Outlaw v. ERBRICH PRODUCTS CO., INC

• Decision Date: 21 October 2002
• Docket Number: No. 93A02-0202-EX-139.,93A02-0202-EX-139.
• Citation: 777 N.E.2d 14
• Parties: Ella M. OUTLAW, Appellant-Plaintiff, v. ERBRICH PRODUCTS COMPANY, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

777 N.E.2d 14

Ella M. OUTLAW, Appellant-Plaintiff, v. ERBRICH PRODUCTS COMPANY, INC., Appellee-Defendant.

No. 93A02-0202-EX-139.

Court of Appeals of Indiana.

October 21, 2002.

Marcia J. Cossell, Lee, Burns & Cossell, Indianapolis, IN, Attorney for Appellant.

Bruce Alvarado, Ofranos & Alvarado, Indianapolis, IN, Attorney for Appellee.

OPINION

BAILEY, Judge.

Case Summary

This is Ella M. Outlaw's third appeal of the denial of her application for worker's compensation benefits. In each of her first two appeals, this Court reversed the Worker's Compensation Board ("the Board")'s denial of her application and remanded with instructions to enter more particular findings supporting its decision. See Outlaw v. Erbrich Products Co., 742 N.E.2d 526 (Ind.Ct.App.2001)

("Outlaw I"); Outlaw v. Erbrich Products Co., 758 N.E.2d 65 (Ind.Ct.App.2001)

("Outlaw II"). For the reasons set forth below, we now affirm the Board's decision.

Issue

The issue is whether the Board properly denied Outlaw's application for worker's compensation benefits.

Facts and Procedural History

As we recounted in her previous two appeals, Outlaw started working for Erbrich Products Company ("Erbrich") in the early 1980s. Outlaw worked on assembly lines producing and bottling products ranging from mustard and vinegar to bleach and toilet bowl cleaner. Outlaw mainly worked on the line producing toilet bowl cleaner. At some point, Outlaw began to experience severe respiratory problems. She sought medical treatment in 1991, and her physician recommended a change of employment, believing that Outlaw's condition was related to her exposure to chemicals at work. Outlaw eventually quit. She filed her Application for Adjustment of Claim for worker's compensation benefits on May 6, 1992.

On December 16, 1992, Dr. Kane L. Schaphorst, one of Outlaw's physicians, wrote to Outlaw's attorney and explained that Outlaw suffered from occupationally-related reactive airways disease following a spill of toilet bowl cleaner at work. (R. 204.) Dr. Schaphorst explained that he performed a test in which samples of Erbrich's toilet bowl cleaner were aerosolized in a room in which Outlaw was sitting, and that exposure to the aerosolized toilet bowl cleaner caused significant bronchiospasm and a measurable decline in her pulmonary functioning. (R. 204.)¹ Dr. Schaphorst referred Outlaw to Dr. Joe G.N. Garcia for further evaluation and treatment.

Dr. Garcia examined Outlaw on January 5, 1993, and issued a report of his examination on January 8. In his report, Dr. Garcia explained that Outlaw complained of various respiratory symptoms, including wheezing, coughing, and shortness of breath. Outlaw told Dr. Garcia that she worked with toilet bowl cleaner that contained ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, formaldehyde and fabric softener.² According to Dr. Garcia, Outlaw explained that her symptoms increased following exposure to fumes from the toilet bowl cleaner in March 1991. Outlaw stated that she had smoked one to two cigarettes per day for almost twenty years, but that she had quit smoking in 1992. Dr. Garcia diagnosed Outlaw with bronchiolitis, which Dr. Garcia attributed to a combination of cigarette smoking and chemical exposure at work. (Tr. 265.) Dr. Garcia continued to treat Outlaw's condition, describing it variously as bronchiolitis, occupational asthma, obstructive lung disease with a bronchospastic component and features of emphysema, hyperreactive airways disease, and severe small airways disease with large airway involvement. On June 22, 1993, he wrote to Outlaw's attorney, explaining that Outlaw suffered from obstructive lung disease with a bronchospastic component and features of emphysema, and again relating the condition to Outlaw's exposure to chemicals in the workplace. Dr. Garcia also assessed Outlaw a permanent partial impairment rating of 40%. (Tr. 231.)

