Outlaw v. Erbrich Products Co., Inc.

• Decision Date: 19 January 2001
• Docket Number: No. 93A02-0006-EX-358.,93A02-0006-EX-358.
• Citation: 742 N.E.2d 526
• Parties: Ella OUTLAW, Appellant-Plaintiff, v. ERBRICH PRODUCTS COMPANY, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

742 N.E.2d 526

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

No. 93A02-0006-EX-358.

Court of Appeals of Indiana.

January 19, 2001.

Marcia J. Cossell, Lee, Burns & Cossell, LLP, Indianapolis, Indiana, Attorney For Appellant.

Bruce J. Alvarado, Orfanos & Alvarado, LLC, Indianapolis, Indiana, Attorney For Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Ella Outlaw filed an application for adjustment of claim with the Worker's Compensation Board of Indiana (the "Board") against her employer, Erbrich Products Company, Inc. ("Erbrich"). A Single Hearing Judge denied her claim, and Outlaw petitioned the full Board, which affirmed the Single Hearing Judge's decision. On appeal, Outlaw presents two issues which we restate as whether the Board's findings are supported by the evidence and whether the findings are stated with sufficient specificity.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Outlaw began full-time employment with Erbrich in 1981.¹ Her job entailed working on different assembly lines to prepare products such as toilet bowl cleaner, bleach, ammonia, vinegar, fabric softener, lime remover, and mustard. Outlaw was exposed to frequent chemical spills at the plant, including a major chemical spill that forced an evacuation of the plant and the surrounding neighborhood.

Outlaw began having severe respiratory problems in 1991 and sought medical treatment at Wishard Hospital. On January 8, 1992, Dr. Todd Ryan prepared a letter indicating that Outlaw was suffering from respiratory problems due to her exposure to "chemicals ... on her job[,]" and Outlaw submitted that letter to Erbrich's plant manager. Record at 236. Dr. Ryan encouraged Outlaw to quit her job, but she advised him that she could not stop working at Erbrich because it was her sole source of income. Nevertheless, she eventually quit sometime during 1992.

In January 1993, Outlaw was referred to Dr. Joe G.N. Garcia, Director of the Indiana Occupational Lung Disease Center at Indiana University Medical Center, who diagnosed her with occupational asthma, or bronchiolitis.² Dr. Garcia learned that Outlaw had been exposed to a myriad of chemicals at Erbrich, including ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, and formaldehyde, and he concluded that her exposure to such chemical agents at work was the primary cause of her lung disease. Dr. Garcia advised Outlaw against returning to work at Erbrich.

Outlaw filed her application for adjustment of claim with the Board, and the parties entered a stipulation of facts, issues and evidence. A hearing was held before a Single Hearing Judge, who adopted the parties' stipulation as the Board's findings and entered the following additional findings:

1. It is further found that based on the deposition of Dr. Garcia, Dr. Garcia was provided with an erroneous history by the plaintiff as the doctor indicates that the plaintiff was continuously exposed to chemicals involving ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, formaldehyde, and fabric softener.

2. It is further found that such history is not true and that so called batches of toilet bowl cleaner did not include all of such chemicals and, in fact, if they did the mere combining of such chemicals would cause immediate adverse chemical reaction.

3. It is further found, therefore, that Dr. Garcia's conclusions are of less probative value based on the erroneous history provided to him.

4. It is further found that the toilet bowl cleaner in question contained a less than 10% concentration of hydrochloric acid and that the other ingredients were basically detergents and perfume.

5. It is further found that at concentrations lower than 20% the vapor pressure of hydrochloric acid is so low that virtually none of the acid would exist in vapor form.

6. It is further found that the doctors describe plaintiff's disease in terms of her lower respiratory tract and that if hydrochloric acid were a causative agent one would expect that there would be demonstrable damage to plaintiff's upper respiratory tract, which the undersigned finds that there is no such damage evident.

