MANCINI KAMEL, Applicant

PRESTO PRODUCTS COMPANY, Employer

PACIFIC EMPLOYERS INSURANCE COMPANY, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed February 27, 2003
kamelma . wsd : 101 : 3  ND § 5.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant began working for the employer in September 1999, and operated machines that make garbage bags and food bags. He has asthma, which he believes he developed after working for the employer, and which he contends was caused by work. The employer and its insurer (collectively, the respondent) contend that the applicant's occupational exposure did not occur as alleged, and that he has not established disability from an accident or disease arising out of his employment with the employer.

The applicant admits to a prior condition affecting his breathing that was diagnosed as articular ague. Otherwise, he had no symptoms and no restrictions from a respiratory problem, and was athletically active, when he started working for the employer. Less than a year after starting work for the employer, the applicant began experiencing respiratory problems. Asthma was diagnosed, which his treating doctor (Avery) initially associated with plastic resins used in the manufacturing process.

As the ALJ's decision indicates, a fair reading of the treating doctor Avery's notes and reports is that he initially concluded that the resins caused the applicant's asthma based on an OSHA "notice of alleged safety or health hazards." (1)   That notice included an allegation that some employees were developing asthma from the resins while working on plastic bag machines. However, OSHA never took any real action on the allegations. Further, while epoxy resins are associated with asthma, the employer does not use epoxy resins.

The allergist retained by the respondent (Hegmann) did a compilation of the relevant medical literature, which treating doctor Avery admitted was thorough, and which did not show any real connection between plastics resins and asthma. In response, Dr. Avery pointed out that the applicant developed the asthma after starting work for he employer, and that doctors do not yet know all the chemical substances that cause asthma. Dr. Avery thus adhered to his conclusion that exposure to a chemical substance at work caused the applicant's asthma, but acknowledged he could not identify the chemical involved. Exhibit A, page 2. The ALJ concluded that this opinion was too speculative to establish an injury caused by work, and found the opinion of the respondent's medical expert Hegmann credible.

On appeal, the applicant points out that formaldehyde was present, in the employer's plant, and that formaldehyde can cause asthma. However, none of the doctors associate the applicant's asthma with formaldehyde. The applicant, on appeal, contends that should not matter, quoting language from Verba v. Minature Precision Components, WC Claim No. 1996056345 (LIRC, August 31, 1998). In that case, the treating doctor opined the applicant had asthma based on exposure to a chemical that was not actually proven to be present in the environment. The commission nonetheless affirmed the order paying compensation, as the other party's independent medical examiner expressly opined the applicant had asthma caused by some chemical in the employer's premises. In other words, in Verba the treating doctor and independent examiner between them gave something similar to the two different opinions that treating doctor Avery gives here, and the commission awarded compensation.

In awarding compensation in Verba, the commission stated it was unaware of any case that

"requires that an applicant must prove exactly what chemical substance or substances cause the permanent sensitization when the employer's own medical expert agrees that some chemical substance present at the employer's workplace does."

However, in Verba, unlike here, the respondent's allergist in fact opined the applicant had a work-related injury. This is a significant distinction as in finding a compensable injury in Verba, the commission expressly noted:

"This case does not raise the credibility issue posed when the treating doctor bases his opinion of work sensitization on exposure to a chemical that is not actually present, while the IME opines that work exposure did not cause permanent sensitization."

In other words, this case raises the very credibility issue between experts that the commission anticipated in Verba, but which was not actually raised in that case.

In this case, the ALJ properly resolved that credibility issue in favor of the respondent. Dr. Avery was initially willing to find work causation based on the rather slim evidence of an OSHA complaint that some unidentified resin was causing asthma, a complaint that OSHA never acted upon. When that basis was questioned, Dr. Avery simply relied on the temporal connection between the start of the employment and the onset of the condition. In contrast, respondent's expert Hegmann offered persuasive and largely unrebutted evidence the applicant was not exposed to sufficient levels of any chemical to cause asthma. In this case, simply pointing to the presence of some level of formaldehyde in the work place is not sufficient to establish a compensable injury, given the absence of supporting expert opinion.

cc: 
Attorney James G. Budish
Attorney Tony Welhouse

Appealed to Circuit Court.

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(1)( Back ) Dr. Avery's July 13, 2002, report at exhibit A states at page 2: "I was under the impression that there was a chemical in the Presto Product's work place that was know to be a sensitizing agent for the development of asthma based upon a report I received from occupational safety and health safety administration...." The doctor went on to summarize OSHA's notice of alleged safety or heath hazards, and included a copy with his report. 

uploaded 2003/03/14