The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 3, 2011.
The issue presented for Mandatory Full Board Review is whether the claim was properly established for an accidental aggravation of nasal polyps, asthma, toxic headaches, and rhinitis.
In a reserved decision filed on September 3, 2010, as amended on September 9, 2010, the Workers' Compensation Law Judge (WCLJ) disallowed the claim for an occupational disease.
Following an application for administrative review by the claimant, the Board Panel majority reversed the WCLJ decision and established the claim as an accidental aggravation of nasal polyps, asthma, toxic headaches, and rhinitis.
The dissenting Board Panel member would affirm the September 9, 2009, amended reserved decision disallowing the claim.
In its application for Mandatory Full Board Review, the carrier, State Insurance Fund (SIF), requests the Board Panel decision be reversed and the claim disallowed, contending that the medical evidence supports a finding that claimant's conditions are not causally related to his workplace environment.
In rebuttal, the claimant contends the Board Panel majority properly established the claim based on the opinion of his treating physician, Dr. Lax.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, an auto-body mechanic, filed a C-3 form with the Board on December 23, 2009, indicating he developed breathing problems and severe headaches as a result of being exposed to paint fumes while at work. The claimant indicated he is treating with Dr. Griffing. SIF filed a C-7 form noting its intent to controvert this matter.
At the initial hearing held on March 2, 2010, the WCLJ found prima facie medical evidence for an occupational disease involving toxic headaches, rhinitis, and asthma pursuant to Dr. Lax's medical reports. The WCLJ continued the case to April 13, 2010, for testimony of the claimant and one employer witness. In addition, the WCLJ noted SIF had scheduled the claimant to be examined by its consultant on March 30, 2010, and directed SIF to produce its consultant's report at the next hearing.
On April 13, 2010, the claimant testified as follows: he worked for his employer for five years. He had worked for a period of time between 2003 and 2006, and steadily from November 2006 until departing in June of 2009. His job duties included repairing damaged vehicles in the body shop. Painting occurs at his workplace. He is a certified painter and is aware of what types of paint are used by the employer. However, he does not know what the ingredients or solvents contained in non-automobile paint. His job did not require him to paint the vehicles. The employer has a paint booth and a prep booth. Painting occurs in both the paint and prep booths although the prep booth was not designed to accommodate painting. Air in the paint booth is properly exhausted, but the air in the prep booth is not. Painting also takes place in other areas of the building, if necessary. The claimant testified initially that he did no painting at work. He did do some auto painting at his home, for which he wore a respirator in a well-ventilated area. When asked if he wore a respirator at work, he said he did only when he primed vehicles. This is inconsistent with his prior testimony that he did no painting in the shop. There was no follow-up or cross-examination on this point. The employer witness testified that claimant did not do any painting at the shop.
Claimant further testified that air was not exhausted from the employer's facility. He advised the employer his headaches and breathing problems developed after being exposed to a lot of paint in an area which was not properly exhausted. At some point in time, he began getting headaches and had difficulty breathing, which problems compelled him to stop working.
He identified six pictures that he took the week before leaving work. The first picture was the employer's prep booth with a pre-painted bumper cover. The second picture was a brochure from the paint or prep booth with paint. The third picture was paint emptied into a garbage can. The only time paint is allowed to be placed into the garbage is after it has hardened. The fourth picture was a work bench in the paint station. He did not do much work in this area. The fifth picture is the electrical panel for the prop station which states it should be kept on recirculate when it is not in use. He did not know what this meant. The sixth picture is a paint booth, which is properly exhausted.
The claimant went to his primary care physician, Dr. Griffing, about one week after leaving his employment. After Dr. Griffing became aware of the claimant's work environment, she recommended he take his normal pills and inhalers. When this course of treatment did not work, Dr. Griffing placed him on Singulair and Advair. Dr. Griffing recommended the claimant treat with Dr. Lax.
Unfortunately, Dr. Griffing's reports were never produced, despite claimant having signed a release.
Prior to working for the employer, he had asthma but stated he had largely outgrown it. He has seasonal allergies. He used medication in the fall months and an inhaler when needed. After beginning to work for his employer, his inhaler use increased and he began taking additional medication after his breathing difficulties became worse. The claimant has an allergy to dogs. The claimant owns a dog, but his only allergic symptoms are his face swelling up. His ownership of the dog does not cause breathing or coughing problems.
Claimant stated he has been on a series of medications for years, and that they have changed since the exposure to paint fumes arose. He had used an inhaler when needed, usually in the fall. He had taken Advair and Singulair, and indicated that Dr. Griffing had increased the intensity of dosage with the Advair. He indicated that when he started working at the shop, he began to use his inhaler frequently, sometimes as many as four times daily.
