Sonford Products Corp. v. Freels

• Citation: 495 So.2d 468
• Decision Date: 24 September 1986
• Docket Number: No. 55727,55727
• Parties: SONFORD PRODUCTS CORPORATION & Nationwide Insurance Company v. Morris O'Dell FREELS, Deceased By His Widow and Dependents.
• Court: United States State Supreme Court of Mississippi

Page 468

495 So.2d 468

SONFORD PRODUCTS CORPORATION & Nationwide Insurance Company v. Morris O'Dell FREELS, Deceased By His Widow and Dependents.

No. 55727.

Supreme Court of Mississippi.

Sept. 24, 1986.

Rehearing Denied Oct. 29, 1986.

James M. Anderson, Markow, Walker, Reeves & Anderson, Jackson, for appellants

Minor F. Buchanan, Jackson, John E. Gregg, Raymond, for appellees.

Before WALKER, C.J., and PRATHER and GRIFFIN, JJ.

PRATHER, Justice, for the court:

Among other questions, this appeal addresses whether a licensed medical doctor is the only expert witness who may ever be competent to testify as to causation of death.

Morris O'Dell Freels filed a claim for Mississippi Workers' Compensation benefits as a result of alleged prolonged exposure to toxic chemicals during the course and scope of his employment. Upon his death on May 26, 1982, Mr. Freels' claim for benefits was revived by his widow and dependents for death benefits. The administrative judge denied benefits, but the Workers' Compensation Commission remanded the case to the administrative judge for further proceedings. The employer and its insurance carrier appealed the remand order to the Circuit Court of Rankin County which affirmed the commission. The appellant employer and carrier appeal here assigning as error:

(1) The Commission erred in reversing the administrative judge's dismissal of the claim since the claimant failed to make out a prima facie case of compensability.

(2) The Commission erred in remanding this case to the administrative judge for further proceedings.

This Court affirms the orders of Workers' Compensation Commission and the Rankin County Circuit Court.

I.

Mr. Freels was 65 years old, had an eighth grade education and lived in Florence, Mississippi. Freels' first employment was in a coal mine. He later engaged in farm work and worked briefly at a sawmill before coming to the Florence area. In April, 1946 he was employed by the United States Post Office. After retirement in 1972, Freels began working at Sonford Products where he worked with chemicals containing pentachlorophenol used in the preservation of wood, but without instruction from the employer about the harmful effects of the chemicals. Freels' job involved mixing dusty bead-like chemicals into an oil substance. This process emitted dust which was inhaled by Mr. Freels. The dust also covered his exposed skin and clothing.

Freels' work clothing consisted of a blue jumpsuit and high top boots. However, after the death of Freels' fellow employee in 1980, OSHA (Occupational Safety & Health Administration) inspected Sonford Products and subsequently required all employees to begin wearing white ribbed plastic suits including hoods, gloves and vapor masks.

In 1980, Freels began noticing a health problem and was diagnosed as being diabetic. After medical examination which indicated lesions on his right lung, Freels was hospitalized for lung surgery. Although Freels admitted smoking cigarettes from 1936 to 1974, he asserted that he was in very good health when he started work at Sonford Products in 1972. At the hearing before the Administrative Law Judge, the original certified death certificate of Morris O'Dell Freels was introduced in evidence from the Bureau of Vital Statistics reflecting that Freels died from bronchio-alveolar-carcinoma. Evelyn Freels' testimony supported that of her husband. She stated that Freels would come home with his clothes and shoes completely saturated with chemicals, and that the residue of the chemical could be noticed in Freels' breath, perspiration and body waste. Mrs. Freels claimed she couldn't ride in the truck Mr. Freels drove to work because the chemical residue made her eyes burn and made her cough.

The claimant testified as a witness in his own behalf and introduced his deposition taken previously. He also called a toxicologist, Dr. Anthony Verlangieri, to testify as an expert in the field of biochemistry and toxicology (the study of adverse effects of chemicals on humans and animals). Verlangieri was accepted as an expert in his field and was allowed to testify under procedural rule 8 as to a causal relation between the alleged injury and Freels' employment. Verlangieri based his diagnosis on examination of all medical records and documents supplied by the Doctors' Hospital of Jackson, Veterans Administration Hospital and pathological studies performed subsequent to the autopsy of Freels. Verlangieri testified that bronchio-alveolar-carcinoma occurs in less than five percent of all cancers and its cellular structure is different from that of cancers caused by smoking or inhalation of coal dust. Looking to the reports submitted, research materials and medical records, Verlangieri concluded that within a ninety to ninety-five percent (90%-95%) confidence level, that pentachlorophenol contributed or directly caused the death of Mr. Freels via the oncoming pathology of the lung cancer. Verlangieri further testified that Freels' diabetic condition was caused by exposure to the chemicals via adenocarcinoma of the pancreas whereby the production of insulin is reduced.

