MWCC NO. 98 00296-G-3570-C-00
EDWARD DILLON CLAIMANT
vs.
ROADWAY EXPRESS, INC.
EMPLOYER
SELF-INSURED
REPRESENTING CLAIMANT:
Honorable Jonathan B. Fairbank, Attorney at Law,
Jackson, Mississippi
REPRESENTING DEFENDANT:
Honorable Silas McCharen, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on April 9, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review," by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated September 18, 2000.
SO ORDERED, this the 9th day of August, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC NO. 98 00296-G-3570-C-00
EDWARD DILLON CLAIMANT
vs.
ROADWAY EXPRESS, INC.
EMPLOYER
SELF-INSURED
APPEARING FOR CLAIMANT:
Jonathan B. Fairbank, Attorney at Law, Jackson,
Mississippi
APPEARING FOR EMPLOYER:
Silas McCharen, Attorney at Law, Jackson, Mississippi
The claimant filed a Petition to Controvert, alleging that he sustained compensable injuries (hypoxic ischernic encephalopathy and a mental injury) with onset on September 26, 1997 while in the employ of Roadway Express, Inc. (hereinafter "Roadway"). The employer and carrier admit an event which occurred on that date but deny that the claimant sustained any disabling injury.
At the hearing on the merits of this petition
which was held on the 25th day of January, 2000 and continued to July 6,
2000, the parties stipulated that the claimant's average weekly wage at
the time of injury was $800.00.
The issues remaining for decision by the Administrative Judge are as follows:
The claimant, Edward Dillon, is a 40 year old resident of Bogue Chitto, Mississippi.
He testified that he graduated from Bogue Chitto High School and attended Illinois Central College for several months, but left in order to return home to care for his grandmother during an illness. Thereafter, he attended Copiah Lincoln Community College, obtaining an associate's degree or an applied science degree in political science and business administration. He attended Mississippi College on a football scholarship for approximately three months.
The claimant began work as an off-shore oil worker for Progress Drilling and Marine, being hired in the capacity of a roustabout, which made him responsible for maintenance and cleanup around the rig. He worked in this capacity for about a year, when the company was sold to Anderson Barnett. He continued to work on the same rig, being promoted to roughneck, which made him responsible for making pipe connections, checking gauges, and working on the rig floor. He worked as a roughneck for about a year and then the company closed down. The claimant began working at Marlin Drilling as a roustabout after he left Anderson Barnett. He was promoted to roughneck and served as a mud man and a driller. He worked with Marlin Drilling for two or three years and then sustained aback injury. After recovering from his injury, he did not return to work.
The claimant enrolled at the University of Southern Mississippi and attended for two years. He obtained no degree; he testified that he quit because his money ran out. His major field of study while at USM was accounting and general business with a specialty in marketing. After leaving USM, the claimant went to Texas where he obtained a position as a management trainee with Charter Marketing, a company which ran convenience stores. While with Charter Marketing, he also began working with Roadway as a casual (part time) employee working an average of 40 hours per week for Roadway and basically doing dock work. After a year or so, he left Charter Marketing, taking a better job at LTV Aerospace and Defense, where he was hired as a tool crib operator. He continued in his casual capacity with Roadway. He worked both positions until he was laid off from LTV.
The claimant then took a full time position at Roadway as a docks record clerk. He testified that his responsibilities in that capacity were to keep up with weight for bills of lading, determine loads and overloads, and check for hazardous materials. He worked at the Roadway terminal in Irving, Texas, hoping to become a manager with Roadway. He quit this position when his brother was injured. He was desirous to transfer nearer his family and injured brother and talked with the Irving terminal manager about a transfer to the terminal in Brookhaven. This was not appropriate for the claimant; the terminal was too small and all employees had to be qualified drivers. Thus, the claimant took a transfer to the larger Meridian terminal. He testified that he believed he was transferring into a manager's position in Meridian but when he reported there was no manager's position available. He worked in the office approximately 10 hours a week and worked on the dock as a casual worker for an additional 40 hours a week. During the period of two or three years that he worked at the Meridian terminal, he moved from casual to full-time employee and obtained a commercial drivers license. He discussed his desires for employment at a management level with the terminal manager and assistant manager and followed one of these individuals to the Brookhaven Terminal in the early 1990s. He began work in Brookhaven as a casual employee and after a year became a full time employee. He testified that the working environment between the years 1990 and 1993 was a wonderful, family-like environment.
