Opinion
BOARD No. 06295591
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Brian J. Gunning, Esq., for the employee at hearing
Donald Dalrymple, Pro-se on brief
Thomas R. Murphy, Esq., for the insurer at hearing
Leo Roche, Esq., for the insurer on brief
This is the employee's pro se appeal on an allegation of toxic exposure at work. His claim for compensation under G.L.c. 152, § 34, 13, 13A and 30 was dismissed. Finding no error in the decision we affirm.
The employee, Donald Dalrymple, was 61 years old at the time of hearing. (Dec. 3.) From 1964 to 1978, he worked for the employer, Reidy Body and Paint Shop as an auto body man where his job included grinding off paint from damaged metal, applying a plastic compound, called Bondo, filing off rough areas using sanders, and occasionally assisting in the painting of cars. (Dec. 4)
The employee testified that the shop was filthy and dusty with essentially no ventilation system. (Dec. 4; Tr. 9.) During most of his employment at Reidy he had no mask or special protective equipment to use while performing his garage work duties. Id. Mr. Dalrymple stopped working on September 1, 1978 because of arthritis and blackout episodes. (Dec. 4.) He contends that his past exposure to contaminants at the employer's place of business is causally connected to his interstitial pulmonary fibrosis.
Mr. Dalrymple's claim was denied at conference. He appealed to an evidentiary hearing, held on April 8, 1993. His hearing testimony was submitted on video because the employee's frail health made him physically unable to appear. (Dec. 2; Employee's Ex. 2.) The medical evidence offered included the depositions of Raymond L. Murphy, M.D., the employee's treating physician and that of internist Mark Friedman, M.D., the insurer's expert.
In his decision, the judge found that the employee suffers from a multiplicity of medical conditions. (Dec. 4.) He adopted the opinion of Dr. Murphy who diagnosed coronary artery disease, morbid obesity, interstitial pulmonary fibrosis, and a history of arthritis which totally disabled the employee from gainful employment. (Dec. 4.) He also adopted Dr. Murphy's opinion that the interstitial pulmonary fibrosis is a major contributor to the employee's impaired oxygenation. (Dec. 4-5.)
The judge noted Dr. Murphy's report of December 7, 1989. Therein the doctor opined that the causation and etiology of interstitial pulmonary fibrosis is not entirely clear and could be associated with rheumatoid arthritis, Sjogren's type syndrome, multiple work-related exposures to dust, or even cancer. (Dec. 5; Employee's Ex. 2.) In his June 12, 1991 report, Dr. Murphy was only willing to state that it was "possible" the interstitial fibrosis was related to previous inhalation from the work exposure. (Dec. 5-6; Employee's Ex. 2, 3, 4.) The doctor maintained this opinion at his March 26, 1993 deposition. Upon interrogation he would go no further than to say the employee's lung condition waspossibly related to the employment related dust exposure. (Dec. 6; Murphy Dep. 6, 12.)
Based on this evidence, employee was found to have failed to meet his burden of proof by establishing causal relationship to a "probability" (Dec. 6-8.) As such, the claim was dismissed.
The judge did not consider other issues raised by the insurer in light of this result. (Dec. 7.)
The pro se appellant raises several issues on his appeal to the reviewing board. Mr. Dalrymple contends that the judge ordered a § 11A impartial examination which resulted in a causation opinion favorable to him, but that the judge failed to consider the report in his decision. The record reflects, however, that the parties opted out of the procedures at hearing and waived admission of the § 11A report on April 8, 1993. (Employee's Ex. 1; and see 452 Code. Mass. Regs. 1.10(7)).
It appears that at the time of the September 3, 1992 conference the parties requested a § 11A impartial. By the time of the hearing, the parties opted out and requested permission to depose their respective witnesses. Mr. Dalrymple was represented by counsel at the time.
The employee's wife, Shirley J. Dalrymple, lovingly submitted 36 pages of painstakingly researched documents, which she copied word for word by hand in support of her husband's claim. The documents were from the Dupont Automotive Refinish Product Manual and are Material Safety Data Sheets derived from the OSHA standards found in 29 C. F. R. § 1920. 1200 relating to chemical and dust inhalation. The documents, dated August 14, 1995, however, were not in evidence at the hearing before the judge, nor were they referenced in the employee's brief, also written by Mrs. Dalrymple. The safety documents were submitted on June 29, 1995 after the record was closed. Despite Mrs. Dalrymple's valiant efforts, the judge was bound by the dictates of due process to base his decision only on that which was properly submitted into evidence. Dedo v. Valkyre, 7 Mass. Workers' Comp. Rep. 11, 11 (1993), citing Haley's Case, 356 Mass. 678, 681 (1970). Moreover, we are bound to review nothing beyond the record that was before the judge. See G.L.c. 152, § 11C; 452 Code. Mass. Regs. 1.15 (4) (a)2 (briefs shall contain "appropriate references to the record . . .").
Compensation may be awarded under G. L. c. 152 for injuries sustained due to toxic chemicals exposure at work. Moore's Case, 362 Mass. 876 (1972); see Jones v. Sylvania Products, 7 Mass. Workers' Comp. Rep. 347 (1993). But it is the employee's burden to establish that he is entitled to compensation under the Act. Sponatski's Case, 220 Mass. 526, 527-528 (1915). Where causal relationship is a matter beyond the common knowledge and experience of the ordinary layman, proof of causation between an injury and the employment must rest in part upon expert medical testimony.Sevigny's Case, 337 Mass. 747, 749 (1958). Because the expert relied upon by the employee and adopted by the judge expressed only a "possible" causal connection between dust or chemical inhalation and interstitial fibrosis, the employee did not and could not meet his difficult burden of proof.Hachadourian's Case, 340 Mass. 81, 86 (1959); Sponatski's Case,supra at 527-528. An expert opinion must be to a "probability." A "possibility" will not do.
Accordingly, we adopt and affirm the decision of the administrative judge.
______________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: March 27, 1996