\n \nMcKaughan-H303552        4  \n \n \nunder Ark. Code Ann. § 11-9-527.  After conducting a thorough review of \nthe record, I would reverse the ALJ’s findings.  \n1. History \nClaimant was diagnosed with two very rare forms of cancer, multiple \nmyeloma and chronic lymphocytic leukemia and passed away on \nDecember 11, 2023.  Prior to his death, Claimant filed an AR-C alleging that \nhis cancer is an occupational disease he received as a result of his \nemployment with the Respondent.  Claimant began working for the \nRespondent in February of 2011 and began working as a safety officer for \nthe Respondent in 2014.  As a safety officer, Claimant was responsible for \nchemical and waste disposal, signing waste manifests, and completing and \nsigning annual ADEQ waste reports.  (Resp. Ex. 2, p. 3).  Testimony in the \nrecord reveals that Claimant was exposed to various pesticides as a part of \nhis employment duties.  Upon experiencing unusual symptoms, the \nClaimant sought medical care at the emergency department of his local \nhospital.  Diagnostic testing was performed including a full-body PET scan. \nDuring one of the initial examinations Dr. Patrick Travis, an oncology \nspecialist and Claimant’s authorized physician, specifically asked the \nClaimant “Do you work with chemicals?”  As a result, the Claimant, or \nClaimant’s wife, obtained a partial manifest of chemicals Claimant was in \n\n \nMcKaughan-H303552        5  \n \n \ncontact with.  This information revealed that Claimant’s employment with \nthe Respondent kept him in direct contact with chemicals including methyl \nbromide, thiencarbazone-methyl, diuron, paraquat dichloride, glyphosate, \nbenzovindiflupyr, bifenthrin, and acetochlor.  (Cl. Ex. 2 p. 89).  After \nreviewing this information, Dr. Travis, stated that these are either listed as \n“carcinogens, potential carcinogens, or under investigation [as \ncarcinogens].”  Id.  Methyl bromide is invisible to the naked eye, and an \noutdated soil fumigant.  (Resp. Ex. 1. P. 3).  The Claimant testified in his \ndeposition that five or six bottles of methyl bromide were found on campus, \nand he was tasked with disposing of them.  “Well, one of them was leaking \na little bit, had this foam coming out of it.  And I didn’t have the proper PPE \nat the time, but then I went and got the proper PPE to shut off the valve.”  \nDr. Travis testified that he spoke extensively with the Claimant about the \nClaimant’s position with the Respondent. (Travis Deposition, p. 14).  \nClaimant’s  authorized  physician  and  oncologist,  Dr.  Patrick  Travis \nopined in two separate letters, and in his deposition that Claimant’s exposure \nto  toxins  as  a  result  of  his  employment  with  the  Respondent  caused \nClaimant’s cancers.  In a letter dated November 3, 2023, Dr. Travis stated:  \nAfter visiting with Mr. McKauguan extensively \nand reviewing the chemical exposures he has \n\n \nMcKaughan-H303552        6  \n \n \nhad, it is clear that this was secondary to work \nexposure leading to malignancies.  Mr. \nMcKaughan is at this point completely and \ntotally disabled. He has months of recovery from \nhis nearly life-ending treatment, a treatment \nrequired because of his dual malignancies.  \nThese malignancies will define his life for the \nforeseeable future. \nAnd further: “I want to state again, had Mr. McKaughan not spent such \nan extensive time  exposed  to  these  carcinogenic  chemicals  this  would  not \nhave happened” \nIn his deposition, Dr. Travis unequivocally stated:  \nI think that having two separate clones, two \nseparate B-cell clones that likely became \nmalignant in close proximity to each other, that it \nwas some toxin exposure that led to that.  I think \nit would be unlikely to find a case where you \nwould support that it was just a de novo \noccurrence. \nFinally, in a February 19, 2024 letter, Dr. Travis stated: \n\n \nMcKaughan-H303552        7  \n \n \nMr. McKaughan developed two aggressive B-\ncell malignancies.  They were diagnosed \nsimultaneously and the speed with which they \nwere progressing suggests that they occurred at \nthe same time.  The development of both at the \nsame time makes an outside exposure inciting \ncarcinogenesis likely.  No one else in his family \nor close proximity developed a malignant \nprocess.  Therefore, it would not be an exposure \ncommon to the household.  Mr. McKaughan \nworked with a series of toxic chemicals at the \ntime of development of these malignancies.  