In 1993, the claimant attended a TQA workshop in Atlanta. The claimant testified that he believes that as a result of something he said at this Workshop, his status in his employment environment changed. Also in 1993 he experienced the personal tragedy of a still born child. He requested time off as a result, but was advised that he could not be given time off because there was too much work to do and that if he took time off he would be considered to have resigned from his position. He testified that after this exchange, his working environment deteriorated. He noted, among other things, that although management kept promising him a management or supervisory position, he did not receive one. There were also problems with overtime, and several meetings (particularly one on April 10, 1997) where "tempers flared." During this particular meeting, the claimant testified that he left the meeting in order to keep his temper in check, as an instructor in the TQA workshop had advised. That afternoon, when he returned, an altercation arose between he and Claudia, an employee of the terminal. He was terminated by Claudia on April 10, 1997. The discharge was rescinded a couple of days later. Ten or eleven days after his discharge, he had a grievance hearing, obtained back pay for the time he had been discharged, and reported back to work on May 20, 1997.
After his return to work, the claimant testified that his relationship with all employees of the terminal worsened. Between the date of his return to work and September 27, 1997, he was "written up" by Claudia on nine or 10 occasions.
The claimant testified that he had been driving tractor number 10717 and had noticed that the boot around the gearshift had worn. When the tractor would overheat on hauls, fumes from the engine would overtake the cab through the worn boot. The claimant testified that he had complained about this condition to both agents of Roadway and his union.
On September 27, 1997, the claimant reported to work at 8:45 a.m. for a start time of 9:00 a.m. Mark Case, a part-time employee, reported shortly after the claimant. Jeff, a regular employee, did not clock in until after 9:00 a.m. but Claudia made the claimant wait until Jeff had clocked in until he, himself, could start work. He saw that he had been assigned tractor number 10717 and that Mark, the part-time employee, had received his regularly assigned tractor (which he identified on cross-examination as tractor number 20930). He had previously had an episode relative to fumes in the cab of tractor number 10717 near Monticello and had notified everyone in his Roadway terminal, as well as the union steward, and had been told not to drive that tractor. After Claudia assigned him this tractor and he indicated a resistence to the assignment, the claimant testified that Claudia told him she would give him five minutes to begin driving. He warned her about the possibility of illness and an emergency room visit, yet he picked up the bills of lading associated with his assignment. Claudia then followed him out the door and onto the dock "following and fussing and getting right in my face." According to the claimant, Claudia told him on that occasion something to the effect that he was "less than a man" and he admitted that he readily responded in kind to Claudia.
The claimant testified that driving tractor number 10717 that morning was just like "driving a nightmare" - he was in a trance. After two or three stops in the Brookhaven area, the engine became hot and the fumes were rising up into the cab. The claimant began to experience headache and nausea from inhaling the fumes. On the way to Hazlehurst he called in but could never talk to his supervisor. He testified that at his stop in Hazlehurst, the guys who unloaded the delivery commented to him that he looked unwell or that something was wrong. His next stop was in Gaulman and then at the Hardy Wilson Hospital.1 When he reached the hospital, he found himself unable to unload the delivery for the hospital itself and went directly to the emergency room. He saw a trauma nurse and explained his symptoms. He was examined by a physician, who prescribed medicine. He again tried to call his supervisor but was unable to reach him. He returned to Brookhaven, describing his condition as "out of it." When he reached the terminal, he saw a Sheriff's Patrol vehicle in the parking lot. He went inside the terminal and gave Claudia the bills of lading; she fired him. He asked to make a phone call before leaving the Roadway property and was denied this request by Claudia. He went outside and sat on the steps. The Deputy Sheriff on the premises took him to Cracker Barrel, where he called his wife and his supervisor. He was advised to "take it up with the union." The claimant testified that again Claudia's action terminating him was rescinded by the following Monday.
The day following this incident (which the claimant believes to have occurred on a Friday), he reported to Southwest Mississippi Medical Center in McComb. From the emergency room referral, he sought treatment from Dr. Farina, and obtained a referral to Dr. Freiberg in New Orleans for a second opinion. Dr. Freiberg referred the claimant to Dr. Black, but also continues to treat the claimant to date. The claimant testified he had also been seen by Dr. Hiatt and Dr. Miller.
