Opinion
C.A. No. 99A-07-008 RRC.
Submitted: February 22, 2000.
Decided: May 17, 2000.
Anthony M. Frabizzio, Esquire, Heckler, Frabizzio and Durstein, P.O. Box 128, WiLmington, Delaware 19899, Attorneys for Employer-Below/Appellant.
Cassandra Faline Kaminski, Esquire, Natalie S. Wolf, Esquire, Young, Conaway, Stargatt Taylor, LLP, P.O. Box 391 Wilmington, Delaware 19899-0391, Attorneys for Claimant-Below/Appellee.
Upon Appeal From a Decision of the Industrial Accident Board. AFFIRMED.
Dear Counsel:
Arlon, Inc. has appealed a decision of the Industrial Accident Board which granted Richard Messick's Petition to Determine Compensation Due finding "a causal relationship between [Richard Messick's] exposure to silica at Arlon [which] caused an occupational disease." For the reasons stated below, the decision of the Board is AFFIRMED.
Industrial Accident Board Decision of July 7, 1999 at 22.
I. Introduction
Richard Messick (Employee) filed a Petition to Determine Compensation Due asserting that he contracted a disease known as scleroderma as a result of working conditions at Arlon, Inc. (Arlon). A hearing was held before the Industrial Accident Board which found that Employee had shown by a preponderance of the evidence that there was a "causal relationship between [Employee's] exposure to silica at Arlon [which] caused an occupational disease." Employer has appealed the decision of the Board contending that 1) the Board applied an incorrect legal standard of causation; 2) the evidence does not support that Employee's condition was caused by occupational silica exposure; and 3) the evidence does not support that Employee suffered from an occupational disease. This is the Court's decision on that appeal.
Id.
II. Summary of Facts and Procedural History
For a comprehensive recitation of the facts, see Industrial Accident Board Decision on Petition To Determine Compensation Due, Hearing No. 1127493, July 7, 1999 at 2-15.
A. Exposure at the Arlon Plant
Employee, a forty-three year old male, had begun working at the Arlon Plant in Bear, Delaware at the age of twenty-one in 1977. From 1977 to 1984, Employee had worked as an operator in the tower and later at the presses. Employee had also worked in the mill room, where rubber compounds were mixed with Min-U-Cil, which is silica dust. In the mill room, two workers had been required to complete the process. First, Employee would take a sixty-pound bag of Min-U-Cil and pour it into give gallon buckets. Certain amounts of Min-U-Cil would spill in the pouring step and sometimes a bag would burst or fall onto the floor. Second, Employee would pour a five-gallon bucket of Min-U-Cil over a rubber compound that was already placed on a moving press. As the rollers moved quickly, the Min-U-Cil was blended into the rubber. During this process, silica dust would often come back up into Employee's face and also into pan underneath the press which would then be poured again over the rubber.
The Min-U-Cil dust got into Employee's clothing and shoes. To remove the dust, Employee would use an air blower and a broom. Employee's estranged wife Diane Messick testified on his behalf and she had explained to the Board that Employee would leave his clothes either at the bottom of the stairwell before he would enter their apartment or in the garage before he would enter their house. She had testified that when he had worked in the milling room, his clothes had been kept in a separate laundry bag and that if she had shaken them, she would be able to see the dust coming out of them. Employee had not worn anything to protect his nose or mouth, but he had worn safety goggles. In 1989, an exhaust fan had been installed over the weighing station.
Between 1984 and 1986, Employee had become the senior operator of a press which had operated differently. However, during that time, Employee had still been assigned to the mill room which had then modified its measuring procedure slightly by changing the concentration of Min-U-Cil from five to ten pounds per batch. Employee had recalled working in the mill room two to three times per week and overtime every weekend. Between 1986 and 1988, when Employee had worked the 3:00 to 11:00 p.m. shift, Employee had been assigned to the mill room on an as-needed basis. In October of 1988, Employee had become a production supervisor and he had gone into the mill room daily to supervise other workers. After January of 1995, Employee had become a press operator and his exposure to silica dust in the mill room ended.
