STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MICHAEL AVINA , Applicant

MANAGEMENT DECISIONS, Employer

TRAVELERS CASUALTY & SURETY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-033556


In September 2004, the applicant filed a hearing application alleging permanent total disability from exposure to secondhand smoke at work from October 1, 1991 through December 13, 1993, causing severe chronic central nervous system failure and other multi-system failure. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 12 and May 25, 2006.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $250. At issue was whether the applicant suffered an injury arising out of his employment with the employer, while performing services growing out of and incidental to the employment, and the nature and extent of disability from the injury. The ALJ reserved jurisdiction on the question of medical expenses.

On October 2, 2006, the ALJ issued his decision in favor of the respondent dismissing the hearing application. The applicant filed a timely petition for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Work exposure

The applicant was born in 1957. He underwent immuno-treatment for allergies and hay fever as a child, but otherwise was in good health with no difficulty breathing before he began working for the employer. The applicant testified, also, that he never smoked, never lived with anyone who smoked, and did not engage in any leisure activities in which he was exposed to tobacco smoke.

The applicant began working for the employer in October 1991. He worked seven-hour shifts, calling residences and businesses on the phone to conduct surveys. He worked in a room he estimated to be 15 by 15 feet with six or seven other workers. In the room in which the applicant worked, however, his coworkers smoked continuously. There was an adjacent room of approximately the same size where workers did not smoke.

According to the applicant there were no exhaust ports in the ceiling. Instead, the employer circulated the air with two circular fans. The applicant also testified he was exposed to fumes from an office photocopier and formaldehyde from carbonless paper. The applicant testified, too, that the smoke was so heavy in the office men's room that it hung in the air and "you could feel it on your skin." April 2006 transcript, page 28.

During his first year of this employment (between October 1991 and October 1992), the applicant testified, his initial symptoms were a plugged nose, followed by a runny nose, and followed by the need to urinate, in a 45-minute cycle. Later in his first year of employment, the applicant began to experience muscle joint problems, pain in his stomach, upper back, and experienced his legs "falling asleep" requiring him to get up and shake them away or walk around. He experienced "paling" and began getting pain in his arms and lower back. The applicant also complained of feeling dizzy, and getting "band headaches," temple headaches, and chest pain. April 2006 transcript, pages 28-29. Asked why he did not complain to the employer about these symptoms, the applicant explained that he thought he was getting a cold from the fans blowing the air around.

During the second year of employment (October 1992-93), the applicant's symptoms continued, and got worse. He had what he described as a very traumatic day on October 11, 1993. At that point, he experienced the sensation that his heart was beating very fast and he had a crushing sensation in his chest like a vice. He testified he could feel the outline of his heart and aorta in his chest, and he thought he was suffering a heart attack. He got up to go outside and his legs felt weak, like concrete blocks, he walked out of the office and noticed a hazy yellow in his vision, leading him to believe he would black out. He took a deep breath, and the yellow haziness disappeared, and then he noticed his "heart pattern had changed to the point of a heart beating [erratically] or a thud thumping barely beating heart beat." He felt like throwing up, but did not. April 2006 transcript, pages 30-31.

Still the applicant did not seek medical attention on that day. April 2006 transcript, page 32. He did, however, make an arrangement to see his family internist, Dr. Gimenez, whom he saw later in October 1993. In December 1995, Dr. Gimenez wrote a note saying:

The [applicant] was seen in my office on 10/26/93 with complaint of on and off chest pain, shortness of breath and gastric upset which he claims was aggravated by cigarette smokers at work.

During my conversation with him on 12/7/95 he told me that on 10/26/93, I advised him to find other employment or get away from the smoke, possibly wear a mask. I can't recall I told him so, but most likely I did.

Exhibit F, "Gimenez" tab, letter dated December 12, 1995.

After seeing Dr. Gimenez, in October 1993, the applicant told his employer he could no longer work in the room with the smokers, and pointed out that a space had opened in the nonsmoking room. His boss allowed the applicant to work in the non-smoking room, but, the applicant testified "[a]t that point the damage was done." He further testified that his symptoms did not improve, but remained continuous.

The applicant eventually quit his job in December 1994, for a job at the postal service. Indeed, when he separated from his employment with the employer, the reason he gave for quitting was that he had found a new job. While employed by the postal service, the applicant worked in the mail sorting room. He was exposed to smoke in that working environment as well. He testified that he still had to leave work every 45 minutes to urinate, and blow his nose and was discharged from the post office job for poor performance on February 26, 1994. He has not worked since. April 2006 transcript, pages 36-37. He now receives social security.

