Appeals Panel Reverses Decision on Inhalation Injury Claim
The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer and has rendered a new decision that the claimant failed to prove that he had suffered a compensable inhalation injury. One of the problems with the claimant’s proof of causation was that he failed to establish what chemical he was allegedly exposed to that he believed was the cause of his injury.
In Appeals Panel Decision No. 170329, decided April 19, 2017, the claimant testified that he had been operating a bulldozer moving oil field waste material comprised, in part, of oil, water and chemicals, from one side to another side of a mound of waste material 60-90 feet tall and that while working he was overcome by fumes, became nauseated, threw up and may have lost consciousness briefly. He left the jobsite and sought medical attention with his primary care physician who refused to see him due to noxious odors which had permeated his clothing and who told him to go to the emergency room. The claimant did so and reported his complaints as nausea, vomiting, lightheadedness and weakness. The ER records list a diagnosis of “exposure to gaseous substance” and “toxic effect of gas exposure.”
The claimant relied upon the reports of his treating physician and his pulmonary specialists to establish the requisite causal connection between the claimed toxic exposure inhalation injury and the alleged resultant conditions suffered by the claimant. In his Decision and Order, the Hearing Officer stated that the reports of these physicians were persuasive evidence that the claimant sustained a compensable injury in the form of an occupational disease. Illustrative of that evidence is the following statement from one of the physicians:
[The claimant] sustained inhalation lung injury while working on the top of a large pile of oilfield waste on (date of injury). . . .
Since the time of the exposure, [the claimant] has had symptoms of cough and shortness of breath. . . . His exercise tolerance has progressively declined and at present he is barely able to negotiate 20-30 feet at a time on a level terrain.
. . . . In view of his premorbid status and clinical course following the inhalation of noxious gases and results of pulmonary function tests, his current condition can be attributed to toxic inhalational lung injury.
The temporal association of onset of symptoms and exposure renders the diagnosis almost certain.
The Appeals Panel first observed that the claimant’s alleged injury was one that was beyond the understanding of ordinary laypersons and that the claimant was required to establish a causal relationship between his work and his condition using expert medical evidence. The panel then noted that the fact that a claimant’s proof of causation may be difficult does not relieve him of the burden of proof. Citing Texas Division of Workers’ Compensation Appeals Panel Decision No. 93665, Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199, 205 (Tex. 1980), and Parker v. Mutual Liability Insurance Company, 440 S.W.2d 43, 46 (Tex. 1969). The panel found the claimant’s proof to be insufficient to meet this burden, writing:
The medical records in evidence do contain diagnoses of exposure to gaseous substance, toxic effect of unspecified substance, exposure to toxic fumes, shortness of breath, chronic bronchial inflammation with chronic bronchitis and bronchiolitis following fume exposure, and toxic inhalation lung injury but no specific chemical or toxic substance was identified and none of the medical records in evidence contain an explanation concerning how exposure to or inhalation of any substance the claimant may have encountered at work caused his symptoms.
The Appeals Panel reversed the Hearing Officer’s determination that the claimant sustained a compensable injury in the form of an occupational disease and rendered a new decision that the claimant did not sustain a compensable injury.
FOLIO
