MWCC NO. 97-10551-G-0820
JOHN E. HARRIS, SR. CLAIMANT
vs.
COOPER TIRE & RUBBER CO.
EMPLOYER
(SELF-INSURED)
REPRESENTING CLAIMANT :
John Kirkham Pov all, Esquire, Cleveland,
MS
REPRESENTING EMPLOYER :
J. Hale Freeland, Esquire, Oxford, MS
This matter was heard by the Commission on November
22, 1999 pursuant to the Claimant's Petition and Amended Petition for Review
as well as the Employer's and Carrier's Petition for Review. By Order dated
August 11, 1999 the Administrative Judge found that Mr. Harris sustained
a compensable injury while in the course and scope of his employment with
Cooper Tire & Rubber Company, but that he suffered no permanent disability
as a result. Mr. Harris argues that an award for permanent disability benefits
is appropriate, while the Employer and Carrier contends that the Judge
erred in awarding any benefits at all.
The two primary issues are whether Mr. Harris sustained a compensable injury, and whether he is entitled to an award of permanent disability benefits. The extent of temporary disability attributable to the injury is not questioned.
On the issue of compensability, the Administrative
Judge found that Mr. Harris successfully shouldered the burden of proof
by presenting sufficient, competent evidence that he suffers from a form
of lung disease which was either caused, contributed to or aggravated by
his exposure to chemicals in the work place. Miss. Code Ann. § 71-3-3
(b) (Rev. 1995). There is, to be sure, a conflict in medical opinion
as to the exact relationship between Mr. Harris's lung
condition and his exposure to chemicals at work, but in the end we are
sufficiently persuaded by the opinion of Mr. Harris's treating physician,
Dr. Mansel, that a causal relationship does in fact exist. We therefore
agree with the Administrative Judge and find that the Mr. Harris's injury
is compensable under the terms of Mississippi Workers' Compensation Law.
As noted previously, the Administrative Judge held that the evidence produced at the hearing failed to substantiate a permanent disability, and benefits therefor were denied. On this point, Mr. Harris testified credibly that he no longer has the physical capacity to perform his job at his pre-injury level. As a result, he claims his production is down and so are his wages, from around $24.00 per hour to around $17.00 per hour.
A representative of Cooper testified, however, that Mr. Harris's pay probably is more now than before his injury although this may be due in large part to a general increase in wages. Unfortunately, this representative from Cooper was not more specific about Mr. Harris's post-injury wages.
Finally, Dr. Mansel, Mr. Harris's treating physician, was of the opinion that Mr. Harris should not return to the same work environment as before his injury.
Based on the record so far. it appears to us that Mr. Harris may indeed have some degree of permanent disability. However, the extent of this disability, if any, cannot be meaningfully determined from the limited evidence which is available. Without presently deciding whether Mr. Harris is en titled to permanent disability benefits, we hereby vacate the Judge's decision to deny permanent disability benefits, and remand this matter to the Administrative Judge for further consideration of this issue. To this end, the Judge should allow the parties a reasonable opportunity to present whatever additional evidence which is relevant to this issue.
Following the Administrative Judge's reconsideration of this issue, and the issuance of an order either awarding or denying permanent disability benefits, any party aggrieved thereby may petition for review as in all other cases. In all other respects, the Order of Administrative Judge dated August 11, 1999 is affirmed.
SO ORDERED this the 4th day of January, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION:
Mike Marsh
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 97 10551-G-0820
JOHN E. HARRIS, SR. CLAIMANT
vs.
COOPER TIRE & RUBBER CO.
EMPLOYER
(SELF-INSURED)
APPEARING FOR CLAIMANT :
Honorable John Kirkham Povall, Attorney at Law,
Cleveland, Mississippi
APPEARING FOR SELF-INSURED EMPLOYER :
Honorable J. Hale Freeland, Attorney at Law,
Oxford, Mississippi
A hearing was held on April 8, 1999, at the Coahoma County Courthouse located in Clarksdale, Mississippi at approximately 10:30 a.m. This cause concerns an alleged injury suffered by the claimant, John E. Harris, Sr., in the form of a pulmonary condition while in the employ of Cooper Tire & Rubber Co.
Stipulations entered into by the parties included the following:
1. The average weekly wage of the claimant, which was determined to be $929.88.
2. The maximum medical improvement date of the claimant which was designated to be July 7, 1997.
Evidence was entered into this cause as follows: Employer and Carrier Exhibit each bag weighed approximately 50 pounds and the claimant would be required to pick up over 30 bags a day. As to the location of the Banbury operator, it is not really a closed in area, but is situated in the back area of the plant. When asked if this area had changed since early 1997, he indicated, "Yes, we have added additional ventilation in this particular area." This witness also said when you dump a bag there is "some" dust in the air, but that it dissipates quickly. As to the Banbury operator area, the chemicals are "pretty thick" in the immediate area. Mr. Allen testified that Tarzan Reddix was the claimant's supervisor on the reported date of injury, and on that date claimant left, saying he was "hurting". When "John" returned, he was provided with a different and much thicker face mask, according to this witness. When the claimant returned, he did not return at full strength. He had weakened noticeably, according to Mr. Allen. Claimant had been in the hospital and even though he had improved, it appeared to this witness that he never returned to his full pre-injury strength and capability. "It is dusty, I have sinus trouble, I would never go up into that area without a mask. I'm gonna have some protection". He testified, as well, on cross-examination that the claimant was a friend of his and Mr. Allen said the claimant did a good job both before and after the injury. It is noted for the record that Mr. Allen presented himself as a credible witness on the date of hearing.
