(dissenting).
The parties and the majority opinion assume that whether Worker can recover benefits depends upon whether he adequately established that his dizziness at work was caused by exposure to chlorine. Starting from that assumption, I conclude that Worker cannot recover. Also, I question the propriety of permitting Worker to testify about chlorine on rebuttal.
I. CAUSATION
It is not at all clear to me that the Workers’ Compensation Judge (WCJ) found that Worker’s dizziness was caused by exposure to chlorine at work. Yet even if he had, the record cannot support such a finding. Worker was not qualified to express an opinion that his dizziness was caused by chlorine. Nothing in the record indicates that the WCJ possessed special expertise to draw the necessary inference. The gaps in the evidence cannot be filled by judicial notice. And the evidence regarding Worker’s exposure to chlorine is so vague that any inference that chlorine caused his dizziness would be rank speculation. Although I do not rely on NMSA 1978, 52-l-28(B) (Repl.Pamp.1991) — the majority appears to be correct in ruling that the statute does not apply to the causal relationship at issue in this case — the history of that provision suggests that it was adopted by the legislature precisely to prevent the type of fallacious reasoning condoned in this case.
To begin with, I will summarize the pertinent evidence in the record. The first mention of chlorine in the case was during Worker’s testimony in rebuttal. No medical record, accident report, deposition, or memorandum in the record refers to chlorine. On direct examination in his case-in-chief, Worker described his activities as a cheese operator, his job position on the date of his accident:
A. I’d go in and I’d drain the cheese with its water. I’d open the cheese. That’s our — about 1700 pounds of cheese in a vat. I’d open the cheese — a lot of strain is bending and lifting and getting it prepared to run, setting up the lines. After I’d set up the lines, I’d sanitize the lines. I’d cream and I’d pump the cheese over to—
Q. When you say sanitize the line, did that involve any lifting or bending?
A. Again, lifting and bending.
Q. How much were you lifting and how often were you bending?
A. I was bending the full time I was there and lifting half the time that I was there.
Q. And when you sanitize these lines, what does that require, you to pick up lines and hoses?
A. Connect lines together and shoot it with iodine, bending and reaching up.
A. The lines are the tubing that the cheese goes through to the machine. They’re pipes. I’d set up the pipes to the machine. Iodine, we call them lines, but the pipes, we’d iodine the pipes. We’d have everything ready. We’d pump the cheese through the pipes to the machine. And sometimes the pipe would be loose and you would have to tighten it. Reach up to tighten it. And once the machine is filled up with the stuff that it needed, it stopped, and you’d get ready to run it, you check everything.
He also testified to other physical duties, such as lifting boxes and bending over the vat to shovel cheese to the sides. He said that he handled about four vats of cheese a day.
Worker testified that on the day of the accident he punched in at about 9:00 a.m. and went to the cheese room. He continued:
A. And I started getting dizzy about 9:10, real dizzy. So I decided to go to the lab to get a glass of water. So I went to the lab and got a glass of water, drank my water, and returned back to the cheese room. And I started work for about another 10 to 15 minutes, and I got dizzy again. So — my head was hurting, so I decided to go to the lab and get an aspirin. So I got an aspirin. I returned back to work. As soon as I was almost done with that vat that I was opening, I got real dizzy, real, real dizzy. So I decided to take a break and go to the locker room and put a towel over my head.
Q. Was there anyone in the cheese room with you during this time?
A. Yes. Larry Allray.
Q. And what happened?
A. I told Larry Allray I was sick and that go take a break and I was going to go to the locker room.
Worker said that he went to the locker room, where he became very dizzy and fell, injuring his back. He then sat on a chair for approximately 10 minutes before returning back to work “dizzy with my back hurting.” When his supervisor, Doug Grimes, came to work about 10:00 a.m., he reported the accident to Grimes. Grimes told him to keep working and Worker “finished out the day.” Worker said that he told Grimes at the end of the day that his back was hurting.