Later, Dr. Lax indicated that he received a history from claimant of Flovent and Albuterol as a rescue inhaler. Advair related back to an "exposure event" back in 2005 (he had no details on it). He also took Singulair. The Advair was used mostly in the fall, as needed. He had been on Singulair pills for a while. Dr. Lax wasn't sure if the starting date for that was 2004 or not.
He owns some painting equipment, but last used it about three or four years ago. When he did use this equipment, he did routing work such as refurbishing his cabinets. He has performed some auto repair work at home. He has not painted a car at home for about three years.
The employer's son testified as follows: he has worked for the employer for over twenty years. The employer specializes in auto body repair work, including mechanical problems, collision repair, painting, and polishing. Painting is done in the paint booth to keep the material contained. The paint booth is an air controlled environment keeping exposure to toxic and paint fumes at an absolute minimum. The prep booth is a global refinishing preparation area used to prime small items. There is no difference between priming and painting. The amount of priming in the prep booth was described as "a minimal amount." No painting is performed in the body shop because of the toxic fumes. The claimant's work area is about 60 feet from the paint and prep booths. The work area is not ventilated. The claimant performed repairs on his own time outside of work. The claimant also paints lawn ornaments outside of work.
Following the testimony, SIF indicated the claimant became lost trying to get to the consultant's examination and requested another opportunity to present a consultant's report. The WCLJ granted this request and directed SIF produce its consultant's report prior to the next hearing scheduled for May 13, 2010. In addition, the parties had a conversation regarding Dr. Griffing's medical reports. SIF stated it received the claimant's HIPAA release and that it was trying to obtain Dr. Griffing's medical records, but stated that it would be easier for the claimant to produce these records. The WCLJ did not make a direction for either party to produce Dr. Griffing's medical records because it seemed that the production of these records was not necessary at that time.
On May 13, 2010, SIF requested a small continuance to produce its consultant's report because while the claimant was originally scheduled to meet its consultant on May 17, 2010, the appointment had been rescheduled to May 21, 2010. The WCLJ, at the claimant's insistence, denied this request and found SIF waived its opportunity to produce a consultant's report on the issue of causal relationship. Subsequent to this ruling, and pursuant to SIF's request, the WCLJ directed SIF to produce deposition transcripts of Drs. Lax and Griffing by August 13, 2010, and marked the case for a reserved decision. These findings were memorialized in a May 18, 2010, decision.
Dr. Lax provided deposition testimony on August 2, 2010, and testified as follows: he first examined the claimant on November 24, 2009, and received a history that the claimant had been experiencing headaches, shortness of breath, and asthma-type symptoms. The claimant has had headaches for the past several years. His symptoms worsened significantly in the fall of 2008. The claimant advised he had asthma as a child, but he outgrew the symptoms and had not needed to take medication for many years. The claimant has mild hay fever which sometimes occurs in the fall. He was not sure if the claimant sought medical attention or needed prescription medication for the hay fever. At the time of the November 24, 2009, examination, the claimant was taking medication which included Advair, Pro-air, Singulair, and Nasonex. Although the claimant was taking some of this medication, including an Albuterol inhaler, in 2004, he was unsure if the claimant continued regular use of these medications between 2004 and his first examination of November 24, 2009.
The claimant began working for his employer in 2003 to 2006 and then after a short period, returned to this employment in November 2006 and continued to work there through June 2009. The claimant's breathing problems worsened in the fall of 2008. The claimant indicated that his condition has improved since leaving work. The claimant worked a 40 hour week repairing motor vehicles and did some priming work. The claimant's work placed him in areas where painting took place, with some of these areas being where the employer set aside for painting and some areas which were not set up for painting. The claimant advised the painting materials used by the employer were isocyanate type paints which contained urethane. The claimant advised this type of paint is common for auto body finishing. Based upon the claimant's history, it seemed reasonable that he was being exposed to a fair amount of these materials. After conducting an examination of the claimant, including reviewing test results, he diagnosed the claimant with asthma, rhinitis and polyps, and toxic headaches. The claimant's toxic headaches are based upon his exposure to solvents and his rhinitis and nasal polyps were likely caused by the claimant's isocyanate exposure. The claimant's symptoms improved after leaving his employer, a significant finding because this improvement is evidence that the claimant's workplace exposure played an important role in the development of his symptoms. Within a reasonable degree of medical certainty, the claimant's diagnoses of asthma, rhinitis and polyps, and toxic headaches are causally related to his work at the body shop. The claimant could return to work, but should have limited or no exposure to isocyanate, solvents, and irritants such as smoke. He did not have any notes regarding air testing or MSDS information when the claimant worked for the employer. He was not aware if the claimant painted anything at home.
Dr. Griffing did not testify and her medical reports were not submitted into the record.