The claimant testified that his current condition includes an inability to regain the body strength that he had prior to the September 27, 1997 incident. He has lost most of his sense of smell and taste, the smell of smoke, toxic fumes and hair care products nauseate him, and he cannot sleep at night. He has accomplished no physical work since the incident, although he occasionally works in his yard. He testified that he spends his time working with a community choir designated the County Mass Choir of Lincoln County and will occasionally drive the choir bus, although he has had three accidents based on his inability to judge distance when he drives.
On cross-examination, the claimant admitted that he has the least seniority of any employee at the Brookhaven terminal. He testified that the choice of equipment is associated with seniority. He testified that in his experience the work he was asked to do was "unfair" and "management and co-workers were conspiring" against him. He admitted advising his co-workers that if they "catch me wrong" that he could not be responsible for his actions, but doggedly claimed that this was not a threat.
The claimant admitted telling Claudia something to the effect: "get your pocketbook ready because you're going to pay for this." He testified that he did so the second time she terminated him and that he was correct; he had been reinstated with back pay on the prior occasion. He denied threatening to sue Claudia.
The claimant admitted that he did not call on May 20, 1997 to obtain a start time on the 21st. He did call on the 21st for his start time and admitted he was given a warning for "failure to protect the start time." He testified that he failed to show up for his start time on the 22nd . His father was sick and he was leaving for Texas to be by his side. He testified that he may have received a 72 hour notice from Roadway on the 23rd, indicating that within 72 hours Roadway required acceptable, verifiable evidence of the reason for the absence.
The claimant testified that since his last day of work with Roadway, he has not looked for work, has made no applications for employment, has not visited the Mississippi Employment Security Commission, and has received no wages or benefits from any source.
Dr. Robert Budinsky, a toxicologist from Tallahassee, Florida. After a voir dire, Dr. Budinsky was allowed to testify as an expert in the field of forensic toxicology. Dr. Budinsky testified that approximately two years ago, he was contacted by employer and carrier's counsel and asked to evaluate medical records. The witness testified that he reviewed the following: medical records of 9/26, 27, 29 and 10/27/97 of Dr. Forina and Dr. Tisdale, the deposition of Dr. Freiberg, the deposition of the claimant, two reports from Dr. Hiatt, one report from Dr. Miller, records of Dr. Black, records of Dr. Frieberg, testing data on the truck and carbon monoxide literature.
Dr. Budinsky testified that the carbon monoxide molecule is a simple molecule which is know for toxicity. He testified that watershed studies on carbon monoxide induced encephalopathy indicate that in 2% to 10% of those rendered unconscious by carbon monixide, there is a relapse with characteristic lesions. Normally, in this sequence of events, the individuals who are rendered unconscious receive hyperberic or 100% oxygen, recover, improve and then develop lesions of the central nervous system. Dr. Budinsky testified that in his opinion the claimant did not experience CO induced delayed encephalopathy. His opinion is based on the following reasons:
Dr. Budinsky testified that latent encephalopathy is characterized by one or more of the following symptoms:
Dr. Budinsky further testified that he had reviewed the P&D log (exhibit E/C-10) and found it to be inconsistent with acute over-exposure to carbon monoxide. According to Dr. Rudinsky, after the claimant's visit to the emergency room, had he truly experienced acute carbon monoxide exposure or over-exposure, he could not have filled out the log, he would have been unconscious, comatose, and would have been unable to drive after being released from the emergency room. He testified that the claimant's symptomatology is more consistent with an allergic reaction or "multiple chemical sensitivity."3
On cross-examination, the witness admitted that he had examined the tractor today, and is unaware of what has happened to the truck from the time of the alleged injury until today's date. He further testified that he did not know what procedure was used by either the welding shop or the auto parts entity which performed tests to determine whether exhaust or manifold leaks were present. He testified that carbon monoxide, due to its character of odorlessness, cannot be detected by smell unless very high levels are present. He testified that the tractor's engine is underneath the driver's seat and the manifolds are behind the seat and to the back of the tractor, combining with the exhaust; thus, he finds it difficult to comprehend that the fumes would come back into the trailer even in light of the defective boot.
