STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS FT. MYERS DISTRICT OFFICE FINAL COMPENSATION ORDER

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS FT. MYERS DISTRICT OFFICE Juan A. Parra, Employee /Claimant, vs. Cemex Construction Materials Florida, LLC /Illinois National Insurance Company, and Gallagher Bassett Services, Inc., Employer /Carrier /Servicing Agent. / OJCC Case No JAW Accident date: 5/31/2016 Judge: Jack A. Weiss FINAL COMPENSATION ORDER This matter came before the Judge of Compensation Claims for final hearing on January 11, 2018, in Fort Myers, Florida, on petition for benefits filed June 27, L. Gray Sanders, Esquire, appeared for Claimant Scott B. Miller, Esquire, appeared for Employer /Carrier. The claims and defenses are listed in Appendix I. Documents and exhibits admitted into evidence are listed in Appendix II. At the hearing Juan Para, Octavio "Tab" Rojas, and Rene Salazar appeared and testified before me. In making my findings of fact and conclusions of law I have carefully considered and weighed all the evidence presented to me. Although I will not recite in explicit detail the testimony, and I may not refer to each piece of documentary evidence, I have considered all the testimony and evidence and I have attempted to resolve all the conflicts in the testimony and evidence. Based on the foregoing and the applicable law, I make the following findings: BACKGROUND AND FINDINGS OF MATERIAL FACT 1. The undersigned Judge of Compensation Claims has jurisdiction of the parties Page 1 of 19

2 and the subject matter of this claim. 2. The stipulations entered into by and between the parties in the pretrial stipulation and amendments are hereby approved and adopted as findings of fact and are incorporated herein by reference. 3. Claimant testified live and via deposition taken February 16, He is 47 years old, coming to the United States at age 7, and he has been a U.S. citizen since His last job was with the Employer, working as a Ready Mix driver. He was with them for 15 years, first working with Krehling Industries, before Cemex bought them out in 2006 or He worked for both companies at the same job site. Claimant took a video in January 2015 (in evidence) that depicts a truck unloading at the plant. This is a typical depiction of the work site. He worked 5-6 days a week, with 2 weeks of vacation every year, so he estimated he worked 50 weeks per year over the 15 years he was with the Employer. Claimant has not worked since May 31, He applied for social security disability benefits in July 2016 and he was approved one month later without a hearing. One of the reasons he listed for social security disability benefits was rheumatoid arthritis. However, he claims that testing for the disease was negative. He says the main reason for approval of social security disability benefits was fibrosis, lung disease. Claimant asserts he was exposed to cement dust every day, all day. He inhaled it. He swallowed it. He knows he inhaled it because it caused him to cough and spit. He could feel it in his mouth. The dust got on his clothing and inside the cab of his truck. When loading the truck he usually put the truck window down. He was not provided with a respirator or mask. His problem first began in He saw doctors at the Ready Mix clinic, but he went on his own, seeing Drs. Sanchez and Marquina. The company did not send him. During his deposition Page 2 of 19

3 he described his only symptom as shortness of breath, but at final hearing he testified that his symptoms were cough and a fever. During his deposition he testified that the doctors did not know what was wrong with him, but at final hearing he testified that he was treated for pneumonia and diagnosed with bronchoplasty. From 2012 until he last worked with the Employer in 2016 he had respiratory problems and coughing. When he took a 2 week vacation in 2013 he felt better. In April 2016 he saw his PCP, Dr. Herrera, who obtained a lung x -ray and CT scan. He was referred to Dr. Egozcue -Dionisi, who he first saw at the end of May He told Dr. Egozcue -Dionisi that he was exposed to dust at work. She gave him a letter taking him out of work and he gave the letter to his supervisor.1 4. Octavio "Tab" Rojas testified at final hearing. He is the plant manager and has been with the Employer since August 2015, working with Claimant in the Naples plant starting in December After his military discharge in 1999 he started with Rinker Materials in 2000, and worked with them until they were bought out by the Employer. His facility does not manufacture Portland cement. When dry it is a power. They do load trucks with Portland cement, five loads a day if busy. There have been no OSHA violations since December 2015 and he is not aware of any violations prior to that date. 5. Rene Salazar, Ph.D., testified at final hearing. He is an industrial hygienist. Per Dr. Salazar, a personal exposure measurement is the only reliable method for determining an exposure to an individual in a particular environment because mere presence does not constitute an exposure. Every situation is unique and must be assessed individually. Dr. Salazar is not ' EC objected to the letter, attached as an exhibit to Claimant's deposition, as hearsay. But as the letter is attached to Dr. Egozcue -Dionisi's deposition the objection is overruled. Page 3 of 19