Since leaving the employer's employment, the applicant had undergone extensive testing. On of the applicant's medical experts, Gunnar Heuser, M.D., summarizes his post-employment symptomology and testing as follows:

Over the years [the applicant] was seen by a number of physicians and had rather extensive evaluations. These were conducted in view of his complaints of chronic fatigue, chronic pain, allergies, chemical sensitivity, rhinitis, laryngitis shortness of breath, indigestion, urinary complaints and a sleep disorder.

More detailed summaries of the applicant's treatment are contained in the reports of the medical experts, particularly Drs. Heuser and Levy.

2. Expert medical opinion

The parties submit considerable expert opinion on the cause, nature and extent of the applicant's complaints.

One of the applicant's medical experts, Dr. Heuser, based his opinion on a record review and on this history:

[The applicant] was exposed from 10/1/91 to 12/11/93 in a work area which had an eight-foot ceiling, was very poorly ventilated and had thirteen smokers working in it. [The applicant] was one of the workers, but did not smoke.

Extensive calculations were undertaken by knowledgeable experts as to what exposure occurred during the above time which adds up to 687 days total of exposure.

The density of the cigarette smoke was calculated to be 1400 micrograms per cubic meter (1)  which by Repace Associates. This measurement is apparently very high.

Dr. Heuser concludes:

[The applicant] presents convincing evidence that he worked in an environment in which he was exposed to secondhand smoke. The list of complaints he developed is extensive, but consistent when considering his report to the many doctors he has seen over the years.

Multi-system complaints developed and have continued ever since. These, in my opinion, are related to not only secondary cigarette smoke, but also to off-gassing of office products, especially formaldehyde from the carbonless paper...

It should be noted that second-hand smoke can indeed be toxic (there are many peer-reviewed articles regarding this) and can result in long term impairment. This can be further aggravated when the patient develops chemical intolerance.

The mechanisms found in patients with chemical intolerance have been well studied and described in many peer-reviewed publications. ...

No rational treatment and certainly no cure is available for chemical intolerance. This is why one would expect this patient to continue with significant complaints for many years to come.

In summary, I believe that this patient was exposed to second-hand smoke in significant amounts for a long enough time so as to become symptomatic and chronically ill.

His chronic illness has kept him permanently and totally disabled.

The applicant also offers reports from Pauline Harding, M.D., who examined the applicant in April 2001. See exhibits B and H. She opined that the applicant's "extreme second-hand smoke exposure" caused

CNS dysfunction (auditory abnormalities, nerve abnormalities, motor conduction dysfunction, impairment of attention and alertness, short term memory loss, marked tendency to perseverate, sleep deprivation/REM sleep deprivation), chronic nasal discharge, chronic abdominal pain, chronic chest pain, shortness of breath.

Dr. Harding found the applicant permanently totally disabled, breaking it down by system: cardiovascular (35%), respiratory (25%), neurological (20%), endocrine (15%), digestive (4%), combination of others (1%). She added that the toxic effects of chemical fumes was usually irreversible, and that "[p]atient developed permanent sensitization to cigarette smoke fumes due to his extreme everyday exposure at work."

The applicant also provides a partially completed August 7, 2003 practitioner's report on form WKC-16B from Wayne Konetzki, M.D, who tested the applicant's urine and also did an intestinal permeability analysis as part of what appears to be a dietary analysis in the mid-1990s. There are some abnormal readings, though the relationship between those readings and applicant's complaints and his work exposure to tobacco smoke is not clearly established. Dr. Konetzki's practitioner's report describes the accidental event or work exposure to which the applicant attributed his condition as:

work[ing] for over two yeas with twelve heavy smokers in an office which was inadequately ventilated to handle the smoke load. This caused a condition outlined in Section 5 of this report.

Section 5 of the report is blank, and the attached notes do not appear to give any uniform diagnosis. Dr. Konetzki did opine that the applicant's work exposure caused the unstated condition, but added that he did not know if there would be permanent disability.

The applicant also offers a report from a chiropractor, Hutan Ghojallu, D.C. In his form report dated in June 2003, Dr. Ghojallu diagnosed:

Heart disease and central nervous system disorder causing biomechanical alterations of the spine. Primarily caused by extreme exposure to secondhand tobacco smoke. Other associated symptoms and conditions include fibromyalgia and chronic fatigue syndrome.

