Opinion
No. 30824-0-II
Filed: November 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 02-2-00473-5. Judgment or order under review. Date filed: 08/04/2003. Judge signing: Hon. Thomas John Majhan.
Counsel for Appellant(s), Benjamin Riverbed Sligar, Davies Pearson, 920 Fawcett Ave, Tacoma, WA 98402-5697.
Counsel for Respondent(s), Kay Allison Germiat, Attorney Generals Office, PO Box 2317, Tacoma, WA 98401.
This appeal arises out of Lawrence Bowman's claim for workers' compensation benefits. Bowman contends that he suffers from an autoimmune kidney disease as a result of his employment at Wing Point Golf County Club (Wing Point). Bowman appeals the superior court's judgment which found that he had failed to establish by a preponderance of the evidence that his disease was proximately caused by work at Wing Point. Although Bowman presented medical testimony that his disease was causally related to his employment, the Department of Labor and Industries (LI) presented expert testimony which supports the superior court's finding that proximate cause had not been established. Thus, substantial evidence supports the trial court's finding and we affirm.
FACTS
Bowman was employed at Wing Point from April 1996 to August 1997. Even before employment with Wing Point, Bowman suffered from Grave's disease (an autoimmune disease of the thyroid gland) and vitiligo (patches of nonpigmented skin caused by an autoimmune response). Stedman's Medical Dictionary 497, 1950-51 (26th ed. 1995). Bowman's initial duties at Wing Point involved mowing, weeding, and raking the golf course. After a couple of months, Bowman also served as a hose tender, which involved holding a hose 15-20 feet behind another employee who sprayed the course with herbicides, fungicides, pesticides, or fertilizers. Some of these chemicals contained organic hydrocarbon solvents. Bowman manned the sprayer a `few times' when the other employee would need a break. Administrative Record/Transcript (AR/Tr.) (Mar. 12, 2001, p.m.) at 16. Bowman also occasionally mixed the chemicals and cleaned the chemical spray tank. Bowman testified that he mixed chemicals 15-20 times, served as a hose tender 15-30 times, and cleaned the spray tank on `[s]everal occasions.' AR/Tr. (Mar. 12, 2001, p.m.) at 39.
According to Bowman, his contact with chemicals at Wing Point routinely caused side effects. After mixing the chemicals, Bowman would become light-headed and dizzy. When hose tendering, Bowman would inhale mist from the chemical spray. Bowman testified that he suffered headaches, a sore throat, and nausea after being involved in the spraying. After mowing the course, Bowman would distribute the grass clippings over the course with his bare hands. On a `few occasions' the clippings had a `strong odor' which made him light-headed. AR/Tr. (Mar. 12, 2001, p.m.) at 36. Bowman testified that any ill feelings that developed at Wing Point disappeared a `[f]ew hours' after he left work. AR/Tr. (Mar. 12, 2001, p.m.) at 25.
Bowman also testified that he spilt gasoline on his hands `a couple of times' and that chemical residue would drip onto his hands when he cleaned the spray tank. AR/Tr. (Mar. 12, 2001, p.m.) at 40. But Bowman could recall no side effects that resulted from these incidents. 2 The parties dispute how often Bowman performed tasks requiring him to have exposure to chemicals containing hydrocarbons. For example, LI points to a Wing Point logbook which indicates that Bowman only served as a hose tender 8-10 times; testimony by a Wing Point employee who did not recall ever seeing Bowman clean the spray tanks; and testimony that Bowman would not mow the course until the day after chemicals were sprayed. As stated above, we are bound to view the evidence, including Bowman's exposure levels, in the light most favorable to LI. But for purposes of this appeal, we accept Bowman's recounting of his exposures as the disparity between his story and LI's is relatively minimal.
In August 1997, Bowman was involved in a project to remove and relocate sections of sod. Bowman, who carried the grass by hand, detected chemical odors throughout the task. According to Bowman, he began to have `some pretty strong symptoms' that afternoon, including nausea and a sore throat. AR/Tr. (Mar. 12, 2001, p.m.) at 45.
A few days later, Bowman was rushed to the hospital due to repeated vomiting. Later testing revealed that Bowman had glomerulonephritis, an autoimmune kidney disease caused by inflammation of the internal kidney structures. Stedman's Medical Dictionary 726-27 (26th ed. 1995). Due to the disease, Bowman eventually received a kidney transplant.
On August 18, 1998, Bowman filed an application for LI benefits, alleging that he sustained an `occupational disease' while employed with Wing Point. Administrative Record/Clerk's Papers (AR/CP) at 81. After LI denied the application, Bowman appealed to the Board of Industrial Insurance Appeals (the Board). Before the Board, Bowman presented the testimony of three medical experts, each testifying that on a more probable than not basis, the chemical exposures at Wing Point caused the glomerulonephritis. But LI offered two medical experts, and each testified that Bowman's kidney disease had no recognized cause accepted in the medical community and that it could not be said, on a more probable than not basis, that Bowman's duties at Wing Point caused the glomerulonephritis. The Board affirmed LI's denial, finding that proximate cause had not been established. Bowman then appealed to the superior court, which also affirmed this lack of causation finding. This appeal followed.
ANALYSIS
Under the Washington Industrial Insurance Act, a worker claiming entitlement to disability benefits for an `occupational disease' carries the burden of proving that the disease arose naturally and proximately out of employment. RCW 51.08.140; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 6, 977 P.2d 570 (1999). An employee establishes the proximate cause element by presenting `competent medical testimony which shows that the disease is probably, as opposed to possibly, caused by the employment.' Dennis v. Dep't of Labor Indus., 109 Wn.2d 467, 477, 745 P.2d 1295 (1987).
A final decision of the Board concerning coverage under the Industrial Insurance Act is presumed correct. RCW 51.52.115. On review, the superior court conducts a de novo review of the evidence presented to the Board but may modify the Board's decision only if it concludes by a preponderance of the evidence that the Board's findings and conclusions are incorrect. Ruse, 138 Wn.2d at 5. On appeal to this court, our review is limited to examining the Board's record to determine whether the superior court's conclusions of law flow from findings which are supported by substantial evidence. See Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402, review denied, 130 Wn.2d 1009 (1996). To determine if substantial evidence supports the superior court's findings of fact, we view the evidence in the light most favorable to the prevailing party. Harrison Mem'l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221, review denied, 147 Wn.2d 1011 (2002). Substantial evidence is `evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.' Grimes v. Lakeside Indus., 78 Wn. App. 554, 560-61, 897 P.2d 431 (1995).
In this case, the medical experts' testimony provided substantial evidence sufficient to support the superior court's finding that Bowman had failed to establish proximate cause. Dr. Matthew Keifer, the director of occupational medicine at the University of Washington, testified that the link between autoimmune kidney diseases and the chemicals Bowman had been exposed to was `extremely weak.' AR/Tr. (Mar. 16, 2001) at 23. Keifer testified that Goodpasture's syndrome has been linked to hydrocarbon exposure and sometimes leads to kidney failure, but Bowman did not have it. Discussing the connection between hydrocarbon exposure and certain autoimmune kidney diseases, Keifer indicated that a high level of exposure for prolonged periods in a confined space is generally required before the worker contracts the disease. Keifer opined that Bowman's level of exposure was `relatively small,' especially when the dilution rate of chemicals to water in the spray was `very high' and hydrocarbons dissipate rapidly after being sprayed outdoors. AR/Tr. (Mar. 16, 2001) at 36, 44.2 Keifer also testified that Bowman's symptoms — i.e., nausea, dizziness, headaches, and sore throats — were `nonspecific' and common for anyone exposed to pesticides and other chemicals. According to Keifer, certain chemicals are intended to produce these symptoms so that individuals will minimize their exposure to a level below that which is known to be harmful. Keifer opined that if Bowman had been exposed to toxic levels of certain chemicals, his symptoms would have lasted for weeks rather than dissipating after leaving work. Keifer also testified that glomerulonephritis takes several months to develop and would not have developed rapidly after a single exposure such as the August 1997 sod-moving project. In Keifer's medical opinion, Bowman's glomerulonephritis was not likely caused by exposure to chemicals at Wing Point.
LI also presented Dennis Stumpp, an occupational medicine physician, whose testimony and medical conclusions mirrored Keifer's. Stumpp testified that although Bowman had established a temporal relationship between his exposure and the onset of glomerulonephritis, such a correlation was a poor indicator of causation. In fact, like Keifer, Stumpp testified that the cause of glomerulonephritis is unknown. According to Stumpp, Bowman's exposure level was `very low' and the chemicals Bowman had been exposed to were not known to cause glomerulonephritis. AR/Tr. (Mar. 29, 2001) at 28. As to Bowman's ill feelings, Stumpp stated that it was `[v]ery common with solvent odors [to] see people who experience mild headaches or sensation of nausea in response to them at very low doses which are even below irritant thresholds or toxic thresholds.' AR/Tr. (Mar. 29, 2001) at 32. Stumpp also opined that autoimmune diseases, including Grave's disease, vitiligo, and glomerulonephritis, tend to naturally `cluster in individuals' and increase one's susceptibility to immunological reactions. AR/Tr. (Mar. 29, 2001) at 49.
Bowman challenged Keifer and Stumpp's testimony, offering the testimony of three medical experts who each concluded that Bowman's chemical exposures likely caused the glomerulonephritis. But Bowman's experts did not testify to a medical certainty that Bowman's exposures caused the kidney disease and each treating physician indicated that their conclusion was based largely on the temporal relationship between exposure and onset. AR/Tr. (Feb. 28, 2001) at 50 (`My opinion is that the exposure to those chemicals either caused or hastened his kidney disease and led to his end stage renal disease. . . . [T]he most important factor to me . . . [was] the temporal relationship between his exposure and the onset of his complaint and his disease.'); AR/Tr. (Mar. 13, 2001) at 23 (in answering what factors were important, [t]he fact that he had documented normal kidney function as recent as one year before the development of his renal failure, the timing of his exposure, the symptoms that he had displayed after repeated exposure to the substances, which suggested that he was susceptible, and the absence of any other underlying cause).
Moreover, as stated above, our inquiry in this appeal is not whether there is substantial evidence to support Bowman's position; our inquiry is solely whether substantial evidence supports the superior court's finding that Bowman had failed to establish proximate cause on a more probable than not basis.
Bowman also asserts that Keifer and Stumpp, the Board, and the superior court, failed to consider his particular and perhaps unique vulnerability to chemical exposure in forming their causation conclusions. To that end, Bowman highlights Keifer and Stumpp's testimony that (a) Bowman's exposure to hydrocarbons was relatively minimal, and (b) high levels of exposure for prolonged periods are generally necessary for documented autoimmune kidney diseases.
It is undisputed that causation is highly individual, depending upon the characteristics of the plaintiff and the nature of his or her exposure. Boeing Co. v. Heidy, 147 Wn.2d 78, 81, 85-86, 51 P.3d 793 (2002) (concluding that employer could not `reduce a worker's permanent partial disability award for work-related hearing loss because people of that worker's age generally suffer from age-related hearing loss'); see also In re `Agent Orange' Product Liability Litigation MDL No. 381, 818 F.2d 145, 165 (2nd Cir. 1987) (noting that determining whether chemical caused harm is `highly individualistic, and depends upon the characteristics of individual plaintiffs (e.g. state of health, lifestyle) and the nature of their exposure), cert. denied, 484 U.S. 1004 (1988). Thus, it would have been error for a court to conclude that Bowman had failed to establish a causal connection solely because other similarly exposed individuals did not have glomerulonephritis. But while an employee need not prove that an ordinary worker would contract the disease under the same working conditions, a court is not precluded from considering statistical probabilities and assessments in assessing the proximate cause of a particular worker's illness. Here, the record shows that Keifer and Stumpp's medical conclusions were based on a host of factors independent of exposure level probabilities: that glomerulonephritis has no known cause; the type and duration of Bowman's symptoms were inconsistent with those associated with toxic reactions; the rapid onset of Bowman's glomerulonephritis suggested an internal cause; and the fact that autoimmune diseases tend to cluster in individuals like Bowman who suffer from other longstanding autoimmune deficiencies. The record supports the trial court's conclusion that Keifer and Stump fully considered Bowman's individual characteristics and work situation in diagnosing the cause of Bowman's kidney failure.
Lastly, Bowman asserts that because the cause of glomerulonephritis is unknown, and because science cannot determine an individual's hydrocarbon tolerance level, science is `imperfect' and he should be entitled to the benefit of the doubt. In support of this position, Bowman cites to Intalco Aluminum Corp. v. Department of Labor Industries, 66 Wn. App. 644, 833 P.2d 390 (1992), review denied, 120 Wn.2d 1031 (1993). But in Intalco, Division One held that proximate cause could be established even when an employee who had been exposed to numerous chemicals, some of which were known to cause neurological diseases, could not identify the specific chemical that caused an injury or disease. 66 Wn. App. at 658. In so holding, Division One rejected the employer's contention that, as a matter of law, proximate cause could not be established without epidemiological studies: `[i]f this court were to accept [the employer's] argument, the first victims of any newly recognized occupational disease would always go uncompensated.' Intalco, 66 Wn. App. at 660.
While we agree with Intalco, it does not control our decision here. Neither the Board nor the superior court determined Bowman's claim based on the absence of epidemiological studies on glomerulonephritis. They only ruled that Bowman was not excused from proving that his work duties proximately caused his glomerulonephritis simply because glomerulonephritis and autoimmune diseases are not fully understood by the medical community. Adopting Bowman's argument would excuse him from proving proximate cause and would require the payment of LI benefits to a worker anytime that worker contracted a novel disease while working for an employer. Although we liberally construe the Industrial Insurance Act in favor of the employee, the employee retains the responsibility of presenting competent medical testimony establishing by a preponderance of the evidence that his disabling disease was proximately caused by his working conditions. RCW 51.08.140; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 6, 977 P.2d 570 (1999). An employee who fails to establish proximate cause cannot simply assert that he is entitled to benefits until science supplies the evidence establishing the actual cause of the disease.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and BRIDGEWATER, J., Concur.