4 aware of whether a personal exposure measurement was obtained of Claimant in this case. At the outset of Claimant's cross -examination of Dr. Salazar, Claimant objected that Dr. Salazar's testimony was cumulative with that of Dr. Hillman. The undersigned reserved ruling on this objection until such time as the undersigned had the opportunity to review Dr. Hillman's deposition testimony. While the undersigned understands why Claimant raised the objection, as Dr. Salazar's testimony is similar to Dr. Hillman's testimony, the striking of a witness is an extraordinary remedy. And as Dr. Hillman relied on Dr. Salazar's findings in his testimony, the undersigned overrules the objection. Claimant also raised during the final hearing a Daubert objection to Dr. Salazar's opinions, arguing that Dr. Salazar did not have sufficient scientific studies involving Claimant to render an opinion. As Claimant did not raise the objection until the final hearing, notwithstanding the grounds for the objection are apparent from Dr. Salazar's December 16, 2017 report, the undersigned finds the objection was not timely raised. See, Booker v. Sumter Sheriff's Office/North American Risk Services, 166 So. 3d 189 (Fla. 1st DCA 2015). Moreover, on the merits, the undersigned finds that Dr. Salazar's testimony is not pure opinion testimony, but rather is based on science. Id. However, Claimant's objection that Dr. Salazar did not have specific information regarding Claimant to render an opinion on whether Claimant sustained an exposure is well- grounded, and why the undersigned sustained Claimant's objection on this point during Dr. Salazar's testimony, and why the undersigned struck paragraph 3 of Dr. Salazar's report. Claimant's objection truly goes to the weight of Dr. Salazar's testimony, and the undersigned considers Dr. Salazar's testimony accordingly. 6. Dr. James Hillman, M.D., testified via deposition taken December 21, Dr. Page 4 of 19

5 Hillman is a medical toxicologist. He was the founding medical director for the Florida Poison Information Center, now with Tampa General Hospital. He is board certified in pediatrics, emergency medicine, pediatric emergency medicine, and medical toxicology. Dr Hillman was retained by EC to determine whether the exposure Claimant describes caused his medical condition, but he did not examine Claimant himself and therefore he is not the EC's IME. He did review records in this case, to include Dr. Salazar's report, Claimant's deposition, records of Dr. Alpers, IME report of Dr. Brooks, deposition of Dr. Egozcue -Dionisi, IME report of Dr. Angsten, records of Naples Community Hospital, records from Physicians Regional Medical Center, and a Physical Abilities Assessment. Dr Hillman described exposure as an opportunity to absorb a dose of a substance; it does not mean that an individual did absorb a dose. In Claimant's situation, there was the potential exposure or opportunity for absorption of cement dust, but the question is what the dose was and whether the dose was of a sufficient magnitude to cause a pattern of illness or disease? Per Dr. Hillman, he did not find any data or information that would support the conclusion that Claimant's lung disease is associated with his workplace experience. Claimant objected to numerous questions within Dr. Hillman's deposition wherein the toxicologist rendered opinions on causation as he was not EC's IME. EC agreed that Dr. Hillman was not retained to render a medical opinion as he was hired as a toxicologist, and as such, EC argued that any opinions from Dr. Hillman were rendered in his capacity as a toxicologist only. As the undersigned agrees with Claimant, his objections are sustained and the undersigned strikes any opinion from Dr. Hillman on causation of Claimant's medical condition. 7. Dr. Stuart Brooks, M.D., testified via deposition taken January 2, He is Page 5 of 19

