Opinion
C.A. No. 910A-12-002-JRJ.
Date Submitted: June 27, 2011.
Date Decided: September 26, 2011.
Upon Appeal from the Industrial Accident Board: AFFIRMED.
Robert P. LoBue, Esq., Wilmington, DE, Attorney for Appellant.
R. Stokes Nolte, Esq., Reilly, Janiczek McDevitt, Wilmington, DE, Attorney for Appellee.
OPINION
INTRODUCTION
Appellant Annette Turner (hereinafter "Claimant"), files this appeal from the Industrial Accident Board's (the "Board") decision denying her Petition to Determine Compensation Due. For the reasons explained below, the Court finds that the Board's decision is supported by substantial evidence and is free from legal error. Accordingly, the Board's decision is AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Claimant worked as a machine operator for Johnson Controls (hereinafter "Employer") from June 2000 through September 9, 2008. The machine Claimant worked with produced lead batteries, which exposed her to lead, acid and oxides. Claimant complained of chest pain and congestion in October of 2000 and her primary care physician, Dr. Andrew Ferguson, diagnosed her with bronchitis. In 2004, Claimant again suffered from chest pain and congestion which required her to be hospitalized. Eventually, Claimant required an Albuterol inhaler in order to work. On September 10, 2008, Claimant was again examined by Dr. Ferguson where she complained of chest congestion, cough, and blood-tinged sputum. Claimant was diagnosed with bronchitis and reactive airway disease. Upon referral, Claimant consulted a pulmonologist, Dr. Maheshwari, who also diagnosed her with reactive airway disease. Claimant did not return to work at Johnson Controls as instructed by her physicians.
See Industrial Accident Board Opinion ("IAB Op.") at 2, November 12, 2010.
Id. at 4.
Id. at 3.
Id.
Id.
Id. at 4.
Id. at 6.
Id. at 7.
Id. at 6.
On September 1, 2009, Claimant filed a Petition to Determine Compensation Due alleging that she developed reactive airway disease and chronic bronchitis as a result of toxic exposure while working for Employer. On August 17, 2010, the Board denied Claimant's petition and found Claimant's condition to be "specific to Claimant's own predisposition or sensitivity." Additionally, the Board found "insufficient evidence to show that Claimant's reactive airway disease and/or chronic bronchitis are a hazard inherent in working in this occupation in general." Claimant appealed the Board's decision with this Court.
Id. at 2.
Id. at 21.
The Board held that Claimant failed to prove that her work conditions or the specific toxins she was exposed to are causally related to the development of either reactive airway disease or chronic bronchitis. Dr. Ferguson testified by deposition on behalf of the Claimant, opined Claimant's occupational exposure may have exacerbated or aggravated her breathing problems. Dr. Ferguson, however, admits that he is not aware of what types of fumes Claimant was exposed to, and could not identify a particular cause of Claimant's symptoms. Toxicologist, Dr. Richard Stripp, testified on behalf of Employer that "certain oxides or agents can cause symptoms in a person with a predisposition for asthmatic-like symptomatology, but so can many other every day factors" such as "cold weather, exercise, pollen, pet dander, or perfume." Dr. Joshua Rubenfeld testified on behalf of Employer that Claimant suffers from respiratory problems, but her symptoms cannot be attributed to her exposure at Johnson Controls. Moreover, no evidence exists that shows any other employees of Johnson Controls suffered similar symptoms of reactive airway disease or chronic bronchitis, which would indicate such a condition is inherent to this type of work. While all experts agree that Claimant suffers pulmonary problems, no expert could testify conclusively that the work environment at Johnson Controls produced them.
Id. at 20.
IAB Op. at 7.
Id. at 8.
Id. at 20.
See Deposition of Joshua M.F. Rubenfeld, M.D. at 16.
IAB Op. at 19.
Id. at 21.
