FOR PUBLICATION
ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEE:
MARCIA J. COSSELL BRUCE J. ALVARADO
Lee, Burns & Cossell, LLP Orfanos & Alvarado, LLC
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ELLA OUTLAW, )
)
Appellant-Plaintiff, )
)
vs. ) No. 93A02-0006-EX-358
)
ERBRICH PRODUCTS COMPANY, INC., )
)
Appellee-Defendant. )
APPEAL FROM THE WORKER'S COMPENSATION BOARD OF INDIANA
The Honorable John A. Rader, Hearing Judge
Application No. C118445
January 19, 2001
OPINION FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Ella Outlaw filed an application for adjustment of claim with the Workers Compensation
Board of Indiana (the Board) against her employer, Erbrich Products Company, Inc. (Erbrich).
A Single Hearing Judge denied her claim, and Outlaw petitioned the full
Board, which affirmed the Single Hearing Judges decision. On appeal, Outlaw presents
two issues which we restate as whether the Boards findings are supported by
the evidence and whether the findings are stated with sufficient specificity.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
Outlaw began full-time employment with Erbrich in 1981.
See footnote Her job entailed working
on different assembly lines to prepare products such as toilet bowl cleaner, bleach,
ammonia, vinegar, fabric softener, lime remover, and mustard. Outlaw was exposed to
frequent chemical spills at the plant, including a major chemical spill that forced
an evacuation of the plant and the surrounding neighborhood.
Outlaw began having severe respiratory problems in 1991 and sought medical treatment at
Wishard Hospital. On January 8, 1992, Dr. Todd Ryan prepared a letter
indicating that Outlaw was suffering from respiratory problems due to her exposure to
chemicals . . . on her job[,] and Outlaw submitted that letter to
Erbrichs plant manager. Record at 236. Dr. Ryan encouraged Outlaw to
quit her job, but she advised him that she could not stop working
at Erbrich because it was her sole source of income. Nevertheless, she
eventually quit sometime during 1992.
In January 1993, Outlaw was referred to Dr. Joe G. N. Garcia, Director
of the Indiana Occupational Lung Disease Center at Indiana University Medical Center, who
diagnosed her with occupational asthma, or bronchiolitis.See footnote Dr. Garcia learned that Outlaw
had been exposed to a myriad of chemicals at Erbrich, including ammonia, hydrochloric
acid, sodium hypochlorite, acetic acid, and formaldehyde, and he concluded that her exposure
to such chemical agents at work was the primary cause of her lung
disease. Dr. Garcia advised Outlaw against returning to work at Erbrich.
Outlaw filed her application for adjustment of claim with the Board, and the
parties entered a stipulation of facts, issues and evidence. A hearing was
held before a Single Hearing Judge, who adopted the parties stipulation as the
Boards findings and entered the following additional findings:
1. It is further found that based on the deposition of Dr. Garcia, Dr.
Garcia was provided with an erroneous history by the plaintiff as the doctor
indicates that the plaintiff was continuously exposed to chemicals involving ammonia, hydrochloric acid,
sodium hypochlorite, acetic acid, formaldehyde, and fabric softener.
2. It is further found that such history is not true and that so
called batches of toilet bowl cleaner did not include all of such chemicals
and, in fact, if they did the mere combining of such chemicals would
cause immediate adverse chemical reaction.
3. It is further found, therefore, that Dr. Garcias conclusions are of less probative
value based on the erroneous history provided to him.
4. It is further found that the toilet bowl cleaner in question contained a
less than 10% concentration of hydrochloric acid and that the other ingredients were
basically detergents and perfume.
5. It is further found that at concentrations lower than 20% the vapor pressure
of hydrochloric acid is so low that virtually none of the acid would
exist in vapor form.
6. It is further found that the doctors describe plaintiffs disease in terms of
her lower respiratory tract and that if hydrochloric acid were a causative agent
one would expect that there would be demonstrable damage to plaintiffs upper respiratory
tract, which the undersigned finds that there is no such damage evident.
7. It is further found that the plaintiff is a long-time cigarette smoker and
that she has given different statements regarding the cessation of her smoking, the
credibility of which must be questioned.
8. It is further found that based upon the evidence herein, the plaintiff has
failed to demonstrate that she suffered from respiratory problems arising out of and
in the course of her employment with the defendant herein.