At the Board hearing, testimony was heard from five other past or present employees relating to the procedure in the mill room, the presence of dust, the inadequacy of the ventilation system, and the working conditions in general at the plant.
B. Employee's Injury
In April 1998, Employee had been diagnosed with scleroderma, a disease that attacks the organs. Employee had been sick for a while as he had had substantial weight loss of thirty-five pounds, gastroesophogeal reflux for which he had received treatment, dizziness and shortness of breath for about one year. At the time of the diagnosis, Employee had skin with a bronze color and generalized extra thickness consistent with a diagnosis of scleroderma, which had been confirmed by a rheumatology consultation and laboratory studies. Employee has had a permanent pacemaker installed and he has had two cardiac cauterizations. Employee is taking medication and he wears medic alert because of his heart condition. Employee's entire digestive system has slowed down which has caused him to regurgitate frequently and eat small amounts several times a day. On August 15, 1998, Employee had been hospitalized and had been out of work for several months. Employee then returned to work as a press operator but after one month he could no longer meet the physical requirements of the job. Scleroderma has caused Employee's skin to change, whites sores or spots of concentrated calcium on his hands, arms, back and butt. Employee must take calcium supplements and he has a problem with exertion. Arlon does not dispute either the diagnosis of scleroderma or Employee's total disability.
C. Expert Testimony Presented at the Hearing
1. Dr. Varga
Dr. John Varga testified by video deposition on Employee's behalf. In its decision, the Board had noted that Dr. Varga was board certified in internal medicine and rheumatology, and has been the recipient of grant studies from the National Institute of Health (NIH) for research and study in scleroderma for many years. Furthermore, the Board had noted that Dr. Varga has published approximately eighty studies relating to pathogenesis of scleroderma, its features, diagnosis and treatment. With respect to Employee, Dr. Varga did not examine Employee but he reviewed Employee's medical history from April 1998 and deliberated on the etiology of Employee's diagnosis of scleroderma as it related to Employee's work with Arlon. Dr. Varga had also reviewed the medical evaluation reports prepared by Drs. Ross Myerson and Deborah Lipman, the Material Safety Data Sheet on silica and silica rubber milling procedures, other hazardous waste materials, and a packet of information supplied by Arlon.
Dr. Varga concluded that Employee had diffuse scleroderma. His conclusion had been the result of the review and analysis of the above listed reports and information taking into consideration that scleroderma is a disease of unknown etiology and while there are a number of hypotheses, there is currently little concrete scientific evidence to support any of them. Dr. Varga opined that the following questions should be raised to test a hypothesis and he stated
[o]ne is looking at the literature. Is there a consistent and strong association in the literature, scientific and medical literature, between a particular illness and in an environmental exposure or occupation exposure? So that raises the strength and consistency of the association. In going beyond that, is there a temporal relationship? That is to say if somebody claims that silicone implants made them sick, and yet they were sick before they ever got silicone implant, obviously it's illogical to implicate that as a cause of the disease. So the disease must have started at some point subsequent to the putative exposure. Furthermore, there has to be a ["]sufficient exposure to the putative agent to cause the disease.["] This is almost more of a philosophical issue, however, because in most of these diseases it's not at all clear what a sufficient exposure would be either in terms of duration or intensity of exposure. And finally, there has to be some plausibility to the causation and that relates to more of a biological issue: Is there a reasonable biological mechanism that would implicate the etiologic or putative exposure in the development of the disease. And if in an individual case all these tests are met, then a physician or someone interested in an individual case, might reasonably argue that the putative exposure may have at least played a role or caused the disease that one is dealing with.
Tr. of Bd. Hr'g at 15-16.
Dr. Varga further testified that the science regarding how silica works on the human nervous system to produce scleroderma is far from definitive and is more a question of plausibility. However, Dr. Varga testified that substantial experimental evidence indicated that exposure to cells such as fiberglass blood cells, to silica dust stimulates the cells to produce a substance that can cause a hardening of the tissue, which is characteristic of scleroderma.