The next day, a Wednesday, Worker sought medical attention. The physician’s assistant who saw him noted three complaints: (1) “knuckles on right hand started swelling after using screwdriver two days ago, but denied trauma;” (2) “also complained of cough, congestion and fatigue;” and (3) “back pain over past two to three days, has had to increase lifting at work.” The physician’s assistant diagnosed him as having bronchitis and prescribed an antibiotic. He was excused from work for the rest of the week.
Worker testified that on Monday, March 25, “I returned back to work about 5:30 [a.m.], still with my backache real bad hurting, bronchitis, and I went to do my daily job again into the cheese room. I started opening the cheese again, and started hyperventilating.” Other employees tried to assist Worker in the company office, but they had to take him to an emergency room for treatment, apparently some time between 8:00 and 9:00 a.m.
Employer suggested that Worker’s dizziness resulted from physical exertion while suffering from bronchitis. The following exchange occurred during cross-examination of Worker:
Q. Mr. Garcia, in your direct examination, you stated that when you were in the locker room and you fell, you fell because you got dizzy, right?
A. Yes.
Q. You were dizzy because of your bronchitis, right?
A. I don’t know. I guess so.
Q. You had been sick with bronchitis recently?
A. Yes.
Q. And you were dizzy and you had been having shortness of breath?
A. Not shortness of breath.
Q. But the dizziness?
A. Yes.
Q. Okay. Is there any reason that you know of for this dizziness, other than the bronchitis?
A. No, I don’t.
Worker’s wife testified that Worker had no medical problems when he went to work on March 19.
When Worker rested his case, Employer’s attorney moved for a “directed verdict,” contending that there was no evidence that Worker’s dizziness was work-related. He argued:
If he could show that the dizziness was connected to fumes in the cheese room, for instance, then he would have a case. But he has not got any shred of medical testimony saying that there’s any fumes in that cheese room that caused his dizziness. The only thing we have is bronchitis. Therefore, based on that, he has not met his burden of proof to his case-in-chief, and I am entitled to a directed verdict because there is no risk arising out of the employment that has been established.
The WCJ denied the motion without explanation.
Employer called as a witness Steven Walden, a company manager. On cross-examination Worker’s attorney questioned him about fumes in the cheese room:
Q. Have you ever worked in the cheese room?
A. That’s where I started 10 years ago.
Q. Isn’t it true that the, there’s a lot . there, a heavy fume in there, smells heavy, isn’t that correct, smells like cheese?
A. Smells like — like a dairy smells like á dairy, smells like milk products.
Q. Isn’t it true that sometimes people get sick while working in that cheese room?
A. It could happen.
Q. Just because the smell is so strong, isn’t that correct?
A. Not from the dairy products, I wouldn’t think. Not myself, anyway.
Q. Not yourself, but isn’t it true that because that strong smell and the fumes in the air?
A. I have never heard of anyone being sick in that plant because of a milk smell. Chemical smells, but not from dairy smells.
Q. All right. Isn’t it true there is chemicals being used in that cheese room, in the processing room?
A. Yes.
Q. Isn’t it true that those chemical smells can get people sick, and have gotten people sick at Borden?
A. If they were not handled properly, yes.
On redirect, Employer’s attorney asked, “Do you know if anyone has ever just been doing their job in the cheese room and has gotten dizzy and fainted from the fumes in the cheese room?” Walden answered, “Not to my knowledge.”