The record also contains medical reports from another treating physician, Dr. Kellman, and SIF's consultant. Dr. Kellman treated the claimant on March 19, 2010, and filed an EC-4NARR. Page 2 of Dr. Kellman's EC-4NARR provides a diagnosis of polyp of nasal cavity, other disease of nasal cavity and sinuses, and chronic sinusitis. Page 2 further indicates Dr. Kellman did not believe these diagnoses were causally related to his work activities. In the narrative portion of this report, Dr. Kellman first states that he saw the claimant primarily because of nasal obstruction and nasal polyps. In his report, Dr. Kellman found that pursuant to the history obtained through the claimant, it is clear the claimant's problem actually antedated his industrial exposure and therefore though the claimant's condition could have been aggravated by toxic exposure, it would be hard to implicate the industrial exposure as the primary source of this problem, particularly since the claimant had a nasal polypectomy when he was around 12 years of age. Dr. Kellman's report did not provide the work history received from the claimant.
SIF had the claimant examined by its consultant, Dr. El Bayadi on June 1, 2010. Because the WCLJ found SIF waived its right to produce a medical opinion on causal relationship, the Board Panel should not recount Dr. El Bayadi's discussion and opinion on this issue. However, on the issue of degree of disability, for which SIF was permitted to produce, Dr. El Bayadi found the claimant to have a mild disability.
On September 3, 2010, the WCLJ issued a reserved decision in which he disallowed the claim for an occupational disease involving toxic headaches, asthma, polyps, and rhinitis because Dr. Griffing has not billed SIF for her examinations, inferring that she could not find causal relationship; Dr. Kellman found the claimant's conditions were not causally related to the claimant's work; and Dr. Lax opined on causal relationship based upon the claimant's history that he had gotten over his childhood asthma when in fact, the claimant had carried an inhaler for years. The WCLJ did not provide a deposition fee to Dr. Lax. An amended reserved decision was filed on September 9, 2010, only to mark the file no further action.
Dr. El Bayadi's report
Initially, the Board Panel majority's opinion as written improperly relied in part on Dr. El Bayadi's opinion on causal relationship. The minutes of the May 13, 2010, hearing reflect that, upon motion of the claimant, Dr. El Bayadi's pending IME was precluded as untimely. Therefore, any mention of Dr. El Bayadi's opinion on causal relationship should have not been used to determine causal relationship.
Accident v. ODNCR
While an accidental injury must arise from unusual environmental conditions or events assignable to something extraordinary, it need not result suddenly or from the immediate application of some external force; but may gradually accrue over a reasonable period of time (Matter of Duncan v John Wiley & Sons, 54 AD3d 1124 ). Therefore, the Board Panel majority properly found the claimant's claim could be considered as an accidental injury rather than an occupational disease.
"With respect to [a] finding of accidental injury, the Board is entitled to wide latitude and it is well settled that it may classify an injury as accidental even when it did not arise as a result of a specific traumatic event but accrued gradually over a reasonably definite period of time. Moreover, the fact that [an] injury relates to a pre-existing condition will not preclude the claimant from obtaining relief where it is demonstrated that the claimant's employment exacerbated the condition in such a manner as to cause a disability which did not previously exist" (Matter of Ochsner v New Venture Gear, 273 AD2d 715 , lv dismissed 96 NY2d 731  [internal quotation marks and citations omitted]).
Where causally related injuries from a claimant's employment precipitate, aggravate, or accelerate a pre-existing infirmity or disease, the resulting disability is compensable (Duncan, 54 AD3d 1124 ). The proper inquiry is whether claimant's employment acted upon a pre-existing condition in such a way as to cause a disability which did not previously exist (Matter of Poulton v Martec, 75 AD3d 819 ). A claimant must establish a causal connection between his or her symptoms and the workplace. While the Court has upheld the denial of benefits where the claimant was unable to identify the specific allergen responsible for the underlying medical condition (see e.g. Matter of Marks v County of Tompkins, 274 AD2d 764 ; Matter of Nicholson v Mohawk Val. Community Coll., 274 AD2d 677 ; Matter of Knapp v Vestal Cent. School Dist., 247 AD2d 667 ), in each of the above cited cases, the claimant either had a substantial history of other allergies, regularly displayed the offending symptoms outside the workplace, or adduced no evidence of allergens or contaminants at the workplace. Hence, the Board cannot deny benefits because the claimant failed to specifically identify the harmful or allergenic substance alleged to be the source of the problem (Matter of Barcomb v Delphi Automotive, 42 AD3d 809 ).
In this case, while neither the claimant nor the employer produced a copy of the material safety and data sheets or documentation regarding what type of paint was used by the employer, the employer's son conceded that the paint and the manner in which the employer used the paint emitted toxic fumes. Therefore, the claimant does not have to identify the specific substance which allegedly caused or aggravated his conditions.