The claimant testified in this cause that he is 48-years old, has two years of college, and has 24 years of active and reserve duty combined. Claimant is about to retire from the Military at the rank of Staff Sergeant. He indicates and presents himself as an educated and credible witness. Claimant testified that on March 22, 1972 he first started at Cooper Tire and that February 24, 1999 was the last day that he worked at Cooper Tire. (The date alluded to, 2-24-99, was the last day he worked as he was discharged pending arbitration resolution through the union.) The claimant described his duties as a Banbury operator, the position he held on the date of injury and how he would slit open the bags with his left hand and pick them up and dump them over into the hopper. The sacks would be at face level during this process and when ready to be dumped into the hopper, which is about 5 feet in height, then one pours in chemical 2170. "I fill up about seven different hoppers, I have to handle 90 bags when we were running full, but on regular days not as many." He testified that that "they" have two large hoppers, the rest are smaller. The claimant's testimony as to his daily routine details all the different chemicals by code numbers and the times, etc. that he has to refill or use or come into contact with these chemicals. A description of the area on the date of injury indicated that the claimant felt that it exhibited very poor ventilation. After the claimant's onset date, "they" placed two large fans in the area for ventilation and before and after masks were markedly improved after his onset date. Before they were thin, like a painter's mask, and you "had to double up two thin ones though, after Terry said they were too expensive." "To me the air was like when they are crop dusting and you are around it". Many of these chemicals are white except for the sulfur, which is yellow. "I'm a black man and I have to use a blow hose to blow it all off before I can leave the plant for lunch because I have white all over my body." Also, this claimant testified that some of the chemicals are different in nature, i.e. texture, color and odor. As to his health prior to the injury, he noted his health was good. The Military would check him out annually and thoroughly with push-ups and the "two-mile run", a requirement. However, his present condition is not as hardy. The claimant recited as to the day of injury wherein he had pain in his sides, stomach, etc. Claimant worked as long as he could after lunch, but the pain in his chest was so great he said he had to leave. He told Michael Allen and Tarzan Reddix. Claimant could not breath when he got home. His brother took him to the hospital. He stayed in the Clarksdale Hospital for 14 days starting on the onset or injury date. Several specialists saw and treated him. Claimant went home after his hospital stay and remained off work for two weeks. He was paid sick pay during that time through the collective bargaining process as dictated by the union. The total time out was approximately seven weeks and he received seven weeks of sick pay. The claimant then went back to work for a two-week period after which he suffered a relapse while actually on guard duty and went to the hospital in Oxford where he stayed for several days under Dr. Mansel's care. On July 6 of 1997 the claimant went back to work. This was when he knew, or felt he knew, "it was work related" and he reported that to Cooper Tire. Reference is made to Employer and Carrier Exhibit 2, the form which is dated as being prepared on August 6, 1997. In April of 1998 the claimant went back to see Dr. Mansel. The claimant testified that he quit smoking at the direction of Dr. Mansel. He also testified that presently he is still weak, but he has been improving. He can no longer run the requisite two miles for guard duty. The claimant testified he now makes $17.00 per hour and he used to consistently make $24.00. He cannot do this any more. These figures and the discrepancies they represent are due to the fact that they are production quota based figures. As to the claimant's visit with Dr. Forrester, he indicated that it was "unbelievable". The claimant purportedly opened a chemical sack in front of him, the doctor ran from the room and into another back room. The claimant says he was with Dr. Forrester for about five minutes and indicated that he only examined him for about five minutes, however, it should be noted that in his deposition, Dr. Forrester testified he examined him for about one hour. The claimant has worked for Cooper Tire for 21 years plus, and the claimant has smoked for 28 years "off and on". In 1989, 1991 & 1994 he reflected that he had bouts with bronchitis, but he never missed any work because of this. It is also noted for the record that the employer and carrier is protected from any presumption arising from his possible discharge from employ as same is in the arbitration process and not relevant herein.
Robert L. Pugh, an employee of Cooper Tire for 23 years, testified in this cause in the claimant's case in chief. He indicated he has been a foreman there since 1996 in maintenance and is familiar with the upstairs Banbury area. Mr. Pugh testified that upstairs are all the raw materials to be used in the compounding procedure. Mr. Pugh corroborated the testimony as to hopper heights, numbers, etc. He also corroborated the testimony as to the ventilation measures put in after the claimant's onset, although the intake and outtake mechanisms were installed in 1998 basically for heat relief, according to this witness. Fans are located about 20 to 30 feet from the hoppers. He also testified in conclusion that he has not talked to the claimant about his workers' compensation claim.
