Armstrong v. City of Wichita

• Decision Date: 15 December 1995
• Docket Number: No. 73038,73038
• Citation: 21 Kan.App.2d 750,907 P.2d 923
• Parties: Dan H. ARMSTRONG, Appellee, v. CITY OF WICHITA, Appellant.
• Court: Kansas Court of Appeals

Page 923

907 P.2d 923

21 Kan.App.2d 750

Dan H. ARMSTRONG, Appellee, v. CITY OF WICHITA, Appellant.

No. 73038.

Court of Appeals of Kansas.

Dec. 15, 1995.

Review Denied Feb. 6, 1996.

Syllabus by the Court

1. It is not necessary that a claimant seeking workers compensation for an occupational disease prove that his or her disability is being caused by a disease which has a specific name or diagnosis recognized by the majority of experts in the medical field. It is sufficient if the claimant shows that he or she suffers from a disabling disease or condition which resulted from the nature of his or her 2. The existence, nature, and extent of the disability of a worker suffering from an occupational disease is a question of fact. It is not necessary that a worker's occupational disease have a given medical name or label in order to be compensable.

employment and which meets the other requirements of K.S.A. 44-5a01.

3. The "general acceptance" test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), governs the admissibility of expert scientific evidence in the state of Kansas in those situations wherein such a test or standard is required.

4. In this state, neither an administrative law judge nor the Workers Compensation Board is bound by technical rules of procedure, and the Rules of Evidence, K.S.A. 60-401 et seq., are not applicable in workers compensation proceedings.

5. In a workers compensation action, a claimant is not required to prove that his or her treating physician's opinions, diagnosis, or treatment satisfy either the general acceptance test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), or the federal test set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

6. The failure to raise an objection to the admissibility of the testimony of an expert witness at the trial level precludes the raising of such issue on appeal.

David J. Morgan, of Hershberger, Patterson, Jones & Roth, L.C., Wichita, for appellant.

Kelly W. Johnston and James P. Johnston, of The Johnston Law Offices, P.A., Wichita, for appellee.

Before GERNON, P.J., LEWIS, J., and ROBERT G. JONES, District Judge, Assigned.

LEWIS, Judge:

The Kansas Workers Compensation Board (Board) found that Dan Armstrong, the claimant, "suffers a condition as a result of his exposure to chemicals at work which has resulted in a disability." Claimant was determined to be 100 percent temporarily disabled. This decision affirmed an earlier decision in favor of claimant by the administrative law judge (ALJ). The City of Wichita (City) appeals from these decisions in favor of claimant and particularly from the finding that claimant suffered from an occupational disease.

Claimant was employed by the City in its sewer department. Claimant's job was to remove the floating solids and grease from the sewage at Plant No. 1 and transport the solids to the landfill.

In March 1989, claimant became ill at work. He noticed that the greases were of an unusual color and texture. He also detected a "terrible" pesticide-type odor and soon developed headaches and nausea. Although claimant put on a filter mask, he could still smell the odor and, within a day and a half, was so ill that he could not continue to work.

Initially, claimant saw the City's doctors for treatment. Ultimately, however, he began to see Dr. Charles T. Hinshaw, Jr., who remains his treating physician.

Dr. Hinshaw allowed claimant to return to work as a meter reader. In October 1989, claimant was again exposed to a spray of chemicals from a commercial carpet cleaner while at work. As a result of this exposure, claimant became ill and required assistance in driving his vehicle back to the City's garage.

Claimant returned to work on December 30, 1991. On that date, he was supplied with a respirator. The respirator emitted a petroleum odor, which made claimant ill, and he could not continue to work. The City supplied another respirator, which claimant said emitted a silicone odor, and that made him ill. Ultimately, claimant was unable to work at all for the City. Since claimant's last day of work for the City, he has not worked for pay elsewhere, with the exception of 2 or 3 days when he helped a friend do construction work.

