CLAIM NO. E510708

STEVE TIBBETT, EMPLOYEE, CLAIMANT v. AGRICULTURAL PRODUCTIVITY CO., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 11, 1998

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by L. DAVID STUBBS, Attorney at Law, Dumas, Arkansas.

Respondent represented by R. KENNY McCULLOCH, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed February 13, 1997, finding that claimant sustained a compensable injury arising out of and in the course of his employment in February or March of 1995, as a result of paint inhalation. Based upon our de novo review of the entire record, we find the claimant has failed to meet his burden of proof. Therefore, we find that the decision of the administrative law judge should be reversed.

[3] The claimant contends that he sustained a gradual onset injury in February and March of 1995, when he was required to participate in the painting of the parts room at his place of employment. Specifically, claimant contends that the pneumonia he developed in the spring of 1995 is directly related to his inhalation of paint fumes. Conversely, the respondent contends that claimant’s pneumonia is not related to his employment. After reviewing the record impartially, without giving the benefit of the doubt to either party, we agree with respondent.

[4] Claimant contends that his physical problems are caused by the inhalation of paint fumes. This Commission has held on numerous occasions that conditions caused by the inhalation of fumes are occupational diseases and subject to the provisions of Ark. Code Ann. § 11-9-601(Repl. 1996). See, Sam S. Lind Jr. vs.Georgia Pacific, Full Commission Opinion filed March 13, 1996, (E309954); Douglas Robins v. Jean Johnson Shell, Full Commission opinion filed January 27, 1994 (E105961); Gwendylen Milrow v.Department of Human Services, Full Commission opinion filed January 10, 1994 (D800492); Colleen Taylor v. Department of HumanServices, Full Commission Opinion filed July 21, 1992 (E003541);Glenda Harris v. Central Arkansas Maintenance Full Commission Opinion April 19, 1993 (E105366); Ellen Juanita Hunt v. SearsRoebuck and Co., Full Commission Opinion filed January 20, 1993 (D813862). Consequently, claimant has the burden of establishing a causal connection between his physical problems and his employment by clear and convincing evidence. Ark. Code Ann. §11-9-601(E)(1) (Repl. 1996). Clear and convincing evidence is evidence that is so clear, direct, and convincing as to enable a fact finder to come to a clear conviction, without hesitation, of the truth of the facts related. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983).

[5] The record reveals that in August of 1994, claimant was treated for upper respiratory type problems by his treating physician. Claimant described his symptoms at that time as involving a sinus infection, chest tightness, headache, and dizziness. Claimant testified that in the spring of 1995, approximately one week prior to beginning the painting for respondent, claimant missed a day of work due to sickness associated with flu-like symptoms. However, the time sheets introduced by respondent reflect that claimant actually missed two days of work for this flu-like condition. It is claimant’s testimony that after having missed work with flu like symptoms on or about February 12th and 13th of 1994, he returned to work and was required to participate in painting the parts room and auger racks. Claimant believes that this painting caused claimant to develop pneumonia which has resulted in complications and persistent pain in his chest. Claimant testified that when he and his co-workers were painting the parts room, they were required to shut all doors to prevent the smell from traveling into other areas of the building. It is also claimant’s testimony that all outside doors were shut to prevent any dust from coming into the parts room. However, claimant’s testimony regarding the lack of ventilation is inconsistent with the testimony of claimant’s co-workers, Frank Monroe, Gene Hickerson, and Gary Wayne McCarty. These three individuals each testified that the doors were open to allow ventilation although the interior door was shut at times to prevent the odor from traveling to other parts of the building. Their testimony is consistent, with regard to the exterior doors and ventilation. The painting was not performed in an enclosed atmosphere without any type of ventilation. Claimant’s testimony regarding the lack of ventilation stands alone. Moreover, claimant’s testimony regarding the lack of ventilation was not provided until after claimant had read the warning labels on the paint cans indicating that the health hazards mentioned on the paint cans were only likely to occur in areas without proper ventilation.