Walden’s testimony ended the first day of trial. The proceedings were then continued for thirteen days. When the trial resumed, the first witness was Worker, called by his attorney as a rebuttal witness. Over objection by Employer that the testimony was improper rebuttal, Worker testified about his use of chlorine on the day of his accident. Omitting withdrawn questions, attorney colloquy, and testimony to which objection was sustained, Worker’s testimony was as follows:
Q. [Y]ou heard the testimony of Steve Walden.
A. Yes.
Q. Concerning chemical uses and fumes within the plant.
A. Yes.
Q. My question to you ... did you use any chemicals on 3-19-1991?
A. Yes, I did. We switched over from chlorine to iodine because we were getting coli. So we were sanitizing the lines.
Q. With what?
A. With chlorine.
Q. So you were using what chemical on 3-19-91?
A. I was using chlorine.
Q. And had you used that chemical that morning?
A. Yes.
Q. Describe to the court what type of chemicals you had used that particular day.
A. I had used chlorine.
Q. How long had you been using this type of chlorine?
A. About two weeks.
Q. And were you familiar with that particular chemical?
A. Yes.
Q. How were you familiar with it?
A. They give you a sheet on all the chemicals and what they can do to you.
Q. What was your understanding of the content of or the concentrate of this chlorine?
A. It was all chlorine.
Q. And describe to the court the manner in which you used this particular chemical on 3-19-1991.
A. Okay. I was using an airhose to sanitize the pipes with chlorine because we had been getting coli and that had been getting all over me due to the coli.
Q. What had been getting all over you?
A. [A supervisor] had gotten all over me yelling at me about the coli.
Q. What is coli?
A. It’s a bacteria that’s found in the cheese through incubation, and you get coli, you have to sanitize not to get it. And if you get it, it goes into the, into a record that goes to Lubbock, I think. [Court overrules objection that witness is testifying as an expert chemist and is not qualified to testify on the subject.]
Q. What was the effect of this, of the use of this chemical?
A. When I was iodining with the chlorine, I — it’s just bad for you. It starts burning your chest, and if it gets on your skin, it will burn your skin, and it started getting me dizzy after I had started using it for two weeks.
Q. And had it gotten you dizzy on 3-19-1991?
A. Yes.
Q. And was that at what time?
A. Approximately 9:20.
Q. That’s the time you testified to previously?
A. Yes. 20, 9.
Q. When you went to your locker room, were you still having these same effects of dizziness as you experienced in the cheese room?
A. Yes.
CROSS EXAMINATION
Q. [Y]ou said you are familiar with different chemicals that you were using?
A. They give us a list on the chemicals we use so we know how to use them.
Q. And those kind of chemicals are the type of chemicals that can make a person dizzy, you’re familiar with that?
A. It can make a person sick.
Q. And dizzy?
A. Or you are supposed to use iodine, though, to sanitize, but she got all over me and she told me to use chlorine, so I used chlorine.
Q. But you just testified that you got dizzy, is that right?
A. Due to the chlorine.
Q. So the chlorine is the one that can make a person dizzy, then?
A. I’m not an expert, like you said.
Q. You don’t know whether that can make you dizzy or not?
A. It could, it can.
Q. It can make a person dizzy?
A. Yes.
Q. And you know that chlorine makes people dizzy?
A. I guess.
Q. Well, does it, does chlorine—
A. It made me dizzy. I don’t know if it makes other people dizzy, but it made me dizzy.
Q. How long had you been working in this cheese room?
A. I think about two years.
Q. Had the chlorine made you dizzy before?
A. I told you I didn’t use any for two weeks. We started using it two weeks.
Q. So it’s only been for the two-week period—
A. Yes, because they were getting coli.
Q. Did you say Larry Allray was a co-worker of yours in the cheese room?
A. He worked there, yes.
Q. He didn’t get dizzy, though, did he?
A. He wasn’t there when I — I come in and I get the lines ready. That’s my job.
Q. Now, remember when I was conducting my cross-examination in your case-in-chief, I asked you, Are you familiar — Do you have any other reason why you might have been getting dizzy, other than bronchitis? And you said, No. Do you remember that?
A. I didn’t know I had bronchitis at the time. No, I don’t remember.
This Court could affirm a finding by the WCJ regarding the causal connection between Worker’s dizziness and his use of chlorine if the finding is based on either (1) expert opinion testimony, (2) the WCJ’s own special expertise, (3) matters subject to judicial notice, or (4) proper inferences from the circumstances surrounding Worker’s dizziness. I will consider each possibility.