CNY and PNS dysfunction with associated hormonal changes resulting in deep sleep disturbances, chronic pain throughout the body, chronic fatigue syndrome, chronic chest pain, symptoms also include numbness and pain in the upper and lower extremities and intermittent headaches. He also has difficulty keeping awake or being alert.

D. Ghojallu opined that the applicant's work exposure caused the conditions, and that the applicant was permanently and totally disabled from spinal pain and pain radiating into the extremities, chronic fatigue syndrome, headache, and multiple chemical sensitivity.

Dr. Ghojallu added a narrative report detailing the upper and lower extremity pain (achiness, soreness, shooting pain, and burning sensations) manifesting itself specifically in his lower back, mid back and neck, the creases of his arms and his groin bilaterally, with numbness and pain in fingers and the ulnar pathway of both arms and hands. Dr. Ghojallu added that the applicant has intermittent migraines, chronic fatigue through the day, and increased frequency of urination.

Dr. Ghojallu also reports:

He reported his symptoms of chest pain and pain down his left arm (along with many other symptoms he was experiencing) at the Community Health Center. October 11, 1993 is the date of his traumatic event at work. An electrocardiogram and echocardiogram were performed there to diagnose this condition. He states he was diagnosed with a mitral valve prolapse left anterior fasicular block, incomplete right bundle branch block, mild dilated aortic root and dilated inferior vena cava. (2)  He started noticing having an oozy, dark, filmy substance on his hands after showering. This symptom continued until 1995 intermittently. He also continued to have chest pressure and pain occasionally for years after stopping work [for the employer.]

Dr. Ghojallu opines:

[The applicant's] condition is a direct result of his exposure to second hand tobacco smoke at his work place ... between 1991-1993. He had developed an auto-immune response to tobacco smoke due to the high level of exposure he was subjected to. This high level of toxic chemical fumes of second hand smoke has subjected his central nervous system to trauma. This in turn has resulted in the onset of fibromyalgia, with associated intestinal dysbiosis and adrenal imbalances which in turn have resulted in musculoskeletal symptoms.

Due to the fact that tobacco smoke affects the bladder, it can be concluded that [the applicant's] bladder dysfunction is a direct result of nervous system disease that has resulted from his over-exposure to second hand tobacco smoke.

Dr. Ghojallu also associated the progression of the applicant's cervical lordosis to his tobacco smoke exposure, adding that

...due to the level of noxious stimuli to his nervous system, his brain-stem has probably responded by over-stimulation of the cranial nerves and various other nerve centers that are present in the brain stem. This in turn has created further biomechanical alterations of the cervical spine and has contributed to musculoskeletal symptoms.

Chiropractor Ghojallu does not directly relate the incomplete right bundle branch block or the other cardiac abnormalities to the occupational smoke exposure, though he did add:

Tobacco smoke can also reduce the absorption of oxygen by the blood and nervous system due to the fact that it reaches the brain within seconds and its direct effects remain in the body for up to 30 minutes. This results in the death and alteration of the cells in the nervous system and all body organs.

Patient has also developed permanent sensitization to cigarette smoke due to his extreme exposure to it every day for more than 2 years. His highly restrictive lifestyle that he has adopted has shown some positive results. The chiropractic care that he has received thus far has improved his condition (except his level of fatigue) by about 35-40%. However, at this time his condition remains permanent.

The respondent's medical experts are Stuart Levy, M.D., and Marc Novom, M.D.

Dr. Levy is a pulmonologist. Regarding environmental tobacco smoke (ETS) exposure generally, Dr. Levy states:

Although an excess in self-reported symptomology is associated with ETS, especially in subjects with asthma (cough, and irritation of the nose, throat, eyes and airways), there is little evidence that lung function is impaired. There is conflicting evidence for an increased risk of asthma. However, the increased risk for lung cancer is no longer in dispute, and there may also be an increased risk for coronary heart disease, stroke and invasive pneumococcal disease. [Emphasis supplied.]

Dr. Levy added that a Medline search failed to reveal any peer reviewed publication linking tobacco smoke with neuropathy or encephalopathy except one he deemed not applicable.

