Bradburn v. Northwest Airlines Corp.

MICHAEL BRADBURN, Employee, v. NORTHWEST AIRLINES CORP., and LIBERTY MUTUAL INS. CO., Employer-Insurer/Appellants.

OCCUPATIONAL DISEASE - ASTHMA; CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that the employee developed occupational asthma due to exposure to chemicals in the workplace.

Attorneys: Robin D. Simpson, Aafedt, Forde, Gray & Monson, P.A., Minneapolis, MN, for the Appellants. Russell J. LaCourse, LaCourse Law Office, P.A., Duluth, MN, for the Respondent.

Northwest Airlines Corporation and its insurer appeal from the compensation judge=s decision that the employee developed occupational asthma as a result of workplace exposure to chemicals. We affirm.

The employee began working as an avionics technician for Republic Airlines in 1985. His job involved installing and maintaining radio and electrical equipment on airplanes. In 1986, Republic Airlines merged with Northwest Airlines [the employer]. The employee retained his position but was then considered an employee of Northwest.

In August of 1986, following the merger, the employee was involved in the installation of floor lighting inside an airplane, while, at the same time, the outside of the plane was being painted to conform with Northwest colors and design. The airplane was in a hangar at the time, and the employee testified that all the workers in his crew had Aproblems@ and were coughing, due, they believed, to the paint fumes entering the airplane. Several of those workers, including the employee, were subsequently checked at Airport Clinic. The employee=s pulmonary function testing, performed on August 28, 1986, was considered normal, and the employee testified that his symptoms went away gradually over the course of several weeks.

In early 1987, the employee moved to a job on the flight line, dealing with problems on planes as they arrived and departed. This work was performed outside, and the employee did not notice any problems similar to those he had experienced in 1986.

In early 1990, the employee returned to work in the hangar when he was promoted to a position as avionics technician lead mechanic. As the employee and his crew performed the electrical work, other crews were, according to the employee, Adoing everything from sheet metal work to painting, a lot of painting, grinding, gluing floors, cleaning, lots of cleaning going on.@ The employee testified that many chemicals were used in these activities, including a corrosion preventative and various cleaners. The employee also testified that he sometimes had trouble breathing at work but that it was Anot a real big deal@ and that he just tried to stay away from chemicals as much as he could. However, various chemicals were always in use at the employee=s workplace; Ait=s just the environment we=re in.@

In April of 1996, the employee bid into a different job, to be an A & P mechanic, which involved working on all the non-electrical facets of airplane maintenance and repair, including painting, sheet metal work, engine changes, and tire changes. He was employed in this capacity in the Twin Cities until October of 1996, when he transferred to Duluth. The employee testified that the hangar in Duluth was smaller than the hangars in the Twin Cities but that the Duluth hangar was still large enough to house three or four large airplanes. During warm weather, hangar doors were generally kept open. With the onset of colder weather in the fall, the hangar doors were closed.

On November 13, 1997, the employee sought treatment at Duluth Clinic, complaining of a Acouple month history of cough which comes in paroxysms@; A[s]ometimes he coughs to the point of passing out.@ The employee reported that the cough seemed to have begun when the hangar doors at work were closed due to cold weather. Treatment notes also indicate that the employee reported that there had been a sewer gas leak at work and that he had also been bothered by wood smoke while hunting. The treating physician=s impression was asthma, Atrigger[ed] at work or at home (wood smoke vs. chemicals vs. both),@ and he prescribed an inhaler.

The employee testified that, after 1997, he tried to avoid exposure to Ardox, an orange-scented chemical used to clean planes, because that chemical, particularly, seemed to affect his breathing. While he seldom used his inhaler and sought little or no additional treatment specifically for breathing problems for more than two years, he did receive evaluation for what he thought might be heart problems. Cardiac testing was normal.

On June 12, 2000, the employee experienced difficulty breathing, or what he described as a Alocking up@ sensation in his chest, when Ardox was used to wash a plane at work. He sought treatment the following day from Dr. Christine Swensen. Dr. Swensen=s June 13, 2000, office note indicates that the employee had gotten only temporary relief from using his inhaler and that he had experienced significant breathing problems again after waking up that morning. The note also indicated that the employee had seasonal allergies as well but that they had not flared up lately. Dr. Swensen=s assessment was, "reactive airway disease, recent flare with chemical exposure."

Following the June 12, 2000, incident, the employee was eventually seen by a number of physicians for pulmonary evaluation and treatment, including Dr. Richard Roach, Dr. Jacob Kammer, Dr. Joanne Smith, Dr. Walter Ryan, Dr. Paul Zimmerman, and Dr. Clayton Cowl. Various pulmonary function tests were abnormal, and, while it was generally agreed that the employee had asthma, some physicians felt, at least initially, that the employee had obstructive lung disease, while others diagnosed restrictive lung disease. The employee also underwent allergy testing, which disclosed that he was allergic to numerous substances, including cat dander, dust mites, and various plants. A number of asthma medications were prescribed, and the employee was advised to avoid the chemicals at work that seemed to bring on his symptoms. Over time, the employee found that he was using his inhaler as much as fifty times a day, primarily at work. He also began to notice breathing problems outside of work, from things such as fingernail polish, hair spray, and certain cleaning products.