No expert testimony supports the causal connection. The only witness to testify to that connection was Worker. Worker, however, did not possess any special knowledge, training, experience, or education that would qualify him to express an opinion on the relationship between the chemical he was using and his dizziness. See SCRA 1986, 11-702 (rule of evidence regarding qualification of witness as an expert). Although he stated that he had read a warning sheet accompanying the chemical, he did not testify that the warning mentioned dizziness or even breathing problems. Indeed, he testified that he did not know whether the chemical he was using caused dizziness in other people. It may have been within the WCJ’s discretion to permit Worker to testify about what happened in language that speaks of causation. See SCRA 1986, 11-701. As stated in the advisory committee’s note to Federal Rule of Evidence 701 (which is identical to SCRA 11-701), “Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence 702-03 (1992). But Worker’s testimony that the chlorine “caused” his dizziness has no more probative value than if Worker had testified, “I became dizzy around the time that I was using chlorine.”
Perhaps the WCJ relied on his own expertise regarding effects of the chemicals being used by Worker. In proper circumstances a WCJ may rely on his or her personal expertise. See 2B Arthur Larson, The Law of Workmen’s Compensation § 79.53 (1989). For example, I suspect that any experienced WCJ has heard enough expert testimony on orthopedic injuries that the WCJ could properly fill in an omission in a report or testimony by an orthopedic surgeon when the omission is an inference that orthopedic surgeons commonly make but was not spelled out in the particular instance at issue. Yet, when a WCJ relies on his or her expertise, the WCJ should refer to that expertise in the findings and conclusions. Otherwise, appellate review is impossible. Nothing in the record in this case suggests that the WCJ relied on his expertise with respect to chemicals being used by Worker. In fact, I question whether the WCJ believed that Worker’s dizziness was caused by workplace chemicals. The WCJ made no finding regarding the cause of Worker’s dizziness. The absence of such a finding, together with the WCJ’s denial of Employer’s motion for “directed verdict” at the close of Worker’s case-in-chief (the evidence regarding chlorine was not offered until Worker’s case on rebuttal), suggests that the WCJ did not believe that Worker’s recovery depended on establishing that workplace chemicals caused his dizziness. In the absence of any indication that the WCJ relied on his personal expertise regarding chlorine, an appellate court should not presume such expertise to sustain a determination that Worker’s accident arose out of his employment.
The WCJ likewise did not indicate that he relied on judicial notice. Judicial notice, however, can be taken at any stage of a proceeding, SCRA 1986, 11-201(F), even on the court’s own initiative, SCRA 11-201(C), and even on appeal. Fed.R.Evid. 201 advisory committee’s note 2(f), found in 1 Weinstein, supra, at 201-10 to -11. Perhaps every adult has heard that chlorine is poisonous. But the question here is whether the chemical being used by Worker caused dizziness in the circumstances of this case. One problem is that Worker did not adequately describe the chemical he was using. Although he stated that it was “all chlorine” and that he “was using an airhose to sanitize the pipes with chlorine,” one may doubt that he was simply spraying chlorine gas through the cheese equipment. Worker made no mention of the use of a gas mask or other protective device to avoid breathing chlorine. When he testified that if the substance “gets on your skin, it will burn your skin,” he appears to be describing a solid or liquid. Literature regarding dairy operations suggests that Worker may have been using a chloramine solution. Chlorine: Its Manufacture, Properties And Uses 515, 527-28 (J.S. Sconce ed., 1962). In any event, a reasonable search of literature on chlorine and chlorine compounds uncovered only one report of toxic effects from the fumes of solutions of chlorine or chloramine. An asthmatic woman suffered asthma after entering a swimming pool area and after using a liquid chlorine rinse. Chlorine and Hydrogen Chloride 119 (National Academy of Sciences 1976) (citing J.M. Sheldon & R.G. Lovell, Asthma Due to Halogens, Amer. Practitioner 4:43-44 (1949)). Even the literature on chlorine gas infrequently describes “dizziness” as a symptom, which at the least makes one question whether the sole symptom is likely to be dizziness. (Eye irritation is a commonly noted symptom). Perhaps the search of scientific literature missed some definitive source supporting Worker's theory of how he became dizzy. Nevertheless, unless such literature is brought to this Court’s attention, judicial notice cannot cure the lack of expert evidence at the hearing.
