Patricia Schetrompf v. Guardian Fiberglass, Inc.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS
FILED
September 15, 2017
PATRICIA SCHETROMPF, RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 16-1089 (BOR Appeal No. 2051326)
(Claim No. 2014020224)

GUARDIAN FIBERGLASS, INC.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Patricia Schetrompf, by Robert L. Stultz, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Guardian Fiberglass, Inc., by T.
Jonathan Cook, its attorney, filed a timely response.

The issue on appeal is whether Ms. Schetrompf developed an occupational disease in the
course of and resulting from her employment. The claims administrator rejected the claim on
March 5, 2014. The Office of Judges affirmed the decision in its May 13, 2016, Order. The Order
was affirmed by the Board of Review on October 21, 2016. The Court has carefully reviewed the
records, written arguments, and appendices contained in the briefs, and the case is mature for
consideration.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Ms. Schetrompf, a plant worker, alleges that she developed fibrosis and chronic
obstructive pulmonary disease in the course of and resulting from her employment. A November
5, 1998, industrial hygienist report by David Duffy, CIH, Senior Occupational Health Specialist
states that an occupational health survey was taken to evaluate employees’ exposure to noise,
fiberglass, formaldehyde, and ammonia. All formaldehyde exposures were within the action and
permissible exposure levels, but the reported noted that formaldehyde concentrations were
significant in the resin room, the pit, and near the resin spill. Fiberglass dust and fiber levels were
higher than expected but still within the threshold limit. Ms. Schetrompf did not participate in this
study.
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 An industrial hygienist report by Industrial Environmental Health Consultants dated
October 1, 2008, states that a survey was conducted on July 29, 2008; July 30, 2008; and
September 17, 2008. All samples taken were less than the action level. Samples for fiberglass were
less than the exposure limits as were those taken for dust and silica. One formaldehyde sample
taken in July was 42% greater than the Occupational Safety and Health Administration guidelines
but eight resamples taken after were well within permissible limits. Ms. Schetrompf did not
participate in this study.

On November 11, 2013, a pulmonary function test by Abdul Waheed, M.D., indicated that
the FEV1 was 46% and FEV1/FVC was normal. There was mild airway obstruction and the
maximum voluntary ventilation was reduced. There was no significant improvement with a
bronchodilator. Flow volume loops showed the loops were of abnormal shape, indicating
restrictive pulmonary disease. Total lung capacity indicated mild restrictive pulmonary disease as
well. Blood gas showed mild hypoxemia. Dr. Waheed concluded the study was abnormal due to
mild airway obstruction without significant reversible bronchospasm, significantly reduced
diffusion capacity suggesting significant diffusion abnormalities, and room air PaO2 of sixty-eight.
He stated that the data is suspicious for underlying emphysema.

In a December 12, 2013, letter, Julie Williams, EHS Manager for the U.S. Department of
Labor, Occupational Safety and Health Administration, sent a letter stating that a complaint had
been received on December 10, 2013. Personnel conducted a visual investigation into the presence
of bird waste and employee exposure. As a result, it was noted that the distribution area should be
prioritized regarding clean-up and extermination.

The January 25, 2014, employee’s and physician’s report of injury indicates Ms.
Schetrompf filed for an occupational injury to her lungs. She described the injury/disease as
breathing smoke and dust contaminated with pigeon waste. Dr. Waheed diagnosed idiopathic
pulmonary fibrosis and chronic airway obstruction due to an occupational lung disease. The claims
administrator rejected the claim on March 5, 2014.

Ms. Schetrompf testified in a deposition on July 25, 2014, that Guardian Fiberglass, Inc.,
is a distribution warehouse. She started working there in May of 2004. The warehouse had dock
doors that remained open at all times. In the course of her employment she drove a forklift, stacked
products on pallets, and wrapped them to be shipped. She stated that the products were covered in
tarps that had to be removed each time. This could cause bird waste to fly into the air. She alleges
that she was exposed to bird droppings every day. She stated that she thought her breathing
problems are due to dust and bird droppings, as well as smoke in the warehouse. She said there
was smoke in the warehouse every day due to insulation production on the other side of the
building. When she was preparing orders, she used a four foot wide dust mop to clear dust from
the surfaces of the products. She prepared orders about once a week. Ms. Schetrompf admitted that
she smoked a pack of cigarettes a week from age sixteen to thirty. She currently has shortness of
breath with any activity. On cross examination, she stated that the bird waste was mainly in the
docks and it would blow inside. There was little bird waste actually in the warehouse. Ms.

