Opinion
C.A. No. 98A-03-013 WCC.
Submitted: April 26, 1999.
Decided: January 19, 2000.
Appeal from the Industrial Accident Board — AFFIRMED
Kenneth F. Carmine, Esquire; 840 N. Union Street, P.O. Box 514, Wilmington, DE 19899. Attorney for Claimant-Appellant.
Robert H. Richter, Esquire; Mellon Bank Center, 919 North Market Street, P.O. Box 128, Wilmington, DE 19899. Attorney for Employer-Appellee.
ORDER
This 19th day of January, 2000, after considering Richard Smith's (the "Claimant") appeal of the Industrial Accident Board's (the "Board") decision, it appears that:
1. On May 12, 1997, the Claimant began working for Service Tire Truck Center, Inc. (the "Employer") to repair tires from blowouts or punctures in its tire repair shop. To patch a tire, the Claimant would drill the tire, plug it, and then put his head inside the tire to buff the inside liner in order to roughen it for patching with the use of an air buffer. This buffing would produce airborne particles, such as dirt and dust. The Claimant also provided these same services during road service.
2. On August 11, 1997, after three months of working, the Claimant noticed raised hives on his body. By August 15, 1997, the Claimant was visibly worse, having swollen lips and hands, a raised rash all over his body and shortness of breath. The Claimant went to the Glasgow Medical Aid Unit for treatment and was told that blackberries had caused the reaction. His symptoms improved during his absence from work for the next three days.
On August 28, 1997, the Claimant worked his normal day shift plus serviced a few calls in the evening doing road service and did not arrive home until 3:00 a.m. The Claimant was once again covered in a raised rash; his hands, lips and eyes were swollen; he had shortness of breath, vomited and became unconscious. He was taken to Glasgow Medical Aid Unit and then later transported to Christiana Hospital with a life-threatening, unspecified allergic reaction. He returned to work a week later, on September 5, 1997, to pick up a paycheck, and after 20 minutes at the work place, he again broke out into hives and had trouble breathing, and his throat swelled. The Claimant was subsequently diagnosed with a latex allergy, which is undisputed.
3. Consequently, the Claimant sought compensation for total disability benefits and medical expenses for his latex allergy, which he asserted arose while he worked for Employer. The Claimant testified that prior to August 1997, he had no adverse reactions to food and that he was only allergic to cat dander, which was treated with Seldane. Although the Claimant has worked variably in several jobs involving tires over the last ten years, he never had any reactions until August 1997.
Although Dr. Gawchik, who took the Claimant's work history, provided the specific dates, the Claimant gave the following work history: 1) in January 1989 through June 1991, he worked for Bargain Tire Center, where he did 24-hour road service, similar to what he did for Employer; 2) in August 1991 through February 1992, when he worked for a shoe company as a salesman, he injured his foot and was out on disability for two years; 3) from April 1994 to June 1994, he worked for Delaware Tire Center, changing tires; 4) from July 1994 to October 1994, he worked for Carl King as a cashier; 5) from January 1995 to May 1996, he worked for Tri-State Battery and sold batteries; 6) from May 1996 to August 1996, he worked for Strike-A-Lot where he was a fleet mechanic; and 7) from March 1997 to April 1997, he worked for El Tire.
The Claimant's ex-wife, Ann Marie Smith, testified that she witnessed the Claimant's allergic reactions in August 1997 and drove him to the medical center on August 28, 1997. During the time that she has known the Claimant, except for the allergy to their cat, she was not aware of any allergic reactions similar to those that occurred in August 1997. But since that time, she has observed other allergic reactions from the Claimant, particularly to foods, which has required an injection of Epinephrine. In addition, she testified that the Claimant's food, clothing and even his medical care must now be monitored due to his latex allergy.
The couple married in 1986, and although they divorced in October 1994, they saw one another frequently through the years, reunited and eventually began living with one another in January 1997.
4. Dr. Leonard H. Seltzer, who is a licensed physician specializing in allergy, testified by deposition for the Claimant. Dr. Seltzer saw the Claimant on several occasions in September and October 1997 and diagnosed him with a latex allergy. In addition, he found that the Claimant was allergic to certain foods, such as shrimp, crab, potato, blue mussel, celery, pork, soybean, and beef and to grass, trees, weeds, cat dander, cat pelt, dust mite, and ragweed. He characterized the Claimant as atopic, a person very susceptible to allergies. He defined allergy as "an inherited tendency to hyper react to the environment . . . [b]ut that something needs to occur for it to be triggered." He further explained that when a latex allergy is found, other allergic problems frequently follow, such as respiratory allergy and food allergy. Although he admitted that latex was present everywhere, he opined that the Claimant became latex allergic through exposure to latex at work in the tire changing environment.
