Bryer v. Accident Fund Gen. Ins. Co.

1

2022 MTWCC 8

CONTESSA BRYER, GUARDIAN AND CONSERVATOR FOR JOHNNY LEE SHELDON Petitioner v. ACCIDENT FUND GENERAL INS. CO. Respondent/Insurer.

No. 2021-5445

Court of Workers Compensation of Montana

June 8, 2022

APPEALED TO MONTANA SUPREME COURT - (DA 22-0590) 10/18/22

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT AND ORDER

DAVID M. SANDLER JUDGE

Summary Respondent denied liability for the employee's claim on the grounds that the cause of his cardiopulmonary arrest was unknown.

Held The employee suffered compensable injuries. Petitioner carried her burden of proving that the employee was knocked over backwards when the safety valve on a gas cylinder burst and that he was knocked unconscious when the back of his head hit the concrete floor. Petitioner also carried her burden of proving that the employee then inhaled argon gas and that the resulting lack of oxygen in his lungs caused him to go into cardiopulmonary arrest, which caused several injuries including a brain injury. The insurer's denial of liability was unreasonable because it did not conduct an adequate investigation before it denied liability.

¶ 1 The trial in this matter was held on October 5, 6, and 7 2021, in Billings, Montana. Petitioner Contessa Bryer, Guardian and Conservator for Johnny Lee Sheldon, was present and was represented by Sydney E. McKenna, Justin Starin, and Steven S. Carey. Respondent Accident Fund General Ins. Co. (Accident Fund) was represented by Jon T. Dyre and Montana L. Funk.

¶ 2 Exhibits: This Court admitted Exhibits 1, 2, 5 through 7, 9, 11, 14 through 34, 36 through 38, 44, and 46 without objection. Over Accident Fund's objections, this Court admitted Exhibits 3, 4, 8, 10, 12, 13, with pages 667, 668, 692, 693, and 694 withdrawn, and 45. Over Bryer's objections, this Court admitted Exhibits 35, 40 through 43, and 47. Accident Fund withdrew Exhibit 39.

¶ 3 Witnesses and Depositions: This Court admitted the deposition of Alan H. George, PhD, PE, into evidence. Nicole Palagi; Mark L. Sanz, Md, FACC; Kevin Atkins; Dr. George; John C. Schumpert, MD, MPH, FACOEM; Wynn Mader; Scott Adam Sample, DO; John M. Freeman, Jr., MS, PE, CFEI; Charlene Kananen; and Michael Lee Miller were sworn and testified at trial.

¶ 4 Issues Presented: This Court restates the issues in the Pretrial Order as follows:

¶ 4a Issue One: Did Sheldon suffer a compensable injury?

¶ 4b Issue Two: Is Bryer entitled to costs, attorney fees, and a penalty?

FINDINGS OF FACT

¶ 5 This Court finds the following facts by a preponderance of the evidence.^[1]

Sheldon's Work for American Welding &Gas, Inc.

¶ 6 Johnny Lee Sheldon began working as a plant technician for American Welding &Gas, Inc. (American Gas) in 2010. Sheldon's job duties included making specialty gas mixtures, which are precise mixes of gases. Sheldon made the mixtures in the specialty gas room, which measures approximately 22 feet by 11 feet and has a roll-up garage door to the outdoors, an interior window to a small room, and a door-sized opening leading to a small lab, which has a door to a hallway.

¶ 7 American Gas stores liquid argon and liquid nitrogen in bulk tanks, which are outside its buildings. Each bulk tank is plumbed to its own vaporizer, which turns the liquid to gas. From the argon and nitrogen vaporizers, American Gas runs gas lines to two separate places: to the high-pressure fill room and to storage cylinders, which sit just outside the specialty gas room.

¶ 8 For the high-pressure fill room, American Gas runs the lines for argon and nitrogen from the vaporizers to a panel that has valves for dispensing those gases, and valves for dispensing oxygen, carbon dioxide, and helium. On the panel each valve and its control knob, and the other controls, are permanently labeled with a black label, affixed to the panel, with white text.

¶ 9 For the specialty gas room, American Gas runs the lines for argon and nitrogen from the storage cylinders to a CryoVation machine, a machine that pumps gases into cylinders at high pressures. The CryoVation machine has control valves for dispensing hydrogen, carbon dioxide, helium, argon, nitrogen, and oxygen. On the front of the CryoVation machine, each valve and its control knob, and the other controls, are permanently labeled with black labels with white text, which are permanently affixed to the machine, with the sole exception of the valve and control knob for hydrogen, which is labeled with a white label with black text.