The employer and carrier called Terry Champion, the Employer Relations Manager for Cooper Tire. He testified that the masks discussed are optional for the employees there, not required, and also made reference to Employer and Carrier Exhibit 1, the OSHA Report, which said that all was "OK" on the premises of this employer. Mr. Champion said the claimant never complained to him about chemicals and/or shortness of breath before the initiation of his claim. As to the Banbury site area "it's nothing you can actually see, but there is something up there." Reference was made to Dr. Mansel's letter to Terry Champion dated July 29, 1997. Dr. Mansel said that the claimant's condition was work-related due to the dusty environment at the plant. Mr. Champion said he was not aware of any extra breaks the claimant might take now or whether or not anyone has to help him in the mill room. He also noted, "Yes sir, it is chemical dust. It is not dust from dirt." Mr. Champion testified that "30 to 50 bags minimum would be opened in a day at least. At least I would say that's about right." As to sick pay, he noted it is paid due to a union company bargaining benefit process and that Cooper Tire is a self-insured entity. He testified that he keeps, and there are, two separate and distinct accounts with one account for workers' compensation claims and one account for health insurance claims.
Employer and Carrier Exhibit 1 is indicative of OSHA's response to Cooper Tire and Rubber Co. dated March 10, 1998, which represented to Mr. Terry Champion the results of air sampling taken on February 5, 1998 for compliance with OSHA Regulations. It noted that all dust and carbon black levels were below both the OSHA PEL, which is permissible exposure limit, and the ACGIH TLV, threshold limit value, with the exception of the millman's station where the total dust level exceeded the latter threshold limit value. It also noted in the self-same report that the Banbury operator not only loads the belt leading into the mixer, but also performs compounding duties in the same area. Conclusory remarks indicated that all air contaminant level samples were below the regulatory limits set by OSHA and the guidelines recommended by ACGIH with the exception of the dust levels at the drop mill station. The results of sample analysis that were listed on the employee exposure monitoring record done by Cooper Tire noted that the substance exposed (1) total dust, and (2) carbon black in the area occupied by Mr. Harris as a mixer-operator, conformed with OSHA permissible exposures as to both substances and were well below the level considered unsafe by OSHA.
Cooper Tire & Rubber Co. Employee Report of Illness or Injury indicated an injury date of April 14, 1997, noting that John Edward Harris, Sr. while working as a Banbury mixer had an illness, in essence, pneumonia. He did notify his supervisor, there were no witnesses. Same noted he was seen by a doctor on the same date, Dr. Jonathan Harrison, Clarksdale, Mississippi.
Employer and Carrier Exhibit 3 is a Supervisor Accident or Illness Investigation Report. It noted an alleged date of illness, injury or accident of April 14, 1997 and stated that same was not reported to the supervisor. The nature of the injury was "alleged pneumonia". A description of the accident followed: "When John Harris left work on 4-14-97 he told the supervisor his side was hurting. There were no witnesses". In reference to, or response to, the question of: "What corrective measures have been taken to prevent recurrence, same stated: No corrections to be made at this date and time". The date of the report appears to be 8-6-97, and is signed by the supervisor of the claimant on. that date, Tarzan Reddix and also signed by Mr. Terry Champion.
D r. J. Keith Mansel testified by Medical
Records Affidavit and Deposition in this cause. Dr. Mansel is a licensed
practicing physician in the State of Mississippi with a specialty in pulmonary
medicine for which he is board certified. Dr. Mansel indicated that he
first saw Mr. Harris on June 9th, 1997. He received from him a pertinent
history and physical from the hospital admission of Mr. Harris. At that
time he had been referred from Clarksdale, Mississippi, with persistent
pneumonia. It was noted he had been in the hospital in April of 1997 with
shortness of breath and some fever. He had responded to antibiotic therapy,
went back to work, but did not get completely back to his usual health
as far as stamina and energy. He had some mild shortness of breath. He
then developed again increasingly shortness of breath, fever, pleurisy
type pain, had an abnormal chest x-ray consistent with pneumonia and was
referred to him at that juncture. He obtained from Mr. Harris a history
as to his workplace environment and history in terms of his employment,
noting he had worked for a number of years at Cooper Tire and told this
physician that he was exposed to different types of chemicals and rubber
products. After he first saw him on June 9th his protocol was such that
he was hospitalized for seven days. He was placed on antibiotics and a
CAT scan was performed. The chest x-rays showed what he would call
infiltrates consistent with pneumonia. There was a little bit of fluid
present. He
was treated with antibiotics and an echocardiogram
was performed to check out his heart, which looked fine. Lab work was done
to be sure that he did not have diseases such as sarcoidosis, which is
a lung disease that occurs in his age group. A
bronchoscopy was performed and cultures were
all negative. He did improve with antibiotics and he felt at that time
that he had some type of pneumonia. He followed him up through the summer
of 1997. Upon discharge he was doing better. He next
saw him on July 7th. Claimant was better with
no fever and his chest exam was good and he at that time returned to work.
