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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1999 MTWCC 80
WCC No. 9903-8174
FIRE INSURANCE COMPANY/
ORDER ON APPEAL
¶1This is an appeal from a decision of the Department of Labor and Industry (Department) finding that respondent (claimant) suffers from an occupational disease (OD).
Record on Appeal
¶2 The record on appeal consists of the transcript of a hearing conducted on May 12, 1998, and the Department file, including the exhibits and depositions admitted at the hearing.
¶3 Claimant alleges she suffers from an occupational disease as the result of toxic exposures in her work as a registered nurse. Her claim for compensation, dated May 2, 1995, states [she] was exposed to toxins or poisons on 6 floor Ross Tower at St. Vincents Hospital in Billings, Mt. over a 3 year period that I was employed there. (Ex. A.) The evidence produced at hearing emphasizes exposure to Dursban, a pesticide, on one particular occasion (August 25, 1993), but includes testimony about intermittent, ongoing exposure to pesticides, helicopter exhaust fumes, and various other fumes arising from remodeling at the hospital.
¶4 On April 1, 1996, the Department referred the claimant to Dr. Dana Headapohl for a medical panel exam under section 39-72-602, MCA. Dr. Headapohl examined claimant and concluded her symptoms of incoordination, slurred speech, sensory disturbance and urinary retention are all consistent with organophosphate poisoning. (Ex. C at 7.) Dr. Headapohl noted: Organophosphates are widely used as insecticides in buildings because of their short environmental half-life, compared to organochlorine pesticides. While relatively safer compared to previously used pesticides, however, they are toxic to humans. (Id.) Based on Dr. Headapohls report, the Department issued an Order finding that claimant suffered from an OD. (order referring copy of medical reports to parties issued July 1, 1996.)
¶5 The insurer then requested a hearing before the Department. The matter was heard in May of 1998.
¶6 Shortly after the insurer filed its final brief arguing the case to the hearing officer, it moved to delay the decision and then requested the case be reopened for additional evidence. The new evidence concerned deposition testimony of Dr. Headapohl in a products liability case filed by claimant. The hearing officer denied the request to reopen, explaining:
(Final Agency Decision at 4 n.1.)
¶7 Following the filing of its appeal, the insurer moved this Court for leave to present the additional evidence, making the same argument it made to the hearing officer. I denied the motion, finding that the insurer had sufficient information prior to the hearing to obtain the evidence it now sought to introduce. (Transcript of Proceedings -- Oral Argument, dated May 27, 1999, at 18-19.)
The Decision Below
¶8 The hearing officers findings of fact are specific and supported by references to testimony and documentary evidence. The hearing officer credited the testimony of claimant that she came into contact with a pesticide (Dursban) on August 25, 1993, that she was exposed to pesticides on other occasions, and that her most serious symptoms developed after the August 25, 1993 exposure. (Final Agency Decision at 1-2; Tr. 55-56, 60, 62-63.) The hearing officer similarly credited the testimony of claimant that she came into contact with a number of other environmental irritants, including helicopter exhaust fumes, and various fumes and airborne particles from remodeling at the hospital, which at times made her symptoms worse. (Final Agency Decision at 1-2.) In crediting claimant, the hearing officer noted her testimony was supported, to varying degrees, by the testimony of six coworkers. (Id.)
¶9 The hearing officer heard a great deal of evidence from the insurer in support of its argument that the application of Dursban, and the presence of other fumes at work, could not have been the cause of claimants illness. This evidence included testimony about the customary pesticide application procedures, the hospitals ventilation system, and the results of testing for airborne irritants. The hearing officer, however, was not persuaded by that evidence. He noted that no direct evidence was presented by the insurer regarding the one specific application of Dursban that most immediately preceded claimants acute symptoms. Rather than crediting the picture of hospital conditions the insurer sought to portray, the hearing officer relied upon the testimony of the lay witnesses that they experienced Dursban levels they could smell and see (as moisture) more than once. (Id. at 5.) He noted that claimants testimony about the presence of chemical smells, which ran counter to the hospitals contentions, was supported by the testimony of coworkers Kim Hoeckelberg and Janyth Rasmussen. (Hoeckelberg Dep. at 9-10, 17; Rasmussen Dep. at 11.)
¶10 The testimony of three doctors was presented at the hearing. The hearing officer reviewed the expertise and conclusions of each doctor. He credited the testimony of Dr. Headapohl, a specialist in occupational medicine, including toxicology, and that of Dr. Richard Nelson, a neurologist with expertise in damage resulting from toxic exposure. Both doctors opined that claimants illness resulted from her exposure to toxins at work. The hearing officer was explicit in his reasons for not crediting the contrary opinion rendered by Dr. Patricia Sparks, a physician specializing in consultations regarding occupational medicine, environmental medicine, and clinical toxicology. This included Dr. Sparks tendency to attribute symptoms to psychiatric causes, a tendency that claimant contended was demonstrated in other cases about which Dr. Sparks had written or testified. In addition, the hearing officer was unpersuaded by Dr. Sparks testimony that Dursban, properly applied, could not cause harm to even a hypersensitive human being.