Record at 7-8. Outlaw timely filed her application for a review by
the full Board, which was granted. On May 15, 2000, the Board
affirmed the Single Hearing Judges decision that Outlaw should take nothing by her
application for adjustment of claim. Outlaw appeals the Boards decision.See footnote
DISCUSSION AND DECISION
It is the duty of the Board, as trier of fact, to make
findings that reveal its analysis of the evidence and are specific enough to
permit intelligent review of the Boards decision. Neidige v. Cracker Barrel, 719
N.E.2d 441, 443 (Ind. Ct. App. 1999). On appeal, we employ a
two-tiered standard of review. Id. We will review the evidence in
the record to see if there is any competent evidence of probative value
to support the Boards findings and then examine the findings to see if
they are sufficient to support the decision. Id. We will not
reweigh the evidence or assess the credibility of witnesses. Id. We
will consider only the evidence most favorable to the award, including any and
all reasonable inferences deductible from the proven facts. Id.
Outlaw contends that the Board erred when it determined that her illness did
not arise out of her employment with Erbrich. To recover under the
Workers Compensation Act, a claimant must establish that an injury or death occurred
by accident arising out of and in the course of employment. See
Ind. Code § 22-3-2-2. An injury arises out of employment when a
causal nexus exists between the injury sustained and the duties or services performed
by the injured employee. Indiana Michigan Power Co. v. Roush, 706 N.E.2d
1110, 1113 (Ind. Ct. App. 1999). An accident occurs in the course
of employment when it takes place within the period of employment, at a
place where the employee may reasonably be, and while the employee is fulfilling
the duties of employment or while engaged in doing something incidental thereto.
Tanglewood Trace v. Long, 715 N.E.2d 410, 413 (Ind. Ct. App. 1999).
Outlaws treating physician, Dr. Garcia, testified that Outlaws occupational asthma was caused by
her exposure to chemicals while employed at the Erbrich plant. Dr. William
Waddell, however, a toxicologist who testified on Erbrichs behalf, stated that Outlaws cigarette
smoking was the sole cause of her asthma. As factfinder, the Board
was free to accept or reject either experts opinion testimony. See Hill
v. Worldmark Corp./Mid America Extrusions Corp., 651 N.E.2d 785, 787 (Ind. 1995) (citation
omitted). Thus, the Board was entitled to give more weight to Dr.
Waddells testimony in ruling on Outlaws application for adjustment of claim. Some
of the Boards findings, however, are not supported by the evidence and, therefore,
do not support its conclusion that Dr. Garcias testimony was less probative than
Dr. Waddells. Moreover, the Board made no findings with regard to the
expert testimony of Dr. D. Duane Houser, who also testified that Outlaws occupational
asthma was caused by her chemical exposure at Erbrich.
The Board found that Outlaw gave Dr. Garcia an erroneous history in that
he believed she was continuously[
See footnote ] exposed to chemicals involving ammonia, hydrochloric acid, sodium
hypochlorite, acetic acid, formaldehyde, and fabric softener. Record at 7. The
record does not support the Boards finding that this was an erroneous history
of Outlaws exposure at work. To the contrary, the undisputed evidence indicates
that Erbrich manufactured several different products including bleach, ammonia, toilet bowl cleaner, vinegar,
fabric softener, lime remover, and mustard, and that Outlaw work[ed] on all the
lines over the course of more than a decade as a full-time Erbrich
employee. Record at 368. We conclude that the record does not
support the Boards determination that Dr. Garcia was provided with an erroneous history
concerning the extent of Outlaws exposure to the listed chemicals.
While the record supports the Boards finding number 2, in that the components
of the toilet bowl cleaner could not have included ammonia, hydrochloric acid, sodium
hypochlorite, acetic acid, formaldehyde, and fabric softener, this finding does not support the
Boards denial of Outlaws application for adjustment of claim. This finding has
no impact on the probative value of Dr. Garcias opinion that Outlaws exposure
to various harmful agents at work was the primary cause of her occupational
asthma. Record at 132. Dr. Garcia testified that Outlaw was exposed
to the toilet bowl cleaner, as well as other components in the [Erbrich]
plant. Record at 130. The evidence is undisputed that, as an
Erbrich employee, Outlaw was exposed to various chemicals in the manufacture of products
other than the toilet bowl cleaner. It is, therefore, insignificant that those
chemicals were not combined in any given product. For these reasons, we
conclude the Boards determination that Dr. Garcias testimony was entitled to less probative
value is not supported by the record.
Outlaw also contends that the Boards findings are not sufficiently specific to support
its decision. Specific findings of basic fact must reveal the Boards determination
of the various relevant sub-issues and factual disputes which, in their sum, are
dispositive of the particular claim or ultimate factual question before the Board.
Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981). The
findings must be specific enough to provide the reader with an understanding of
the Boards reasons, based on the evidence, for its finding of ultimate fact.
Id. The more complex or technical the sub-issues or factual disputes
are in any claim, the greater the particularity which is needed to satisfy
the various purposes of the requirement. Id. Here, the factual dispute
involves complex medical sub-issues which require that the Board issue particularly detailed findings.