[6] Claimant’s testimony also indicates that the painting took place hours on end with constant spray painting resulting in overspray on claimant’s eyes, nose and mouth. This testimony is not corroborated by claimant’s co-employees. In fact, Frank Monroe who helped perform the spray painting testified that it did not take very long at all to spray the two auger racks and that he and claimant alternated and tried to equal the time each man put in on painting the two auger racks. The testimony of Mr. Monroe reveals that one auger rack could receive its two coats of paint in just one day, bearing in mind that the painting was not an all day long process, with approximately only 20 hours of painting required over a two week period to accomplish the entire project of painting the parts room and the two auger racks. At no time did the employees devote a full 8 hour day to the painting project. The evidence further reveals that when the auger racks were painted they were painted outside of the parts room in a fully ventilated area, contrary to the claimant’s initial testimony that all painting was performed in an enclosed area. The evidence further reveals that the majority of the painting involved using a roller to paint the floor of the parts room and to paint approximately 8 feet high on the wall of the parts room. The majority of the painting did not involve using the sprayer.

[7] On March 2, 1995, after having been involved in the painting project for less than two weeks, and after having had flu-like symptoms in the middle of February, claimant sought medical attention from his family physician complaining of his chest hurting, a fever of 99 degrees, head hurting, with no cough. Claimant’s treating physician noted that claimant’s symptoms and condition were similar to what claimant had experienced just six months previously in August of 1994. Claimant was diagnosed with pneumonia and antibiotics were administered. When claimant’s condition failed to resolve, and after claimant’s fever spiked to 104 degrees, claimant testified that his treating physician admitted claimant to the hospital for more aggressive treatment. Claimant’s condition eventually resolved. A referral was made by claimant’s family physician for claimant to see Dr. Tina Murphy, a cardiologist. Claimant saw Dr. Murphy on March 8, 1995, with complaints of recurrent chest pain over the past six months. Dr. Murphy diagnosed claimant with pneumonia and referred claimant to Dr. Arthur Squire, a pulmonologist. In his April 18, 1995, report Dr. Squire noted that the claimant’s examination was unremarkable and that there was nothing physically wrong with the claimant. Dr. Squire also noted in his report that claimant’s exposure to paint in February and early March of 1995, was not the cause of claimant’s trouble.

[8] Although claimant testified that he was hospitalized by his family physician with pneumonia for a four day period only two days after initially being diagnosed with pneumonia, medical records confirming a hospitalization for pneumonia were not introduced into evidence. In fact, the record indicates that after being diagnosed with pneumonia on March 2nd by his treating physician the claimant returned to his treating physician’s office on March 6th with an increase in temperature and pain in his chest but there is no indication that claimant was admitted to the hospital for his condition. Moreover, between March 6, 1995, and May 15, 1995, there is no indication that claimant was plagued by pneumonia. By all indications the pneumonia resolved shortly after March 6, 1995. In fact, when claimant was seen by Dr. Arthur Squire on April 4, 1995, Dr. Squire’s examination revealed an essentially normally healthy male without any signs of pneumonia or noticeable respiratory problems.

[9] The medical records further revealed that contrary to claimant’s testimony it was not until early May of 1995, that claimant first began experiencing nausea. This nausea dissipated after claimant was diagnosed with gall stones and his gall bladder was removed on or about May 11, 1995. Approximately four days after the removal of claimant’s gall bladder, claimant’s general surgeon, Dr. Clayborn diagnosed claimant with left pleural effusion dated back one week. It was a result of this development of pneumonia in May of 1995, that claimant underwent a pleural biopsy to more accurately diagnose and treat claimant’s condition.