He saw him later on July 29th and he had returned to work and had had more
problems. When he went back to work he had
episodes again of shortness of breath and cough
and his history that he recounted certainly appeared that he had some symptoms
when he returned to his work environment. This physician wrote to Mr. Champion
at Cooper Tire. The claimant was placed back on antibiotics. He had seen
Dr. Burnham in Clarksdale and received some injection of antibiotics. He
saw him back on August 12th and he was a little better. In 1998 on April
3rd he saw the claimant and he was still at that time experiencing some
shortness of breath. He was concerned at that time that his x-ray revealed
that he may have had some fibrosis in his lung bases which means scarring
in his lungs relating to these recurrent events. Therefore, he ordered
a CT scan. This showed some fibrotic scarring in bot h lung bases.
Breathing tests were performed which showed a modest reduction in both
his lung capacity and his blood oxygen level. His lung capacity was down.
His total lung capacity was normal, but the flow is the amount of lung
capacity actually as available to him and it was down between 25 and 30%
or along in that number. His oxygen level was a little lower than normal,
it was 68 and in his age group it should have been around 80. Based on
a reasonable medical probability, he arrived at a diagnosis of his condition
for which he had been treating him all along and he felt Mr. Harris had
recurrent episodes of pneumonia. He had a history consistent with chemical
bronchitis and pneumonia and he sensed that when he would return to his
work environment his symptoms would recur. So at that time he felt like
they had been dealing with some chemical bronchitis, pneumonia leading
to some scar tissue in his lung bases. This doctor had an opinion, based
upon reasonable medical probability, that the cause of Mr. Harris' condition
that he diagnosed based on his history, his exam, his radiographs, his
bronchoscopy, "and all that," it was related to chemicals that he would
be exposed to in his work environment. Further, he had an opinion based
upon the same medical probability standard that the fibrotic scarring found
on the CT scan in April, 1998 would also be related back to the chemical
exposure in the workplace. This physician felt that Mr. Harris was a very
reliable man in that his history in conjunction with other pieces of the
puzzle, and his pulmonary function studies, all led Dr. Mansel to believe
that these chemical agents and his work environment led to this fibrosis.
He also had an opinion based upon a reasonable medical probability as to
the long term effect for a person like Mr. Harris who now has pulmonary
fibrosis, and he noted it was difficult to say what his long term prognosis
would be, but he does have some changes on his x-rays with his symptoms,
oxygen level, etc. and to the extent that these conditions are permanent
in terms of the fibrotic scarring, he noted that since it had been almost
a year when he saw him in April, 1998 he would doubt he would have improved.
He also noted that based upon Mr. Harris' pulmonary function tests he would
in all likelihood have little problem at rest, but with exertion he would
experience shortness of breath and fatigue, things like manual labor going
up a flight of stairs, that sort of exertion activity would give him a
shortness of breath, cough and fatigue. He noted that assuming that his
work required him to repetitively lift sacks of chemicals and dump those
sacks over the course of an 8 hour day, he felt based upon the same applicable
standard that the effects that he had described as occurring upon exertion
would, in fact, cause potential interference with his ability to perform
that job. He noted that based upon a reasonable medical probability the
condition that now exists with the claimant is such that it would necessitate
a reoccurrence or need for future medical treatment opining that that was
certainly possible. If he would continue to experience more shortness of
breath in the future it is possible that he might need treatment down the
road for that. He also noted that there was a probability of recurrence
of pneumonia if he continued to be exposed to the chemicals in the workplace.
His advice to Mr. Harris would be that he not return to that work environment.
He also noted that if the pneumonia did recur, future medical treatment
would be indicated. Further, these potential problems could be life threatening
under certain circumstances. Dr. Mansel was asked to review the list of
medical expenses that Mr. Harris had incurred and these were the medical
expense s that had been submitted for the treatment of pulmonary
conditions and he was asked as to whether or not the treatment the claimant
had received in Clarksdale and Oxford were necessary and reasonable to
treat those conditions, and he indicated that they appeared reasonable
to him and based on his experience would be in line reasonably in terms
of cost. He also noted that the fibrotic condition as he described is not
curable in the sense that it goes away completely. There is no definitive
therapy for pulmonary fibrosis and no definitive curable therapy "for sure".
Dr. Mansel was asked to comment on the fact that the claimant had been
smoking for approximately 26 years, however, that was not a primary cause
of fibrosis. Smoking characteristically causes bronchitis and emphysema.
Pulmonary fibrosis in and of itself, the classic definition of pulmonary
fibrosis that he is talking about, is not caused by smoking. "Now, smoking
may cause some scarring in the lung, but generally we are talking more
bronchitis which means inflammation of the bronchial tubes or emphysema
and not fibrosis." He noted that from a pulmonary physician's standpoint
when we use the definition pulmonary fibrosis, we would be using it as
not something related to cigarette smoke. However, his pulmonary function
test could certainly be related to his smoking and the fact that he smoked
for a long period of time could and would adversely affect his lung capacity.