It is \nmy medical opinion that these exposures led to \nthe development of his malignancies.  For many \nyears there was an ongoing battle over \ncigarettes being a cause for lung carcinoma.  \nThe questions were raised as to how you could \nprove that these patients, who smoked, did not \nhave other exposures. Intuitive reasoning and \ncommon sense lead us to realize that cigarettes \n\n \nMcKaughan-H303552        8  \n \n \nwere directly linked to lung cancer long before it \nwas accepted as true. \nRespondent acquired an independent medical examination \n(hereinafter referred to as “IME”) of the Claimant’s medical records by Dr. \nHenry Simmons, Jr. a toxicologist.  The purpose of this IME was to evaluate \nthe toxicological causation opinions rendered by Dr. Travis regarding the \nClaimant’s death.  As a toxicologist, Dr. Simmons found that “the etiology of \nhis concomitant multiple myeloma and chronic lymphocytic leukemia is \nunknown and that to link it to workplace chemical exposure as described in \nthe materials that I reviewed is speculation.”  \n As stated above, the ALJ found that the Claimant did not prove by a \npreponderance   of   the   evidence   that   he   sustained   a   compensable \noccupational disease in the form of cancer and therefore was not entitled to \nmedical treatment, temporary total disability, and benefits under Ark. Code \nAnn.  §  11-9-527.  Following  this  decision,  a  Notice  of  Appeal  was  filed  on \nbehalf of the Claimant.  \n2. Adjudication \na. The Claimant proved by a preponderance of the evidence that \nhe sustained a compensable occupational disease in the form \n\n \nMcKaughan-H303552        9  \n \n \nof cancer as a result of his employment with the Respondent, \nwith Claimant’s last exposure being January 27, 2023.  \nAn Occupational Disease means “any disease that results in \ndisability or death and arises out of and in the course of the occupation or \nemployment of the employee or naturally follows or unavoidably results \nfrom an injury.”  Ark. Code Ann. § 11-9-601(e)(1)(A).  A causal connection \nbetween the occupation or employment and the occupational disease must \nbe established by a preponderance of the evidence.  Ark. Code Ann. § 11-\n9-601(e)(1)(B).  \nWhen  medical  opinions  conflict,  the  Commission  may  resolve  the \nconflict based on the record as a whole and reach the result consistent with \nreason,  justice,  and  common  sense.  Barksdale  Lumber  v.  McAnally,  262 \nArk. 379, 557 S.W.2d 868 (1977).  It is within the Commission’s province to \nweigh  all  of  the  medical  evidence  and  to  determine  what  is  most  credible. \nMinnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nIn the case at hand, two very conflicting medical opinions are given.  \nDr. Travis was Claimant’s oncologist throughout the Claimant’s cancer \ndiagnosis and stated that Claimant’s multiple myeloma and chronic \nlymphocytic leukemia were not naturally occurring dual malignancies and \nboth cancers were rare.  Dr. Travis is a practicing oncologist who oversaw \n\n \nMcKaughan-H303552        10  \n \n \nall of Claimant’s treatment and understands the current oncological \ninterpretation of multiple myeloma and lymphocytic leukemia.  Further, Dr. \nTravis was aware of all of Claimant’s medical history as a result of being the \nClaimant’s authorized physician and was also thoroughly familiar with the \nClaimant’s position with the Respondent.  As a result, Dr. Travis was in the \nbest position to and can credibly determine whether Claimant’s cancers \nwere the result of his employment with the Respondent.  Dr. Travis \nexplained in his deposition that the Claimant’s multiple myeloma and \nlymphocytic leukemia were not the result of regular environmental \nexposure, smokeless tobacco, age, or genetics and instead resulted from \nhis exposure to dangerous chemicals at his place of employment with the \nRespondent.  Therefore, I find that Dr. Travis’s medical opinion should be \ngiven more weight, and that Claimant was exposed to the specific \ncarcinogens listed above in the course and scope of his employment with \nthe Respondent.  \nFurther, I find that Dr. Travis’s medical opinion provides a sufficient \ncausal connection between Claimant’s multiple myeloma and lymphocytic \nleukemia and his employment with the Respondent. Therefore, I find that \nClaimant proved by a preponderance of the evidence that he sustained a \n\n \nMcKaughan-H303552        11  \n \n \ncompensable occupational disease as a result of his employment with the \nRespondent.  \nb. As a natural consequence of proving by a preponderance of the \nevidence that Claimant sustained a compensable occupational \ndisease, Claimant is therefore entitled to medical treatment for \nhis of such occupational disease.  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \nThe Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \n\n \nMcKaughan-H303552        12  \n \n \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra. \n As  Claimant  passed  away  on  December  11,  2023,  and  giving  due \nconsideration to the evidence in the record, I find that Claimant’s medical \ntreatment for his compensable occupational disease from January 27, 2023, \nuntil the date of his death was reasonable and necessary.  \nc. The Claimant proved by a preponderance of the evidence that \nhe is entitled to temporary total disability benefits as a result of \nhis compensable occupational disease.  \nTemporary   total   disability   benefits   are   appropriate   where   the \nemployee  remains  in  the  healing  period  and  is  totally  incapacitated  from \nearning wages.  Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). \nDr. Travis saw Claimant on February 20, 2023 for an assessment of \nClaimant’s occupational disease.  At  that  time,  Dr.  Travis  determined  that \nClaimant  was  unable  to  continue  working  due  to  his  occupational  disease \n\n \nMcKaughan-H303552        13  \n \n \nand  filled  out  the  “Certification  of  Health  Care  Provider  for  Employee’s \nSerious Health Condition under the Family and Medical Leave Act.” (Cl. Ex. \n1., p. 8).  Dr. Travis certified that Claimant’s condition started on February 6, \n2023, and would last until the life of the Claimant. \nTherefore, I find that Claimant proved by a preponderance of the \nevidence that he is entitled to temporary total disability benefits from \nFebruary 6, 2023, until the date of his passing on December 11, 2023.  In \nthe event the Respondent paid temporary total disability benefits, or salary \npayments for this period, the Respondent should be given an offset for \nthose amounts. \nd. The Claimant has proved by a preponderance of the evidence \nthat he is entitled to benefits under Ark. Code Ann. § 11-9-527 \nas he sustained a compensable occupational disease.  \nArk. Code Ann. § 11-9-527 states that if death results from an injury \nthe employer shall pay the actual funeral expenses, not exceeding the sum \nof six thousand dollars ($6,000). As a result of Claimant’s compensable \noccupational disease, he passed on December 11, 2023.  Therefore, I find \nthat Claimant proved by a preponderance of the evidence that he is entitled \nto  benefits  under  Ark.  Code  Ann.  §  11-9-527  in  relation  to  his  funeral \nexpenses.  \n\n \nMcKaughan-H303552        14  \n \n \nAdditional  benefits  under  Ark.  Code  Ann.  §  11-9-527  being  weekly \nbenefits to a widow, children, or other listed relatives following a determinacy \nof  dependency  on  the  Claimant’s  income.   A  determination  as  to  the \nbeneficiaries who were wholly and actually dependent on the Claimant and \nentitled to such additional benefits under Ark. Code Ann. § 11-9-527 must be \nmade.  Therefore, I would remand this issue back to the ALJ.  \ne. The Claimant’s attorney is entitled to an attorney’s fee as a \nresult of these findings.  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney  is  entitled  to  fees  for  legal  services in  accordance  with  Ark.  Code \nAnn.  §11-9-715  (Repl.  2012),  including  a  fee  on  the  entire  temporary  total \ndisability benefits awarded.  For prevailing on appeal to the Full Commission, \nthe Claimant’s attorney is entitled to an additional fee of five hundred dollars \n($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. 2012). \nFor the reasons stated above, I respectfully dissent. \n                                                                               \n______________________________ \n                                                             M. SCOTT WILLHITE, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303552 KYLE McKAUGHAN, EMPLOYEE CLAIMANT U OF A DIVISION OF AGRICULTURE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 6, 2024 Upon review before the FULL COMMISSION in Lit...","fetched_at":"2026-05-19T22:29:44.796Z","links":{"html":"/opinions/full_commission-H303552-2024-11-06","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/McKaughan_Kyle_H303552_20241106.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}