On September 17, 1997, Dr. Seltzer wrote a note informing the Employer that the Claimant was unable to work due to the severe nature of his allergic reaction.
(Seltzer Dep. at 13.)
Dr. Sandra Gawchik, who has specialized in allergy and clinical immunology for eighteen years, also treated the Claimant. She stated that back in 1992, the Claimant had hay fever symptoms and was allergic to cat. Like Dr. Seltzer, she testified that the Claimant was atopic, explaining that he has "an allergic predisposition or allergic tendency" and that he was more predisposed to become allergic to latex than the average person. She further opined that the inhalation of the fine powdered latex matter from the sanding of the radial tires, during May to August 1997, caused the Claimant to become sensitized to the latex, because prior to that time, no indication of any sensitivity to latex was evident. But, both she and Dr. Seltzer admitted that no independent medical studies existed to support their opinions.
(Gawchik Dep. at 46.)
Dr. Athena Jolly, who is a licensed physician with board certifications in occupational medicine, testified by deposition for the Employer. She examined the Claimant on January 12, 1998 and reviewed various medical records. She diagnosed the Claimant with a latex allergy but believed that before she could offer an opinion on whether the Claimant's work environment caused the allergy, additional evidence was needed to establish that tire particles, containing natural latex rubber in an amount and degree to which the Claimant was exposed, were capable of inducing an allergic response. She was troubled that after an exhaustive search of medical databases, she was unable to find any other cases of tire workers developing such a condition.
There were also several witnesses who testified for Employer that in their years of experience working in the tire industry, they had never heard of a worker developing a latex allergy from tires.
5. On March 17, 1998, after evaluating all the evidence, the Board denied the Claimant's petition for compensation. The Board found that the testimony given by the Claimant and his treating physicians was insufficient to establish that the tire repair work produced his latex allergy due to the lack of studies and expert knowledge to support that conclusion. As such, the Board found no recognizable link between the allergy and a distinctive feature of his job. In essence, the Board found that there was no causal link between the Claimant's employment and his latex allergy. In spite of finding no causation, the Board also stated that even if the Claimant's employment triggered the allergy, this would be insufficient to meet the test set forth by the Delaware Supreme Court in Anderson v. General Motors Corporation.
Del. Supr., 442 A.2d 1359, 1360 (1982). See infra note 13 and accompanying text.
6. As a result, the Claimant appeals the Board's decision, arguing that the evidence is sufficient to meet the burden of a recognizable link between the allergy and some distinctive feature of the Claimant's job and that the latex exposure at the Employer's business produced the allergy as a natural incident of the occupation. Specifically, the Claimant argues that sticking his head inside the tire while buffing it, causing an inhalation of dust from the tire, was a distinctive feature of his job. The Claimant also argues that his condition was further confirmed when, after 10 absent days from work, the Claimant returned to the Employer's facility for 20 minutes to pick up a paycheck and had another reaction.
7. In response, the Employer asserts that the evidence failed to show that the levels of latex exposure experienced by the Claimant at work established causation and that only hunches supported the opinion that working with the tires caused the Claimant's allergy. Instead, the Employer proposes that latex is generally present in the environment and that the Claimant, as atopic, was more susceptible to develop allergies than the average person. The Employer also argues that the Claimant failed to establish that the allergy resulted from the peculiar nature of his employment rather than from his own peculiar predisposition.
8. The sole function of this Court upon appeal from a Board decision is to determine whether there is substantial evidence to support the findings and conclusions of the Board. Substantial evidence has been defined as such relevant evidence that a reasonable mind may accept to support a conclusion. This Court does not weigh evidence, determine questions of credibility, or make its own factual findings.
DiSabatino Bros. Inc. v. Wortman, Del. Supr., 453 A.2d 102 (1982).
Oceanport Indus. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
9. The issue before the Board was whether the Claimant's allergy was a compensable occupational disease. The test for establishing causation in occupational cases was set forth by the Supreme Court in Air Mod Corporation v. Newton and reaffirmed in Anderson v. General Motors Corporation, which provided:
Del. Supr., 215 A.2d 434 (1965).