[10] The only medical record introduced which forms a basis for a causal connection between claimant’s exposure to paint fumes and claimant’s pneumonia are the medical opinions of Dr. Clay Wellborne. Dr. Wellborne is a general surgeon, not a pulmonologist. The pulmonologists who examined the claimant, namely, Dr. Arthur Squire, Dr. Gale McCracken, and Dr. Nancy Rector do not offer an opinion stated within a reasonable degree of medical certainty as required by the Act linking claimant’s pneumonia to his exposure to paint fumes by clear and convincing evidence. In fact, Dr. McCracken stated that claimant suffered from chemical bronchitis from the paint in 1995 but “his pneumonia and pleural effusion in May of 1995, was suspicion due to histoplasmosis.” Likewise, Dr. Rector in her July 29, 1996, report stated that beyond the fact that the two events of claimant’s exposure to paint and his pneumonia are chronologically related:

I do not know if there is anyway to definitely know that the paint exposure was the cause of the subsequent pneumonia and effusion. If he truly had histoplasmosis, this is also a possible cause of the pneumonia and effusion.

[11] Clearly, these opinions are not opinions stated within a reasonable degree of medical certainty addressing compensability by clear and convincing evidence. A review of the records from the pulmonologists clearly indicate that the etiology of claimant’s pneumonia and pleural effusion is uncertain. An etiology of uncertain origin cannot rise to the level of clear and convincing evidence that claimant’s exposure to paint caused claimant’s pneumonia and pleural effusion. Accordingly, we cannot find that claimant has proven by clear and convincing evidence that his pneumonia is related to claimant’s work.

[12] In as much as the Administrative Law Judge and the claimant assert that Act 796 of 1993 changed the prior law and that claimant’s condition should now be governed by the provisions of the new § 114, we note that § 114 applies only to heart and lung injuries or illnesses for which an accident is the major cause. The Arkansas Court of Appeals in The City of Blytheville vMcCormick, 56 Ark. App. 149, ___, ___ S.W.2d ___ (1997) stated:

“Ark. Code Ann. § 11-9-114 (a) (Repl. 1996) provides that a heart or lung injury or illness can constitute a compensable injury only if the major cause of the physical harm is an accident.”

[13] The Court applied the rules of statutory construction to find that the term accident in section 114 should be defined as an event caused by a specific incident and identifiable by time and place of occurrence as previously outlined in Act 796. Obviously, claimant’s exposure to paint fumes over a two or three week period is not and cannot be a specific incident. Consequently, we are not persuaded to find that section 114 is applicable to the facts in this case.

[14] Accordingly, for those reasons stated herein, we find that the claimant failed to prove by clear and convincing evidence that he sustained an occupational disease during the course and scope of his employment with the respondent. Therefore, we find that the decision of the Administrative Law Judge should be, and hereby is reversed.

[15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[16] Commissioner Humphrey dissents.

[17] DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion in this case. In an opinion filed February 13, 1997, the Administrative Law Judge held that the claimant had sustained a compensable injury, that he was entitled to certain temporary total disability benefits, and that the respondent was liable for all reasonable hospital and medical expenses arising out of the compensable injury. I would affirm the Administrative Law Judge’s decision, even if the majority is correct that this was an occupational disease requiring clear and convincing evidence.

[19] The claimant contended at the hearing below that he sustained an injury during the course and scope of his employment with the respondent. He specifically contended that his respiratory problems, subsequent testing and treatment were causally related to his exposure to paint while working for the respondent. The respondent initially accepted the claim as compensable, but later controverted the claim. The respondent contends on appeal, as they did below, that the claimant’s problems were a result of some type of pre-existing condition related to his lungs, specifically pneumonia, and not a result of his work.

[20] Testimony indicated that the claimant and several of his co-workers were asked to paint the parts room for the respondent in February and March of 1995, although painting was not part of their normal work duties. Testimony indicated that a portion of the painting was to be done inside the parts room itself, while another portion of the painting was to be performed outside the building. The outside portion of the job was the painting of four auger racks by using a sprayer system. Both the claimant and Frank Monroe testified that when they were using the sprayer system outside, they were covered in a mist or “fog” of paint. Both testified that they had paint on their clothes, face, hair, and even inhaled some paint. The evidence indicates that the claimant and his co-workers were not provided, or informed to wear, any type of respirator or facial protection while painting.