6 board certified in internal medicine, pulmonary disease, and occupational medicine, specializing in occupational lung disorders and inhalation injuries. At the outset of Dr. Brooks' deposition, Claimant objected: MR. SANDERS: Scott, I reserve my voir dire to the cross -examination. I will state at this point, though, an objection, a Daubert objection to the conclusions of Dr. Brooks as expressed in his eight -page report. I do not believe that the doctor had sufficient facts or materials available to apply to form opinions in this case consistent with Section - THE COURT REPORTER: I'm sorry. You're cutting out. MR. SANDERS: Sufficient facts, data, and material evidence to form opinions or to apply them properly to his case. And, therefore, I do not believe his conclusions meet the required standard as set forth in Section of the Florida Evidence Code, commonly known as the Daubert standard. In his motion in limine to exclude Dr. Brooks' opinion, filed on January 9, 2018, one week after the deposition and two days before the final hearing, Claimant argues that he timely placed the EC on notice of an objection to the testimony, opinions, and report of Dr. Brooks. But the standard is not whether Claimant has timely placed EC on notice: the standard is whether the motion was filed timely. Booker at 192. Claimant's actual objection was to the opinions contained in Dr. Brooks' report, issued April 26, The evidence shows that Claimant obtained his own IME with Dr. Angsten, to counter Dr. Brooks' opinion, on May 31, This matter was originally set for final hearing on July 12, 2017, and this discovery was obtained for that hearing, which did not occur as Claimant voluntarily dismissed the petition for benefits. He re -filed the same claims on June 27, 2017, which are the subject of this final compensation order. At a minimum, therefore, the undersigned finds Claimant was aware of Dr. Brooks' opinions at least Page 6 of 19

7 eight months before he filed the motion in limine In addition, Dr. Brooks testified at the outset of his January 2, 2018 deposition that his opinions would be consistent with those rendered in his report of April 26, 2017, and the undersigned, having reviewed and considered Dr. Brooks' deposition testimony and report, agree with Dr. Brooks that his testimony is consistent with his report. Thus, Claimant's motion filed two days before final hearing, nine months after the report issued, was untimely. Furthermore, as to the merits of Claimant's argument, the undersigned overrules the motion. Though other JCCs, in other cases, may have rejected Dr. Brooks' testimony, those situations did not involve striking the witness' testimony. In this case, Dr. Brooks' opinion makes reference to peer- reviewed published scientific papers. His opinion is not, as Claimant argues, based on pure opinion testimony. The undersigned also rejects Claimant's argument that Dr. Brooks did not know of Claimant's job duties. The details of accident section begins with "According to Mr. Parra,..." such that any failure of the EC's IME to understand Claimant's job duties or allegation of what caused injury is from Claimant himself. But the undersigned finds that the description of job duties and the alleged exposure contained within Dr. Brooks' report is consistent with Claimant's testimony before the JCC. Dr. Brooks diagnosed Claimant with rheumatoid lung disease associated with long- standing rheumatoid arthritis. Dr. Brooks opined that Claimant's condition was not directly or indirectly linked to the alleged workplace exposure to airborne cement/concrete dust, and thus the occupational cement dust exposure was not the major Page 7 of 19