See supra note 7.
for an ailment or disease to be found to be a compensable occupational disease, evidence is required 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.
Anderson, 442 A.2d at 1361.
The Court held that there must be a recognizable link between the disease and some distinctive feature of the claimant's job and it cannot be based on an aggravation of a condition, which is not occupational in nature. In addition, the employee must establish that the ailment resulted from the peculiar nature of the employment rather than from his own peculiar predisposition.
Id. at 1360.
Id. at 1361.
10. The Court believes that substantial evidence was presented to establish that the performance of the Claimant's specific job responsibilities at the Employer's tire center triggered his latex allergy. But, this conclusion, to the extent it is contrary to the Board's findings, does not require a reversal of the Board's decision, because the Board's ultimate conclusion to deny compensability was correct. Simply, the Claimant has failed to meet the Anderson test.
See Chrysler Corp. v. Alston, Del. Supr., No. 157, 1997, Veasey, C.J. (Sept. 22, 1997) (ORDER) (holding that in affirming a Board decision, the Superior Court may provide legal reasoning different from that of the Board, so long as the Superior Court does not fall into the error of weighing the evidence, determining questions of credibility and making factual findings and conclusion).
According to Anderson, even if the employee's ailment was a preexisting but latent condition, evidence that the job aggravated or triggered it is insufficient. Using Air Mod Corporation v. Newton, supra, as a basis, the Anderson Court framed the issue as follows:
Anderson, 442 A.2d at 1360.
See supra note 11.
The question is whether employee's ailment was occupational in nature; and simply because there was evidence to believe it had either been contracted or aggravated on his employer's premises is legally insufficient to find it to have been an occupational disease. . . . [T]he test of what is an occupational disease is the same whether the employee is decrepit or in normal health. There must be a recognizable link between the disease and some distinctive feature of the claimant's job. This test is not met where disability is caused by an aggravation of a condition which is not occupational in nature.
Anderson 442 A.2d at 1360 (citations omitted).
Again using Air Mod Corp., the Anderson Court further noted that these conclusions were premised upon the earlier statements of the New York Court of Appeals in Harman v. Republic Aviation Corporation, which stated:
N.Y. Supr., 82 N.E.2d 785 (1948).
An ailment does not become an occupational disease simply because it is contracted on the employer's premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question. There must be a recognizable link between the disease and some distinctive feature of the claimant's job, common to all jobs of that sort.
Anderson, 442 A.2d at 1360 ( quoting Air Mod, 215 A.2d at 442).
This Court reads Anderson to mean that when an allergy is triggered by the employment of one who is predisposed to that allergy, it is insufficient to establish compensability. As such, the Court finds that there is substantial evidence that the Claimant's allergy resulted from his own peculiar predisposition rather than from the peculiar nature of his employment.
See Anderson, 442 A.2d at 1361.
First, there is overwhelming evidence supported by the record that the Claimant was predisposed to allergies. For instance, the Claimant's two treating physicians diagnosed him as atopic. Dr. Gawchik defined atopic as having an "allergic predisposition or allergy tendency" and stated that he was more predisposed to become allergic to latex than the average person. In addition, Dr. Seltzer explained that an "allergy [was] an inherited tendency to hyper react to the environment . . . [b]ut something needs to occur for it to be triggered. Therefore, according to the Claimant's own experts, he had an inherited, allergic predisposition that merely needed something to trigger it. Furthermore, the Claimant's allergies are numerous. In addition to his latex allergy, he is allergic to certain foods, grass, trees, weeds, cat dander and pelt, dust mite, and ragweed. As such, to conclude that this particular allergy is peculiar to his employment and not his own predisposition would stretch one's common sense.
(Seltzer Dep. at 13.)
The Court sympathizes with the Claimant's unfortunate condition, but it cannot ignore the guidance outlined by the Supreme Court in Anderson. As such, the Court finds substantial evidence to support the Board's refusal to find a compensable occupational disease in the Claimant's latex allergy.
While the Court recognizes that Anderson also held that a person predisposed may still recover, the Court does not find substantial evidence to support such a finding. See Anderson, 442 A.2d at 1361.
See supra note 16.
11. For the reasons set forth above, the Board's decision is AFFIRMED.
IT IS SO ORDERED.