¶11 In the proceeding below, the insurer contended that claimants entire case rested on a post hoc logical fallacy, i.e., that it rested solely on the fact that claimant experienced symptoms following exposure to Dursban, without actual proof of a causal connection. The hearing officer disagreed, noting, among other things, that he considered Drs. Headapohl and Nelson credible in describing how the particular symptoms and problems fit the aftermath of toxic exposures. (Final Agency Decision at 5.) Relying upon the medical evidence and the record as a whole, the hearing officer concluded that claimants symptoms resulted from toxic exposures at work. (Id.)
Standard of Review
¶12 Section 39-72-612(2), MCA, provides for a direct appeal to the Workers' Compensation Court from the Department's final Order in an OD case. The section further provides:
¶13 On appeal the appellants argue (1) that the hearing officers findings of fact were not supported by substantial credible evidence based on the record as a whole and (2) that the hearing officer erred in denying appellants motion to reopen the case for submission of additional evidence.
¶14 The substance of the second ground was already argued to this Court pursuant to appellants motion for leave to present additional evidence, which the Court denied. The Court incorporates its conclusions in denying that motion (see attached Transcript of Proceedings -- Oral Argument, May 27, 1999, pp. 8-19) and affirms the decision of the hearing officer not to reopen the case. Like the hearing officer, the Court concludes that the insurer had sufficient information prior to the hearing to lead it to and to use the evidence at the hearing. Dr. Williams report was available in November 1997, some six months prior to the hearing and appellants could have discovered it, shown it to Dr. Headapohl, and questioned her concerning its effect on her opinions.
¶15 The issue remaining for decision is whether the hearing officers findings were clearly erroneous under the standard set forth in section 39-72-612(2)(3), MCA. Under that standard, the hearing officer's findings of fact may be overturned on judicial review if they are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85, 88 (1992) (quoting section 2-4-704(2)(a)(v), MCA). If the findings are supported by substantial evidence, the Court may overturn them only if it is clear to the Court that the hearing officer misapprehended the effect of the evidence or if, upon review of the record as a whole, the Court reaches a definite and firm conviction that the hearing officer was mistaken. Id. The clearly erroneous standard is not a license for the Court to reweigh the evidence or second guess the hearing officers assessment of witnesses credibility. McKay v. City of Choteau, 1999 MTWCC 20, ¶ 18.
¶16 Based upon review of the record as a whole, the Court finds substantial evidence supporting the hearing officers findings and conclusions. The claimants testimony provides evidence of her exposure to pesticide on August 25, 1993, the date the insurer concedes Dursban was used. She recalled there were bugs coming in around the windows in hospital rooms 612 and 614, and that someone from Echo Lab sprayed around the windows in both rooms. (Tr. at 291.) She testified: I asked him what he was spraying, because it smelled so bad. It smelled like diesel . . . . (Id. at 292.) Claimant testified that she was near enough to the room being sprayed to see inside, and that she thinks she probably inhaled Dursban through the mouth. She testified that her immediate symptoms were a burning in my eyes and nose and excess palpation and headache. (Id. at 60.) She also began having difficulty remembering. (Id.) Approximately two weeks after this exposure she began to experience difficulty in gait and balance. (Id. at 63.) Her symptoms continued, and eventually led to her inability to work.
¶17 Appellants argue that the August 25, 1993 exposure was claimants sole exposure to Dursban and that the exposure was insufficient to cause her illness. Based primarily upon the records of pest control at St. Vincents by an exterminator hired by the hospital (see Tr. at 239, and Ex. 2), appellants argue claimant did not come into contact with pesticide at the hospital on any occasion other than August 25th. It then argues that Drs. Headapohl and Nelson based their opinions on incorrect information regarding additional exposures and that their opinions should therefore be disregarded. The argument, however, fails to take into consideration other evidence supporting the inference claimant was exposed to pesticides on occasions other than August 25, 1993.