Dr. Varga opined that assuming a substantial duration and intensity of exposure to silica had occurred, beginning with Employee's employment in 1977, it had been likely that the onset of scleroderma developed. Dr. Varga opined that Employee's period of exposure to silica in the Min-U-Cil dust particles from 1977 forward with increased concentration during the mid 1980's lasting until the early 1990's had been sufficient to cause scleroderma. Dr. Varga noted that scleroderma is a rare disease and, in the United States, there are approximately fifteen to twenty per million new cases per year and that only one or two cases per million occur in males per year. Dr. Varga had further concluded that Employee had most likely developed scleroderma from the exposure to the silica dust but had noted, however, that a definitive link between such exposure and this disease does not exist. Dr. Varga had found that studies and reports indicated a reasonably strong and consistent association between scleroderma and silica dust exposure. Specifically, Dr. Varga had concluded to a standard of reasonable medical certainty that "assuming that a substantial duration and intensity of exposure may have occurred with [Employee's] employment in 1977 it is likely that the onset of manifestation of systemic sclerosis [scleroderma] developed following exposure to silica."
Id. at 18, 23, 25, 26.
2. Dr. Myerson
Dr. Ross Myerson testified on behalf of Arlon. The Board noted that Dr. Myerson designs medical protocols for screening workers with adverse health effects, performs independent medical examinations, reviews specific cases to determine fitness for duties and performs job inspections for companies. The Board noted that he had written two publications and had made a number of presentations, but none on scleroderma. Dr. Myerson had become aware that Employee had scleroderma and had reviewed his medical history with a focus on the elements of causation: "a biologically feasible relationship between the exposure and the medical outcome; the presence of a temporal relationship between the exposure and onset; and the sufficiency of the exposure." Dr. Myerson had visited the Arlon Plant and had viewed the mill room. Dr. Myerson agreed with Dr. Varga that scleroderma is a disease of unknown cause and that it enters the body through the airways. Dr. Myerson found no relationship between silica exposure and scleroderma and had further found that certain levels of silica exposure will lead to silicosis but Employee does not have silicosis.
Bd. Dec. at 13.
Dr. Myerson testified that he did not believe that silica exposure caused Employee's scleroderma, stating that a relationship between exposure and the disease is not a proven fact and intense, daily exposure would be needed. Dr. Myerson noted that Employee was not exposed to silica for intense, long periods of time on a daily basis. He opined that the infrequent exposures, about once a week had not been of a significant level of intensity and duration.
D. Decision of the Board
The Board found that Employee had met the burden of proof by a preponderance of the evidence. The Board noted that there is no dispute that Employee is suffering from a rare disease known as scleroderma. The Board found that Dr. Varga believes that Employee's exposure to silica dust particles at the Arlon Plant caused Employee's condition. The Board chose the opinion of Dr. Varga over the opinion of Dr. Myerson. Specifically the Board stated that it
accepts Dr. Varga's testimony, as his credentials and experience relating to the pathogenesis, diagnosis and treatment of scleroderma show a high level of involvement with the subject. For many years, he has been the recipient of NIH grants for research and study in scleroderma. While his numerous publications did not focus on the relationship between silica and scleroderma, the Board finds Dr. Varga very credible . . . this is Dr. Myerson's first exposure to a case involving scleroderma and his review of literature on the subject does not compare equally with Dr. Varga's experience.
Bd. Dec. at 16.
