NO. 88-482
TN THE SUPREME COURT OF THE STATY OF MONTANA
1989
EARL W . ROADARMEL ,
Claimant and Respondent,
ACME CONCRZTE COPIPANY,
Employer,
-vs-
ROYAL INSURANCE COMPANY,
Defendant and Appellant.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge Presidinq.
COUNSEL OF RECORD:
For Appellant:
James G. Edmiston, Ill; Billings, Montana
For Respondent:
Donald E. White; Bozeman, Montana
W. Lee Stokes; Bozeman, Montana
-- -
Submitted on Briefs: February 16, 1989
Decided: April 25, 1989
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Royal Insurance Company appeals from a judgment entered
against it and in favor of claimant Earl W. Roadarmel in the
Workers' Compensation Court of the state of Montana, in and
for the area of Butte. The court held that Roadarmel
sustained a compensable injury under $5 39-71-119, MCA, on
September 18, 1986 and was entitled to temporary total
disability benefits and medical benefits through December,
198?. Future entitlement to benefits after that date was not
determined by the court. The court also awarded Roadarmel
reasonable costs and attorney fees pursuant. to S 39-71-611,
MCA. The insurer appeals from the judgment. We affirm.
Appellant Royal Insurance Company presents the following
issues for review:
(1) Whether claimant proved, by a preponderance of
the probative credible medical evidence (all of
which was submitted by deposition) that his cardiac
arrythmia (irregular heartbeats) were caused by an
on-the-job exposure to the chemical-Toluene.
(2) Whether claimant proved by a preponderance of
the probative credible medical evidence (all of
which was submitted by deposition) that he was
totally disabled as a result of exposure to the
chemical Toluene from September 18, 1986 through
December, 1987.
(3) Whether the Workers ' Compensation Court erred
by admitting into evidence over Defendant's
objection articles from medical journals and
treatises as exhibits.
(4) Whether the Workers ' Compensation Court erred.
in determining that claimant's witness, Samuel J.
Rogers, Ph.D. qualified as an expert witness over
defendant's ohiection.
Roadarmel disagrees with Royal's statement of issues (1) and
( 2 ) and frames those issues as follows:
( 1 ) Whether the claimant proved by a preponderance
of the evidence that he sustained an injury as a
result of his employment with Acme Concrete
Company.
(2) Whether the claimant proved by a preponderance
of the evidence that he was totally disabled as a
result of an injury suffered during the course of
his employment with Acme Concrete Company.
Acme is enrolled in Compensation Plan I1 of the Montana
Workers' Compensation Act and is insured by Royal 1nsura.nce
Company, the appellant.
The facts from which this claim arose are as
follows: Earl Roadarmel was employed by Acme as a heavy
equipment operator. He had worked on highway construction
steadily since 1 9 5 4 . At the time of this injury he was 5F!
years old and in good health. Roadarmel was assigned the job
of operating the curing bridge that sprayed a curing agent
onto the newly-laid concrete highway. The machine bridged
the entire width of the highway ( 4 0 to 5 0 feet) and was
equipped with a hundred or more spray nozzles that sprayed
the curing agent, a wax/resin, onto the cement. The nozzles
plugged continuously because the curing agent was not liquid
as it was supposed to he, but had solidified into a gel. To
remedy the persistent plugging, Roadarmel had to get out of
the cab, reach under the machine, unscrew the plugs, and
unplug them by placing them in Toluene, a toxic chemical
solvent. He would then wash off the nozzles and replace them
and spray the cement until the nozzles needed to be unplugged
again. At night, he removed each nozzle, washed it in
Toluene and then replaced it the following morning. When he
used the Toluene, it was not in its original barrel, but in a
bucket. which was refilled by a mechanic whenever Roadarmel
needed more of it. Roadarmel was unaware that he was
exposing himself to a vl-rulent, toxic chemical. He did see
the empty Toluene barrels in a heap with other barrels, but
he did not see a warning on the barrels as to its toxicity.
No one at Acme informed him of the danger he was being
exposed to nor did anyone suggest that he wear protective
clothing or a respirator to protect from inhaling the
solvent.
There was a Material Safety Data Sheet concerning the
Toluene provided to Acme by Exxon, the manufacturer, hut not
disclosed to Roadarmel. It contained the following language:
A. Identification and Emergency Information
.
