The Full Board at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed September 21, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant's chronic obstructive pulmonary disease (COPD) is causally related to his employment.
The Workers' Compensation Law Judge (WCLJ) established the claim for occupational COPD, set the date of disablement as January 3, 2011, and made awards.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would have disallowed the claim, finding that the opinions of claimant's treating physicians were speculative and insufficient to support a finding of causal relationship.
In its application for Mandatory Full Board Review, the carrier argues that the claimant has presented insufficient medical evidence to support his claim for causally related COPD.
In its rebuttal, the claimant argues that the opinion of the Board Panel majority should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a porter, filed a C-3 (Employee Claim) on February 3, 2011, in which he indicated that he sustained COPD and asthma as a result of repetitive exposure to chemicals at work.
The carrier filed a C-7 (Notice that Right to Compensation is Controverted) form on April 11, 2011, in which it raised, among others, the issues of accident and causal relationship.
In a medical narrative report dated January 3, 2011, Dr. Chakote, the claimant's internal medicine specialist, indicated that the claimant had COPD and advised him to avoid chemicals and dust.
In a letter dated March 14, 2011, Dr. Parnes, the claimant's general practitioner, indicated that he diagnosed the claimant with traumatic COPD "secondary to exposure to multiple chemicals at work."
Dr. Stauber, the carrier's consultant, examined the claimant on April 22, 2011. In the resulting IME-4 (Practitioner's Report of Independent Medical Examination), Dr. Stauber opined that the claimant's COPD was causally related to his employment. In a May 18, 2011, addendum, Dr. Stauber indicated that his review of "the OSHA report submitted" revealed that "the cleaning products used by the claimant are not associated with the etiology of COPD/Asthma," such that a causal relationship between the claimant's disability and his employment could not be established.
At a hearing held on May 24, 2011, the claimant's attorney raised Workers' Compensation Law (WCL) § 137, as the carrier failed to submit a copy of the OSHA report it provided to Dr. Stauber with respect to his addendum report, and argued that that report should be precluded.
The claimant testified at the May 24, 2011, hearing that he began working for the employer in 2003. His responsibilities included cleaning 20 to 30 apartments per month. The claimant explained that he used products such as Blue Beast, Spray Nine, Windex, Tilex, Ajax, Mr. Muscle, and floor stripper. In 2007, he began experiencing shortness of breath, but he did not visit a doctor until 2010. He began treating with Dr. Chakote in January 2011, and he was diagnosed with COPD and advised to avoid dust and cleaning agents. The claimant took a leave of absence from September to late December 2010, and he stopped working altogether on January 5, 2011, because the employer did not have a position available that did not involve the use of chemicals. The claimant explained that he began receiving unemployment benefits in February 2011. He testified that the employer provided a paper mask, but that he stopped wearing it because "the chemicals go through the mask." The claimant personally purchased a mask with a filter, but he was unsure if it was the "right filter." Upon cross-examination, the claimant testified that he was suspended for five days in August 2010, for sleeping while at work. The claimant was also suspended for one day in December 2010, but did not state why.
Dr. Chakote testified at a deposition held on May 20, 2011, that he first treated the claimant on January 3, 2011, for shortness of breath. An examination on March 28, 2011, revealed wheezing. The doctor's impression was of an "allergic bronchitis exposure to chemicals (Deposition, Dr. Chakote, 5/20/11, p. 7). Dr. Chakote stated that the claimant advised him that he was exposed to chemicals at work, but the doctor did not inquire as to the nature of the chemicals. The doctor explained that chemical exposure is one way to develop COPD. Dr. Chakote did not inquire as to other potential avenues of chemical exposure or development of COPD.
Upon cross-examination, Dr. Chakote testified that he was not aware if the claimant was exposed to cleaning chemicals in his own home. The doctor was also unaware as to how long the claimant had worked for the employer or how often he was exposed to cleaning chemicals while at work. Dr. Chakote stated that exposure to allergens is a common cause of COPD, but that claimant was not tested for allergies. Dr. Chakote testified that the claimant was a non-smoker.