¶ 10 The CryoVation machine has a precise scale, as the amount of each gas needed for a specialty gas mixture is determined by weight, to the tenth of a gram. The scale is so sensitive that any air movement inside the room causes fluctuations of the weight, even when the plexiglass door in front of the scale is closed. Thus, when making a mixture, Sheldon would completely close the garage door, the window, and the door in the lab to the hallway and place a sign on the lab door stating, "Do Not Enter Pumping in Progress."

¶ 11 American Gas sells more than 115 specialty gas mixtures. The "Mixture Recipe" for each mixture lists the amount of each gas by weight to be dispensed into the cylinder. Each recipe is printed on a letter-sized piece of paper and placed into a clear plastic sleeve. American Gas stores the recipes in a binder in the specialty gas room.

¶ 12 To make a specialty gas mixture, Sheldon would connect an empty cylinder to a gas line from the CryoVation machine and place it on the scale. If Sheldon were going to make more than one cylinder of the gas mixture, he would attach the additional empty cylinders to the gas lines on a radial manifold that is plumbed to the CryoVation machine, which is designed to make duplicate cylinders of the gas mixture. Each cylinder has a safety valve that is designed to burst at a pressure lower than the pressure that would cause the cylinder to burst.

¶ 13 After connecting the empty cylinders, Sheldon would attach a coupler on a swing arm to the valve on the CryoVation machine for the first gas he needed to pump. He would then use the control knob to control the amount of gas being pumped into the cylinders. If the Mixture Recipe called for a relatively large amount of a gas, Sheldon would fully open the valve to quickly dispense the gas. Sheldon would watch the readout from the scale. As the weight of the gas dispensed started approaching the amount needed for the mixture, Sheldon would use the control knob to reduce the amount of gas being pumped until it was just a trickle and then turn the valve off when the precise amount of gas had been dispensed. The process is similar to filling a car with gasoline and stopping the flow of gasoline at an even dollar amount. Sheldon would then remove the coupler from the valve for the first gas and attach it to the valve for the next gas for which the recipe called and dispense the correct amount of that gas, and repeat the step if he were making a mixture of more than two gases.

Sheldon's Industrial Accident

¶ 14 On July 3, 2017, Sheldon started his workday around 6:30 a.m.

¶ 15 Around 8:00 a.m., he began filling orders for specialty gas mixtures.

¶ 16 He clipped three Mixture Recipes to a cylinder next to the CryoVation machine.

¶ 17 At 8:15 a.m., Sheldon began working on an order for four cylinders of a mix that contained argon, which is odorless tasteless, and colorless. Although air is approximately 0.9% argon, argon is classified as a hazardous material because it is much denser than air and, as stated on its Safety Data Sheet, it "[m]ay displace oxygen and cause rapid suffocation."

¶ 18 Sheldon walked into the specialty gas room and completely closed the door in the lab, the window, and the garage door.

¶ 19 He attached a cylinder to the CryoVation machine, placed it on the scale, and attached three empty cylinders to the lines at the radial manifold. He attached the coupler on the swing arm on the CryoVation machine to the argon valve and began dispensing argon into the cylinders.

¶ 20 Before 8:21 a.m., a 3,000 pound per square inch (psi) safety valve burst on one of the cylinders attached at the radial manifold.^[2] When a safety valve bursts, it sounds like, and is as loud as, a gunshot and, like a gunshot, causes a shockwave. As a result of the burst safety valve, Sheldon was knocked over backwards. He was knocked unconscious when the back of his head hit the concrete floor.

¶ 21 The CryoVation machine was still pumping argon at more than 3,500 psi and argon was fiercely blowing out of the ports on the safety valve, which created a loud, hissing sound, and caused turbulence in the middle and upper portions of the specialty gas room. Because argon is much denser than air, which is approximately 21% oxygen and approximately 79% nitrogen, and because argon does not readily mix with air, a large amount of the argon descended, displacing the air near the floor.^[3] ¶ 22 As Sheldon lay unconscious, he inhaled a large amount of argon. Because of the substantially reduced amount of oxygen in his lungs, Sheldon quickly went into cardiopulmonary arrest, i.e., his heart stopped beating, and he stopped breathing.^[4]

¶ 23 Wynn Mader, the plant manager, heard the safety valve burst and a gas blowing into the specialty gas room. He knew that a safety valve had burst because it frequently happens and "it always sounds the same." At that time, Mader did not think it was an emergency. Thus, he did not immediately go from his office to the specialty gas room to investigate.

¶ 24 After hearing the gas blowing into the specialty gas room for several seconds, Mader walked from his office to the specialty gas room to investigate. Mader opened the door from the hallway to the lab, walked into the...