Dr. Levy also discussed multiple chemical sensitivity, which he defined as the association of complaints with exposure to vapors several standard deviations below those known to cause toxic or irritant effects. He stated the manifestations of complaints from the condition as entirely subjective. Dr. Levy added that environmental tobacco smoke was included in the category of chemical odor intolerance, which he distinguished from sensitization to a chemical:

Sensitization refers to the causation of a condition which was not previously present from prolonged exposure to a chemical which had some effect on function capacity or ability to work. Intolerance to an odor is not associated with an injury and has no effect on functional capacity or ability to work. The inability to work because of sensitivity to an odor is a completely personal matter, and not the result of an injury....

The employer's other expert, Marc Novom, M.D., diagnosed a somatoform disorder/hypochondriasis, as well as fibromyalgia/chronic fatigue symptoms as a result of the hypochondriasis, and "obsessive compulsive traits manifest by hypergraphia elaborating ruminative concerns over bodily injury from second hand smoke exposure." Dr. Novom suggests that the applicant has inflated minor abnormalities shown in testing into disease or disability, without any clinical basis for doing so. Like Dr. Levy, Dr. Novom did not believe that secondhand smoke exposure caused central nervous system or peripheral nervous system injury.

3. Discussion.

The applicant also provides many treatises, articles and other documents discussing, among other things, smoking, secondhand smoke, and multiple chemical sensitivity. These articles assert that second hand smoke exposure has negative medical consequences, including an association with respiratory problems, cancer and heart disease. Also, as the applicant points out in its brief, the commission has addressed disability claims based on multiple chemical sensitivity in the past, crediting that diagnosis in some instances and not in others.

The critical issue in this case is not simply whether workers may suffer injury from exposure to second hand smoke. Even the employer's expert, Dr. Levy, acknowledges that studies relate second hand exposure to cancer, respiratory infection, heart disease, stroke, and possibly asthma. However, the record does not support finding that the applicant has suffered an injury from secondhand tobacco smoke in this case.

The applicant does not have cancer. He has not had a stroke, and it is not clear that he has actual heart disease -- at least, his right bundle branch blockage has not been shown to be evidence of underlying heart disease -- much less that it is related to the smoking. The evidence on the respiratory problems is sketchy as well. The applicant does have respiratory complaints -- the stuffed nose which he has to blow every 45 minutes -- but the medical opinions he offers do not persuade the commission that complaint is due to his exposure to tobacco smoke.

Dr. Heuser never examined the applicant personally, which would have enhanced his credibility in ruling out Dr. Novom's diagnosis of hypochondriasis. Further, Dr. Heuser's opinion is based on the 1400 microgram exposure level which seems to be rather speculatively-derived. Dr. Konetzki's report is incomplete. Dr. Harding and chiropractor Ghojallu really do not explain the medical or scientific basis for why they believe that the applicant's host of complaints are related to second hand smoke exposure. The applicant has not persuasively rebutted Drs. Levy and Novom's statement that no relevant, reliable studies connect secondhand smoke exposure to neurological problems, or central or peripheral nervous system complaints. In sum, the commission cannot conclude that the applicant's various neurological, gastric, urinary and pain complaints -- or Dr. Rosen's diagnosis of anxiety -- can be rationally related to the smoke exposure from 1991 to 1993 on the evidence in this case.

The hearing application must therefore be dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

The application is dismissed.

Dated and mailed May 3, 2007
avinmi . wrr : 101 : 9  ND § 3.42 

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


cc:
Attorney Walter W. Stern
Attorney John A. Griner IV



Appealed to Circuit Court.  Affirmed January 15, 2008.  Appealed to the Court of Appeals. Affirmed  November 4, 2008.  Petition for review denied.

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Footnotes:

(1)( Back ) Repace Associates did not do onsite testing. May 2006 transcript, page 28 et seq. Instead, the applicant described the conditions at the job site to personnel at Repace Associates, and they came up with the 1400 microgram number. The hearing record does not contain any report or any document of this number from Repace Associates itself. May 2006 transcript, page 76-78. After the hearing, the applicant's attorney submitted to the ALJ materials from Repace Associates but these do not include the methodology for or calculation of the 1400 microgram figure.

(2)( Back ) Some of this is documented in exhibit F. See September 1, 1994 report of Rosen under "Rosen" tab. Dr. Rosen diagnosed palpations, incomplete right bundle branch block with left anterior fascicular block, and anxiety. Dr. Rosen does not associate the conditions with exposure to cigarette smoke, nor does he complete a practitioner's report.

 


uploaded 2007/05/15