That leaves the possibility that the WCJ could infer simply from the circumstances of Worker’s dizziness that it was caused by the chemicals he was using in his job. As I stated at the outset, I do not rely on Section 52-l-28(B) to require that the causal connection be established by expert testimony. Yet, even in the absence of a statutory requirement, proof of a causal connection requires expert testimony when lay persons could only speculate. Thus, in medical malpractice cases “expert testimony is generally required to establish causal connection.” Cervantes v. Forbis, 73 N.M. 445, 448, 389 P.2d 210, 213 (1964).
No precise formula determines when expert testimony is required. Professor Larson states, “[Rjeliance on lay testimony and administrative expertise is not justified when the medical question is no longer an uncomplicated one and carries the factfinders into realms which are properly within the province of medical experts.” 2B Larson, supra, § 79.54, at 15-426.222. The question is what realms are “within the province of medical experts.”
When the effect of a substance on the human body is not a matter of common knowledge, courts generally will not permit fact finders to speculate on a causal connection. See Loudermill v. Dow Chemical Co., 863 F.2d 566, 570 (8th Cir.1988) (“Laymen cannot give opinion as to the causes of disease and death.”). In Hicks v. Vennerbeck & Close Co., 525 A.2d 37 (R.I.1987), the worker claimed that his chest pain had been caused by exposure to sulfuric-acid fumes. The court wrote that the worker’s “testimony, even if afforded full credibility and though establishing a contemporaneous experience of chest pain, is insufficient as a matter of law to raise the inference that inhalation of the fumes caused and continues to cause chest pain.” Id. at 43.
Sheptur v. Proctor & Gamble Distributing Co., 261 F.2d 221 (6th Cir.1958), considered a claim by a worker employed as a dishwasher that her contact dermatitis was caused by Tide. The opinion affirmed the trial court’s decision that lay testimony did not suffice to require submission of the case to the jury.
In Blarjeske v. Thompson’s Restaurant Co., 325 Ill.App. 189, 59 N.E.2d 320 (1945), two people became ill, vomited, and suffered from diarrhea within 15 to 45 minutes of sharing a sandwich containing roast beef with a green material covering it. The court reversed a verdict in favor of the consumers, holding that in the absence of medical testimony the jury was required to speculate on causation.
In Payne v. Chandler, 41 Ga.App. 385, 153 S.E. 96 (1930), the court ruled that a patient’s experience of chest pains after swallowing a disagreeable liquid provided by a dentist was insufficient to authorize a causal inference.
Perhaps in some circumstances expert testimony would not be necessary to establish that Worker’s employment caused his dizziness. For example, if several healthy workers in the cheese room all became dizzy at the same time, the WCJ could properly infer the causal connection, even without knowing the precise mechanism that induced the dizziness.
But the evidence in this case is far weaker than in the example. What is most striking about Worker’s contention that chlorine caused his dizziness is the vagueness of his account. We can only guess as to the form of the chemical he was using (liquid or gas), the manner in which he was using it, the nature of the area (spacious or confined) in which he was working, the mechanism by which he could have been exposed to chlorine, the stage in the cheese-making process at which he experienced symptoms, the number of occasions on which he experienced symptoms, etc. Although Worker suffered a second severe dizzy spell on March 25, he made no attempt to correlate that episode with exposure to chlorine. We know nothing about whether similar symptoms were suffered by other employees present in the cheese room on the days that Worker became dizzy or on the three days that he was off work with bronchitis. Nothing in the record informs us of typical symptoms of exposure to chlorine or whether Worker’s symptoms are consistent with such exposure.