Dr. Parnes testified at a deposition held on June 3, 2011, that he began treating the claimant on January 17, 2011. The doctor explained that the claimant advised him that he worked with cleaning chemicals such as Blue Beast, Mr. Muscle, Tilex, Spray Nine, Ajax, and Windex. The claimant advised Dr. Parnes that his shortness of breath and chest pain and tightness symptoms improved while he was on vacation. The claimant also advised the doctor that he requested a mask from his employer, but that none was provided. The doctor diagnosed the claimant with traumatic COPD secondary to exposure to multiple chemicals at work. Dr. Parnes stated that many of the chemicals used by the claimant "are very strong and they should be used in a well-ventilated area, and a mask should be offered." The doctor stated that Tilex, Ajax, and Windex would "probably not" cause COPD "as much as the stronger industrial" products used by the claimant would. With respect to the other chemicals, Dr. Parnes stated: "I think they are stronger just from the names, themselves. I mean, Blue Beast, beast is something scary. Mr. Muscle, I mean, you know, that's referring to something strong. I would say just from the names, alone, that they imply they are stronger." The doctor conceded that he did not know anything about the cleaning products other than their names.
Dr. Stauber testified at a deposition held on June 10, 2011, that at the time of his April 22, 2011, independent medical examination of the claimant, he was unfamiliar with the chemicals to which the claimant was exposed. At that time, the doctor opined that the claimant's COPD was causally related to exposure to chemicals at work. Dr. Stauber explained that he prepared an addendum report after further information in the form of OSHA reports were provided to him. The doctor's opinion as to causal relationship changed, as the OSHA reports indicated that there were no known respiratory complications associated with the cleaning products used by the claimant.
Upon cross-examination, Dr. Stauber testified that he was provided the OSHA report by the carrier, along with a request to make an addendum as to any potential changes in his opinion. At this point, the claimant's attorney raised WCL § 137 on the record, as the carrier did not file its request that Dr. Stauber issue an addendum with the Board, or forward a copy of the request to claimant's attorney's office. Dr. Stauber testified that the OSHA report was based on chemical analyses of Mr. Clean, Pledge, Windex, and Spray Nine. The doctor conceded that if the material safety data sheets for any of the cleaning products used by the claimant indicated that inhalation could cause respiratory irritation, lung damage, or aggravation of asthma, it "certainly could" support his initial finding of a causal relationship between exposure and the claimant's COPD. Dr. Stauber conceded that years of exposure for a few hours per day could result in chemical-based COPD.
Upon redirect examination, Dr. Stauber testified that in almost 30 years of practice, he had never seen a case of COPD due to exposure to Mr. Clean, Windex, Pledge, or Tilex. The doctor opined that in order to cause COPD, exposure to such common cleaning products would likely be "chronic exposure, at very high doses, very concentrated doses, [in a] closed environment without protection."
At a hearing held on June 27, 2011, the employer's building manager testified that he has worked for the employer since February 2002. The manager explained that the building in which the claimant worked housed 435 residential apartments and 3 businesses. The claimant was sometimes responsible for cleaning the lobby, gym, elevator, and bathrooms, and at other times he would clean empty apartments. He stated that the chemicals used to clean the building included Spray Nine, Pledge, Windex, Tilex, Ajax, Mr. Muscle, and Simple Green, which were all ordered through Home Depot. Sometimes the employees would be responsible for diluting a concentrated Tilex spray. The manager was not familiar with a product called "Blue Beast." He described the building as "luxury," and explained that the ceilings were very high and the rooms were well ventilated. The manager testified that masks were kept in a storage room with the cleaning products, and that employees could use them at their own discretion.
Upon cross-examination, the manager testified that Spray Nine is a pre-diluted general cleaner and that Mr. Muscle is an oven cleaner. He conceded that he provided the carrier with a safety sheet on Blue Beast. The manager explained that the claimant was responsible for buffing, but not stripping, the floors. The employer provided dust masks and masks with a small filter on the front for employees who worked with cleaning products. The manager denied that the claimant requested a different mask for his breathing condition. When the claimant advised the manager that he had COPD and could not work around chemicals, the manager transferred him to a "doorman" position.
In a decision filed on July 5, 2011, the WCLJ precluded Dr. Stauber's addendum report pursuant to WCL § 137, established the claim for occupational COPD, set the date of disablement as January 3, 2011, and issued awards from January 3, 2011, to June 28, 2011, and continuing, at the weekly rate of $263.00.
By a decision filed September 21, 2012, the Board Panel majority affirmed the WCLJ's decision. The dissenting Board Panel member would have disallowed the claim. The carrier requested Mandatory Full Board Review.