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Schetrompf stated exposure to smoke from the insulation ovens was a year round occurrence. She
did not wear a mask or respirator and there was no requirement for her to wear them.

In an independent medical evaluation on December 1, 2014, Christopher Martin, M.D.,
detailed no findings. He instead stated that he needed the CT scan films, not just a report, and Dr.
Waheed’s treatment notes before he could make a recommendation in this case. In an April 17,
2015, addendum, Dr. Martin stated that he had reviewed the CT scans and Dr. Waheed’s notes.
Dr. Martin was unable to make a definitive diagnosis as the findings on the CT scan are not
diagnostic of any specific disease. He stated they could represent interstitial pneumonia, sarcoid,
or a chronic hypersensitivity pneumonitis. The upper zone dominance increases the likelihood of
chronic hypersensitivity pneumonitis, which has been associated with exposure to pigeon
droppings. However, some of Ms. Schetrompf’s clinical features, such as weight gain and no flu
like symptoms, weigh against that diagnosis. He recommended another CT scan to check for
pattern evolution. He stated that the only test to clarify the diagnosis is a lung biopsy. He concluded
that he was unable to provide a definitive answer as to whether Ms. Schetrompf’s lung condition
is occupational or non-occupational in nature.

Dr. Waheed testified in a deposition on June 11, 2015, that he specializes in pulmonary
disease. Ms. Schetrompf had no prior significant lung history. She was first seen on October 4,
2013, and was diagnosed with dyspnea, hypoxia, and acute interstitial pneumonitis. Dr. Waheed
stated that the CT scan performed on October 10, 2013, showed upper lobe predominant
parenchymal destruction suggestive of pulmonary fibrosis. He opined that it was not idiopathic as
that is mostly the lower lobe. It looked to him as if Ms. Schetrompf had some exposure to material
where she worked and may have damaged her lungs. Testing on December 16, 2013, showed both
obstruction and restrictive lung disease. The diagnosis now includes chronic obstructive
pulmonary disease. Dr. Waheed asserted that he has records for a period of seven years before the
alleged exposure that show Ms. Schetrompf was having shortness of breath.1 Her condition has
remained the same with some improvement. He opined that Ms. Schetrompf’s condition was work-
related based on the history, lung function testing, and CT scan.

Dr. Martin testified in a deposition on December 10, 2015, that he is a professor of
medicine and occupational medicine. He stated that his work involves work-related health
considerations and how health conditions impact an individual’s ability to work. His opinions
remained the same as in his reports.

The Office of Judges affirmed the claims administrator’s rejection of the claim on May 13,
2016. It stated that the burden of supporting a claim for workers’ compensation rests on the
claimant. It found that pulmonary fibrosis can be idiopathic or related to occupational exposure
due to hazardous dust or fiber levels. Ms. Schetrompf testified that she was exposed to bird
droppings, dust, and smoke from ovens in the warehouse she worked in. The Office of Judges
noted, however, that Dr. Waheed has not diagnosed her with histoplasmosis. Ms. Schetrompf’s
dust exposure was found to be nonspecific and per Dr. Martin’s testimony, only certain kinds of
dust cause fibrosis. In addition, she failed to introduce any of the radiographic evidence referred

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These reports were not introduced into the record.
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to by Dr. Waheed in his deposition. Therefore, the Office of Judges concluded that Ms. Schetrompf
failed to show a causal connection between her employment and her diagnoses of fibrosis and
chronic obstructive pulmonary disease. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on October 21, 2016.

After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The burden of proof is on Ms. Schetrompf to show a causal
connection between her employment and her diagnoses. The evidence submitted fails to show that
her employment activities caused her pulmonary diagnoses.

For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: September 15, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

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