The evidence presented at the hearing was so vague that I doubt whether even an expert on the effects of chlorine could infer that Worker’s dizziness was probably caused by chlorine. It would be impossible on this record to make a reliable estimate of the concentration of chlorine gas in the air to which Worker was exposed or the duration of Worker’s exposure — which are surely data necessary to evaluate the probability that Worker’s symptoms were caused by chlorine. It is not as if chlorine gas, regardless of concentration in the air, is always likely to cause illness. This point is illustrated by a brief summary of some facts in the recent case of Aldrich v. Lamb-Weston, Inc., 122 Idaho 361, 834 P.2d 878 (1992). The worker seeking compensation benefits worked in a room in which a mist of water and chlorine was sprayed onto food. The chlorine level was ordinarily maintained at 30 to 50 parts per million (ppm). After a day in which the chlorine level rose to 200 ppm for 5V2 hours during his shift, the worker began having breathing problems. The court upheld a ruling by the state industrial commission, which denied benefits because it was not persuaded by the evidence of causation of later-diagnosed lung disease.
In my opinion a reasonable lay person could not infer causation on this record. Any finding that Worker’s dizziness was caused by the chemicals he was using in the cheese room would be based solely on speculation. The cases relied on by the majority are not to the contrary.
Moreover, appellate review of the sufficiency of the evidence is more intense in a worker’s compensation case. We apply whole record review. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). Thus, it is particularly significant that (1) Worker did not mention to any health care provider or fellow employee that his dizziness was caused by chlorine and (2) on cross-examination in his case-in-chief he stated that he could not think of any cause of his dizziness other than the bronchitis he was suffering at the time. His first mention of chlorine was in his rebuttal testimony, almost two weeks after Employer had moved for judgment on the ground that Worker had failed to establish that his dizziness was caused by his work. One need not doubt Worker’s credibility to infer that the temporal correlation between chlorine and his dizziness must not have been so tightly knit as to suggest (at least without considerable cerebration) to a lay person that the dizziness was caused by chlorine.
Although my conclusion in this case is not predicated on Section 52-l-28(B), some history surrounding that statute suggests its pertinence to this decision. Section 52-1-28(B) requires that in workers’ compensation cases the causal connection between the worker’s disability and an accident must be established by expert medical testimony. This rule was first enacted in 1959. 1959 N.M. Laws, ch. 67, § 7.
I suspect that it is no coincidence that this provision was adopted in the first legislative session after mandate issued in White v. Valley Land Co., 64 N.M. 9, 322 P.2d 707 (1957), reh’g denied, 64 N.M. 9, 322 P.2d 707 (1958). The worker in that case severely twisted his leg while helping to lift a 200-pound steel beam. He suffered a muscle strain but no fracture. When he did not improve under treatment, an orthopedic surgeon conducted a thorough examination, which established cancer of the bone arising from metastasis from another organ. He died of cancer less than 10 months after his injury. The jury awarded workers’ compensation death benefits to his widow. By a 3-2 majority the Court affirmed the award.
The Supreme Court majority acknowledged that the “[mjedical testimony goes no further than establishing [that the accident caused the spread of cancer to the left leg and hastened the worker’s death] as a possibility.” Id. at 14, 322 P.2d at 710. The majority opinion does not quote the medical testimony establishing a possibility. The dissent responded:
A fair sample of the type of medical testimony adduced in this case may be given. At the time, counsel on cross-examination was endeavoring to draw from Dr. Mclntire an admission that the trauma testified to had either caused, or accelerated, the cancer. It follows:
“Q. And when you say that is very possible that it occurred, or very probable that it occurred, it is just as probable that it accelerated from the injury, is it not?
“A. Not in my opinion.
“Q. But it is possible, in your opinion?