Dr. Budinsky testified that, in his opinion as a toxicologist, he has excluded carbon monoxide as the cause of any of the claimant's injuries or disabilities, although he has not examined the claimant. He admitted that the literature generally noted an underlying psychological component to the diagnosis of multiple chemical sensitivities; he also testified, as previously, that multiple chemical sensitivities is not a chemical phenomenon, although it may be a psychological phenomenon and he would defer to a psychiatrist or psychologist relative to such a diagnosis.
Finally, Dr. Budinsky testified that he would not exclude allergic reaction as a diagnosis of the claimant's injury. He testified that medical records reflect the claimant's "red" eyes and CT results reveal a thickening of the sinus. However, he suggested that these responses would be the result of fumes other than carbon monoxide poisoning.
In exhibit E/C-6, Dr. Budinsky opined, after reviewing the report of Dr. Miller, that Dr. Miller's reference to environmental sensitivity syndrome is a reference to what is more commonly referred to as multiple chemical sensitivities. In addition to other information decision to terminate the claimant on that date and advised her that the reason for the termination would be "outrageous conduct." She testified that after the date of the termination, she did not see the claimant again until the first hearing date.
On cross-examination, Ms. Smith testified that
she did not recall a Department of Labor investigation of Roadway relative
to the lunch issue, nor did she ever receive a direct complaint of racism
from the claimant, although she was aware that he had made complaints and
attended a meeting that Jim Lee called in order to address the issue of
racism prior to September of 1997.
Ms. Smith testified that when the claimant complained
about tractor number 10717 it was subject to regular preventive maintenance
and was in good mechanical condition. She testified that there was no testing
of the cab prior to September of 1997 for air quality or fumes. She testified
that although she knew that the claimant did not want to drive tractor
number 10717, he had never complained about the tractor making him sick.
Ms. Smith testified that David Howard, Robert Berry and Sean Blackwell,
casuals who often drove 10717, did not complain about the vehicle.
Ms. Smith also testified that at least one client had observed problems with the claimantand had advised Roadway that the claimant was not to be allowed on their property: Fruit of the Loom, Vidalia, Louisiana. She testified that Roadway complied and the claimant was not offered a route to include this property.
Jim Lee of Savannah, Georgia, testified that he
had been employed by Roadway for 28 years. He testified that Roadway is
a union shop and Roadway follows a collective bargaining agreement (hereinafter
"CBA") entered into between Roadway and the Teamsters' Union which CBA
establishes guidelines for employment action by and between the employer
and the union member.
Mr. Lee testified that he was acquainted with
the claimant and offered him a management position with Roadway. The claimant
did not accept the management position within one year of its tender and
the offer was withdrawn.
Mr. Lee testified that the claimant lodged complaints
of racial discrimination with him and as a result, the witness conducted
an investigation into these complaints. As a result of the investigation,
Mr. Lee was shown no direct evidence of racial discrimination. However,
he discussed the matter with his staff and counseled against acts of discrimination
generally. He indicated that to his knowledge the claimant filed only one
grievance over racial discrimination which resulted in no finding of discrimination
and the grievance was withdrawn from the union level. He testified that
he was unaware of an overtime dispute occurring between September 1994
and March 1999, but that all issues regarding overtime are governed by
the CBA and the Department of Labor. Mr. Lee testified that there had been
no Department of Labor investigation during his tenure as manager of the
Brookhaven terminal, nor had there been any litigation referencing the
Fair Labor Standards Act filed while he was terminal manager.
Mr. Lee testified that he had received no complaints
from the claimant or any other driver relative to injury as a result of
exhaust or fumes in the cab of tractor number 10717, although there are
often complaints about the make of the vehicle - the driver sits over the
engine which often causes heat in the cab, resulting in the fact that "nobody
likes to drive them." However, neither the claimant nor any other driver
had ever advised him that driving the 10717 caused them to be physically
ill.
The witness testified that it was his decision,
together with the Roadway legal departmentand labor relations department
to terminate the claimant for "outrageous conduct" on September 26, 1997.
He explained that under the CBA, the original charge against.the employee
could not be later enhanced to fit the facts of an action that bore subsequent.
investigation. He acknowledged that after the termination and a subsequent
investigation Roadway determined to rescind the claimant's discharge and
instead penalize the claimant by issuing a letter of insubordination to
him. He testified that the claimant's union played no role in the decision
of Roadway to rescind the discharge.