8 contributing cause ( >50 %) for his current pulmonary fibrosis or claimed asthma. Dr. Brooks did not believe the diagnostic criteria for asthma was met. 8. Dr. Monica Egozcue -Dionisi testified via deposition taken on June 19, The undersigned sustained EC's objection to the doctor's medical opinion testimony, consistent with Office Depot, Inc. v. Sweikata, 737 So. 2d 1189 (Fla. 1st DCA 1999). Claimant conceded at the outset of the doctor' s deposition that the purpose of her testimony was solely to address the facts and history of her treatment of Claimant Dr. Egozcue -Dionisi first saw Claimant in her practice on April 28, Claimant was referred to her from his primary physician, Dr. Hererra, who is with Millennium Physician Group. At the time Dr. Egozcue -Dionisi saw Claimant she too was with Millennium Physician Group. Claimant was referred to her for a second opinion for a pulmonary condition. She took a history from Claimant that he was suffering from a chronic cough that had progressed to shortness of breath, which was interrupting his daily activities. Claimant told Dr. Egozcue- Dionisi that he was hospitalized in 2012 at Physicians Regional in Naples because of a cough and shortness of breath, where he was seen by Dr. Marquina, and he had a bronchoscopy done. On the April 28, 2016 evaluation Dr. Egozcue -Dionisi reviewed a CT scan of the chest, which was abnormal. She wanted to review the prior CT scan because she noted chronic changes, and Claimant also told her about other chronic conditions he had, gout, hypertension, and rheumatoid arthritis. Dr. Egozcue -Dionisi saw Claimant again on May 31, At this point she had the opportunity to review the prior CT scan and she noted that the April 28, 2016 CT scan contained new findings. The doctor had prescribed Prednisone for Claimant on his initial visit with her, Page 8 of 19

9 and he was reporting some improvement in his symptoms on this visit. She provided Claimant with a "to whom it may concern letter" that Claimant should not be exposed to dust and cement until a final diagnosis has been confirmed. She wrote a second letter on July 8, 2016 wherein she noted that Claimant could work in an office environment. Her plan following the May 31, 2016 evaluation was for Claimant to see a cardiothoracic surgeon, and Claimant did see Dr. Pascotto at Naples Community Hospital. Dr. Egozcue -Dionisi consulted with Claimant while he was in the hospital following the video -assisted thoracoscopy. Claimant was in the hospital from June 9, 2016 until June 13, When Claimant returned to Dr. Egozcue -Dionisi on June 15, 2016, she went over the pathology results with Claimant, advising him that the findings showed chronic interstitial lung disease. 9. Dr. Brian Angsten, M.D., testified via deposition taken December 18, He is board certified in internal medicine, pulmonary disease, critical care medicine, and sleep medicine. Dr. Angsten confirmed he is not a toxicologist or industrial hygienist, and thus his testimony was limited in this case to the field of pulmonology. Dr. Angsten evaluated Claimant on May 31, He generated a four page report following that evaluation. Dr. Angsten took a history of Claimant that he drove a cement truck for 15 years. About 2012 Claimant began having respiratory symptoms, initially a cough. He was evaluated by a rheumatologist and has been diagnosed with different types of arthritis, including seronegative rheumatoid arthritis and gout. Following Dr. Angsten's review of the medical records and evaluation of Claimant he opined that Claimant suffers from chronic bronchitis and interstitial lung disease associated with 2 EC raised specific objections during the deposition and at final hearing. For reasons expressed above in paragraph 7, the undersigned finds EC's Daubert objection was untimely. It also was not properly brought before the JCC via motion. The undersigned overrules the objection on page 13 of the deposition to Dr. Angsten testifying about Dr. Egozcue -Dionisi's opinion. The opinions of an unauthorized physician may properly be submitted to the JCC via the testimony of an IME. Page 9 of 19