The employer and insurer objected and asserted that since the claimant had presented no medical doctor as expert to establish a causal relation between the alleged injury and his employment, the claimant had failed to present a prima facie case and moved for a directed verdict in their favor. The administrative judge sustained the motion and dismissed the claim. Claimant petitioned for review by the full commission. The commission held that the unsworn medical reports were properly excluded by the administrative judge. While the judge had excluded the toxicologist's testimony in its entirety, the commission held that those portions within his field of expertise (toxicology) were admissible. The commission ruled that the claimant had failed to prove his injury was compensable since he failed to present medical evidence of causal connection.

However, the commission remanded the claim to the administrative judge for further proceedings noting that the record was incomplete and that it was unable to determine the rights of the parties without full development of all the facts attendant to the claim, including dependency. On appeal, the circuit court affirmed the commission's order in all respects noting that no licensed physician as contemplated under Miss.Code Ann. Sec. 73-25-1 (1972) had testified.

II.

Since the commission order of remand is interlocutory, is the order appealable?

This record reveals a remand by the commission to the administrative judge for further hearing, thereby making this appeal an interlocutory one. There was no request for, nor granting of, an interlocutory appeal at any level before the arrival of this appeal in this Court. This probably is accounted for by the fact that previously interlocutory appeals were not permitted from circuit court. The opinion in Southern Natural Resources v. Polk, 388 So.2d 494 (Miss.1980) states:

To be appealable, the order of the commission must be a final order. Southern Natural Resources, supra; St. Regis Paper Co. v. Lee, 249 Miss. 537, 136 So.2d 250 (1964). Thus, where the commission, on review of a decision of its hearing officer, enters an order remanding the case to the administrative for further proceeding or testimony, the order is interlocutory only and is not appealable.

V. Dunn, Mississippi Workmen's Compensation Sec. 258 (1982). See also, Leathers v. Gardner, 425 So.2d 1336 (Miss.1982), Leathers v. Tupelo Coffee Co., 423 So.2d 122 (Miss.1982).

However, this Court recently recognized that in exceptional circumstances appeals from interlocutory orders in circuit court are warranted. Kilgore v. Barnes, 490 So.2d 895 (Miss.1986). The guideline for the granting of such appeals from circuit court trials was stated to be in cases where the appeal may settle an important principle of law in the case and may advance the ultimate determination of the action. Kilgore, supra; Southern Farm Bureau Casualty Insurance Co. v. Holland, 469 So.2d 55, 63 (Miss.1984) (Anderson, J., Concurring). Another consideration in granting such appeal is that justice may be served without delay and expense to the litigant and the court.

Therefore, this Court is of the opinion that this appeal, interlocutory in form, should be granted to avoid expense and delay. Kilgore, supra; Southern Farm, supra.

III.

Did the commission err in reversing the administrative judge's dismissal of the claim since the claimant allegedly failed to make out a prima facie case of compensability?

In workers' compensation cases, the claimant has the burden of proving that he sustained an accidental injury arising out of and in the course and scope of his employment and that the injury caused the disability for which he is claiming benefits. Miss.Code Ann. Sec. 71-3-3(b). See Pearson v. Dixie Electric Power Ass'n, 219 Miss. 884, 70 So.2d 6, 10 (1954); T.H. Mastin & Co. v. Mangum, 215 Miss. 454, 61 So.2d 298, 300 (1942).

In all cases in which the causal connection would not be obvious to the untrained layman, the claimant must prove the causal connection between the alleged injury and the alleged disability by competent medical proof. Miss.Code Ann. Sec. 71-3-3 (1972). See Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71, 72 (1958) ("in all but the simple and routine cases ..., it is necessary to establish medical causation by expert testimony").

In this case the claimant alleged that exposure to toxic chemicals at work precipitated his lung cancer and his ultimate death. In an attempt to prove the causal connection between his alleged disability and employment the claimant presented the testimony of his wife and himself and a certified original death certificate stating that the cause of death was bronchio-alveolar-carcinoma. The claimant further presented the testimony of Dr. Anthony J Verlangieri, a toxicologist, who...