We agree with Outlaw that the Boards findings are not sufficiently specific
to support the denial of her application for adjustment of claim.
For instance, the Boards findings numbered 4, 5 and 6 relate solely to
Outlaws exposure to the toilet bowl cleaner, which was primarily composed of hydrochloric
acid, but the Board made no findings with respect to her exposure to
the myriad of chemicals used to manufacture other products at Erbrich. The
evidence is undisputed that Outlaw was exposed to ammonia, sodium hypochlorite, acetic acid,
and formaldehyde when she worked on the various product lines. Thus, the
extent of her exposure to the toilet bowl cleaner is not dispositive of
whether her occupational asthma arose out of her employment with Erbrich. Accordingly,
on remand, the Board should review the evidence relevant to Outlaws exposure to
chemicals other than those used to make the toilet bowl cleaner and make
specific findings thereon.
While the Boards finding number 7 is supported by the evidence, it does
not support the Boards ultimate denial of Outlaws claim. The evidence is
undisputed that Outlaw smoked cigarettes for several years, but the Board made no
finding as to the significance of her smoking history. While Erbrichs expert
witness, Dr. Waddell, testified that smoking was the sole cause of Outlaws asthma,
he also admitted that Outlaws respiratory problems might have been caused by an
allergy or specific sensitivity to one of the components of the toilet bowl
cleaner.
See footnote Record at 65-66. And while Dr. Garcia acknowledged that Outlaw
had smoked for approximately twenty years, he testified that her smoking was
not
the cause of her occupational asthma. Record at 132.
Erbrich admits that Outlaws smoking history would not preclude compensation for an occupational
injury caused by inhalation of chemicals at the plant. Erbrich insists, however,
that the Board properly concluded that Dr. Garcias testimony was not credible since
it was based in part on Outlaws inconsistent statements regarding her smoking history.
In fact, in stating his opinion that Outlaws lung disease was the
result of chemical inhalation and not the result of cigarette smoking, Dr. Garcia
testified that her cigarette smoking exposure . . . is difficult to quantify[.]
Record at 132. In other words, Dr. Garcia was able to
diagnose Outlaws occupational asthma and form an opinion on causation notwithstanding her smoking
history. Moreover, Dr. Garcia stated that her presentation was consistent with someone
who had suffered a chemical inhalation injury rather than someone with a smoking-related
illness. Record at 132. Dr. Houser agreed, and he testified that
even if Outlaw smoked two packs of cigarettes a day for twenty years,
he would not expect to see such a high level of reactivity in
her airways. Record at 314.
We remind the Board that if it determines that Outlaws smoking contributed to
her lung disease or made her more susceptible to injury as a result
of exposure to the chemicals at Erbrich, such a finding would not, in
itself, require that Outlaws application for adjustment of claim be denied. When
a claimants physical condition combines with an accident at work to produce a
single injury, the Board may find that the injury arose out of that
claimants employment within the meaning of the Workers Compensation Act. Four Star
Fabricators, Inc. v. Barrett, 638 N.E.2d 792, 796 (Ind. Ct. App. 1994).
Moreover, as this court held in Bethlehem Steel Corp. v. Cummings, 160 Ind.
App. 160, 162, 310 N.E.2d 565, 567 (1974), where a claimant merely has
a physical condition which renders him more susceptible to being injured, he is
entitled to recover for the full extent of the injury received.
For all of the above stated reasons, we reverse the Boards denial of
Outlaws application for adjustment of claim and remand for redetermination in accordance with
this opinion.
Reversed and remanded with instructions.
SHARPNACK, C.J., and SULLIVAN, J., concur.
Footnote:
Erbrich states that Outlaw began working full-time at the plant in
1986, citing a report that is not included in the record before us.
We can consider only those matters which are contained in the record
of proceedings submitted to this court.
Dellenbach v. State, 508 N.E.2d 1309,
1316 (Ind. Ct. App. 1987). Erbrich could have moved to supplement the
record with documents it complains Outlaw omitted. See Ind. Appellate Rule 7.2(C).
Footnote:
Occupational asthma generally refers to asthma that results from prolonged exposure
to . . . low levels of [a chemical agent in the workplace,]
and bronchiolitis is characterized as mild dysfunction of the large airways in the
lungs and significant dysfunction of the small airways.
See Record at 124,
150.
Footnote:
We heard oral argument on November 27, 2000.
Footnote:
Continuous is defined as Uninterrupted in time, sequence, substance, or extent.
See The American Heritage Dictionary (3d ed. 1992) 408.
Footnote:
Dr. Waddell admitted that he had no idea what all of
the components of the toilet bowl cleaner were. Record at 65.