10 his work in the cement industry. But Dr. Angsten admitted that he did not review any air samples from Claimant's place of work. Nor did he have any personal monitoring data to know what, if anything, Claimant was exposed to. Neither did he have any information from an industrial hygienist, admitting that he did not take into account any literature from Dr. William Sawyer, Claimant' s industrial hygienist toxicologist, in formulating his opinion. Dr. Angsten was unaware of any OSHA violations. Moreover, Dr. Angsten admitted that the only evidence of the presence of any specific hazard at the workplace was from the history provided by Claimant, the video Claimant took on his cell phone, and the physical abilities assessment. Dr. Angsten is not aware of any distinction between cement plant workers versus Ready Mix drivers. Dr. Angsten agreed that it is important to know what a person was exposed to specifically in forming a causal relationship opinion in regards to interstitial lung disease. Here, all Dr. Angsten knows is that Claimant worked with Portland cement. He does not know how much time Claimant was at the loading facility versus being on the road driving the truck. He had not reviewed any specific epidemiological studies regarding Ready Mix drivers and the incident rate of lung disease. He only had studies for the "cement industry" in general. Importantly, Dr. Angsten admitted that he did not know specifically what was in the dust in the plant where Claimant worked Likewise he had no knowledge of how much of the dust at Claimant's workplace would be respirable. Dr. Angsten agreed that a rheumatoid arthritis diagnosis is associated with interstitial lung disease. He also agreed that the mere presence of an agent does not constitute exposure. Dr. Angsten does not know what was contained in the plume of dust that he saw on Claimant's video. He agreed that neither the video nor history from Claimant told him whether the dust was Page 10 of 19

11 respirable or what was contained in the dust, and Dr. Angsten did not review any air sampling to determine whether any of the material was at a toxic level. DISCUSSION On December 20, 2017, the undersigned denied appointing an expert medical advisor. This followed Claimant's notice of conflict wherein he asked the JCC to appoint the EMA because of the alleged conflict from the reports of Dr. Brooks, dated April 25, 2017, and Dr. Angsten, dated May 31, On January 3, 2018, Claimant filed a renewed notice of conflict, arguing that Dr. Angsten's report was not available until September 2017 as the doctor wanted additional information. The copy of Dr. Angsten's report filed on December 19, 2017 (DN 69) does show that it was faxed on August 31, EC argues that the renewed notice of conflict is, in substance, a motion for re- hearing arguing facts the JCC overlooked or misapprehended. The undersigned agrees with EC, and per Rule 60Q (1), the renewed notice of conflict (motion for re- hearing) is untimely as it was filed greater than ten (10) days after the December 20, 2017 order issued. On the merits of the notice, Claimant's December 18, 2017 request that the JCC, on his own motion, appoint an EMA was untimely even considering that Dr. Angsten's report was faxed on August 31, Claimant waited over 3 '1/2 months after he had knowledge of the conflict before bringing this to the attention of the JCC via a notice of conflict. Claimant argues that per Steinberg v. City of Tallahassee, 186 So. 3d 61 (Fla. 1st DCA 2016) he brought the matter timely to the JCC as the final hearing occurred such that the notice did not disrupt orderly proceedings. The undersigned reads the case law differently than Claimant Had Claimant filed the notice in September or even early October there would have been enough time to obtain an Page 11 of 19

12 EMA evaluation and report in time for the January 11, 2018 final hearing. But asking for the EMA 24 days before the final hearing made it impossible to have the evaluation and report in time for the final hearing. Thus, the notice of conflict was not filed early enough to avoid the disruption of orderly proceedings and was, therefore, untimely. Furthermore, Claimant argues that Dr. Angsten relied on Dr. Sawyer's findings, and Dr. Angsten did not have those findings until his December 18, 2017 deposition, and then Claimant filed the notice of conflict immediately after the deposition concluded. But this overlooks Dr. Angsten's actual deposition testimony on page 17-18: BY MR. SANDERS: Q. Now, were you provided some literature from me, Dr. Angsten, which was prepared by a PhD doctor, Dr. William Sawyer? A. Yes. Q. Did you review and incorporate that - those reports in your assessment? A. No. Accordingly, as the doctor's opinion obtained in deposition was unchanged from his report, faxed on August 31, 2017, waiting over 3 '1/2 months to file the notice of conflict, and doing so only 24 days prior to the final hearing, was untimely. Moreover, Claimant did not file a motion for appointment of an EMA. Claimant filed a notice of conflict, asking the JCC to find on his motion that a conflict existed. As explained below, the undersigned finds Claimant has not presented competent evidence on the medical issues before the JCC and as such, there is no conflict that requires appointment of an EMA. Section requires Claimant to prove sufficient exposure to a specific harmful Page 12 of 19