In a decision filed on March 28, 2013, the WCLJ found that awards were stayed pending Full Board Review, and directed no further action. The claimant, by an application filed March 29, 2013, requested administrative review of the WCLJ's March 28, 2013, decision.
It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). Such medical opinions need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ). They must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920  [citations and internal quotation marks omitted]).
The claimant testified that he worked for the employer for approximately eight years. He explained that his responsibilities included cleaning 20 to 30 apartments per month with products such as Blue Beast, Spray Nine, Windex, Tilex, Ajax, Mr. Muscle, and floor stripper. Although the Building Manager stated that the apartments were well ventilated, he testified that the claimant also cleaned the lobby, gym, elevator, and bathrooms. The manager further explained that the claimant would at times be required to dilute a concentrated Tilex formula. Dr. Chakote testified that the claimant was a non-smoker and explained that chemical exposure could lead to COPD. He and Dr. Parnes opined that the claimant's COPD was due to exposure to chemicals while at work. Dr. Parnes also testified that the claimant advised him that his shortness of breath and chest pain improved while he was on vacation. Dr. Stauber initially opined that the claimant's COPD was causally related to exposure to chemicals at work. He altered his opinion in the addendum report, which was ultimately precluded. Dr. Stauber also testified that if any of the material data sheets for any of the cleaning products used by the claimant indicated that inhalation could cause respiratory irritation, lung damage, or aggravation of asthma, it "certainly could" support his initial finding of a causal relationship between exposure and the claimant's COPD. The doctor also conceded that years of exposure for a few hours per day could result in chemical-based COPD. Despite the carrier's contention that the claimant used "household" products while at work, the information from the Blue Beast website, provided with the carrier's Application for Board Review, and of which judicial notice is hereby taken, indicates that the product is intended for a number of "industries," is a highly concentrated "triple-duty cleaner and degreaser," and requires "minimal scrubbing, leading to reduced labor costs."
Although not present in the record, judicial notice should also be taken of the material safety data sheets (MSDS) for the products with which the claimant worked. The MSDS for Blue Beast recommends that "[r]espirators should be selected by and used under the direction of a trained health and safety professional…" It indicates that at "high vapor concentrations, inhalation may cause central nervous system effects such as headache, dizziness, drowsiness, weakness, unconsciousness, possible anesthetic effects from central nervous system depression, and may be fatal." The Blue Beast MSDS further states: "Prolonged and repeated exposure to vapors may cause damage to lungs… Medical conditions aggravated by exposure are pre-existing respiratory and skin conditions such as asthma, emphysema, and dermatitis." The MSDS for Mr. Muscle indicates that inhalation "[m]ay cause irritation and corrosive effects to nose, throat and respiratory tract." The MSDS for Spray Nine states: "May irritate respiratory system upon frequent or prolonged use." Finally, the MSDS for Tilex states: "Under normal consumer-use conditions, the likelihood of any adverse health effects is low"; however, the report further indicates that exposure may irritate one's throat and lungs, such that "high concentrations of vapor or mist" may aggravate asthma, emphysema, chronic bronchitis, or obstructive lung disease. Notably, the Building Manager testified that these chemicals were kept in a storage room and that the claimant would at times be required to dilute a concentrated formula of Tilex. The MSDS support a finding that claimant's COPD is causally related to his employment.
Therefore, the Full Board finds, based on a preponderance of the evidence in the record, that the claimant developed COPD as the result of exposure to chemicals at work.
During the pendency of its application for Mandatory Full Board Review, the carrier has not paid the claimant benefits, maintaining that it is entitled to a stay pending Full Board Review. The WCLJ's March 28, 2013, decision, which found that awards were stayed pending Full Board Review, was in error. There is no stay of a Board Panel direction pending resolution of a request for mandatory or discretionary Full Board Review (see Matter of Schneider National Carriers, 2011 NY WRK Comp 90801069; Matter of Lehsten v NACM-Upstate New York et al., 93 NY2d 368 ). As such, the WCLJ's March 28, 2013, is reversed and the Full Board finds that a late payment penalty pursuant to WCL § 25(3)(f), as well as late installment penalties pursuant to WCL § 25(1)(e), are applicable, and can be assessed by an administrative decision.
ACCORDINGLY, the WCLJ decision filed July 5, 2011, is AFFRMED. The WCLJ decision filed March 28, 2013, is REVERSED. No further action is planned by the Board at this time.