Estes v. Noranda Aluminum, Inc.

• Decision Date: 20 November 1978
• Docket Number: No. 10903,10903
• Citation: 574 S.W.2d 34
• Parties: Virgil ESTES, Employee-Appellant, v. NORANDA ALUMINUM, INC., Employer-Respondent, Royal-Globe Insurance Company, Insurer-Respondent.
• Court: Missouri Court of Appeals

Page 34

574 S.W.2d 34

Virgil ESTES, Employee-Appellant, v. NORANDA ALUMINUM, INC., Employer-Respondent Royal-Globe Insurance Company, Insurer-Respondent.

No. 10903.

Missouri Court of Appeals, Springfield District, Division Three.

Nov. 20, 1978.

Joseph P. Fuchs, Dempster, Fuchs and Barkett, Sikeston, for employee-appellant.

Manuel Drumm, Sikeston, for respondents.

BILLINGS, Judge.

The Circuit Court of New Madrid County reversed the order of the Industrial Commission awarding benefits to employee Virgil Estes and this appeal followed. We agree with the trial court that the evidence fails to demonstrate a causal relation between the employee's occupation and his alleged occupational disease and affirm the judgment.

Estes began employment with Noranda Aluminum in June, 1971. He worked as a laborer for three to six months, as a metal handler for six to eight months, and then was a saw operator for three or four months. His next position was as a direct chill operator and he continued in this job until August, 1973, when he sought medical aid for pain in his left leg.

One of the duties of a direct chill operator involves fluxing of molten metal. This process is accomplished by injecting chlorine gas into the bottom of the furnace by means of a wand which is about fifteen feet in length. The wand is inserted through a door in the furnace, the chlorine gas is mixed with the liquid aluminum, and any impurities which rise to the surface are skimmed off. The aluminum is then transferred from the melting furnace by way of open pouring troughs. Estes related that the fluxing process created fumes which he was exposed to, and on occasion chlorine gas leaked and escaped from the wand.

Estes was first treated by a local physician who referred him to Dr. Snyder, a Memphis, Tenn. neurological surgeon. Examination and testing in August, 1973, resulted in a diagnosis by Dr. Snyder of peripheral neuropathy, "either secondary to infectious polyneuritis or some type of toxic neuropathy," "Probable toxic neuropathy." A second visit to Dr. Snyder in August, 1973, showed little change in Estes' condition and the doctor recommended he avoid any job which required him to have any exposure to chemicals, "since his findings suggested the Possibility of a causal relationship with his general neuropathy." Further examination of Estes in November, 1973, "revealed generalized peripheral neuropathy, toxic response, probably infectious in origin. It was either toxic or infectious in origin." Dr. Snyder saw Estes again in December, 1973, and February, 1974, and testing showed peripheral neuropathy. (our emphasis)

In response to a question on direct examination as to the cause of Estes' condition, based upon a reasonable medical certainty, Dr. Snyder answered:

"A: It is my Impression that this patients (sic) symptoms are Probably related to being around some type of chemicals, since the diagnosis of toxic neuropathy was made and established on the basis of his EMG (electromyogram test of electrical activity of muscle) findings, and since no other abnormality could be established as the etiology of his complaint; since the myelogram testing was normal, which ruled out any evidence of spinal cord lesion as a source of his problem; and the fact that spinal fluid studies showed no evidence of an infectious polyneuritis, then one is left with the diagnosis of toxic neuropathy, based on the fact that this person has a history of working around chemicals which Could serve as a source of the toxic neuropathy." (emphasis added)

On cross-examination, Dr. Snyder testified as follows:

"Q: Doctor, what chemicals do you understand this man was working around prior to seeing you?

A: I do not know specifically.

Q: To arrive at a diagnosis as to the cause of the toxic neuropathy in this man, wouldn't you have to know what chemicals he was exposed to, to give us information with reasonable medical certainty?

A: The basis upon which this diagnosis was arrived was based on the fact, as I indicated in my previous testimony, was the fact that this patient gave a history of having worked around several types of chemicals, and this was by history, no antecedent cause of trauma or other abnormality as a source, which could serve as a source of his problem.

Q: Well, what I am asking you, Doctor, is if in a very careful manner you would attempt to arrive at a diagnosis, which you would say was reasonably medically certain, and not merely theoretical, one of your first interests would be in knowing what chemicals he came in contact with?

A: That is correct.

Q: Wouldn't that be an important fact?

A: Yes.

Q: In arriving at a cause?

A: That is correct.

Q: Now, Doctor, tell me, other than the fact that you can't think of anything else that would cause toxic neuropathy, what basis, in talking with this man or talking with anyone at Noranda, gave you a fact which you thought led to the connection of the toxic neuropathy with something he did at the plant?

A: This diagnosis was made, and the relationship of the chemicals, Presumably, where he worked was based on the fact and the history that he had not come in contact with any other type of chemicals. It was a diagnosis primarily of exclusion, in that since the man had no history of being in contact with any other chemicals, and from the history that he gave, that he had worked around chemicals on his job, and since the diagnosis was primarily established by the EMG testing, that this was Probably a toxic neuropathy, and the diagnosis was made on the basis of a Possible causal relationship since this was the only history of anything else that might serve as a source.

Q: Are you then, in effect, telling us that because you have excluded all other possibilities or causes, and based on what the man has told you, then you are assuming that he was in contact with chemicals; and since those are the only chemicals he became in contact with

Q: that that is what caused the toxic neuropathy? Is that kind of where we are?

Q: Is that how you got to your diagnosis and your causation, that you have excluded everything and, therefore, it must be chemicals on the job?

A: The diagnosis was arrived at by a matter of excluding other things that could cause a person to have a generalized type of neuropathy.

Q: What things could cause you to have toxic neuropathy besides chemicals?

A: Well, chemicals are the primary cause of toxic neuropathy.

Q: Are they the only thing that give you toxic neuropathy?

A: Well, if there are neuropathies of another type they are not usually thought to be toxic. There are usually other things which describe...