7. It is further found that the plaintiff is a long-time cigarette smoker and that she has given different statements regarding the cessation of her smoking, the credibility of which must be questioned.

8. It is further found that based upon the evidence herein, the plaintiff has failed to demonstrate that she suffered from respiratory problems arising out of and in the course of her employment with the defendant herein.

Record at 7-8. Outlaw timely filed her application for a review by the full Board, which was granted. On May 15, 2000, the Board affirmed the Single Hearing Judge's decision that Outlaw should take nothing by her application for adjustment of claim. Outlaw appeals the Board's decision.³

DISCUSSION AND DECISION

It is the duty of the Board, as trier of fact, to make findings that reveal its analysis of the evidence and are specific enough to permit intelligent review of the Board's decision. Neidige v. Cracker Barrel, 719 N.E.2d 441, 443 (Ind.Ct.App.1999). On appeal, we employ a two-tiered standard of review. Id. We will review the evidence in the record to see if there is any competent evidence of probative value to support the Board's findings and then examine the findings to see if they are sufficient to support the decision. Id. We will not reweigh the evidence or assess the credibility of witnesses. Id. We will consider only the evidence most favorable to the award, including any and all reasonable inferences deductible from the proven facts. Id.

Outlaw contends that the Board erred when it determined that her illness did not arise out of her employment with Erbrich. To recover under the Worker's Compensation Act, a claimant must establish that an injury or death occurred "by accident arising out of and in the course of employment." See IND.CODE § 22-3-2-2. An injury "arises out of" employment when a causal nexus exists between the injury sustained and the duties or services performed by the injured employee. Indiana Michigan Power Co. v. Roush, 706 N.E.2d 1110, 1113 (Ind.Ct.App.1999). An accident occurs "in the course of employment" when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is fulfilling the duties of employment or while engaged in doing something incidental thereto. Tanglewood Trace v. Long, 715 N.E.2d 410, 413 (Ind. Ct.App.1999).

Outlaw's treating physician, Dr. Garcia, testified that Outlaw's occupational asthma was caused by her exposure to chemicals while employed at the Erbrich plant. Dr. William Waddell, however, a toxicologist who testified on Erbrich's behalf, stated that Outlaw's cigarette smoking was the sole cause of her asthma. As factfinder, the Board was free to accept or reject either expert's opinion testimony. See Hill v. Worldmark Corp./Mid America Extrusions Corp., 651 N.E.2d 785, 787 (Ind.1995)

(citation omitted). Thus, the Board was entitled to give more weight to Dr. Waddell's testimony in ruling on Outlaw's application for adjustment of claim. Some of the Board's findings, however, are not supported by the evidence and, therefore, do not support its conclusion that Dr. Garcia's testimony was less probative than Dr. Waddell's. Moreover, the Board made no findings with regard to the expert testimony of Dr. D. Duane Houser, who also testified that Outlaw's occupational asthma was caused by her chemical exposure at Erbrich.

The Board found that Outlaw gave Dr. Garcia an "erroneous history" in that he believed she was "continuously⁴ exposed to chemicals involving ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, formaldehyde, and fabric softener." Record at 7. The record does not support the Board's finding that this was an "erroneous history" of Outlaw's exposure at work. To the contrary, the undisputed evidence indicates that Erbrich manufactured several different products including bleach, ammonia, toilet bowl cleaner, vinegar, fabric softener, lime remover, and mustard, and that Outlaw "work[ed] on all the lines" over the course of more than a decade as a full-time Erbrich employee. Record at 368. We conclude that the record does not support the Board's determination that Dr. Garcia was provided with an erroneous history concerning the extent of Outlaw's exposure to the listed chemicals.

While the record supports the Board's finding number 2, in that the components of the toilet bowl cleaner could not have included ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, formaldehyde, and fabric softener, this finding does not support the Board's denial of Outlaw's application for adjustment of...