“A. Anything is possible.”
Id. at 17, 322 P.2d at 712. What the majority did quote from the record was the following testimony of Dr. John F. Boyd:
“We know of no relationship between trauma, that is, injury, and cancer. Primarily, this is because we don’t know the etiology of cancer.”
Id. at 15, 322 P.2d at 711. The majority then went on to say:
Medical men are justifiably reluctant to make a definite statement as to the relationship in view of the fact that they have no actual knowledge at the present time on which such a statement could in all good conscience be made. Aggravation of cancer or other disease may be inferable despite the lack of medical evidence establishing indisputable causal connection between trauma and spread of pre-existing cancer whenever the sequence of events is so strong as to establish a causal connection.
Id. (emphasis added). The majority stated that it was following the “recent trend” to regard medical testimony that causation was probable as “desirable but not essential.” Id. at 14, 322 P.2d at 710.
What is the lesson here? One lesson is that the proposition “post hoc, ergo propter hoc” has a seductive power on the human mind. One dictionary contains the following entry on that phrase: “after this, therefore because of this: used in logic to describe the fallacy of thinking that a happening which follows another must be its result[.]” Webster’s New World Dictionary 1113 (2d college ed. 1984). When courts do not guard against application of this “fallacy of thinking” by the fact finder, they are dispensing justice by speculation. Such decision-making brings discredit, probably deserved, upon the judicial system. For example, I can imagine the discussions in the medical community after physicians learned of the result in White. See 1 Larson, supra, § 12.24, at 3-453 (1990) (quoting a physician as saying that pathologists do not view trauma as a cause of the initiation or stimulation of cancer); Peter W. Huber, Galileo’s Revenge, ch. 3 (1991) (discussing the tension between the courts and physicians regarding the relationship between trauma and cancer). The medical community’s complaint would not have been that a widow received a workers’ compensation award. The complaint would have been that the state’s courts were governed by ignorance and even anti-science bias. Such concerns must have contributed to the legislature’s enactment of what is now Section 52-l-28(B).
I am not suggesting that courts should be bound by the majority view of the medical profession or of any other scientific group. I am not advocating the Frye test. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (affirming refusal to admit evidence of polygraph examination; scientific evidence inadmissible unless generally accepted in the pertinent scientific field). I am simply suggesting that on matters outside of common knowledge or experience the courts must insist on evidence, not speculation, and post-hoc-ergo-propter-hoc reasoning is generally, as in this case, no better than speculation.
Therefore, I dissent from the majority’s opinion that the evidence was sufficient to sustain a finding that Worker’s dizziness was caused by chlorine.
II. PROPRIETY OF REBUTTAL TESTIMONY
I should also briefly address Employer’s claim that the WCJ erred in permitting Worker’s rebuttal testimony regarding chlorine. As the majority notes, we leave to the trial judge’s discretion the decision whether to admit rebuttal evidence. Perhaps that discretion is unreviewable. I would hope, however, that other trial judges would not follow the example set in this case. Worker’s testimony was not proper rebuttal. The majority suggests that the rebuttal testimony was responding to cross-examination of Worker during Worker’s case-in-chief. Redirect examination, not rebuttal, is the appropriate means of rehabilitating a witness whose testimony in the ease-in-chief is weakened by cross-examination. In any event, Worker’s chlorine testimony was not a response to evidence put on by Employer. It was a response to Employer’s contention that Worker had not established an essential element of his claim — that the accident arose out of his employment. Rebuttal is not the proper method of proving an element of the claim omitted in the case-in-chief.
The only rational basis for allowing Worker to testify in rebuttal regarding chlorine would be that the WCJ did not expect the testimony to affect his decision. I have already suggested that the WCJ may have thought (perhaps correctly) that Worker could recover even if no workplace chemical caused his dizziness. Even then, however, admitting the testimony was a mistake. This case illustrates the mischief that can arise from excessive leniency m enforcing procedural rules.