Claimant filed a claim for workers compensation by reason of having contracted an occupational disease. He testified that he Claimant was diagnosed by Dr. Hinshaw with multiple chemical sensitivities (MCS) resulting from his exposure to toxic chemicals at work. According to Dr. Hinshaw, claimant is 90 to 100 percent disabled as a result of his work-related condition.

suffered from and continues to suffer from weakness, confusion, headaches, tingling in his legs, tremors, diarrhea, and fatigue. He insists that none of these conditions were present prior to the March and October 1989 episodes while he was employed by the City.

The record in this case is quite extensive. It contains 34 volumes and testimony from at least 10 expert witnesses. Among those expert witnesses were seven M.D.'s and three Ph.D.'s.

The various expert witnesses in this case testified, to a greater or lesser degree, as to what was or was not wrong with claimant, how he may have developed that condition, and the extent of his disability. The testimony is highly conflicting.

Dr. Stephen Sparks examined claimant for the City. At one point, Dr. Sparks indicated that claimant's symptom complex was "consistent with chronic fatigue syndrome or multiple chemical sensitivity." Dr. Sparks further indicated that claimant had some level of impairment but ultimately testified that he could not say if it was related to the chemical exposure.

Dr. Lawrence L. Pelletier reviewed claimant's records and conducted an examination of claimant. His discharge summary diagnosed "peripheral neuropathy of unknown etiology."

Dr. Ronald E. Gots testified on behalf of the City. His testimony was not favorable to claimant. He testified that MCS did not exist and was not a recognized condition among the scientific community and further that claimant did not have it. He was asked:

"Q. Therefore, would you have rendered any treatment to Mr. Armstrong?

"A. No.

"Q. What would you have recommended that he do?

"A. I probably would have gotten him the kind of therapy that might have actually helped him.

"Q. Which was what?

"A. It may be psychiatric."

Dr. W. Morgan Padgett holds a Ph.D in chemistry. He testified that claimant was exposed to various noxious and/or toxic odors while working for the City.

Dr. Jai H. Yang, M.D., found that claimant was suffering from "borderline slow conduction velocity of the right sural sensory nerve."

Dr. Sparks, whose testimony is mentioned earlier, testified that claimant was impaired but that he could not say within a reasonable degree of medical probability that "anything" caused claimant's impairment.

After hearing the highly conflicting testimony in this case, the ALJ held that claimant suffers from MCS as a result of exposure to substances at work. He also found that claimant's exposure to those substances at work was of a greater concentration and frequency than that of the general public. He found claimant to be 100 percent temporarily totally disabled.

The Board affirmed the award of the ALJ. However, the Board declined to decide whether claimant suffers from MCS or even whether that condition exists. The Board concluded that claimant suffered from some condition "as a result of his exposure to chemicals at work which has resulted in a disability." The Board went on to make all of the other necessary findings required in order for an occupational disease to be compensable. The Board affirmed that claimant suffered from 100 percent temporary total disability.

The City appeals.

NAME OF DISEASE

The Board held as follows:

"The Appeals Board does not consider it necessary to determine whether there is such a condition as multiple chemical sensitivity or whether claimant has such a chemical sensitivity. It is, in general, a diagnosis which describes a condition or The City argues that the Board erred in not naming the specific disease from which claimant suffers. The City argues that there must be a specific, recognized, and defined disease and diagnosis before a claim can be compensable as an occupational disease. The City suggests that we should remand this matter to the Board for a specific finding of the name of the ailment from which claimant suffers.

circumstance where an individual has been exposed to one or more chemicals, sometimes at relatively low levels, and as a result develops hypersensitivity to numerous other chemicals. Likewise there does not appear to be any uniformly accepted criteria for diagnosis of the condition. In fact, it appears that the diagnosis is made, in large part, by eliminating any other possibility. Without expressly finding that such a diagnosis is a valid diagnosis, the Appeals Board does conclude, from the evidence presented, that claimant suffers a condition as a result of his exposure to chemicals at work which has resulted in a disability."

We do not agree.

The statute defining occupational disease does not require that a worker's disease be specifically defined and named in order to be compensable. K.S.A. 44-5a01(b) provides that an occupational disease

"shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. 'Nature of the employment' shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in...