Mr. Lee testified that the claimant's current
position with roadway is that of an employee on extended sick leave.
On cross-examination, the witness testified that
no air monitoring was performed on the tractor in question prior to September
1997.
Dave Howard, a lifelong resident of Brookhaven,
was employed at the Roadway terminal in Brookhaven from January 1998 to
March 2000. During that period, he had occasion to drive tractor number
10717, characterizing his experience with the vehicle as follows: from
a mechanical condition it was a "piece of junk" which required the operator
to "add water constantly". Fumes were "outrageous" in the cab, requiring
the driver to keep the windows open as well as the side vents.
Dr. John Lawrence Freiberg, Jr., a physician
with the Tulane University School of Medicine, Department of Psychiatry
and Neurology, testified as an expert in the field of neurology that the
claimant had been referred to him by Dr. Farina, a Mississippi neurologist,
and that Dr. Freiberg first saw the claimant on November 12, 1997. According
to the physician, the claimant reported numerous complaints, principally
cognitive, but also including equilibrium and hearing problems, insomnia,
agitation and anxiety. Dr. Freiberg performed a physical examination and
determined that the claimant's neurological examination was normal, except
for a long-standing, unrelated problem to the claimant's hand. The physician
concluded that the claimant had encephalopathy and ordered various tests,
including an MRI of the brain, blood tests, and a neuropsychological battery.
As a result of the MRI, Dr. Freiberg concluded that severe intoxication
with carbon monoxide was quite unlikely. As a result of the neuropsychological
testing, the physician observed that the claimant had not suffered a brain
injury from carbon monoxide but was experiencing significant psychosocial
problems.4 When the claimant returned a second
time with unresolved complaints, Dr. Freiberg consulted an occupational
medicine specialist. The specialist found elevated levels of carbon monoxide
in the claimant's blood, as well as elevated carboxy hemoglobin levels
but did not believe that the claimant had suffered a brain injury as a
result.
Dr. Freiberg continued to follow the claimant
and in May of 1998 had reached the conclusion that the claimant required
a psychiatric consult. At this time the claimant declined. The claimant's
complaints remained the same as Dr. Freiberg followed
him, except that in September of 1998, he
began to complain of nightmares - recurrent dreams about a confrontation
with a supervisor and racism on his job. The same complaints continued
from the claimant through the physician's last visit with the claimant
in March of 1999.
Dr. Freiberg opined that the claimant has a very
significant psychiatric problem, but did not opine relative to a specific
psychiatric diagnosis. He further opined that there was "no doubt" in his
mind that "something bad was happening at his job."5
According to the physician, the claimant has not reached maximum medical
improvement for his psychiatric condition because he has not obtained appropriate
treatment. Relative to the relationship between the claimant's psychiatric
diagnosis and his employment, Dr. Freiberg deferred to Dr. Black.
On cross-examination, Dr. Freiberg opined that
he had withdrawn his diagnosis of encephalopathy, but retained the current
impression that the claimant suffers from post-traumatic stress disorder.
Further, Dr. Freiberg opined that the claimant was incapable of driving
a truck or working a full eight-hour day as a result of psychiatric problems,
not as a result of encephalopathy.
Dr. Freiberg disagreed with the testimony of Dr.
Farina that the claimant had reached maximum medical improvement in December
of 1997 and that the claimant was, at that time, capable of returning to
full-duty work. He agreed with Dr. Farina that the claimant did not suffer
brain damage of the type alleged, but considers the claimant "grossly impaired."6
Dr. Joseph W. Farina, Jr., of McComb, Mississippi's
McComb Neurology Center testified by medical records that he saw the claimant
on October 7, 1997 on referral from Dr. Tisdale, an emergency room physician,
with complaints of cephalalgia. Dr. Farina recorded a history from the
claimant and did a physical examination as well as oxygen therapy and testing.
Dr. Farina determined that the claimant was probably suffering cluster
cephalalgia aggravated by carbon monoxide exposure, and continued to follow
the claimant. By October 13, 1997, Dr. Farina opined that any aggravation
from carbon monoxide would have resolved, but attempted to resolve the
claimant's concerns of anxiety and/or panic. Dr. Farina followed the claimant
through the months of October and November, 1997, noting normal neurological
examiantions.