[21] Testimony indicated that the parts room in question was essentially closed off from ventilation to prevent the paint fumes from bothering the customers and other employees. Although the sprayer system was not used inside the building, testimony indicated that the paint fumes and odor were extremely strong inside the room in which the claimant was required to paint. While the majority opinion questions the claimant’s testimony of whether or not the room was properly ventilated, such testimony becomes moot when you consider the doctors reports that paint exposure caused his problems. While the amount of time painting and the amount of exposure are factors to consider, the medical evidence clearly shows that painting caused his problems, regardless of whether certain doors were left open or closed. The claimant testified that he was not informed of the warnings contained on the paint can concerning the need for ventilation, and that he was not informed of the possible side effects that breathing the paint could cause. Although the respondent contends that the claimant should have known of the risks because he sold paint in the parts area, the evidence indicates that the paint used in this case was not the same kind of paint sold by the claimant for the respondent. Moreover, respondent’s contention is actually irrelevant considering the no fault doctrine applicable to workers’ compensation claims.

[22] The medical evidence in this case clearly and convincingly shows that the claimant’s continued problems are directly and causally related to the painting incident. In his report of November 12, 1996, Dr. Wellborn, the claimant’s primary treating surgeon, presents a complete, detailed, and thorough narrative of the claimant’s medical problems and the treatment he received over an extended period of time. The claimant had never experienced this type of problem prior to his exposure at work. Dr. Wellborn provided his assessment of the claimant’s past treatment, and gave his opinion concerning a causal connection between the claimant’s need for treatment and his employment. The pertinent parts of his report state:

Dr. McCracken states in her discharge that he had a recurrent episodes of bronchitis following paint exposure, and that this had led to a pneumonitis or pneumonia, which we were trying to treat with antibiotics. . . .[O]nce he got home he continued to have fever, more pain, shortness of breath, and on 6/1/95 he was re-admitted to St. Vincent’s Infirmary after he re-accumulated a pleural effusion post thoracentesis. X-ray showed no change and perhaps slight progression of the infiltrate in his left lung. At that point we felt that it was necessary to obtain a pleural and lung biopsy to attempt to get to the root of the problem, and on 6/1/9[5] he was taken to the operating room where he underwent a retrosection of the involved portion of the left lower lobe and a tube thoracostomy. Biopsy specimens revealed interstitual [sic] fibrosis (scarring), as well as caseating granulomatous inflammation, which can be due to many causes such as sarcoidosis, Wegener’s granulomatosis, and rheumatoid lung disease. The pathologist best guess was that this was most likely represented an infectious granulomatous disease, a form of chronic inflammation seen in response to various different kinds of insults including exposure to environmental agents such as paint.

* * * *

Realistically, the best result we could hope would be to diminish the chest wall pain by sectioning the intercostal nerve and excising the scar. I think that there is a good chance this would take care of the superficial type pain, but I think that you could almost bet that some degree of pleurisy will be encountered for probably the rest of the patient’s life due to the fact that there is some scar tissue both associated with the effusion that he had and the surgery that he had to drain the effusion and biopsy of the lung. The bottom line is that the underlying process that caused the pneumonitis led to the operation which led to the painful scar and pleuritic pain. I guess in the words of an attorney, the proximate cause of the patient’s condition today is the fact that he developed a pneumonia in his left lower lobe, which required aggressive diagnostic and therapeutic measures to treat. In the course of the diagnosis and treatment, a recognized complication of intercostal neuralgia occurred which has been refractory to the usual management.
In reviewing Dr. Rector’s letter, I would agree with Dr. Rector that the pain that he is having is a result of the thoracoscopic procedure, and that it is possible that it will improve slowly or it may remain at this level permanently. I would also agree that the impairment that he has at present is based on chest wall tenderness from the diagnostic procedure he had, but this may either resolve or require further treatment. The bottom line is the diagnostic procedure would not have been necessary had it not been for the recurrent episodes of pneumonitis. The way I put this together is that Mr. Tibbett was basically a pretty well man until his exposure to the paint fumes in February/March of 1995 and following that he had a chemical irritation of the tracheobronchial tree, and I happen to agree with Dr. McCracken rather than Dr. Rector that this set up a chronic inflammation in the lung that later on became infected either with bacteria or histoplasmosis. . . .