13 substance shown to be present in the workplace and that the nature of the employment was the major contributing cause of the disease. Claimant has failed to present competent evidence from his IME to prove sufficient exposure to a specific harmful substance shown to be present in the workplace. Dr. Angsten admitted that the only evidence he had of the presence of any specific hazard at Claimant's employment was from the history Claimant provided, the video Claimant took on his cell phone, and the physical abilities assessment. None of this proves Claimant was exposed to any harmful substance. And even if the undersigned could find that taken together, the above is sufficient to show Claimant was exposed to a harmful substance, the identity of the specific harmful substance is not known, nor is there any evidence that there was a sufficient exposure. Dr. Angsten agreed with EC's experts that mere presence of a substance does not equal an exposure. At best all that Claimant has proven is that he worked in the presence of a substance, Portland cement. Dr. Angsten also admitted that he did not know specifically what was in the dust in the plant where Claimant worked and he had no knowledge of how much of the dust would be respirable. Accordingly, the undersigned finds Dr. Angsten' s testimony is not competent evidence as to whether Claimant was exposed to a specific harmful substance shown to be present in the workplace. Furthermore, Claimant' s burden of proof on both causation and sufficient exposure is clear and convincing evidence. Clear and convincing evidence is an intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible, the memories of the witnesses must be clear and without confusion, and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. Matrix Page 13 of 19

14 Employee Leasing v. Pierce, 985 So. 2d 631 (Fla. 1st DCA 2008). As the undersigned finds that Claimant' s evidence is not competent, and thus does not meet the preponderance of the evidence standard, it certainly does not satisfy the more stringent clear and convincing evidentiary threshold. Moreover, as between Dr. Brooks and Dr. Angsten, the undersigned accepts the opinions of Dr. Brooks as more consistent with logic and reason and the totality of evidence in this case. Dr. Brooks diagnosed Claimant with rheumatoid lung disease associated with long- standing rheumatoid arthritis. Claimant himself admitted that he applied for social security disability benefits in July 2016 in part due to his rheumatoid arthritis diagnosis. Dr. Angsten rejected this diagnosis because it typically appears in people at age But Dr. Angsten acknowledged this is a general range, and Claimant was 47 years old at the time of the final hearing, thus he was over the age of 40 when he first sought medical treatment in 2012 per his testimony. Even if the undersigned is incorrect and this claim is compensable, the parties did not bifurcate the issue of compensability. Claimant seeks authorization of a primary care physician and authorization of a pulmonologist. But Claimant has failed to present any admissible medical opinion that treatment with a PCP and/or a pulmonologist is medically necessary and causally related to the industrial accident. Claimant also seeks the award of permanent total disability benefits, but has failed to present any evidence that he has reached maximum medical improvement. Claimant has likewise failed to present any admissible medical opinion testimony regarding work restrictions. Therefore, Claimant is unable to show that he is entitled to any indemnity benefits, whether permanent or temporary. Page 14 of 19

15 Based on the above, it is: ORDERED AND ADJUDGED: 1. The claim for compensability of Claimant's lung disease as related to his exposure during employment and/or occupational disease is denied and dismissed with prejudice. 2. The claim for permanent total disability benefits from May 31, 2016 to the present and continuing is denied and dismissed with prejudice. 3. The claim for temporary total disability benefits from May 31, 2016 to the present and continuing is denied and dismissed with prejudice. 4. The claim for temporary partial disability benefits from May 31, 2016 to the present and continuing is denied and dismissed with prejudice. 5. The claim for authorization of a primary care physician is denied and dismissed with prejudice. 6. The claim for authorization of a pulmonologist is denied and dismissed with prejudice. 7. The claim for penalties and interest is denied and dismissed with prejudice. 8. As Claimant did not prevail, he is not entitled to reimbursement of taxable costs and his attorney is not entitled to an Employer /Carrier paid attorney fee. DONE AND SERVED this 2nd day of February, 2018, in Ft. Myers, Lee County, Florida. Wt(zi Jack A. Weiss Page 15 of 19