Dr. Jule P. Miller, III, a psychiatrist in Biloxi,
performed a psychiatric evaluation of the claimant at the request of claimant's
counsel. This evaluation was performed on October 15, 1999. Dr. Miller
reviewed the claimant's history. He noted that, on examination, the claimant
was angry and frustrated, that he evidenced no delusional behavior, but
did harbor homicidal ideations (without intent) toward various Roadway
employees. Dr. Miller diagnosed Post Traumatic Stress Disorder, depression
and Environmental Sensitivity Syndrome. He acknowledged claimant's need
to obtain psychiatric treatment. He opined the claimant's Post Traumatic
Stress Disorder and depression are a direct result of the claimant's employment.
He did not opine whether the claimant's environmental sensitivities are
a result of employment and deferred to an expert in the field.
Dr. Miller's follow-up report of July 10, 2000
reveals treatment to date, in which report Dr. Miller opines that the claimant's
symptoms have improved but continue to be disabling and is "unable to work
in any capacity at present." Dr. Wood C. Hiatt testified as an expert in
the field of neuropsychiatry. He testified that he saw the claimant on
two occasions, June 29 and 30, 1999 on referral from the office of the
employer and carrier's counsel. Prior to his evaluation, Dr. Hiatt received
and reviewed the following materials:
From Dr. Hiatt's review of the medical records,
he opined that the claimant was examined carefully and extensively on September
26, 1997 and following days due to his original fear that he had been poisoned
by use of truck number 10717. A review of the original records by Dr. Hiatt,
on September 26, 27, 29 and October 2, reveals that the claimant was repetitively
examined but there is no physical evidence which was revealed that would
suggest that he was physically affected by the truck he was driving. Although
the claimant was found to have a little carbon monoxide in his body, the
levels were not elevated to a poisonous level, nor was there any medical
evidence of any damage (specifically damage to the brain or nervous system)
that would have been secondary to carbon monoxide poisoning or poisoning
by any other toxic substance. A review of Dr. Farina's records by Dr. Hiatt
caused the physician to opine that Dr. Farina found no evidence of carbon
monoxide poisoning or evidence of damage or injury resulting therefrom.
A review of Dr. Freiberg's records and deposition caused Dr. Hiatt to opine
that Dr. Freiberg found no evidence of carbon monoxide poisoning
or damage to the brain or nervous system resulting
therefrom.
Dr. Hiatt opined that, based on his evaluation
of the claimant, his review of documents and medical records, and his assessment
of the claimant's personal, employment and social background, the claimant
suffers from somatoform disorders.7 Specifically,
Dr. Hiatt opined that the claimant has conversion disorder, the new term
for the former hysterical conversion disorder,
as well as hypochondriasis, together with dysthymic depression. In addition,
Dr. Hiatt opined that the claimant has significant personality disorders,
including paranoid personality disorder, histrionic disorder, and narcissism.
Dr. Hiatt opined that the somatoform disorders are not related to the claimant's
employment at Roadway. He also opined that the claimant's personality disorders
are not related to the claimant's employment at Roadway, but are inherent.
He further opined that dysthymic depression is not related to the claimant's
employment at Roadway nor is it such that would prevent him from working.
Relative to his opinions, he noted that the diagnoses that he reached fit
"hand in glove"8 with Dr. Black's findings
from neuropsychological testing of the claimant.
Dr. Hiatt testified that no condition from which
the claimant suffers is serious enough to prevent the claimant from being
gainfully employed. He further testified that he does not believe
the claimant suffers from post traumatic stress disorder.9
Nor does he believe that the claimant is grossly
impaired from a psychiatric perspective.
Dr. Hiatt also testified by report (exhibit E/C-8)
after he had read the report of Dr. Jule Miller. For reasons contained
in the report, he (similar to Dr. Budinsky) rejected Dr. Miller's diagnosis
of Environmental Sensitivity Syndrome (multiple chemical sensitivities
syndrome) as well as Dr. Miller's diagnosis of post traumatic stress disorder.
He concluded with the following:
2. It is my opinion within a reasonable degree of medical probability that there is no scientific basis for the diagnosis of Post-Traumatic Stress Disorder in Edward Dillon as a consequence of the events of 9/26/97.
After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds as follows:
1 .The weight of the expert testimony in this cause does not support
Mr. Dillon's position, expressed aptly by his lay
testimony, that he has sustained any temporary or permanent
physical disability as a result of the event alleged on September 26, 1997.
2. The weight of the expert testimony in this
cause does not support an allegation of mental
injury sustained as a result of the event alleged on September 26, 1997
or any event occurring between April 10, 1997
and August 21, 1997.
3. The claimant testified that he has made no attempt to obtain gainful employment, even though he has been busy with civic duties and responsibilities. Yet there is significant medical evidence that suggests th.at the claimant could have been gainfully employed after calendar year 1997 at the very latest. As the Court of Appeals has reiterated recently in Mary C. Ford v. Emhart, Inc. d/b/a True Temper Sports, Inc. and Aetna Casualty and Surety Company, No. 1999-WC-00044-COA, February 8, 2000:
IT IS, THEREFORE, ORDERED AND ADJUDGED that the claimant's claims be, and the same hereby are, DENIED and DISMISSED.
SO ORDERED this the 18th day of September,
2000.
LYDIA QUARLES
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary
___________________________
1. On cross-examination he described his stops as follows: Bubba's Yamaha with a 1,200 pound package at 9:35 a.m.; Southern Pipe with a 600 pound pallet at 9:48 a.m.; Hardy Wilson Hospital at 10:55 a.m. with a 3 piece pallet weighing 149 pounds. Then he went to the emergency room, where he remained until 12:30 p.m. At 12:45 p.m. he arrived at Marlin Engineering to unload a 240 pound package. According to the claimant, during all deliveries he was suffering from nausea, a headache and dizziness.
2. Dr. Budinsky indicated that this testing revealed that there were 7 parts per million of carbon monoxide in the cab prior to starting the ignition of the truck. Thereafter the concentration went down to 0 or 1, which is consistent with background carbon monoxide.
3. Dr. Budinsky testified that multiple chemical sensitivity is "junk science" and merely is a name for a situation where a person is exposed to chemicals and then claims a constellation of subjective complaints whereas no objective basis for the complaints appear and there is nothing neurologically or organically wrong with the individual voicing the complaints. He further testified that assuming the claimant had been accurately diagnosed with multiple chemical sensitivity, it would not be the result of carbon monoxide exposure - carbon monoxide (a tasteless, odorless, non-irritating gas) having no role in chemical sensitivity due to its characteristics and having no interaction with the immune system.
4. The claimant was judged to be in the low-average range of intelligence as a result of the testing. No specific memory deficit was identified. Upper extremity motor function was abnormal. Personality testing revealed clinically significant levels of emotional distress, borderline clinical depression, but no evidence of exaggeration of cognitive symptomatology. In addition, the claimant was determined to be genuinely lacking in awareness and/or insight and had a capacity to develop physical complaints due to stress.
5. Deposition of Dr. Freiberg, p. 34, lines 18-20. Interestingly, at p.38 the physician also indicated that he didn't know "exactly what happened" at the claimant's job.
6. Deposition of Dr. Freiberg, p. 49, line 11.
7. Dr. Hiatt defined somatoform disorders as those which, in spite of extensive examination, have not been found to reveal any evidence of underlying disease to the body. He suggests that somatoform is the new term for psychosomatic, a condition emotional in origin which takes the form of a physical complaint.
8. Deposition of Dr. Hiatt, p. 64, line24.
9. Dr. Hiatt testified that post traumatic stress syndrome is a condition which follows exposure to a dangerous situation; yet the claimant knows that he did not have an exposure to a true danger or serious injury. Thus, concludes Dr. Hiatt, the claimant does not suffer post traumatic stress syndrome at all, but simply hypochondriasis, the perpetual holding to the idea that he has sustained exposure in spite of all the evidence to the contrary.
10. Mary C. Ford v. Emhart, Inc. d/b/a True Temper Sports, Inc. and Aetna Casualty and Surety Company, supra, p. 6, citing Thompson v. Wells-Lamont Corp., 362 So. 2d 638, 641 (Miss. 1978).
11. Robinson v. Packard Elec. Div., General Motors Corp., 523 So. 2d 329 (Miss. 1988).