Dodson v. Atrax Div. of Wallace-Murray Corp.

• Decision Date: 06 April 1983
• Docket Number: WALLACE-MURRAY
• Citation: 437 So.2d 1294
• Parties: Judy DODSON v. ATRAX DIVISION OF theCORPORATION. Civ. 3358.
• Court: Alabama Court of Civil Appeals

Page 1294

437 So.2d 1294

Judy DODSON v. ATRAX DIVISION OF the WALLACE-MURRAY CORPORATION.

Civ. 3358.

Court of Civil Appeals of Alabama.

April 6, 1983.

Rehearing Denied May 4, 1983.

Certiorari Denied Sept. 30, 1983

Alabama Supreme Court 82-768.

Jack Drake, of Drake, Knowles & Pierce, Tuscaloosa, for appellant.

Olin W. Zeanah and Wilbor J. Hust, Jr., of Zeanah, Donald & Hust, Tuscaloosa, for appellee.

HOLMES, Judge.

This is a workmen's compensation case.

The employee-claimant appeals from a decree which denies her any compensation under the workmen's compensation statutes.

Viewing the record with the attendant presumptions, the following is shown: The employee worked for the defendant-employer, Atrax Division of Wallace Murray Corporation (hereafter Atrax) from May 14, 1979 to September 18, 1981. During her employment, the employee worked as a furnace operator for Atrax, a manufacturer of hard cutting tools. Atrax uses hazardous substances, tungsten carbide and cobalt, in the manufacturing process. Even though Atrax has filtering systems to filter particles of dust from the atmosphere inside the plant, Atrax was cited by the Occupational, Safety and Health Administration (OSHA) for a slight over exposure of cobalt particulate matter to two workers in the plant. In the fall of 1981, OSHA investigated the plant and found the level of cobalt particulate matter to be below the OSHA standard.

Exposure to tungsten and cobalt is commonly associated with two hard metal diseases. The less serious of these two is a bronchitic or an asthmatic response. The metal dust is inhaled, and may create an allergy-like response with obstruction of the airways as a result.

A careful review of the medical testimony taken as a whole and read in the proper context revealed the following:

In the fall of 1981, the employee was suffering from bronchitis, and was seen by Dr. Rice. At that time, Dr. Rice's diagnosis was that the employee was suffering from asthma and bronchitis, or obstruction to her airways caused by exposure to tungsten carbide. Her condition would clear up on weekends, and cleared up after she ceased to work at Atrax. Soon after the bronchitis began to subside, the employee developed hemoptysis, or coughing up blood. She was then hospitalized due to the hemoptysis. Tests failed to indicate a reason for the hemoptysis, which continued even after the bronchitis cleared up.

The employee was referred to Dr. Bailey, a lung specialist. Under Dr. Bailey's supervision, a lung biopsy, major surgery, was done, and during this surgery an area of old scar tissue was removed. The area of scar tissue was not work-related. The hemoptysis cleared up after surgery.

Dr. Rice testified that while he could not be 100% certain, he felt the hemoptysis was related to the bronchitis. "I don't think that Ms. Dodson would have had the difficulty with hemoptysis that she had, had it not been for exposure to tungsten carbide. And I base that on the severe bouts of coughing that she used to get with exertion that seemed to precipitate the episodes of hemoptysis."

Dr. Bailey testified that when he examined the employee in February of 1982, the bronchitis had cleared up, and was not the cause of the hemoptysis at that time. But Dr. Bailey did testify he could not rule out bronchitis resulting from exposure to tungsten carbide, nor could he rule out bronchitis as a cause of the hemoptysis. "I cannot say that she didn't have an obstructive airways syndrome [hard metal disease] at the time she went to work that was gone by the time we saw her because she reported symptoms that were consistent with bronchitis." Dr. Bailey said that bronchitis was a "very nonspecific thing," and "might have been there unrelated to her exposure, aggravated by exposure, or even caused by exposure [to tungsten carbide]."

Dr. Bailey testified that the bronchitis could have irritated the scar inside her lung, causing the hemoptysis. Although stating the cause of the hemoptysis was "debatable," Dr. Bailey said it would be "a reasonable speculation" that the bronchitis triggered the hemoptysis.

Dr. Rice testified the employee could not work at Atrax, nor could she work in an environment containing any dust or industrial irritants. Although he testified she suffered no permanent disability, the employee should not work around dust, fumes, or irritants because her previous condition "sensitized" her airways. Once the airways have been sensitized, the airways tend to stay sensitized so that work around chemicals, dust, or fumes would cause more difficulty.

Dr. Bailey also testified the employee could no longer work at Atrax, and it "would be desirable for her to avoid" work in any similar environment.

In uncontradicted testimony, a vocational expert said that "looking at the limitation of her not being able to tolerate a contaminated environment for whatever reason," the employee suffered an earning disability of 80% to 82%. A person who could not tolerate a "contaminated environment" could not work in any of the production industries in the employee's area.

The trial court, in its finding of facts, stated:

"The Court finds that in September and October of 1981 Ms. Dodson was suffering from bronchitis. However, the Court finds that the plaintiff did not prove to the Court's reasonable satisfaction that this bronchitis was the result of her exposure to any condition at Atrax. The Court further finds that the bronchitic condition has completely cleared and at the present time the plaintiff is not suffering from any bronchitis, asthma, or any obstructive airways disease...."

"The Court further finds that none of the plaintiff's allergies or other medical problems ... were caused by her exposure to tungsten carbide or cobalt or any condition at Atrax and, therefore, the plaintiff's alleged medical ailments did not arise out of and in the course of her employment at Atrax."

The trial court held that the employee is not entitled to recover workmen's compensation benefits under any provision of the Alabama Workmen's Compensation Act.

From this order, the employee appeals, contending she did develop an occupational disease as a result of her exposure through her employment to toxic, hazardous substances, and that the trial court's contrary finding was devoid of any factual basis. She further contends her occupational disease caused a severe permanent impairment to her ability to earn a living, and she is entitled to compensation.

At the onset, we note the standard of review in a workmen's compensation case is very narrow. The Workmen's Compensation Act in Alabama Code § 25-5-81(d) (1975) provides for review by certiorari. On appeal, review of a workmen's compensation case is limited to questions of law, and to examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. E.g., Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981). We have considered the evidence and the trial court's findings, and we have concluded that there is no reasonable view of the evidence that supports the conclusion of law expressed by the learned trial judge that the "disease" did not result from conditions to which she was exposed at work.

Dr. Rice testified the bronchitis was work related, was probably related to the hemoptysis, and certainly prevented her return to work at Atrax, and at any similar industrial environment. Dr. Bailey, who saw her after the initial bronchitis had cleared, did not dispute Dr. Rice's conclusions. Dr....