16 Judge of Compensation Claims Division of Administrative Hearings Office of the Judges of Compensation Claims Ft. Myers District Office 4379 Colonial Boulevard, Suite 200 Ft. Myers, Florida (239) COPIES FURNISHED: Illinois National Insurance Company PO Box Shawnee Mission, KS aig.com, Gallagher Bassett Services, Inc S.W. 149th Avenue, Suite 200 Miramar, FL GB-FloridaZon @gbtpa.com L. Gray Sanders, Esquire Barbas Nunez Sanders Butler & Hovsepian 1802 West Cleveland Street Tampa, FL gsanders@ Scott B. Miller, Esquire Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A Orange Avenue, Suite 500 Winter Park, FL smiller@hrmcw.com,asurujlall@hrmcw.com Page 16 of 19

17 APPENDIX I - CLAIMS AND DEFENSES CLAIMS 1. Compensability of Claimant's lung disease as related to his exposure during employment and/or occupational disease 2. Permanent total disability benefits from 5/31/2016 to the present and continuing 3. Temporary total disability benefits from 5/31/2016 to the present and continuing 4. Temporary partial disability benefits from 5/31/2016 to the present and continuing 5. Authorization of a primary care physician 6. Authorization of a pulmonologist 7. Penalties, interest, costs, and attorney fees DEFENSES 1. Although Claimant was in the course and scope of his employment during the alleged exposure, Claimant's injury is due to an idiopathic condition which is personal and pre- existing 2. The alleged exposure is not the major contributing cause of Claimant's condition or need for treatment 3. Penalties, interest, costs, and attorney fees are not due and owing Page 17 of 19

18 APPENDIX II - DOCUMENTARY EVIDENCE AND EXHIBITS JCC Exhibits 1. Petition for benefits filed 6/27/2017 (DN 35) 2. Response to petition for benefits filed 7/7/2017 (DN 36) 3. Mediation conference report (DN 43) 4. Uniform pretrial stipulation and pretrial compliance questionnaire (DN 48) 5. Claimant's notice of conflict filed 12/18/2017 (argument only) (DN 66) 6. Order denying appointment of EMA issued 12/20/2017 (DN 74) 7. Claimant renewed notice of conflict filed 1/3/2018 (argument only) (DN 81) 8. EC objection to renewed notice of conflict filed 1/4/2018 (argument only) (DN 82) 9. EC trial memorandum (argument only) (DN 92) 10. Claimant motion in limine to exclude testimony and report of Dr. Brooks filed 1/9/2018 (argument only) (DN 96) 11. Claimant trial memorandum (argument only) (DN 101) 12. EC response to motion in limine (argument only) (DN 103) Joint Exhibits 1. Wage statement (DN 84) Claimant Exhibits 1. Deposition of Dr. Angsten, taken 12/18/2017 (DN 79-80) 2. Notice of taking deposition of Dr. Angsten (DN 78) 3. Deposition of Dr. Egozcue -Dionisi taken 6/19/2017 (DN 71-72) 4. CEMEX physical abilities assessment (DN 95) 5. Video CD 6. Designation of vocational witness, Luis Rios, dated 8/14/2017 (DN 93) Claimant Proffered Exhibits 1. Exhibit list filed 6/12/2017 (DN 25) 2. Witness list filed 6/12/2017 (DN 26) 3. EC objection to Claimant's exhibit list filed 6/14/2017 (DN 30) 4. Comprehensive forensic vocational evaluation by Luis Rios (DN 94) Employer /Carrier Exhibits 1. Notice of denial (DN 83) Page 18 of 19

19 2. Claimant deposition taken 2/16/2017 (DN 85) 3. Site visit report and CV from Rene Salazar (DN 86, 89) 4. Deposition of Dr. James V. Hillman taken 12/21/2017 (DN 87) 5. Deposition of Dr. Stuart M. Brooks taken 1/2/2018 (DN 88) Page 19 of 19