¶18 Claimant testified she smelled the strong odor she associated with pest control, like diesel, on other occasions, and believes they sprayed more than they recorded. (Tr. at 56, 292.) In addition, claimant testified that she worked all over the hospital, including ICU. Karen Anderson, a licensed practical nurse for St. Vincents, recalled that the hospital had ongoing problems with insects in what she remembered as Room 612, lasting what seemed like for two or three years. (Anderson Dep. at 28.) (Room 612 was one of the rooms sprayed on August 25, 1993.) Anderson believed that the hospital sprayed more in those rooms than in other rooms on the floor. (Id.) Janyth Rasmussen, a charge nurse, recalled the housekeeping people (in contrast to the exterminator hired by the hospital) spraying in the empty rooms occasionally. (Rasmussen Dep. at 11.) In addition, licensed practical nurse Irene Aure testified to her recollection that hospital personnel at times sprayed for insects on the sixth floor. (Aure Dep. at 9-10.) Such evidence contradicts the appellants insistence that the records of an outside exterminating company records every use of Dursban and other pesticides in the hospital.
¶19 Kim Hoeckelberg, a certified nursing assistant who acknowledged a personality clash with claimant, provided the strongest support for an inference that pesticide use was ongoing. (Hoeckelberg Dep. at 14.) She testified to persistent attempts to solve the insect problem: There were problems with flies in the room, terrible flies. I mean they tried and tried and tried to get rid of them. They would spray. I dont know necessarily who it was, if it was a company or somebody from the hospital or the construction or what . . . . (Id. at 8-9.) Ms. Hoeckelberg indicated the spraying was ongoing and the insect problem lasted for months. (Id. at 17-18.) Her testimony also supports the inference, contrary to the argument of the insurer, that spraying involved fumes reaching employees or patients. When asked whether anyone other than claimant reported physical problems associated with pest control, Ms. Hoeckelberg referenced just the basic complaints of it, you know it did, it stunk. (Id. at 22.)
¶20 The record contains
substantial evidence supporting the hearing officers further finding
that claimant was exposed to other environmental irritants which exacerbated
claimants symptoms. Claimant testified that exposure to cleaning solvents
increased symptoms of [n]ot being able to think straight, creating
a [k]ind of brain fog and eye and nose irritation and a taste in [my]
mouth, a funny taste. (Tr. at 34.) She testified that her symptoms were
worse when the helicopter transporting patients to and from the hospital
landed. (Id. at 69-70.) When asked about the impact of dust from
remodeling, claimant testified that all of the exposures on the floor
made my symptoms worse, and that is why I eventually could not walk at
all without hanging on to walls. (Id. at 36.)
¶22 Coworkers also corroborated claimants testimony about other fumes during construction at the hospital. Ms. Anderson recalled a glue smell during construction. (Anderson Dep. at 7.) Ms. Hoeckelberg testified that at one point it was really dusty from the construction, and that did give me a headache, and it did make me feel ill. (Hoeckelberg Dep. at 10.) She recalled that construction led to others complaining of the general smell and, you know, probably some people having a headache from the smell and such . . . . (Id. at 26.) Ms. Hoeckelberg also testified that claimant seemed more bothered by the various fumes than others and seemed ultra sensitive to smells. (Id. at 27.) Given this evidence, the record supports the hearing officers finding that claimant was exposed to environmental irritants contributing to her symptoms over an extended period of time.
¶23 The appellants argue there is insufficient medical evidence linking claimants illness to toxic exposure. However, as noted by the hearing officer, two doctors testified that claimant suffers from an occupational disease related to her exposures to fumes at the hospital. Moreover, the doctors provided specific reasons supporting their opinions.
¶24 While the appellants complain about the qualifications and methodology of Dr. Nelson, the record contains sufficient evidence to support the hearing officers reliance on Dr. Nelsons opinions. Dr. Nelson is board certified in neurology and psychiatry. (Tr. at 144.) His practice involves treatment of a wide range of neurological patients, including those exposed to toxic materials. (Id. at 145.) He provided a cogent and coherent explanation of claimants exposure and his reasons for linking her symptoms to the exposure. (Id. at 153-60). Significantly, he noted that exposure to different toxins can have a compounding effect clinically (Tr. at 163-64), that some people are more sensitive to chemicals than others, and that toxic exposure can cause permanent injury in some people but not in others. (Id. at 164-65.) In addition, Dr. Nelson addressed the possibility raised by other doctors that claimant suffered from an intrinsic cerebellar disease process. He opined that an intrinsic disease process would not reverse itself at all, indicating an intrinsic process was not likely the case with claimant, who at times showed some improvement in symptoms. (Id. at 168.)
¶25 Dr. Headapohl found claimants symptoms consistent with organophosphate poisoning. In her report, she stated that Ms. Austins symptoms of incoordination, slurred speech, sensory disturbance and urinary retention are all consistent with organophosphate poisoning. (Ex. C at 7.) She also noted: There may [be] delayed neurotoxic effects including ataxia and distal sensory and motor disturbances, anxiety and depression. (Id.) Ataxia, which is failure or irregularity of muscular coordination, was consistently found by the physicians examining claimant. (Ex. 3, at 6, 8, 21, 46-b.)