. . Product Appearance and Odor
Clear water-white liquid. Aromatic hydrocarbon
odor.
B. Components and Hazard Information
... Exposure limit for total product 1 0 0 ppm (378
mg/m3) for an 8-hour workday.
. . . Approximate Concentration 1 0 0 %
C. Emergency and First Aid Procedures
Eye Contact
If splashed into the eyes, flush with clear
water for 15 minutes or until irritation subsides.
If irritation persists, call a physician.
Skin Contact
In case of skin contact, remove any
contaminated clothing and wash skin thorough1.y with
soap and water.
Inhalation
If overcome by vapor, remove from exposure and
call a physician immediately. If breathing i s
irregular or has stopped, start resuscitation,
administer oxycren, if available.
E. Health and Hazard Information Variability Among
Individuals.
Health Studies have shown that many petroleum
hydrocarbons and synthetic lubricants pose
potential human health risks which may vary from
person to person. As a precaution, exposure to
liquids, vapors, mists or fumes should be
minimized.
Effects of Overexposure (signs and symptoms of
exposure)
High vapor concentrations (greater than
approximately 1 0 0 0 ppm) are irritating to the eyes
and the respiratory tract, may cause headaches and
dizziness, are anesthetic and may have other
central nervous system effects.
Nature of Hazard
Prolonged or repeated skin contact with this
product tends to remove skin oils possibly leading
to irritation and dermatitis.
Product contacting the eyes may cause eye
irritation.
No one gave Roadarmel an17 c?j.rectionsor warnings about
the Toluene. Each day for seventeen days, a total of 17'
hours, Roadarmel breathed the chemical. His sweatshirt and
clothes were soaked with it by the end of the day. On one
occasion, he placed the rag on which he wiped his hands into
his hack pocket. About half an hour later he felt the rag
"burning back there." He had a sense at that time that it
was "powerful." His work-toughened hands, accustomed to
strenuous construction work, were no longer sensitive enough
to feel the burning, but his sensitive buttocks area felt the
burning sensation. After that realization, Roadarmel tried
to keep his hands washed. This was almost impossible to do
because there was seldom water on the site and the wax/resin
covered everything. The curing bridge, which Roadarmel
operated, worked just behind the finish crew. If Roadarmel
got up close to that crew, they would tell him to get back
because "it was too stinky for them." However Roadarmel, who
was in the smell all the time, really did not notice the
smell and the fumes.
Another Acme employee, Glen Lingjerde t.estified that he
worked on the Butte project and in Superior. He worked with
the Toluene for about four weeks. Roadarmel took over
Lingjerde's job when he quit because of the effect the
Toluene was having on him. 1,ingjerde also received no
warnings and was not instructed to take precautionary
measures with the solvent. He testified by deposition that
prior to working on the curing bridge he had been in the best
shape he'd ever been in, lifting weights several times a week
and running several miles. He lost his appetite and went
from 195 to 165 pounds. He suffered severe headaches, was
sick to his stomach, experienced dizziness and light
headedness when he worked with the Toluene. It became
apparent to him, from the pattern of his headaches and
dizziness, that his time spent on the curing bridge brought
on these symptoms. On one particular day, Lingjerde had been
much exposed to Toluene. On the drive home he spit out the
car window. The spittle hit the side of his new Burgundy
car. Later, when he wiped it off, the paint had been removed
by the spittle. Lingjerde additionally testified that he had
seen a Toluene barrel at Superior on which there was a
warning that if the solvent came into contact with the skin,
it must be flushed immediately. But, he said, there was no
way to do this because "you get covered with the stuff" and
there was no water on the site to wash with. Lingjerde then
quit. Pis weight returned to normal and his headaches
eventually stopped. He spit up for quite awhile afterward
and could taste the Toluene.
About the last week of: the curing job, September 18,
1986, Roadarmel became dizzy and light-headed. At night when
he went to bed, "it seemed like [b.is] whole body was jumping"
and often he could not sleep. About two weeks after the job
was finished he went to the doctor in Whitehall because he
did not feel well and his wife, who is an emergency medical
technician, was unable to find his pulse. The doctor
prescribed a medication, but the next day his heartbeat was
even more rapid. The Whitehall doctor was out of town so
Roadarmel went to the emergency room of a Bozeman hospital.