The Board reviewed each step in Dr. Varga' s three pronged analysis for testing a hypothesis and accepted Dr. Vargas' testimony as conclusive. First the Board noted that there is a "strong association in medical literature." It noted that over time., studies have shown a prevalence of scleroderma in men exposed to silica. Second, the Board found that a "temporal relationship [existed] establishing duration, intensity, and sufficient exposure [to silica]." The Board said that this temporal relationship had existed even though Employee's primary work was not in the mill room but stated that "the overall consistency played an important role in establishing the extent of exposure." The Board accepted the testimony of the Employee and five other past or present Arlon employees regarding the amount of dust generated from the milling process. The Board noted specific examples of silica dust on Employee's mustache and beard, the sweeping of the floor, the air blower used to blow the dust off his clothes and the inadequate exhaust system in the mill room itself as credible examples of exposure to silica dust. In its decision the Board stated that it "believes that he overall consistency [of the silica dust exposure] played an important role in establishing the extent of exposure." The Board further found that the ventilation system had been inadequate in the mill room for most of the time that Employee had worked in that area.
Id. at 17.
Id.
Third, the Board found a "feasible biological mechanism implicating the development of the disease." The Board noted that the experts agreed that silica dust enters the body by the airways and that under the working conditions described, the silica dust was constantly airborne in the mill room. The Board accepted Dr. Varga' s opinion that "silica exposure with some intensity would likely trigger a series of biological events that would ultimately result in clinical development of the scleroderma." The Board further found that seventy-seven percent of people with scleroderma had been exposed to silica dust and that the evidence shows the decrease and the exposure is likely related. Specifically, the Board "accepts Dr. Varga's opinion that silica exposure with some intensity would ultimately result in a clinical development of scleroderma."
Id. at 20.
Id.
In conclusion, the Board further noted that this disease is very rare and many things are unknown. The Board adopted Dr. Vargas' three prong analysis for testing a hypothesis and the "plausibility standard" and stated that "[b]ased on the medical literature and what is known in the science today and the total circumstances of exposure here, the Board finds a causal relationship between [Employee's] employment and the development of an occupational disease"
Id. at 21.
III. Question Presented
Whether the Board's decision that Employee's scleroderma is the result of exposure to silica dust particles at Arlon is supported by substantial evidence in the record?IV. Contentions of the Parties
A. Arlon
Arlon contends that 1) the Board applied the incorrect "plausibility" legal standard; 2) the evidence does not support that Employee's scleroderma was caused by occupational silica exposure; and 3) the evidence does not support that Employee suffered from an occupational disease.
First, Arlon argues that the standard of proof as to causation is that of a "reasonable medical certainty" or a "reasonable medical probability." Arlon contends that it was error for the Board to accept the "plausibility" standard set forth by Dr. Varga and that the Board's decision in effect lowers the threshold showing required by an employee. Specifically, Arlon argues that "the Board's `plausibility' standard effectively shifts the burden of proof to the employer to disprove causation — which is impossible to do if the causes are unknown."
Arlon's Opening Brief at 17.
Second, Arlon contends that the evidence in the record does not support that Employee's silica exposure caused his scleroderma. Arlon argues that
[Employee's] "evidence" is insufficient to prove general causation (i.e., that silica can cause scleroderma), let alone specific causation (i.e., that silica caused [Employee's] scleroderma). It is undisputed here that the causes of scleroderma (if any) are "unknown." The best that can be said is that there is a "possible" relationship based on an observed "association" in some case studies.
Id. at 19.
Arlon further argues that Employee has not established that his scleroderma was caused by silica as opposed to some other cause. Anon specifically notes that Employee cannot rule out that his scleroderma is the result of other possible causes such as "genetics, viral agents, and autoimmunity."
Id. at 20.
Arlon further asserts that the studies cited by Dr. Varga are not probative as to whether silica exposure caused Employee's scleroderma. Arlon says that there is no proof that the level of exposure that occurred during Employee's presence in the mill room is what actually caused his scleroderma. Arlon contends that Dr. Vargas' conjecture and speculation derived from other studies and factual scenarios is not sufficient to deduce that the silica exposure at Arlon caused Employee's scleroderma. Arlon also argues that Employee's "failure to deduce specific evidence relating to the intensity and duration of his exposure is fatal to his case." Arlon also contends that the Board erred in adopting the testimony of Dr. Varga over Dr. Myerson.
