12/28/04 - Steve Duin: Columnist, The Oregonian

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12/28/04 - Steve Duin: Columnist, The Oregonian

Postby Webmaster » February 25th, 2005, 7:36 pm

Steve Duin of The Oregonian, Metro Section

Worked over by the workers' comp system

Tuesday, December 28, 2004

Duin: Man feels as if justice lost blindfold

They were hired to protect The Dalles dam from the waves of crazed terrorists after Sept. 11, and by the following April they were bored witless. Checking the barges for bombs and inspecting beneath cars with the nifty mirror doohickey had gotten old. The .40-caliber Glocks and the handcuffs were hip ornaments. They hadn't been attacked by anything bigger than a mosquito.

So it was on the night of April 10, 2002, that a pair of goofball security guards sprayed the inside of the guard shack with a highly toxic pesticide, Bug X, as a practical joke, then told the incoming graveyard shift to keep the shack's windows closed.

Dave Shephard's life has never been the same.

Never mind the headaches, the stomach cramps and vomiting, the sinus infection and the weight loss. Shephard could live with those, and has. What truly galls him to this day is his conviction that he never got a fair hearing or "substantial justice" in his workers' comp claim.

Shephard was one of at least four security guards who had a nasty reaction that April night to the pesticide, which was applied in such quantities that, one of the guards said, "You could see trails on the walls, ceilings, windows and light bulb where it had been sprayed."

Because Bug X contains toxic methyl carbamate, the can label notes the pesticide "may be harmful, inhaled or absorbed through the skin." Users are warned to "avoid breathing the spray mist and provide adequate ventilation of the area being sprayed."

Shephard spent at least six hours locked in the 6-foot-by-6-foot guard shack with fumes from a pesticide that is designed to kill scorpions, earloberoaches and yellow jackets. His subsequent problems were so persistent that after several medical visits, he was directed to a Portland toxicologist, Dr. Brent Burton.

After examining Shephard, Burton concluded that his exposure to the pesticide was not "sufficient" to produce his medical problems. "At most," Burton wrote after examining Shephard in June 2002, "the perception of odor may have produced an unpleasant sensory experience."

Far be it from me to second-guess the good doctor, who did not return phone calls. Shephard, however, was furious at Burton's diagnosis and the insurance company's rejection of his claim. He challenged both in his hearing before the state Workers' Compensation Board and John Mark Mills, the administrative law judge, in June 2003.

Shephard's employer, Argus Security, and Cunningham Lindsey Claims Management were ably represented in that hearing by a lawyer named Leslie MacKenzie. Shephard was rather fitfully represented by . . . himself.

As you might suspect, this was not a good sign.

"It is almost inevitably not a fair fight in the small percentage of claims that come before us where the claimant doesn't have an attorney," conceded John McCullough, the presiding administrative law judge for the board. "Unfortunately, we are not empowered to be an advocate for the person who doesn't have a lawyer or a good lawyer. We can't help them make their case."

Shephard said he couldn't afford a decent lawyer: "I couldn't even get an attorney to sit down and read the stuff I had. They all said that if I couldn't get a doctor to back me up, I might as well forget it."

One doctor, Duane Lundeberg of Portland, submitted testimony that he thought "Mr. Shephard's worsening nasal and sinus complaints are the result of his pesticide exposure."

But Shephard failed to bring Lundeberg or any other medical experts to the hearing. Instead, he arrived armed with 51 exhibits, many on the dangers of methyl carbamate exposure that he'd culled from the Internet. Mackenzie did her job and convinced the judge that the exhibits were not authoritative and were inadmissible, tantamount to her "submitting an article from Woman's Day."

You can hardly fault Shephard. At that hearing room, he was in way over his head. He didn't know a brief from a closing argument. "I've never done this before," he reminded Mills at one point, to which the judge replied, "Well, you'll probably be cured of the desire to do it again by the time we're done."

Bingo. Shephard was a lamb led to slaughter. He was determined to make the case that the "fix" was in, that Burton usually reached conclusions that favored the insurance companies. But he was powerless to make it. In a deposition, Shephard asked the toxicologist directly, "How many cases have you had where you supported the patient and not the insurance company."

"I don't know what you mean," Burton replied.

Mills was present at that deposition, McCullough said. And Shephard had the right to ask the judge to intervene. "If he wasn't getting the answers he thought he was entitled to," McCullough said, "he could have asked Judge Mills to direct the doctor to answer."

Even today, this is news to Shephard.

In October 2003, Mills stated the obvious: Shephard failed to "sustain his burden of proof" that his sinus problems were the result of his pesticide exposure. Last June, an appeals panel, equally impressed with Burton's testimony, reached the same conclusion and affirmed Mills' order.

As anyone who has ever gone before the workers' comp board knows, an administrative law judge -- and I'll quote from the appeals panel -- "is not bound by common law or statutory rules of evidence and may conduct a hearing in any manner that will achieve substantial justice."

Holed up with his files in a cheap Southeast Portland apartment, Shephard will go to his grave believing justice was thwarted. "I proved my case and it didn't matter a bit," he said.

He's lost 60 pounds, a fiancee, that $16-an-hour job at the dam (he's still up nights, providing security at an apartment complex), and any faith he might have had in the system. Despite sinus surgery 15 months ago, he still has headaches, allergies and a nose full of gunk . . . just not so full that he can't tell that something really stinks.

Steve Duin: 503-221-8597; Steveduin@aol.com; 1320 S.W. Broadway, Portland, OR 97201
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