Dr. Mansel noted that he had not reviewed the material data sheets or anything
as far as the chemicals that were actually used at Cooper Tire, noting
that he relied on the history to provide the most relevant evidence as
to the causative link to the claimant's problem and noted the history is
one of the most important factors in any diagnosis. "We are talking about
occupational lung illness, occupational asthma, chemical bronchitis, chemical
pneumonia." The history is certainly critical, he felt, based on other
factors. He looked at his x-rays, his exams, pulmonary function studies,
the CT scan, but the history is very critical in these cases because "just
to use an example, we know that a person with asthma can walk in a room
with hairspray, cough, wheeze, be unable to catch their breath, come back
out and they are fine and we could examine their lungs and there is nothing
there, so much of what we do is based on the history." He noted that although
this gentleman had no occupational asthma, that he diagnosed, he thinks
those diagnoses all blend together when you talk about occupational asthma,
chemical bronchitis, pneumonia and fibrosis. He certainly had hypersensitivity
to pneumonia. He certainly had, when he would talk to him in his work environment,
he would have cough, shortness of breath and some low grade fever. All
these things he felt were consistent with occupational related lung disease.
He noted he had not seen the claimant since April of 1998, and as far as
he was aware, he had not had any recurrence of the pneumonia. He testified
that at the time in April he was continuing to have some shortness of breath.
He indicated he did not know what chemicals he claimed caused the problem
so he had no idea what characteristics were involved. He did indicate that
his problems stemmed from calcium carbonate and zinc oxide. Dr. Mansel
was asked to look at an air quality sample test of Cooper Tire in 1997,
which specifically dealt with Mr. Harris and is referred to in all the
parts of this Opinion. It appeared that this would suggest that Mr. Harris
had normal air around him, but he once again reiterated that he is not
sure that he could still feel comfortable with the claimant working in
that environment, and that one could not necessarily infer that the air
was safe. Again, the most important thing to Dr. Mansel in putting a lot
of this together is his history. And, again, he gets back to his analogy
that people can work around some chemicals and never have a problem, others
do. Some people can walk in a room and not breathe the Pinesol in the room,
others can, so he felt certain reactions of the airways leading to scarring
in the lung does not necessary correlate with levels of exposure. Different
people for reasons we do not understand react differently. Dr. Mansel was
asked to look at Dr. Brian Forrester's report, wherein Dr. Forrester indicated
that zinc oxide and calcium carbonate are unlikely to have caused the claimant's
condition. He was asked whether or not he had an opinion one way or another
as regards these chemicals and he indicated he was not familiar with these
chemicals and had no opinion. He also indicated that Dr. Forrester noted
that Mr. Harris did not have pre-existing signs of upper respiratory irritation
or did not have a cough, wheezing and eye and throat irritation, and Dr.
Mansel, in response to the reference to Dr. Forrester's report, noted that
his opinion would be that just because there is not upper respiratory irritation
it does not mean that you do not have lower airway disease. Certainly when
he had seen the claimant he had persistent symptoms of shortness of breath,
when he would go back into the work environment he would experience problems
again. He had some chronic fibrotic changes on his x-ray, and again he
gets back to the history he took from him having seen him on multiple occasions
that certainly it is his impression that his work environment caused his
problems with his lungs. He did not have an opinion one way or another
whether or not the chemicals at work, not knowing about them, would cause
these problems and that the claimant had only experienced two episodes
approximately one year prior to this deposition, of pneumonia. The last
time he saw him was in April, 1998 and he had no recurrence of pneumonia
at that time. It was pointed out to him that this gentleman had been working
at Cooper Tire since August, 1998 without an occurrence of pneumonia and
noted that should not that suggest to him as a physician that based on
the fact that he has no recurrent problems with the chemicals he has in
and around that environment that perhaps the work environment was not harmful
to him. The physician noted "Certainly I feel like he has some underlying
fibrosis with some associated shortness of breath related to his previous
episodes in that he had ongoing symptoms from that, but correct he had
no evidence of recurrence of pneumonia". He did not have an opinion whether
or not he can do his job, and in fact he released him to return to work
the year prior thereto. He noted the last letter he had was one in which
he stated that he was concerned at that time about the dusty environment
and that claimant needed to change work and change work environment. He
noted that there are some 150 chemicals that would cause the condition
the claimant has. Dr. Mansel testified when he saw the patient in April,
1998 he did certain testing and followed that with a physical exam, including
a history from him, and he noted that he felt that the condition that the
claimant had was consistent with the symptoms in terms of a fibrotic condition,
and he had an opinion based upon a reasonable medical probability that
the existence of those symptoms a year post-treatment would suggest the
conditions affecting this patient are permanent in nature. Dr. Mansel testified
that on July 29, 1997 he wrote a letter to Mr. Terry Champion at Cooper
Tire and the purpose of that letter was to be of aid and benefit to Mr.