STANDARD OF REVIEW
On appeal, this Court determines whether the Board's decision is supported by substantial evidence and is free from legal error. Substantial evidence is such relevant evidence that a reasonable mind would accept as adequate to support a conclusion. This Court does not act as the trier of fact, nor does it have authority to weigh the evidence, decide issues of credibility, or make factual conclusions. In reviewing the record for substantial evidence, the Court must consider the record in the light most favorable to the party prevailing below. The Court's review of conclusions of law is de novo. Absent an error of law, the Board's decision will not be disturbed where there is substantial evidence to support its conclusions.PARTIES' CONTENTIONS
Claimant argues that a "but for" causation standard should be used in determining whether her injuries were caused from toxic exposure at Johnson Controls. Furthermore, she claims her work duties aggravated a pre-existing medical condition rather than caused an occupational disease. Thus, the Board should have applied the "but for" causation standard found in Reese v. Home Budget Center instead of the occupational disease standard. Employer contends the Board correctly applied the occupational disease standard set forth in Anderson v. General Motors, Corp. Additionally, Employer argues that the "but for" causation standard does not apply to this case because that standard is used to determine whether a psychological condition can be caused from an injury sustained at work, an issue not relevant in this case.DISCUSSION
Claimant argues the Board should have applied the "but for" causation standard found in Reese instead of the occupational disease standard used in Anderson. However, the facts and issues presented before the Court in Reese are vastly different from the case at hand, and therefore, the "but for" causation standard is inapplicable. In Reese, an employee sustained a lower back injury delivering a mattress, which resulted in the receipt of temporary total disability benefits. The employer's compensation carrier agreed to pay for any expense related to the treatment of his back, but refused to pay for any expense attributable to psychiatric treatment for emotional and anxiety problems, which the employee suffered five months later. The Court addressed the issue of compensability for the non-physical or psychological consequences of a physical injury, and concluded that "the `but for' definition of proximate cause in the substantive law of torts finds equal application in fixing the relationship between an acknowledged industrial accident and its aftermath." Because this case does not involve psychological consequences of a physical injury, the "but for" causation standard does not apply.Claimant's injuries are better classified as an occupational disease. Claimant alleges that she contracted or aggravated symptoms of reactive airway disease and chronic bronchitis as a result of workplace exposure. Similar symptoms have previously been recognized as claims for an occupational disease. For example, in Anderson, a claim of allergic rhinitis allegedly related to toxic exposure was treated as a claim for a compensable occupational disease.
See Anderson, 442 A.2d at 1359.
Because this case involves a claim related to an occupational disease, compensability is predicated on a showing that "the employer's working conditions produced the aliment as a natural incident of the employee's occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general." In addition, "there must be a recognizable link between the disease and some distinctive feature of the claimant's job and it cannot be based on aggravation of a condition, which is not occupational in nature." Moreover, the claimant "must establish that the ailment resulted from the peculiar nature of the employment rather than from his own peculiar predisposition." The test cannot be met where disability is caused by aggravation of a condition which is not occupational in nature. Similarly, the Court in Air Mod Corporation v. Newton found that:
Id. at 1361.
Id. at 1360.
Id. at 1361.
Smith v. Service Tire truck Center, Inc., 2000 WL 145817, at *4 (Del. Super.).
An aliment does not become an occupational disease simply because it is contracted on the employer's premises. It must be one which is commonly regarded as natural to, inhering [sic] in, an incident and concomitant of, the work in question. There must be a recognizable link between the disease and some distinctive feature of the claimant's job, common to all jobs of that sort.
Air Mod Corp. v. Newton, 215 A.2d 434, 442 (Del. 1965).
Claimant has not met her burden to prove that there is reasonable link between her health conditions and her work environment at Johnson Controls. At best, Claimant was able to show an aggravation of a pre-existing reactive airway disease as a result of her work environment. While Dr. Ferguson testified that Claimant's reactive airway disease and chronic bronchitis condition was aggravated by her working conditions, he did not testify that her work environment produced her condition.
Also, Claimant was not able to prove that her condition was occupational in nature. Claimant failed to identify a specific link between the level of toxins she was exposed to and her health problems. And, there was no definitive evidence that Claimant actually ingested toxic fumes. Without evidence that such a causal connection exists, Claimant is not entitled to compensation.
CONCLUSION
For the aforementioned reasons, the decision of the Industrial Accident Board is AFFIRMED.IT IS SO ORDEDED.