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Bowers v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 2, 1998

MEADE BOWERS (deceased), by and through JEANETTE BOWERS, personal representative of his estate Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: March 11, 1998

          DECISION ON APPEAL

          MIKE McCARTER JUDGE.

         Summary: Widow of decedent with disputed cause of death appealed DOL hearing officer's determination that death was not caused by exposure to workplace chemicals and dust. Among other things, widow argued that section 39-72-610(1), MCA (1993), which established a presumption of correctness in determinations of medical panels reviewing OD claims, was unconstitutional. She also argued the hearing officer erred on numerous grounds, including failure to consider or make findings regarding the testimony of one physician and failure to consider whether occupational factors contributed in any part to decedent's death.

         Held: The presumption of correctness afforded medical panel reports under section 39-72-610(1), MCA (1993) of the ODA is unconstitutional as a violation of due process of law and an unlawful delegation of executive power. On remand, the hearing officer must reconsider the evidence without giving deference to the medical panel determination. Reversal is also required where the hearing officer failed to determine whether alleged occupational exposure to chemicals and dust contributed to any degree to his death. The hearing officer, as well as panel doctors, should have considered whether occupational factors were a contribution as even a small percentage of contribution would entitle widow to compensation proportionate to the contribution.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-72-610(1), MCA (1993). The presumption of correctness afforded medical panel reports under section 39-72-610(1), MCA (1993) of the ODA is unconstitutional as a violation of due process of law and an unlawful delegation of executive power.
Constitutions, Statutes, Regulations and Rules: Montana Rules of Evidence: Rule 301. Under the Montana Rules of Evidence, a presumption does not disappear upon a party's introduction of evidence which, if believed, would rebut the presumption. Rather, the presumption is in itself deemed an item of evidence.
Constitutional Law: Due Process: Substantive Due Process. The presumption of correctness afforded medical panel reports under section 39-72-610(1), MCA (1993) of the ODA is unconstitutional as a violation of due process of law and an unlawful delegation of executive power.
Constitutional Law: Separation of Powers: Delegation of Powers. The presumption of correctness afforded medical panel reports under section 39-72-610(1), MCA (1993) of the ODA is unconstitutional as a violation of due process of law and an unlawful delegation of executive power. Because of the deference provided to medical panel findings, the medal panel physicians are essentially fact finders, in derogation of a litigant's entitlement to have a dispute determined by duly appointed agents of government.
Occupational Disease: Disease. DOL hearing officer erred by failing to determine whether alleged occupational exposure to chemicals and dust contributed to any degree to his death. The hearing officer, as well as panel doctors, should have considered whether occupational factors were a contribution as even a small percentage of contribution would entitle widow to compensation proportionate to the contribution.
Occupational Disease: Medical Panels. The presumption of correctness afforded medical panel reports under section 39-72-610(1), MCA (1993) of the ODA is unconstitutional as a violation of due process of law and an unlawful delegation of executive power.

         ¶1 Meade Bowers (Bowers) died suddenly on April 24, 1994. An autopsy report listed his cause of death as "likely to be due to cardiopulmonary failure, the etiology of which is unknown." "Cardiopulmonary failure" is a descriptive term; it indicates only that Bowers stopped breathing and his heart ceased beating, i.e., he died. (Tr. at 258.) The term does not indicate why.

         ¶2 At the time of death, Bowers had a recent history of respiratory illness. In January 1993, he was hospitalized for an episode of what his physician diagnosed as bronchitis. A year later, in February 1994, he was re-hospitalized, again with a diagnosis of bronchitis. He continued to be treated for respiratory tract infection until the time of his death.

         ¶3 Believing that his death was caused by occupational exposure to chemicals at his workplace, Bowers' widow, Jeanette Bowers, made a claim for occupational disease (OD) benefits. Pursuant to section 39-72-605, MCA, the Department of Labor and Industry (Department) designated two cardiologists -- Drs. Joseph Knapp and Alan A. Gabster - to review the case. Both physicians reported that it was unproven that Bowers' death was caused by occupational exposure. The Department adopted the reports and issued a preliminary order proposing to deny the claim. Mrs. Bowers then requested a contested case hearing.