On January 22, 1994, Dr. William J. Waddell issued a report to Erbrich regarding his analysis of Outlaw's medical records. Dr. Waddell addressed Outlaw's history of cigarette smoking, and explained that while Outlaw claimed to have stopped smoking prior to the onset of her respiratory problems, tests taken on December 17, 1992 and February 25, 1993 revealed levels of carboxyhemoglobin consistent with the consumption of two to three packs of cigarettes per day. (R. 114.) Dr. Waddell questioned the fact that Dr. Garcia's January 8, 1993 report noted the carboxyhemoglobin test results but failed to explain their significance as it related to Outlaw's history of cigarette smoking. Dr. Waddell also questioned Dr. Garcia's understanding of the contents of the toilet bowl cleaner that Dr. Garcia reported to be a contributing cause of Outlaw's symptoms, as well as Dr. Garcia's understanding of basic principles of chemistry in general. As noted above, Dr. Garcia's January 8, 1993 report indicates that Outlaw told him that the toilet bowl cleaner she worked with contained ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, formaldehyde and fabric softener. Dr. Waddell, however, explained that the toilet bowl cleaner could not have contained ammonia or formaldehyde, and that if it had, the ammonia would have reacted with the hydrochloric acid to produce ammonium chloride, and the ammonia would have neutralized the formaldehyde. (R. 114-115.) Dr. Waddell concluded that there was simply no medical evidence to establish that Outlaw's exposure to the chemicals actually found in the toilet bowl cleaner, and most notably the hydrochloric acid, caused Outlaw's symptoms. Rather, according to Dr. Waddell, Outlaw's symptoms were the result of twenty years of heavy cigarette smoking.

On July 12, 1995, Dr. Garcia was deposed. Dr. Garcia testified that Outlaw had a history of smoking approximately two cigarettes per day, and admitted that while unlikely, cigarette smoking could have caused Outlaw's condition. (R. 149.) Dr. Garcia stated, however, that it was "more likely than not that her exposure to the harmful agents in the work place [was] the primary cause of her prominent lung dysfunction." (R. 132.) Dr. Garcia testified that the toilet bowl cleaner had been "identified as being the primary component in [Outlaw's] work exposure." (R. 128.) Dr. Garcia indicated, as he had in his January 8, 1993 report, that the toilet bowl cleaner consisted of hydrochloric acid, acetate, ammonia, sodium hypochlorate, acetic acid, formaldehyde and fabric softener. (R. 130.) He further stated that Outlaw told him she had been continuously exposed to these substances at work when toilet bowl cleaner would spill out of its dispensing machine. (R. 130.) Dr. Garcia was asked about which of the various "harmful agents" to which Outlaw was exposed at work caused her condition as follows:

Q: Earlier we talked about the possible constituents or components of the products that Miss Outlaw helped to make or manufacture, and I'd like to follow up on that a little bit. If of all those things that we have identified as being possible things to which she was exposed, if we identified hydrochloric acid as the primary compound to which she was exposed, would hydrochloric acid alone be sufficient to cause this kind of condition that Miss Outlaw is suffering from?

A: I believe that hydrochloric acid, repetitive exposure to significant concentration of that agent could produce by itself the abnormalities that we see in Miss Outlaw. Again, I have to say that it's very difficult to pinpoint which agent in a combination of chemicals is capable of producing a particular syndrome when one or more of them may be injurious in and of themselves. For example, Miss Outlaw also produced and applied labels to these containers containing this, and in the process of labeling these containers, there are glues and adhesives on the back of the labels that contain asthmagine, that is chemicals capable of producing and inducing occupational asthma. So it's [a] kind of very complex question we're asking here. I tend to gravitate towards the idea that as your question implies, that acid fumes such as hydrochloric acid are—likely played a very important role in her subsequent lung dysfunction. And the reason I say that as opposed to a purse [sic] asthmatic type picture, Miss Outlaw deviates from the pure asthmatic picture by having such profound alterations in her diffusion capacity and in her small airway capacity, and asthma generally there's primarily a large airway abnormality but the diffusion capacity remains perfectly well preserved. But in Miss Outlaw, she has significant declines in both her diffusion capacity and in her small airway capacity that make me believe that this is something that is a syndrome which may include asthma, but also contains other components that must be explained by additional exposure such as acid fumes.

(R. 141-142) (emphasis added.) Dr. Garcia went on to explain the significance of Outlaw's diminished diffusion capacity by stating that Outlaw was having trouble bringing air into the lower levels of her respiratory tract, and thus transporting oxygen to her bloodstream, as a result of chemically-induced injuries to the lower lung area. (R. 143.) Although Dr. Garcia speculated that other unidentified substances found in the toilet bowl cleaner might have been harmful, he did not specifically relate Outlaw's condition to any substance other than hydrochloric acid.

On April 2, 1996, Dr. Waddell issued a report responding to Dr. Garcia's deposition. According to Dr. Waddell, Dr. Garcia's explanation that Outlaw's respiratory disease was located in the lower portion of her respiratory tract seriously undermined Dr. Garcia's opinion that the disease was caused by the inhalation of hydrochloric acid from the toilet bowl cleaner. As Dr. Waddell saw it, inhaled hydrochloric acid would first cause significant burning of the eyes, ears, nose, throat and upper respiratory tract before affecting the...