The doctor there cardioverted respondent's heart with
electric shock to return it to a normal heartbeat. Since
that time, Roadarmel has been on various medications and has
undergone additional cardioversion.
Royal Insurance's contention is that Roadarmel's
symptoms are not a result of his exposure to Toluene but are
psychosomatic and a result of "cardiac neurosis" caused by
"non-conventional" physicians. Royal claims that the
"non-conventional" physicians whom Roadarmel consulted were
the only doctors who testified that Roadarmel's irregular
heartbeat was caused by chemical exposure resulting in total
disability.
Section 39-71-119, MCA (19851, defines "injury" or
"injured" as
(1) a tangible happening of a traumatic nature
from an unexpected cause or unusual strain
resulting in either external or internal physical
harm and such physical condition as a result
therefrom and excluding disease not traceable to
injury, except as provided in subsection (2) of
this section;
(2) . .. Nothing herein shall be construed to
exclude any other working person who suffers a
cardiovascular, pulmonary, or respiratory disease
while in the course and scope of his employment.
(Emphasis added.)
The medical evidence is that Roadarmel has become
"sensitized" and will have a reaction whenever he encounters
hydrocarbons, which could be while pumping gas, inhaling
exhaust fumes, or simply encountering hydrocarbons which are
profuse in the environment. It is possible that the
arrythmias he experiences upon exposure could be fatal. He
would not be able to work in the construction business again
unless he wears a portable respirator.
The standard of review for decisions of the Workers'
Compensation Court is whether there was substantial credible
evidence to support the decision of the court. Shupert v.
Anaconda Aluminum Co. (1985), 215 Mont. 182, 697 P.2d 436.
However, where critical medical evidence is entered by
deposition, this Court, although sitting in review, is in as
good a position as the Workers' Compensation Court to judge
the weight. of the testimony, as distinguished from oral
testimony, where the trial court actually observes the
character and demeanor of the witness on the stand. Brown v.
State Compensation Ins. Fund (Mont. 1988) , 752 P. 2d 171, 45
St.Rep. 508; Shupert v. Anaconda Aluminum Co. (1985), 1 1 5
Mont. 182, 188, 696 P.2d 436, 439; Hert v . J. J. Newherry Co.
(1978), 178 Mont. 355, 360, 584 P . 2 d 656, 659.
A close scrutiny hy this Court of the medical experts'
testimony contained in various depositions sustains the
Workers' Compensation Court's decision that respondent's
exposure to Toluene rendered respondent chemical-sensitive.
Roadarmel experienced dizziness, rapid heart rate, fainting
and lightheadedness. He was treated by Whitehall and Bozeman
physicians who were unable to control the cardiac arrythmias.
He then saw medical doctors in Dallas, Denver, and Seattle.
Each parties' counsel has been able to cull from those
experts' depositions phrases which support their relative
stances. However, the preponderance of the evidence shows
that there is a magnitude of medical research and clinical
research that demonstrates that Toluene causes the symptoms
Roadarmel is experiencing. Much of the clinical data
referred to by the experts concerns glue sniffers who suffer
all of respondent's symptoms in addition to memory loss.
Glue contains Toluene.
Curt Kurtz, M.D., a 1962 graduate of Stritch Medical
School in Chicago testified that it would be dangerous for
Roadarmel to return to his occupation as a heavy equipment
operator or to expose himself further to Toluene or similar
solvents.
Samuel J. Rogers, Ph.D., an associate professor of
chemistry at Montana State University, who teaches courses in
biochemistry and toxicology explained the Poison Index
Substance Information offered into evidence by Kenneth Kulig,
M.D. Rogers said that Toluene invades an organ and disrupts
the tissue structure ... in this case, probably the nervous
system of the heart, and at that point, the tissue becomes
more susceptible and sensitized to chemicals such as Toluene,
solvents or adrenaline. The tissue j s no longer able to
.
withstand certain kinds of solvents and becomes sensitized.
It reacts in an improper fashion to a normal cardiac
stimulant like adrenaline.