¶26 Dr. Headapohl testified that her opinion was based upon claimants exposure to Dursban, and that she did not consider the impact of exposure to other chemicals. (Tr. at 373.) Her report noted, however, that [c]erebellar ataxia can also be caused by toluene, mercury and certain medications but there is no clear evidence for such exposures. (Ex. C at 7.) Dr. Nelson, who did consider claimants report of exposure to other substances, noted that toluene is commonly used for preservation of carpets or draperies. (Tr. at 150). One of claimants complaints involved smells emanating from cleaning of carpets. (Id. at 34.) Thus, although Dr. Headapohl did not consider the impact of other exposures, her report supports the hearing officers reliance on Dr. Nelsons conclusion that claimants symptoms were worsened by contact with other environmental irritants.
¶27 Appellants argue the opinions of Drs. Nelson and Headapohl should be disregarded in light of evidence that claimants symptoms have worsened since she left her employment. Claimant did testify that her condition has worsened. (Id. at 284-85.) But she also testified that she improved markedly upon leaving the hospital, and that her condition changes: [s]ome days it would be better, and some days worse. (Id. at 294.) The record is not completely clear exactly which symptoms improved after claimant left work, but suggests that she showed improvement in the areas of headaches, blurred vision, and ability to hold things. (Id. at 396.) The record also indicates claimant obtained a walker following a visit to Dr. Roger Williams in November of 1997, suggesting coordination has remained a persistent problem. (Id. at 285.) Viewed as a whole, the record supports an inference that some symptoms associated with toxic exposure have resolved after she left employment, but others have continued and worsened. In any event, Drs. Nelson and Headapohl were subjected to cross-examination and adhered to their opinions that claimant suffers from an occupational disease caused by her exposure to chemical fumes while working at the hospital.
¶28 Appellants also argue that the hearing officer did not consider evidence regarding examination of claimant by other physicians. The record contains medical reports from Drs. Scott Callaghan and Roger Williams, both neurologists, and from Dr. J. R. Fulgham at the Mayo Clinic. Review of their records indicates these doctors could not determine the cause of claimants condition. In February of 1995, Dr. Callaghan wrote: Patient with progressive ataxia, most likely of a familial type?, but acknowledged there was no family history in regards to this other than the father had a tremor as he aged. (Ex. 3 at 6.) Unable to diagnose claimant, Dr. Callaghan referred her to Dr. Williams, who wrote, in April of 1995, that the etiology [of claimants condition] remains a mystery. (Id. at 29.) He did record, however, that her symptoms have improved substantially in the last four of five weeks. She has been off work during that time and this has made her suspicious that there may be some environmental toxin at work that is responsible for her symptoms. (Id.) Dr. Williams referred claimant to the Mayo Clinic. In April of 1995, Dr. Fulgham of the Mayo Clinic concluded claimant suffered from a cerebellar ataxia of uncertain etiology. (Id. at 23.) As the appellants suggest, the medical records show that other physicians were unable to ascertain the cause of claimants symptoms. However, those doctors did not testify. They were not cross-examined. It is unknown whether they had all of the information that Drs. Nelson and Headapohl considered. The hearing officer was justified in giving little weight to their inability to determine the cause of claimants condition.
¶29 Finally, the appellants contend that the hearing officer should have chosen the opinions of Dr. Sparks over those of Drs. Nelson and Headapohl. Review of the testimony and records of Dr. Sparks, however, fully supports the hearing officers decision rejecting her opinions in favor of those of Drs. Nelson and Headapohl. Dr. Sparks opinions rest in large part upon the hospitals contention that claimant was exposed to Dursban on a single day. As discussed previously, the record as a whole supports the hearing officers contrary finding. In addition, the hearing officer found Dr. Sparks willingness to lay an undefined problem at the feet of psychiatry lessens her credibility. (final agency decision at 5.) Dr. Sparks written report contains the following:
(Ex. 3 at 110.) Psychological and psychosocial documentation supporting Dr. Sparks speculation was not provided.
ORDER ON APPEAL
¶30 1. The January 28, 1999 final agency decision of the Department of Labor and Industry is affirmed.
¶31 2. Petitioner is entitled to attorney fees and costs pursuant to section 39-72-613, MCA. The parties shall follow the procedures set forth in ARM 24.5.342 and 24.5.343.
¶32 3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶33 4. Any party to this dispute may have 20 days in which to request an amendment or reconsideration from this order on appeal.
DATED in Helena, Montana, this 10th day of December, 1999.
c: Mr. Peter J. Stokstad
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