There is evidence to support the claim of exposure to toxic fumes. The claimant testified that the paint booth was properly exhausted, but the prep booth was not. He testified that small painting took place in all areas of the shop, including outside of the paint and prep booths. The employer witness confirmed that painting (priming) occurred in the prep booth, that the air in the booth was not circulated, and that the prep booth was not designed for painting. He disputed claimant's assertion that painting occurred in areas outside the two booths. He indicated that paint outside of the booths would be unsafe because of toxic fumes.
2. Pre-existing condition
In order to establish this claim for an aggravation for pre-existing conditions, there must be evidence that the claimant did not have a substantial history of other allergies or regularly displayed symptoms outside the workplace (Barcomb, 42 AD3d 809 ).
Here, the claimant testified that while he had asthma as a child, he outgrew this condition and previously took medication on an as needed basis, which usually occurred in the fall whenever his hay fever acted up. However, after being exposed to paint at his workplace, he needed to increase his medication use as his breathing problems worsened. This history was repeated by Dr. Lax during his testimony. While Dr. Lax listed the medications the claimant was using in 2004, he was unaware if the claimant regularly used this medication for the five years preceding his initial examination. In addition, Dr. Lax testified that the claimant is currently using Albuterol four times per day, and while the claimant used this medication in the past, the claimant intermittently used the Albuterol inhaler in the fall. In addition, although Dr. Kellman reported the claimant had pre-existing problems, he did not provide detailed information regarding the nature of the claimant's pre-existing condition or the medication the claimant used prior to 2009.
The dissenting Board Panel member and SIF assert that because Dr. Griffing failed to submit any medical reports, it suggests Dr. Griffing did not ascribe causal relationship to the claimant's condition and his workplace exposure. This reasoning is speculative at best because there was no direction for the claimant to produce Dr. Griffing's medical reports; and in fact, the WCLJ specifically stated the production of these reports were not necessary at the conclusion of the April 13, 2010, hearing. In addition, SIF had the opportunity to produce Dr. Griffing's reports as it was in possession of the claimant's HIPAA release. Furthermore, the WCLJ directed, at SIF's request, for the parties to take Dr. Griffing's deposition testimony at the May 13, 2010, hearing. However, the record contains no evidence that SIF made any attempt to cross-examine Dr. Griffing. Therefore, the assertion that Dr. Griffing declined to find causal relationship by not filing medical reports fails because SIF did not make an attempt to retrieve Dr. Griffing's reports or schedule her testimony.
3. Medical Evidence
A claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability (Matter of Guz v Jewelers Machinist, Inc., 71 AD3d 1272 ).
In this matter, Dr. Lax credibly reported and testified the claimant's exposure to the paint caused the claimant's aggravation of his pre-existing conditions. Dr. Lax was aware of the claimant's pre-existing asthma condition as a child, but that the claimant had outgrown the asthma and recently only experienced mild symptoms of hay fever in the fall. However, at the current time, the claimant had significantly worsening symptoms than just hay fever and his conditions were not limited to the fall months. Furthermore, Dr. Lax specifically identified that the claimant's toxic headaches are common with exposure to solvents and that the rhinitis and polyps are due to the claimant's paint exposure. Dr. Lax also stated the claimant's condition improved once he was removed from the workplace exposure, signifying the claimant's workplace exposure played an important role in the claimant's condition. Lastly, although the claimant has allergies to dogs and owns a dog, he testified the symptoms related to dog ownership are different than those he experienced at work.
With respect to the nasal polyps, Dr. Kellman stated the claimant's workplace exposure was not the primary cause of the claimant's disability. He indicated that "it could have been aggravated by his toxic exposures." Claimant had a prior polypectomy at age 12, as well as cosmetic nasal surgery for a broken nose in approximately 2001. Dr. Kellman expresses a possibility, as opposed to a statement that there is a causal relationship between the exposure and the current amount or severity of polyps. It is therefore recommended that nasal polyps be specifically removed from the causally related sites.
Thus, based upon the medical evidence contained in the record, the claimant produced medical evidence that his toxic headaches, asthma and rhinitis were aggravated by his workplace exposure to paints. However, the opinion of otolaryngologist Dr. Kellman is more specific and persuasive as to the nasal polyps, and his report indicates a lack of causal relationship for that site.
Dr. Lax provided deposition testimony on August 2, 2010. However, neither the WCLJ nor the Board Panel granted Dr. Lax a deposition fee for his time. Therefore, pursuant to 12 NYCRR 301.1, Dr. Lax is granted a $400.00 deposition fee.
ACCORDINGLY, the WCLJ reserved decision filed on September 3, 2010, as amended on September 9, 2010, is MODIFIED to establish the claim as an accidental aggravation of asthma, toxic headaches, and rhinitis. The Board, however, finds the claimant's nasal polyps are not causally related. Dr. Lax is granted a $400.00 deposition fee for his August 2, 2010, testimony. No further action is planned at this time.