Harris. His impression was Mr. Harris was a very reliable man, that he
was "shooting him straight", that he was a man who wanted to work but that
he had symptoms when he tried to return to that environment, and again,
you have to put all those pieces of the puzzle together that he talked
about and his clinical judgment was that he did not need to be back in
that environment because he continued to have the re-experience of these
symptoms and he has found in his experience treating patients that work
for a living with manual labor that circumstances dictate that they try
to hold the job, even if there are problems related to their health and
that happens quite often. He noted that the assessments he has made in
this case, taking into account the history that he has related to them,
the findings from his testing and again based upon the applicable standard,
that the conditions that he diagnosed in June, 1997 and treated through
that summer, are causally related to the work environment and workplace
as described by the patient. Reference is made to the letter of July 29,
1997 to Mr. Terry Champion of Cooper Tire and it notes that Dr. Mansel
felt that the episodes of pneumonia over the past months for which the
claimant had been hospitalized on two separate occasions were work-related
and that the claimant did not need to be in a dusty environment. Furthermore
in a July 7, 1997 letter to Dr. Jonathan Harris in Clarksdale, Mississippi,
he noted that he had released the claimant to return to work and tells
him that should he encounter problems again, then this would necessitate,
he felt, the change in his work environment.
A Motion in Limine was lodged by the claimant and counsel in this cause and alleges that the employer and carrier violated Rule 26 of the Mississippi Rules of Civil Procedure in failing to supplement with the identity of a medical witness who was retained by the employer and carrier to testify in this cause. Ergo, pursuant to Rule 37 employer and carrier should not be permitted to utilize the testimony of Dr. Brian Forrester at trial by admitting the deposition or the objections made by the claimant should be sustained as to any testimony given the response to such questions and should be excluded pursuant to this Motion in Limine. Claimant further supported and submitted as to the Motion that the employer and carrier failed to include in its questions to Dr. Forrester that his opinions were based on a reasonable degree of medical probability. The employer, according to the claimant, made no effort to lay proper predicate and there being a total lack of foundation laid, it was the opinion of the claimant that Dr. Forrester's opinion should be excluded. The claimant request the Commission consider the Motion in Limine regarding the admissibility of the deposition of Dr. Brian Forrester and upon a final hearing said motion exclude the deposition of Dr. Forrester or, in the alternative, exclude those portions of the deposition to which objections are made for the failure of the employer and carrier to supplement its prior answers to interrogatories as required by Rule 26 of the Mississippi Rules of Civil Procedure and/or alternatively to lay a proper predicate requiring such questions to be based on a reasonable degree of probability. By way of background, it is noted that the claimant had filed a claim for a work-related injury for a pulmonary condition which the claims was caused from breathing excessive amounts of chemical particles while working at Cooper Tire & Rubber Co. in Clarksdale, Mississippi. The employer and carrier employed Dr. Brian Forrester to conduct an independent medical exam at the University of Alabama at Birmingham, Alabama, and all arrangements for the examination, including the compensation to Dr. Forrester, were borne by the employer and carrier. On April 28, 1998 the claimant attended the IME and was examined by him. Around May 28, 1998, counsel was then in possession of a report from Dr. Forrester and furnished a copy of said report to claimant's counsel. At the end of this report Dr. Forrester said that he would later render a final opinion. Subsequent to receiving this report, dated April 28, 1998, employer and carrier never furnished any additional reports from Dr. Forrester. The additional report was not revealed until January 27, 1999 during a telephonic deposition. Claimant's counsel felt that an objection was appropriate indicating that the curriculum vitae of Dr. Forrester and the later report were not produced prior to the deposition. Claimant contends it is well settled law in this jurisdiction that parties are required to identify the names of experts and provide the subject matter, the substance of facts and opinions to which such experts are expected to testify, and to further supplement with this information prior to offering the testimony of expert at trial. Rule 26(b)(4)(A), Mississippi Rules of Civil Procedure. Further, as to the applicability of Rule 26, it is noted that in workers' compensation cases these rules have become applicable since Procedural Rule 9, Mississippi Workers' Compensation Commission Rules adopted the provisions relating to discovery in civil actions in circuit, chancery and county courts, including penalties and sanctions which may be imposed for failure to answer or respond to interrogatories or orders of discovery. It was deemed that the employer and carrier in this case failed to supplement with the substance of the opinions of Dr. Forrester and other information required by the rule. Further mentioned was the employer and carrier's failure thereto to ask if the opinions were based on reasonable medical probability. This would indicate, according to the claimant, a lack of predicate. For all those reasons, the claimant requested that the Commission exclude the deposition of Dr. Forrester, or in the alternative, exclude those responses which were not based on the applicable standard of probability.