William J. Daniell, M.D. testified that ventricular
arrythmias are of particular concern because of risk of
sudden death. Atrial arrythmias are of less potential, far
less potential, for causing such death; but can be associated
with transient reduction and profusion of blood output and
can produce symptoms of lightheadedness, chest discomfort,
weakness and shortness of breath. Dr. Daniell said that the
frequency of the episodes of arrythmia should decide whether
or not Roadarmel could return to work. If Roadarmel were
havSnq arrythmias which reduce blood flow sufficientl~~ to
impair brain function or which impair his ability to perform,
then he should not he operating heavy equipment where he
could harm himself or other people. Dr. Daniel1 thought it
very likely that Roadarmel had this arrythmic disorder prior
to the onset of symptoms in September, 1986. This expert
opinion does not relieve Royal of liability. The rule that
the employer takes the employee as he finds him is well
established. The fact that an employee was suffering from a
pre-existing disease or disability does not preclude
compensation if the disease or disability was aggravated or
accelerated bv an industrial injury which arose out of and in
the course of employment. Gaffney v. Industrial Accident
Board of Montana (1955), 129 Mont. 394, 287 P.2d 256.
Tim Adams, M.D. of Bozeman, advised the Workers'
Compensation Division on November 20, 1986 that the arrythmia
was work related.
Kenneth Kulig, M.D. of the Rockv Mountain Poison Center
in Denver, Colorado, is a physician and toxicologist who
examined Roadarmel. He testified that one cannot predict
which patients exposed to Toluene will develop arrythmias,
and that not all deliberate abusers !glue and spray paint
sniffers) of Toluene develop arrythmias. Because of this
fact, he said, one can conclude that some patients are more
sensitive to the cardiac effects of Toluene than others. He
testified further that if he were Roadarmel's employer he
would be reluctant to re-expose him to Toluene to see if he
develops another arrythmia. Dr. Kulig told of patients who
were found unconscious or dead after Toluene abuse and said
that it has to be assumed that the cause of death was cardiac
arrythmia. Dr. Kulig helieves that there is no medical
reason why Roadarmel cannot go back to work; but, he believes
that Roadarmel has a psychological reason for not going back
to work. Roadarmel believes he may have a dizzy spell while
he's operating heavy equipment. Rut Dr. Kulig expressed the
opinion that it does not really matter if the dizzy spell he
fears has a physical cause or not. The result is the
same--dizziness and possible fainting could occur.
James K. Vincent, M.D., a specialist in cardiovascular
medicine in Billings, said that not only should Roadarmel.
avoid further exposure to ToLuene but that from the
information about the chemical everyone should avoid it.
As a consequence of our review of each physician's
deposition and after a thorough reading of all evidence
submitted, we agree with the Workers' Compensation Court that
claimant Roadarmel has met his burden of proof by a
preponderance of the evidence that there was a causal
connection between his exposure to Toluene while operating
the curing bridge and his subsequent cardiac arrythmias,
dizziness, lightheadedness and fainting. This injury was a
result of his employment with Acme Concrete Company.
As to whether or not Roadarmel is permanently totally
disabled, the medical evidence and testimony presented b 7 1
Roadarmel demonstrate that although the data sheet cautioned
that the maximum time per day that a person should be exposed
to Toluene was 8 hours, Roadarmel was exposed for 12 to 14
and sometimes 16 hours per day. As a result, he has become
sensitized to Toluene. Dr. Daniel1 stated that Roadarmel
must avoid exposure to degreastng agents, cleaning agents,
paint, paint strippers, glues, adhesives, some plastics i n
the manufacturing phase, fiberglass construction and anv
other solvent. Some of the medical experts advise that he
not operate heavy equipment because his physical symptoms may
recur at anytime. His history of sudden onset of these
symptoms could he fatal to him and those around him. For the
foregoing reasons, all gl eaned from the record, w e reach the
same conclusion that the Workers' Compensation Court reached.
Roadarmel is entitled to temporary total disability.
The final issue before this Court is whether the
Workers' Compensation Court erred in determining that
claimant's witness, Samuel J. Rogers, Ph.D. qualified as an
expert witness over defendant's objection.
The statutory provision in effect at the time of
Roadarmel's injury was S 39-71-2903, MCA, as follows:
. .
. the workers' compensation judge is not hound
b>7 common law and statutory rules of evidence.
Appellants arguments based on statutes governing the
rules of evidence are not applicable to this cause. The
Workers' Compensation Court could hear even hearsay
testimony. Krause v. Sears Roebuck & Co. (1982), 1.97 Mont.
102, 641 P.2d 458.
T h e judqment of the Workers' Compensation Court is
a ?firmed.
Justjce
We Concur: