John Hanley v. Cretex Co., Inc., et. al., No. WC20-6389. (W.C.C.A May 10, 2021).
The Employer and Insurer appealed the compensation judge’s decision which granted the Employee’s claims for workers’ compensation benefits.
The Employee worked as a lathe machine operator from approximately 2006 through 2017. The Employee worked in a large warehouse that, when he began his employment housed approximately 500 machines, each approximately the size of a minivan, and housed approximately 1,000 machines when he left his employment. Also in the warehouse, were about 500-800 employees throughout his time.
The lathe machine cuts metal by turning fast revolutions per minute using friction between the cutting tool and the metal; the friction is lessened by the use of high pressure lightweight oil. In this process, the oil is turned into a fine mist which is volatile. Due to this, the lathes are vented into a fan above them to draw the air upwards. With this venting, the Employee testified oil escapes the lathe when opening the door and the doors were not airtight so oil could also escape during the process. Safety tests were completed at least five times throughout his employment pursuant to federal guidelines and the air quality were always below the permissible amount according to federal regulations.
In 2009, the Employee began experiencing respiratory symptoms including chest tightness, trouble sleeping, and difficulty breathing. The Employee testified these worsened the more he worked. The Employee testified he began more sensitive as more exposure occurred.
In February 2017, the Employee was treated and a methacholine challenge test showed he likely suffered from asthma. He was diagnosed with occupational asthma. It was recommended he try different employment. The Employee left his employment in March 2017. His symptoms improved quickly. The Employee then began to work at a smaller shop with less exposure in October 2017. His symptoms returned and he left this employer after 12 months. Again, after not working for a period of time, he returned to the Employer in 2019.
At the Employer’s request, he saw Dr. McKinney who noted the work environment was extremely clean and he might do well returning but that he must wear a respirator mask. Due to this, the Employer had him see Dr. Mann. Dr. Mann concluded he had occupational asthma and that the respirator was insufficient and permanently removed him from the work environment.
The Employee eventually completed training for a commercial drivers’ license and took a job as a truck driver in September 2020. He did not have any symptoms during his driving training.
The Employee was seen by Dr. Kipp at the request of the Employer and Insurer. Dr. Kipp found the Employee did not have occupational asthma and that he suspected the symptoms to be a respiratory obstruction, likely a vocal cord dysfunction. He said the Employee could not have occupational asthma because the work environment was clean and exposures were below OSHA standards.
The Employee was seen by Dr. Arndt at the request of his attorney. Dr. Arndt disagreed with Dr. Kipp. He diagnosed the Employee to suffer from occupational asthma.
The compensation judge found for the Employee and found the Employee developed permanent and ongoing asthma through exposure to metalworking fluids at the Employer.
The Employer and Insurer on appeal argued the substantial evidence does not support the compensation judge’s findings. They argued that only one medical opinion was based on objective foundation including the air quality testing; that Dr. Arndt’s opinion was contrary to the industrial hygiene reports and based on the assumption the environment was unsafe, and that the compensation judge conceded the work environment to be clean because only “some” aerosolized oil escaped and that was contrary to Dr. Arndt.
The WCCA found these arguments to be unpersuasive. The compensation judge found the Employee’s testimony to be credible about his exposure to the oil. They also found the opinion of Dr. Arndt to be consistent with that of Dr. McKinney, and Dr. Mann.
The WCCA also found that while the Employer and Insurer indicated they are not making a negligence based argument, that is what they were doing. Although there may be reports indicating the amount of aerosolized oils in the air were well below OSHA standards, that does not mean the Employee cannot be believed as everyone is unique and the chances of developing occupational asthma are not zero and these tests did not measure the specific Employee’s exposure.
Takeaway: Following the guidelines and regulations of OSHA or other regulating agencies does will not necessarily exclude primary liability for work injuries as each specific person is different and can have work injuries even when these guidelines are followed.