In August or September of 2000, the employee transferred from his job in the hangar to a job in Athe shops,@ rooms adjacent to the hangar. Working as a lead avionics technician in the shops, the employee is somewhat removed from the area in which chemicals are used, but he cannot avoid all exposure. On occasion, when he is around chemicals on the job, his lungs Alock up,@ and he leaves work. He testified that he is Asick@ and sleeps for hours at a time when he experiences one of these episodes. The employer has been very cooperative in accommodating the employee=s need to avoid chemicals, going so far as to change the shift during which the airplanes are washed. The employee takes a variety of medications to control his symptoms.

Two First Reports of Injury were prepared in connection with the employee=s pulmonary condition. One describes a November 13, 1997, incident in which the employee Abecame overcome by fumes from the water/sewage treatment plant@; the other describes the June 12, 2000, incident in which the employee Ahad trouble breathing caused by fumes from wash solution the cleaners were using.@ When the employee filed a claim petition in December of 2002, only the alleged November 13, 1997, lung injury was listed.

The matter came on for hearing before a compensation judge on October 1, 2003. Evidence submitted at hearing included the employee=s medical records and the reports of Dr. Joan Fox, the employee=s independent examiner, and Dr. Samuel Hall, the employer and insurer=s independent examiner. The primary issue was causation.

In a decision issued on October 14, 2003, the compensation judge concluded that the employee had developed occupational asthma as a result of his work activities. The employer and insurer appeal.

Two medical experts issued narrative reports expressly discussing the issue of causation of the employee=s pulmonary condition. Dr. Fox, the employee=s independent medical expert, concluded in part that the employee was suffering from A[o]ccupational asthma consistent with reactive airway dysfunction syndrome.@ Dr. Fox went on to explain that the employee=s Aexposure to chromate paints in 1988 was causative in his development of occupational asthma@ and that the employee had experienced Afurther aggravation of his asthma with ongoing exposures to dinitrol and other sprayed chemicals serving as nonspecific irritants.@

In contrast, Dr. Hall, the employer=s independent examiner, concluded that the employee had Asimple, uncomplicated bronchial asthma,@ that he likely would have developed the condition and had the same clinical course regardless of his employment, and that, while various workplace chemicals may have aggravated the asthma, those aggravations would have merely been temporary, resolving within several days of the exposures. With regard to Dr. Fox=s report, Dr. Hall wrote as follows:

In her independent medical examination, Dr. Fox raised the possibility that Mr. Bradburn=s asthma is in reality reactive airway dysfunction syndrome (RADS), which was caused by work-related exposure to chromate paints.

While I do not doubt that he developed symptoms of bronchospasm during the incident in question, he could not have been exposed to a level of paint vapors sufficiently high to have caused RADS. He was performing electrical work inside an airplane while the paint was being sprayed outside of the plane.

In his decision, the compensation judge resolved the causation issue in the employee=s favor, concluding,

As a result of his exposure to a myriad of chemical agents and solvents at his place of employment over the years the employee has in fact developed occupational asthma consistent with reactive airway dysfunction syndrome. The employee suffers from mild to moderate obstructive airway disease along with a restrictive component.

In their brief on appeal, the employer and insurer contend that the record as a whole does not support the judge=s conclusion that the employee suffers from occupational asthma, citing the report of Dr. Hall as well as records from some treating physicians indicating that the employee=s underlying asthma was not caused or substantially aggravated by workplace chemical exposure.^[1] The employer and insurer also contend that the compensation judge erred in A[f]inding that the employee suffered a November 13, 1997, work-related lung injury resulting in the claimed asthma condition,@ noting that Dr. Fox attributed the employee=s asthma to 1988 chromate paint exposure, not the 1997 sewer gas incident - - the only pled injury - - and that no physician specifically attributed the employee=s condition to the 1997 incident. Finally, the employer contends that the judge erred in emphasizing the employee=s June 12, 2000, exposure to the orange-scented cleaning agent in that the incident was not pled as a causative event and was not cited by any physician as a cause of the employee=s condition.^[2] After review of the entire record, we are unpersuaded by these arguments.

Initially, with regard to the date of injury here, we acknowledge that the only injury date listed on the employee=s claim petition is November 13, 1997, the approximate date of the employee=s alleged exposure to sewer gas at work. However, contrary to the employer=s contention, we do not think the case was litigated with such a narrow focus. The employer was clearly aware of Dr. Fox=s opinion that chromate paint exposure in 1988,^[3] and ongoing chemical exposure thereafter, was the cause of the employee=s condition; Dr. Fox=s report to this effect was attached to the employee=s claim petition. Furthermore, the employer=s expert, Dr. Hall, expressly addressed Dr. Fox=s theory in his report and did not confine his opinion to the pled injury date. In addition, both parties asked the employee numerous questions about various chemical exposures over the course of his employment, and records from treating physicians covered some of those events as well. Given the way the matter was litigated and given the evidence submitted by both sides, we do not find it critical that no doctor attributed the employee=s asthma to the 1997 sewer gas exposure or that the compensation judge did not limit his findings to that specific claim. And, contrary to the employer=s assertion in their brief, the compensation judge did not find a November 13, 1997, date of injury but rather found an injury resulting from the employee=s exposures over the years. The employer=s arguments regarding the employee=s 2000 exposure to the orange-scented cleaning product at work may be similarly disposed of: it may be true that no doctor blamed the employee=s condition on that specific incident, but it is also true that the compensation judge made no finding indicating that that particular incident had caused or substantially aggravated the employee=s condition.

Clearly, either party could have prevailed given the conflicting evidence on the issue of causation, and it would not have been unreasonable had the compensation judge adopted the employer=s theory of the case. However, we cannot conclude that the compensation judge erred in rejecting the employer=s theory, and we are entirely unpersuaded by the employer=s assertion that the judge missed the distinction between chemical exposure causing temporary symptoms and chemical exposure causing or substantially aggravating the employee=s underlying condition. Rather, it is evident from his memorandum that the judge was simply more persuaded by the opinion of Dr. Fox than the opinion of Dr. Hall, writing as follows:

Further the Court has considered Dr. Hall=s opinion that the employee=s exposure was not substantial. As he indicated in his report: AHe [employee] was performing electrical work inside an airplane while the paint was being sprayed outside of the plane.@ Although this is true, Dr. Hall fails to note in his report the fact that the paint fumes passed into and permeated the entire cabin area of the plane in which the employee was working. From Dr. Hall=s report the Court is unable to determine whether he in fact had that information and whether he took that information into account in arriving at his opinion. Also the Court has considered Dr. Hall=s references to the fact that the employee, unbeknownst to him, is ostensibly allergic to a plethora of environmental stimuli from cat dander to cock roaches to dust mites to various tree and plant pollen. However as the employee clearly testified, his Ahay fever@ symptoms tend to be centered in his eyes, itching and watering, and in his nose, sneezing. These allergic reactions are totally different from the Alocking-up@ sensation his lungs experience when exposed to the chemical fumes and insolvents.

Although Dr. Hall opined that it was more likely than not that the employee would have developed the asthma and Ahad virtually the same clinical course even if he had not worked for Northwest Airlines,@ the temporal coincidence between the employee=s exposures and the onset of the asthma is startling. The employee=s layman perception of a causal relationship between his exposures and the development of asthma is substantiated by a preponderance of the medical evidence introduced. Dr. Joan Fox, examining on behalf of the employee, very clearly and cogently explains the basis for her opinion that the employee in fact suffers occupational asthma as a direct result of the employee=s exposure at work. Similarly the other physicians with whom the employee has actually treated, as opposed to being seen on a one-time basis, substantiate the requisite causal relationship.

The judge was entitled to accept Dr. Fox=s opinion on this issue. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In addition, as the judge suggested, at least some treating physicians were proceeding on the premise that the employee=s condition was in fact work-related. For example, in a June 16, 2000, report, Dr. Smith assessed the employee as having A[r]eactive airway disease . . . likely secondary to chemical irritants@; in a March 22, 2001, report, Dr. Ryan indicated that Aat least part of the problem is asthma occupational induced, partially occupationally related, and partially environmental related.@ Many treatment records list occupational asthma as the employee=s diagnosis. Although not necessarily dispositive, these records provide some additional support for the judge=s conclusion.

Because substantial evidence supports the judge=s decision as to causation, we affirm that decision in its entirety.

^[1] For example, in a March 13, 2001, report, Dr. Cowl indicated that Athe chemicals that subjectively have been bothering [the employee] are upper respiratory irritants and may exacerbate [the employee=s] underlying asthma.@ (Emphasis added). Other reports indicate that the chemicals in the employee=s workplace are not considered allergens or sensitizing agents but merely Anonspecific@ irritants. As such, according to the employer=s theory, those chemicals are not truly causative but instead merely produce temporary symptoms.

^[2] At oral argument, the employer also asserted that the judge evaluated the case under the wrong standard, in that the issue in occupational disease cases is not whether work activities were a substantial contributing cause but whether the work activities were a Adirect and proximate cause,@ as specified in Minn. Stat. ' 176.011 (15). However, at hearing before the compensation judge, counsel for the employer specifically indicated that the issue was whether the employee=s Awork at Northwest Airlines is a substantial contributing factor to causing this condition,@ the case was clearly tried on that theory, and the employer did not raise the alleged Adirect and proximate cause@ distinction in their brief on appeal. Under these circumstances, we will not consider the issue of whether the compensation judge applied the proper legal standard for an occupational disease claim.

^[3] This particular exposure more likely occurred in 1986, as that is when the employee underwent pulmonary function testing.