Employer and carrier responded to the claimant's Motion in Limine and likewise submitted a brief and noted that on February 26, 1998 Cooper Tire filed a notice pursuant to Rule 9 of Mississippi Workers' Compensation Commission for the claimant to be examined by a Dr. Mark Strauss, a pulmonologist. Claimant filed a Motion for Protective Order to prevent this from occurring and a telephone hearing on the Motion was had with the undersigned Administrative Judge. The Administrative Judge at the time suggested Dr. Brian Forrester, a physician that she was familiar with to some extent, to examine the claimant at the expense of the employer and carrier. This was achieved on April 28, 1998. On May 29, 1998, Dr. Forrester's report was sent to the claimant's attorney and to the Commission. Claimant's attorney admitted he received the May 29, 1998 report. The employer and carrier contends that by filing Dr. Forrester's report on May 29, 1998 Cooper Tire had supplemented its response to the claimant's expert interrogatories. This they conclude was the only report prepared by Dr. Forrester except to the extent indicated above. They also asserted that the claimant has been aware of Dr. Forrester's existence as an expert since April, 1998 and of his opinions, subsequent, on May 28, 1998. The deposition was taken on January 27, 1999 providing the claimant's attorney with an ample opportunity to ask any questions he wished. Further, employer and carrier conclude that at no time prior to the deposition did the claimant's attorney suggest that he needed additional information about Dr. Forrester's qualifications or his opinion. Employer and carrier also assert that all opinions solicited from Dr. Forrester were based upon medical probability and hence are deemed to be admissible.
This Administrative Judge has studied the Motion in Limine and the attendant brief lodged by the claimant in this cause, and, further, the response to said Motion and the brief and all authorities in support thereof as well, and is of the opinion that the claimant's Motion in Limine is to be denied and the deposition of Dr. Forrester be admitted into evidence in this cause for whatever probative value it may afford in the rendering of this decision. It is noted simply for clarity that although the undersigned is very familiar with the circumstances surrounding the history of this cause and with the telephone conference held in March of 1998, and further, other particulars in this cause that for the sake of total clarity it should be noted that the circumstances surrounding the examination by Dr. Forrester were not what I consider to be an independent medical evaluation, but rather an employer medical evaluation for which they were entitled, albeit a suggestion was made by the Administrative Judge during the conference held by telephone that Dr. Forrester be employed in this regard.
Dr. Brian G. Forrester testified by deposition in this cause, noting
he is Board Certified in Occupational Medicine through the American Board
of Preventive Medicine. In 1991, he joined the faculty at University of
Alabama in Birmingham but upon the occasion of this deposition he had accepted
a position as the Medical Director at Regional First Care in Athens, Georgia
for Occupational Health Services. Dr. Forrester testified that he studies
health effects related to work. This is not an organ specific specialty
but rather specific to exposures that exist in the workplace and includes
exposures affecting the lungs. He noted that he saw the claimant on April
28, 1998 when he came to the clinic to be seen for an opinion. He reviewed
medical records from Dr. Keith Mansel and performed a history and physical
examination. He also reviewed material safety data sheets concerning the
exposures that Mr. Harris had at his workplace and rendered an opinion
on that date. These material data sheets included all the chemicals used
at the Cooper Tire plant and may or may not have been used in association
with Mr. Harris' work. He testified that when you are trying to make a
determination such as this you have to know exactly what chemical was involved
because each chemical has a typical toxicology, so by knowing what chemical
a person was exposed to, you can make an inference as to what you might
expect from symptom standpoint or from a disease causation standpoint.
Dr. Forrester reiterated that the only report that he had rendered was
the one of April 28, 1998. In response to the question of whether or not
the symptoms Mr. Harris described were associated with chemical exposure
and problems with the lungs, Dr. Forrester indicated it would be a very
unusual presentation for a chemical exposure. There are situations in which
it could occur if someone had a hypersensitivity reaction to a chemical,
which is called hypersensitivity pneumonitis. They can look very similar
to pneumonia, and also chemical pneumonitis where if they inhale a large
amount of a strong respiratory irritant chemical can present similarly.
Usually fever is not involved in the chemical pneumonitis, but it can occur.
Dr. Forrester felt as to the chemicals listed on the data sheets that he
had been provided, he would not expect such chemicals to cause this type
of syndrome. With regard to the claimant having smoked for over 20 years
and whether smoking has an effect on your susceptibility to viral or bilateral
pneumonia, he noted that smoking does decrease your ability to fight off
respiratory infections, including viruses and bacteria, so it does make
a smoker more susceptible to respiratory infections. It was noted that
after the first hospitalization of the claimant, he went back to work and
worked for approximately two weeks and was once again stricken. This physician
felt that this probably means there was inadequate therapy for his first
pneumonia and maybe the bacteria or infection agent was not completely
eradicated and that was why it recurred. Also, the fact that his symptoms
increased after he left Cooper Tire is not unusual when you have an acute
high level exposure. There is some occupational chemical exposures that
present late, so that is not of significance. He did feel it was significant
that after the claimant's return to work in July, 1997 he became basically
asymptomatic. In April of 1998, approximately nine months later, he had
been working without any difficulty and no respiratory symptoms at all
except for some mild shortness of breath when he strenuously exerted himself.