* * * *

As far as an opinion as to what caused his problem, from the way I look at it and my knowledge of pulmonary medicine and surgery, I think we have a clear cut evidence of someone who had normal lung function up until the paint exposure and following that time has numerous documented episodes of respiratory infections, both bronchitic and pneumonic. Therefore, I think there is a cause and effect relationship or there is a reasonable probability that there is a cause and effect relationship. I would be willing to say so in court. I think Dr. McCracken also alludes this, and Dr. Rector certainly does not rule it out in her note. I doubt that she would be able to go as far as to say that in all medical probability that paint exposure was unlikely to have had any role in this patient’s illness. My point is that without the toxic exposure resulting in the inflammation which led to the infection, none of the invasive diagnostic maneuvers would have been necessary, and the patient would not have been having chest wall pain today had he not suffered from the exposure to environmental problems. . . .Resection of the scar, and sectioning of the nerve is a therapeutic option in this patient, but it definitely would not have been necessary had he not had the original exposure to the paint, which led to the pneumonitis requiring the invasive procedure. This is a long and frustrating case to review, even for someone who is medically oriented; however, there is a certain logic to it that he was well until he was exposed to the paint, and since then he has had lung problems requiring diagnostic and therapeutic measures as a result of which he continues to suffer pain. No procedure or treatment would have been necessary were it not for the factor of exposure to the paint in a non ventilated area. [Emphasis supplied.]

[23] Dr. Gail McCracken was requested by the respondent’s attorney to answer certain questions in regard to the causal connection between the claimant’s exposure to paint fumes and his subsequent problems. In hand-written notes on an October 10, 1996, letter, Dr. McCracken states: “It is my opinion that he suffered a chemical bronchitis from the paint in March 1995.” The only medical opinion that failed to specifically conclude that there was a causal connection, also failed to rule it out. Dr. Nancy F. Rector stated in her report of July 29, 1996:

In regard to the relationship of his exposure to paint and the series of events that occurred in March, 1995, it is well known that exposure to paint fumes, particularly in an inclosed environment, can cause chemical irritation of the tracheobronchial tree. His illness followed after this exposure. Beyond the fact that the two are chronologically related, I do not know if there is any way to definitely know that the paint exposure was the cause of the subsequent pneumonia and effusion.

[24] As Dr. Wellborn accurately pointed out concerning Dr. Rector’s opinion regarding a causal connection: “Dr. Rector certainly does not rule it out in her note. I doubt that she would be able to go as far as to say that in all medical probability that the paint exposure was unlikely to have had any role in this patient’s illness.”

[25] Dr. Wellborn added, “This is a long frustrating case to review, even for someone who is medically oriented; however, there is a certain logic to it that he was well until he was exposed to the paint. . . .” I find that the medical opinion of Dr. Wellborn is entitled to more weight than the other opinions in this case. Dr. Wellborn was the claimant’s primary treating physician and followed the claimant throughout his treatment. Dr. Wellborn reviewed all of the medical evidence in his report of November 12, 1996, and came to the only logical conclusion: the claimant’s problems are a direct result of the painting performed while employed by the respondent. Although the paint label in this case reflected that all of the work in question should be performed with proper ventilation and protection, the respondent did not provide the claimant, or his co-workers, a respirator, mask, goggles, or any other type of protective gear during the painting. Furthermore, the record reveals that the claimant and Mr. Monroe were the two employees who utilized the sprayer system in question, and both developed health problems immediately after doing the painting; the claimant getting sick on March 2, and Mr. Monroe on March 3, 1995.

[26] Therefore, I find that the claimant met his burden of proof in this case, even if the claimant’s condition is properly termed an occupational disease requiring clear and convincing proof. Accordingly, I would affirm the Administrative Law Judge’s decision in all respects.

[27] PAT WEST HUMPHREY, Commissioner