         ¶4 A hearing was conducted on July 2 and 3, 1997. The hearing officer admitted the reports of the two medical panel physicians, pictures and diagrams of claimant's place of work, OSHA reports for monitoring of claimant's workplace on one day in 1992 and another day in 1995, material safety data sheets for chemicals and saw dust used or created at the workplace, recorded statements of three of claimant's coworkers and supervisors, and claim related documents. Two medical witnesses testified. Dr. Ronald M. Peterson, a specialist in occupational medicine testified in person on behalf of claimant, opining that Bowers died of an acute incident of reactive airway disease, of which he apportioned 60% to his occupational exposure to chemicals and dust. Dr. Joseph Knapp, one of the panel members, testified by telephone on behalf of the insurer, opining that claimant died of myocarditis most likely caused by a virus and pulmonary arteriolar sclerosis. An industrial hygienist testified on behalf of appellant concerning workplace monitoring of chemicals and airborne dust. Four of Bowers' coworkers and supervisors testified about exposure to chemical fumes and dust at work.

         Finally, Mrs. Bowers testified about claimant's history of respiratory illness and smoking, as well as the circumstances of his death.

         ¶5 On July 18, 1997, the hearing officer issued his Findings of Fact; Conclusions of Law; and Final Order, finding insufficient evidence to link claimant's death to an OD. The decision is 12 mostly double-spaced pages, including a Certificate of Mailing. The findings of fact constitute 8½ pages. The findings regarding the medical controversy take up approximately 5 pages (Findings 7 through 11.) Of those 5 pages, nearly 4 pages constitute a verbatim recitation of the panel reports of Drs. Knapp and Gabster and the testimony of Dr. Knapp. The hearing officer did not mention Dr. Peterson's testimony in his findings or conclusions. He relied heavily, if not exclusively, on the presumption of correctness afforded medical panel opinions.

         ¶6 Following the decision, Mrs. Bowers filed her appeal with this Court.

         Additional Facts

         I. Smoking

         ¶7 Meade Bowers was a smoker. While the evidence concerning his total lifetime consumption was conflicting, there is little dispute that it was somewhere between 20 and 40 pack years.[1] At the time of his death, claimant was suffering from emphysema or chronic obstructive pulmonary disease, [2] probably due to his cigarette smoking. (Tr. at 64-66; 227-28, 234; Resp't Ex. 18.) However, the emphysema was not life threatening and did not trigger or cause his death. (Tr. at 65, 67, 268-69.)

         II. Workplace Exposure to Chemicals and Dust

         ¶8 During the 18 years prior to his death, claimant was employed by S&S Canopies and Campers Manufacturing, Inc. (S&S) in Kalispell, Montana. S&S manufactures pickup campers. Claimant worked primarily on plumbing systems for the campers.

         ¶9 During most of the years of Bowers' employment, the campers were manufactured on an assembly line which was set up in a 200 by 50 foot building. In late 1989 or 1990, a 200 by 25 foot shed-type addition was added to the original building. A wall separates the main building from the addition, but the two areas are accessible to each other through three 8 feet by 7 feet openings in the wall. (Ex. 39; Tr. at 154-60.)

         ¶10 S&S uses numerous chemicals in its manufacturing, including various types of glue, lacquer thinner, various types of paint, sanding sealer, pipe joint compound, and cleaners. The sawing of plywood and paneling creates saw dust, which is also considered a potential occupational hazard.

         ¶11 The Occupational Safety and Health Administration (OSHA) sets allowable work-place exposure levels for chemicals and saw dust. The levels, referred to as "threshold level values" or TLVs, are fixed in terms of total allowable exposure during an 8-hour work-day. (Tr. at 62.) Different chemicals and dusts have different TLVs.

         ¶12 On March 11, 1992, an OSHA inspector requested Ellie Allen (Allen) and another worker to wear monitors to detect formaldehyde, vinyl acetate and wood dust. (Ex. 3; Tr. at 33-34.) Both individuals wore the monitors for four hours. The monitoring disclosed that the eight hour exposure levels (apparently extrapolated from four hours of actual exposure) were significantly less than the TLVs for those items. There is no evidence of any other OSHA monitoring prior to Bowers' death.

         ¶13 Mrs. Bowers presented evidence that the 1992 sampling was atypical and understated actual exposure because supervisors ordered Allen to reduce her sawing and opened building doors not normally open at that time of year. The insurer presented evidence that the day and the work were in fact typical. The hearing officer resolved the conflicting testimony in the insurer's favor, finding that "it is clear that typical work was being performed at the time of the OSHA inspection." (Finding of Fact 14 at 9.)

