Delta CMI v. Speck

Decision Date28 August 1991
Docket NumberNo. 89-CC-0214,89-CC-0214
Citation586 So.2d 768
PartiesDELTA CMI and The Insurance Company of Pennsylvania v. David E. SPECK.
CourtMississippi Supreme Court

Clifford B. Ammons, Watkins & Eager, Jackson, for appellants.

David O. Butts, Jr., Tupelo, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and BANKS, JJ.

BANKS, Justice, for the Court:

I

This Workers' Compensation case presents the issue whether apportionment is proper based on evidence that factors other than those related to the job activity immediately in question contributed to the disabling condition where there is no showing of previous occupational disability. Once again we answer, no.

Delta Coatings Manufacturers Inc., (Delta CMI) and the Insurance Company of Pennsylvania appeal from a decision of the Claiborne County Circuit Court reversing an order of the Workers' Compensation Commission (Commission) awarding benefits to David E. Speck (Speck) for permanent total disability. The Commission apportioned the award by fifty percent, attributing one-half of Speck's disability to past occupational exposure to various dust and chemicals and the other half to exposure to chemical irritants while working for Delta CMI. The circuit court reversed the Commission order and awarded all benefits provided pursuant to the statute to Speck, without apportionment. We affirm.

II

On March 9, 1983, Speck filed a "Petition to Controvert" with the Mississippi Workers' Compensation Commission, thus beginning the proceedings leading to this present action. He alleged that on November 10, 1982, he received a compensable injury while in the employ of Delta CMI. Hearings were held pursuant to this petition. His testimony at the hearings revealed the following.

From July 1982 until November of the same year, Speck, then a 42-year-old male with an eleventh grade education, was employed as a painter by Delta CMI, a painting sub-contractor at Grand Gulf Nuclear Power Plant in Port Gibson, Mississippi. Speck painted the steel work at the plant. The type of paint he sprayed was, or contained heavy concentrations of, zinc. Prior to working for Delta CMI, he was in good physical condition and did not have any serious problems with his health. Speck admitted that he worked in autobody repair for 16-17 years and his job entailed sandblasting. He stated, however, that he used the proper equipment when blasting vehicles and was not exposed to any dust and particles. He maintained that he was exposed to some toxic fumes while painting cars, "because there [was] no way to keep from being exposed to some [fumes]." Nevertheless, he testified that he never sprayed zinc before working for Delta CMI. He also acknowledged that he smoked during the twenty years prior to injury in 1982. Specifically, he stated that he smoked between one-third and a pack of cigarettes a day. He also did not experience any health maladies from July of 1982 to November, 1982.

On November 3, 1982, Speck began working near the nuclear reactor. His duties entailed sandblasting, painting, and re-coating zinc in the area surrounding the reactor--an area 45 feet wide, 60-65 feet deep. Though protective equipment was supplied by Delta CMI, there was not enough equipment for the number of workers needed to paint. To compound the lack of protective equipment, Speck recalled that on November 7, the blasters were working erratically.

They would come on when they wanted to and they would go off when they wanted to. I got caught that night, I believe, trying to put on my air hood on, [sic] and it come on, and I blasted about 30 minutes without anything [protection].

During this episode, Speck inhaled zinc dust without a mask. He stated "there wasn't anything you could do but breathe it," and he could not release the blaster "because if it hit you it would fix you up." It was under these conditions that Speck began to experience effects of the chemicals. Between November 7th and 10th, Speck began to feel ill. He stated that during this time, he "had a sweet taste in [his] mouth and bad headaches and hurting between [his] shoulders and ... back around here up [his] neck, and [he'd] go home and ... wrap up, fever and this...." He also stated that he had no appetite, was suffering from insomnia, and coughed incessantly. On November 10, Speck became seriously ill. Immediately before injury he felt weak, had a headache and a taste of zinc in his mouth. He stated that he just did not feel well. He also felt pains in his chest. He was carried to first aid by one of his co-workers. From there, he was transported to a hospital in Vicksburg, where he spent three days in intensive care. After his stay in Vicksburg, he was taken to a hospital in Jackson.