What that would indicate is that he has gone back to the same working environment
and the same exposures and had done well, so you would expect that if this
was again due to some hypersensitivity or allergic disorder or significant
irritation from airborne irritants, then he would have had some reoccurrence.
"This bit of history goes against an occupational association". Upon presentation,
he noted that the physical examination on that date was fairly normal and
there was no respiratory abnormalities found, so there was not much remarkable
on physical examination. Dr. Forrester did not feel that any of the chemicals
he was exposed to at Cooper Tire & Rubber would have caused the condition.
It would be more likely to be some type of fibrotic dust such as asbestosis
which would be the type of exposure that you would expect to cause these
types of fibrotic changes, one of the occupational dust diseases. He did
not feel that his occupation has caused his pneumonias. He also testified
that Mr. Harris had told him that he mainly worked with zinc oxide and
calcium carbonate and those chemicals could not explain an episode of pneumonia
such as those described. Dr. Forrester also had an opinion that the claimant
could continue to work as a Banbury operator for this employer and, as
a matter of fact, he felt that he was actively employed in that occupation
at the time of his examination. Dr. Forrester also indicated that he disagreed
with Dr. Mansel's statement that Mr. Harris had chemical bronchitis because
he did not believe that a chemical had caused his respiratory problems.
He did conclude, however, that it was possible that his pneumonia may have
caused the fibrosis in his lungs, but he disagreed with attributing his
pneumonia to his work environment. Dr. Forrester opined as well that in
Mr. Harris' case he did not believe anything at Cooper Tire & Rubber
was responsible for any respiratory symptoms he had. It was possible that
because of the fact that he had a very significant pneumonia that persisted
for over three weeks that that could have resulted in some scarring of
the lungs that is causing some reduction in lung capacity, later opined
to be 25 to 30%, but he would place that as a result of the pneumonia and
not due to anything that he was exposed to at Cooper Tire & Rubber.
It was revealed in the deposition that this physician did not receive the
material data sheets as referred to until sometime "probably" in August,
1998, but he never issued a final opinion in written form after his perusal
of those sheets, but rather the only report is the one of April, 1998.
He also testified that he was not aware of the quality of the workplace
where John Harris was employed at Cooper Tire & Rubber in Clarksdale,
Mississippi, insofar as the results of any air quality tests. This would,
of course, be true for the environmental workplace in April, 1997. The
doctor also indicated that if the claimant were still complaining of respiratory
symptoms he would have to be evaluated for the etiology of those symptoms
and it would not be until you found out the diagnosis that you could make
any inferences as to any occupational associations. In this case, he only
made one examination of Mr. Harris and he thought it had been approximately
one hour in duration. He also noted as to Dr. Mansel, who followed him
for more than a year, that pulmonologists do a good case of diagnosing
conditions of the lung and are very good at treating these conditions,
but he felt he had better training to determine the occupational relationship
of same. But, he would not dispute Dr. Mansel if he were saying that Mr.
Harris was having some respiratory problems there. And if he wants to debate
over the occupational association, he would be happy to do so. Dr. Forrester
is not a pulmonary specialist and does not hold himself out to have any
kind of board certification in pulmonary disease.
Upon evaluation of all testimony, lay and medical, and based upon a preponderance of the evidence supported by applicable law, I hereby render the following findings of fact:
1. The claimant has satisfied the requisite burden of proof that he sustained a work-related Injury in the form of a pulmonary condition and/or occupational disease. Claimant should be compensated for any losses associated with this condition which necessitated a corresponding loss of wages when he was unable to work as a direct result of this injury. Further, all medical benefits associated with same are to be borne by the employer and carrier herein.
2. The medical testimony as presented does not substantiate a permanent disability of any nature as regards the claimant, and none is found.
3. With reference to the collateral issue of whether
or not the employer should receive credit for any sick pay benefits tendered
to the claimant for the seven (7) week interval referenced in this Opinion,
it is hereby determined that no such credit may be applied where the collateral
benefit is earned, directly or indirectly, or paid for by the employer.
These benefits may not be considered as an advance payment of compensation.
Such a conclusion is in keeping with the collateral source doctrine and
may be applied in the instant case. See Mississippi Workmen's Compensation,
3rd Edition, Vardaman S. Dunn, § 24.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer, Cooper Tire & Rubber Company, and carrier, self-insured, pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits in the amount of $270.67 per week commencing on April 14, 1997 and concluding through July 7, 1997 with proper credit for any wages paid to the claimant during this time frame.
2. Penalties and interest, if applicable, pursuant to Mississippi Code Annotated, Section 71-3-37 (5)(6) (1972).
3. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom in accordance with Mississippi Code Annotated, Section 71-3-15 (1972).
IT IS FURTHER ORDERED AND ADJUDGED that the claimant's claim for any permanent benefits be, and the same is, hereby denied.
SO ORDERED this the 11th day of August, 1999.
VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary