Langham: Tennessee Exposure Lesson
Monday, January 29, 2018 | 1134 | 0 | min read
A recent Tennessee Supreme Court case affirmed death benefits awarded to a widow. Holbert v. JBM Inc. is interesting as an illustration of occupational exposure. It is also an interesting illustration of the requirements of proving entitlement to benefits in workers' compensation.
The trial court concluded that the widow had proven that her husband's death was caused by an exposure at work. She was awarded death benefits and medical benefits. Both the employer and widow appealed. The employer contended that causation had not been proven. The widow contended that claimed and awarded medical benefits should not have been subject to the Tennessee workers' compensation fee schedule.
The employee in Holbert was a supervisor overseeing construction of a steel building in Pennsylvania. A coworker testified that he and the employee left a casino together and that Holbert was complaining of being "chilly." As he did not feel well, Holbert waited in the vehicle "while the other crew members dined" that evening. The coworker testified that Holbert continued to suffer symptoms thereafter, and that it interfered with his work.
Holbert presented at a clinic within days of these complaints beginning and described symptoms including cough, congestion, headache, fatigue and chills. The clinic documented normal examinations of lungs and abdomen, and he was provided prescription antibiotics for a diagnosis of sinusitis.
Days later a coworker took Holbert to the hospital. He was unable to provide the physicians there with a history and deteriorated from critical condition to life support as he entered a coma.
After an extended hospital stay, Holbert died. An autopsy determined death was caused by "acute gastric hemorrhage of a gastric ulcer" and a fungal infection.
One physician testified at trial that Holbert was able at the time of his hospital admission to describe medical history, including "high blood pressure and high cholesterol." He described his presence for work, but was "unable to give ... a detailed history of what he had been exposed to."
The admitting physician testified that "no test exists to identify specific particles to which someone has been exposed." She testified that because she found no evidence of "infectious pathogens," it was "reasonable to attribute" death to Holbert's "environmental exposures" at work.
Another physician, specializing in infectious disease, evaluated Holbert during the same hospitalization. He concluded that Holbert's "illness and death were precipitated by occupational inhalation." This was based in part on various tests that were not successful in finding any "definite infectious etiology."
The infection specialist based his conclusion of occupational causation on Holbert's reported history of "breathing in grout and epoxy-type substances at his work prior to the onset of symptoms." The specialist opined that "something" triggers an inflammatory response, and "that can lower your resistance to the point where then you become susceptible to other things. " But, the specialist was unable to identify what substance Holbert worked with or inhaled.
A third physician performed a review of medical records for the employer. He opined that the "triggering event" was an abdominal process, "which then affected other organ systems," and resulted in system failure and death. He noted that there was "no evidence of inhalational injury" found on autopsy. Thus, there was no unanimity among the physicians as to whether, when, or what Holbert was exposed.
Medical evidence from a physical shortly before Holbert went to Pennsylvania documented no complaints or symptoms. Holbert's family members denied him exhibiting symptoms before the trip, but a coworker at the employer described Holbert having symptoms "a nagging cough .... like allergies" prior to the trip. That perception was also described by one of the employer's owners.
A co-worker in Pennsylvania described Holbert as "occasionally coughing and sneezing," but his "condition worsened after the casino visit." Another coworker testified that "he first noticed decedent's symptoms after visiting the casino," and Holbert then looked increasingly ill each day.
The Supreme Court noted that the "employee seeking to recover workers' compensation benefits bears the burden of proof," and that "proof of the causal connection may not be speculative, conjectural or uncertain." However, the court noted that Tennessee law requires that "reasonable doubt must be resolved in favor of the employee."
In Tennessee, "benefits may be properly awarded to an employee who presents medical evidence showing ... the employment could or might have been the cause of his or her injury when lay testimony reasonably suggests causation."
The court also noted that because the death occurred before the 2014 statutory changes, it was "required to construe the workers' compensation law liberally in favor of an injured employee."
In discussing the trial judge's analysis of the case, the court noted that "ultimately, the trial court looked to the then-in-effect statutory directive to liberally construe the workers' compensation law" and "the judicial directive to resolve reasonable doubts in favor of the employee." On these two premises, the trial judge concluded "death was caused by workplace inhalation of some chemical that caused an allergic reaction that led to the spiraling effect that led to his death."
The employer essentially asked the appellate court to re-weigh the evidence and to accept the opinions of its expert. They argued that the opinions of the other experts, regarding the existence of and extent of exposure, were "speculative" because no evidence was presented as to "substance types, toxicity and work environment." The court declined to reweigh the evidence.
This case illustrates a common circumstance in workers' compensation cases. Witnesses have different perceptions and reach different conclusions. In this instance there were disputes about fact (was Holbert coughing before leaving for Pennsylvania?) and opinion (did a work exposure result in the illness?). Those disputes are usually resolved by the trial judge, and many appellate courts are reluctant to reweigh evidence (see Reweighing Evidence and Appellate Review).
Was there a work exposure? Was there some exposure at the casino? To what substance was Holbert exposed? These questions were seemingly not fully resolved by the trial judge or the Supreme Court. And that illustrates another somewhat common circumstance in litigation.
Generally, one party or the other has the "burden of proof." That party has to prove the facts upon which they seek recovery or exoneration, damages or workers' compensation benefits.
The law in Tennessee used to require the court "to construe the workers' compensation law liberally in favor of an injured employee." This statutory language created a presumption of sorts in favor of injured workers. This is essentially a legislative determination that if all else is equal, the injured worker prevails.
The Tennessee Court referenced a change in Holbert, but better explained in Willis v. All Staff:
Tennessee Code Annotated section 50-6-116, which previously required a liberal construction of the workers’ compensation law, has been amended to now provide that the workers’ compensation statutes “shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction[,] and this chapter shall not be construed in a manner favoring either the employee or the employer.”
Last year, the Florida 1st District Court explained a similar Florida presumption, formerly in section 440.26, Fla. Stat., in City of Jacksonville v. Ratliff. This was similarly "a presumption in favor of a claimant in “any proceeding for the enforcement of a claim for compensation.” But, Florida repealed that presumption, and enacted section 440.015, Fla. Stat., in 1990. That provision places parties in Florida workers' compensation proceedings on equal footing:
In addition, it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer.
Equal, that is, in many instances — but not all. Florida has enacted presumptions regarding specific conditions and occupations.
The effect of such statutory definitions are intriguing. Had Holbert been exposed (presuming that he was) in August 2014, instead of August 2012, the outcome in Holbert v. JBM Inc. might have been different. This is not because the evidence or the facts would have been different, but because the law would have been. The law in 2012 presumed the worker's injury would be compensable (related to work), but in 2014 the law no longer made that presumption.
The reminder of Holbert, as illustrated by the Florida Court's similar discussion of section 440.26, is simply the party that provides a statutory presumption will prevail, absent proof to the contrary. And appellate courts are unlikely to reweigh that evidence once a trial judge has made valid credibility determinations.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.