Id. at 22.
Third, Arlon asserts that the evidence does not support that Employee suffered from an occupational disease. Arlon contends that Employee cannot prove that he contracted scleroderma as a result of his work at the Arlon Plant and that if exposure to silica dust particles caused scleroderma, then "legions of workers would have the disease." Arlon asks this Court to reverse the decision of the Board.
Id. at 25.
B. Employee
Employee asserts that the Board applied the correct legal standard and that the Board's decision is supported by substantial evidence in the record. Employee argues that Dr. Varga did conclude to a standard of reasonable medical probability that Employee's scleroderma was caused by his exposure to silica a the Arlon plant. Employee notes that in evaluating Dr. Varga's testimony, "the Board accepted his multi-prong test for reviewing the hypothesis of causal relation, examined the test parameters one by one, and concluded that all elements were met in the instant case."
Employee's Answering Brief at 22-23.
Employee further asserts that the Board's conclusion that Employee's condition is an occupational disease that was caused by the exposure to silica dust particles at Arlon is supported by substantial evidence in the record. Employee contends the Board heard evidence that supported Employee's testimony that the mill room procedure created silica dust particles and that he was exposed to the dust particles. Furthermore, Employee notes that the Board's choice to adopt the testimony of Dr. Varga over Dr. Myerson is supported by the fact that. . . . . Dr. Varga [has] greater familiarity with scleroderma and its pathogenesis . . . [and] it is clear that Dr. Myerson had a flawed understanding at best of various aspects of the milling process. . . . Employee asks this Court to affirm the decision of the Board.
Id. at 33.
V. Standard of Review
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it. Furthermore, this Court shall give due account to the experience and specialized competence of administrative agency and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Johnson at 66.
See 29 Del. C. § 10142(d); Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
VI. Discussion
This Court finds that the decision of the Board that Employee met his burden of proof by a preponderance of the evidence that Employee's scleroderma was a result of exposure to silica dust particles at Arlon is supported by substantial evidence in the record.
A. The Board's Decision Is Supported By Substantial Evidence In The Record
In order to recover for an occupation illness, Delaware law requires a worker to present evidence that "the employer's working conditions produced the ailment as a natural incident of the employee's occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general." The Board ruled that Employee had met this standard. Specifically the Board stated that "[b]ased on what is presently known in the medical community, Dr. Varga believes that [Employee's] exposure to silica dust at Arlon caused scleroderma."
Anderson v. General Motors Corp., Del. Supr., 442 A.2d 1359 (1982); see also Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1064 (1999) ( citing Anderson).
Bd. Dec. at 16.
This case turns on the decision by the Board to accept the testimony of Dr. Varga over that of Dr. Myerson. The Board is free to accept to choose one expert's opinion over the other, as long as the substantial evidence standard is met. The Board's decision to accept the testimony of Dr. Varga is supported by substantial evidence in the record. Specifically, the Board found that Dr. Varga's
DiSabatino Brothers, Inc., v. Wortman, Del. Supr., 452 A.2d 102, 106 (1982).
credentials and experience relating to the pathogenesis, diagnosis and treatment of scleroderma show a high level of involvement with the subject. For many years, he has been the recipient of NIH grants for research and study in scleroderma. While his numerous publications did not focus on the relationship between silica and scleroderma, the Board finds Dr. Varga very credible. He has treated up to a thousand patients with seleroderma. On the other hand, this is Dr. Myerson's first exposure to a case involving scleroderma and his review of literature on the subject does not compare equally with Dr. Varga's experience.
Bd. Dec. at 16.
The Board accepted Dr. Varga's three pronged test for reviewing the scleroderma hypothesis which "determine[s] the existence of literature showing consistent and strong association between scleroderma and an environmental exposure, a temporal relationship establishing duration and intensity, sufficient exposure to the putative agent a biological mechanism implicating such exposure in the development of the disease." The Board analyzed each of the three prongs to this test one by one and found that all of the elements were met in the instant case.