Speck returned to work on November 29. Approximately five days after his return, Speck was placed back in containment, grinding welds and zinc. While grinding welds, Speck was again exposed to zinc fumes. He continued to work in containment until he again began to suffer with headaches, rigors, fever, and a sweet taste. Eventually, Speck was removed from containment. He was assigned to work in various parts of the building. Occasionally, he missed some days from work due to his injury. He worked on and off from November 29, 1982, until February 1983.

In February of 1983, Speck's supervisor told him to go to a doctor and bring a statement indicating either Speck's ability or inability to work.

Speck complied and in March of 1983, he was examined by Dr. Victor Alexander at Oschner Clinic in New Orleans, Louisiana. Speck underwent three days of testing and examination. Speck has not worked since February of 1983. In describing his physical feelings, he stated that any physical activity tires him and takes his "wind."

Testimony further established that Speck had a long work history. Specifically, from 1958 through 1964, Speck was employed in a furniture factory in Union County, Mississippi, doing upholstery work. As discussed, he worked in autobody repair from 1965 through 1981. In 1980-1981 through July 1982, he worked as a fireproofer for Bechtel Corporation at Grand Gulf Nuclear Power Plant. While with Bechtel, he wore protective gear and sprayed materials containing asbestos and fiberglass. He stated that it was possible that he inhaled some asbestos or fiberglass while working for Bechtel 1. In June 1982, he worked one week for Crown Coating in Natchez, Mississippi. He resigned because the conditions under which he worked were unsafe.

Also before the lower tribunals were the depositions of Dr. Victor Alexander, director of En Viro Health Systems in New Orleans, Louisiana, and Dr. Jerrold Lee Abraham, physician and pathologist at State University of New York Health Science Center in Syracuse, New York.

Dr. Alexander, occupational medicine specialist, was deposed on January 28, 1985. He examined Speck on March 1 1983, after a medical officer for the National Institute for Occupational Safety and Health (NIOSH) recommended that Speck see Dr. Alexander. Dr. Alexander testified that Speck told him that he had been sandblasting and painting under very adverse environmental exposure conditions while working at Grand Gulf Nuclear Plant. Speck told the doctor that prior to the incident, he experienced fever, chills, and a sweet taste in his mouth with a productive cough, severe shortness of breath, decreased appetite and blood streaked sputum. Speck also gave his previous work history.

Dr. Alexander conducted a physical examination of the claimant and ordered pulmonary function studies, a cardiogram, blood tests, and chest x-rays. A cardiologist consulted by Dr. Alexander reported that Speck had coronary disease. He was unable to opine whether the disease was caused or aggravated by toxic fume exposure. In Speck's case, the findings were typical of, or consistent with previous dust exposure, usually from an occupational environment. Dr. Alexander testified that reduced vital capacity is associated with significant pulmonary dust exposure. He stated that Speck, in his opinion, had underlying coronary artery disease and suffered an "acute cardio-respiratory embarrassment" following overexposure while sandblasting and painting in November of 1982. He further testified that Speck had evidence of recent pulmonary damage in part due to his most recent exposure while working at Grand Gulf and in part to his several years previous occupational exposure to a variety of dusts, including sandblasting, silica exposure, and also spray paint. It was his opinion that the primary cause of the pulmonary damage was occupational exposure over a period of 17 years as a spray painter, with some contribution from smoking, and that the exposure to silica and zinc chromate based paints during a period of two months in 1982 at Grand Gulf played a contributing role in the development and current state of Speck's pulmonary condition. He stated that it would be difficult to attach a specific number to the contribution of each component.

Dr. Abraham's testified that he was first contacted on January 24, 1986, by one of Speck's doctors who asked him to examine the tissue from a lung biopsy performed on Speck. His findings revealed,

that there is evidence of increased dust content in Mr. Speck's lung compared to what you would find in somebody without occupational exposure.

Also found in the lung were great concentrations of

silica, aluminum silicates and metals. In this case, the metals accounted for most of the increased earth or dust in this man's lung; and besides just in general being elevated in concentration, the types of particles found were suggestive of some unusual exposure, and the major types found were titanium and iron.

* * * * * *

The reason I think that these indicate an unusual exposure is that these wouldn't be found just in somebody walking down the street. They signify that this person was really exposed to some source of these materials ... you wouldn't expect to find...

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