Id. at 16-17.
See Part II. D. for a comprehensive recitation of the Board's analysis.
Due to the rarity of this disease and the cases addressing this issue, it is instructive to look to authorities outside of Delaware. In Dawson v. Associated Electric, a Missouri case similar to the case at bar, the Court held that the evidence in that case submitted to the Industrial Relations Commission was sufficient to support finding that an employee, who contracted scleroderma while employed at a coal mining facility, suffered a compensable occupational disease. The Dawson Court dealt with many of the same appellate issues that are presented in the case presently before this Court. Specifically, the medical experts testified at the agency hearing below that much was unknown about the cause of this disease. However, one medical expert testified that there is a strong relationship between silica exposure and scleroderma and that the employee's scleroderma was the result of exposure to silica particles in coal dust. The agency below found one medical expert's testimony to be "more credible and concluded that [the employee]" suffered from an occupational disease arising out of and in the course of [the] employment which renders [the employee] permanently and totally disabled.
Mo. Ct. App., 885 S.W.2d 712 (1994).
Id. at 714.
The employer brought the case on appeal asserting. among other things, that the cause of scleroderma is unknown and there was not sufficient evidence of a direct causal connection between the work conditions and scleroderma. The Dawson Court's standard of review was based on substantial evidence and that Court found that "no error in the [agency's] determination that [the employee's] scleroderma was medically causally related to [employee's] job, especially when that determination was also based upon a determination that [one medical expert's] testimony was more credible."
Id. at 716
Similarly, this Court finds that the Board's decision to choose one expert's testimony over that of another to conclude that Employee's exposure to silica at the Arlon Plant caused him to contract scleroderma.
B. This Court Does Not Reach Whether the Board Applied The Correct Legal Standard Because Its Decision Is Nonetheless Supported By Substantial Evidence In The Record
The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it.
This Court finds that the Board's decision is supported by substantial evidence in the record and this Court will not get into a discussion about semantics. Although the Board stated that it adopted Dr. Vargas' "plausibility" standard, this Court finds (as Dr. Varga testified) that causation was proved to a "reasonable degree of medical probability." Dr. Varga concluded to a reasonable degree of medical probability that "assuming that a substantial duration and intensity of exposure to silica may have occurred beginning with [Employee's] employment in 1977 it is likely that the onset of manifestation of systemic sclerosis [scleroderma] developed following exposure to silica." The Supreme Court of Delaware in Air Mod Corp. v. Newton addressed a similar semantics issue and stated that
General Motors Corp. v. Freeman, Del. Super., 164 A.2d 686, 688 (1960).
Tr. of Bd. Hr'g at 18, 23, 25, 26.
Del. Supr., 215 A.2d (1965).
[a]dmittedly, from a legal point of view, a more positive causal connection between the occurrence . . . and plaintiff's disability would be desirable; and unquestionably, the `reasonable medical certainty' test, furnishing probability of causation rather than mere possibility, is preferable when obtainable. We must recognize, however, the understandable reluctance of medical witnesses to be dogmatic as to causation of a physical condition. In the thinking and reasoning of a physician, we realize, the realm of probability and the realm of possibility often overlap. Semantics must given way in the search for a fair and just result; and the distinction between words like `possible,' `probable.' `reasonable certainty,' and the like, may not be over-emphasized. A `could have' answer of a medical witness, such as we have here, may not be isolated and considered alone; it must be considered in the light of all of the other evidence in the case.
Id. at 438 ( citing General Motors 164 A.2d at 688).
This Court will not undertake to differentiate between "plausible" and a reasonable medical "possibility." The Board found that the evidence presented by Employee met the burden of preponderance of the evidence. Regardless of what standard was applied, the evidence presented to the Board supports its decision.
VII. Conclusion
This Court finds that the decision of the Board is supported by substantial evidence in the record. The Board did not otherwise commit any error of law. For the reasons stated the decision of the Board is AFFIRMED.
IT IS SO ORDERED.