         ¶14 The parties also focused on where various chemicals were used in the facility and by whom. Different workers used different chemicals in their work.

         ¶15 Finally, they focused on the air circulating capabilities of fans, vacuums, furnace, and open doors. The insurer argued that air circulation in the building minimized the amount of chemical fumes and saw dust in the air. Mrs. Bowers urged that air circulation was insufficient or could even concentrate fumes and dust in parts of the plant. No specific data was offered as to Bowers' actual exposure. Other than the OSHA data on the two days in 1992 and 1995, no specific data was offered by either party as to any other employee's exposure at any other time.

         III. Medical Evidence

         ¶16 Three physicians provided evidence in this case. Two of the physicians - Drs. Joseph Knapp and Alan A. Gabster - are cardiologists. They are members of the Department's OD medical panel and were designated by the Department to review the possible relationship of Bowers' death to his occupational exposure to chemicals and dust. The third physician was Dr. Ronald M. Peterson, a specialist in occupational medicine, who testified on behalf of Mrs. Bowers.

         ¶17 Dr. Peterson testified that claimant died as the result of an acute attack of reactive airway disease (RAD). (Tr. at 65-66.) RAD is another term for what is popularly called asthma. (Id. at 276.) He described chronic and acute RAD as follows:

In most cases, reactive airway disease is treatable on a fairly urgent basis. If someone develops shortness of breath or coughing related to exposure to an irritant, medication is either an inhaler form or a pill form or sometimes an intravenous form can be given to reverse the condition and improve the symptoms.

(Id. at 66.) Dr. Peterson opined that air inhaled by claimant triggered a reaction preventing him from breathing and that his inability to breath ultimately led to his cardiac arrest. (Id. at 73.)

         ¶18 Dr. Peterson apportioned 60% of the cause of the fatal respiratory event to occupational factors. (Id. at 73.) His attribution of occupational factors was not based on any specific exposure levels to any specific chemicals at work. (Id. at 83.) Rather, he noted that exposure to any chemicals and dust at work, as well as exposure to cigarette smoke and even cold air, increased claimant's susceptibility to RAD. (Id. at 72-73, 83.) He noted that exposures to respiratory irritants, including workplace chemicals and dust, were more significant near the end of Bowers' life than earlier on. (Id. at 86, 96.)

         ¶19 Drs. Knapp and Gabster disagreed with Dr. Peterson as to the cause of claimant's death and the role of workplace chemicals and dust. Dr. Gabster, who wrote a one page opinion and did not testify at trial, opined that the claimant's death was due to "acute and chronic myocarditis, heart failure, and severe chronic obstructive pulmonary disease [COPD]." (Respt's Ex. 18.) Dr. Knapp did not attribute any part of the cause of death to COPD. He testified that claimant's death was due to viral myocarditis and pulmonary arteriolar sclerosis [scarring of the walls of the left and right ventricles[3], which caused his heart to fail. (Tr. at 235, 238; Respt's Ex. 18.) He pointed out that the acute cardiac failure will cause respiratory distress and further testified that the pathological autopsy findings did not support respiratory distress as the precipitating event leading to death. (Tr. at 267-68, 275-76.) Dr. Knapp testified that the most likely cause of myocarditis was a virus, however, he also acknowledged that the condition may be caused by idiopathic (unknown) agents. (Id. at 279.) Ultimately, Dr. Knapp was unable to determine what, in fact, caused the condition in claimant. (Id.)

         On the other hand, he testified that, on a more probable than not basis, the myocarditis was not due to exposure to workplace chemicals. (Id. at 282.)

         Issues

         ¶20 The appeal raises multiple issues, including serious constitutional questions regarding the medical panel and hearing procedures of the Occupational Disease Act (ODA). Notice of the constitutional challenges was given to the Attorney General, who declined to intervene. (Notice of Intent Not to Intervene (October 28, 1997).)

         ¶21 Mrs. Bowers has stated the issues in the affirmative. She argues the following errors:

o § 39-72-605 MCA is unconstitutional.
o Rule 24.29.207(1) (n) ARM is unconstitutional.
o § 39-72-610 MCA is unconstitutional.

         4. The decision of the hearing officer was based on unlawful procedures because:

a. the determination of the panel physicians was made without notice and opportunity for hearing;
b. the Department improperly prejudiced the determination of the panel physicians by using the investigative services of the insurer;
• the Department failed to provide the panel physicians with all available evidence.
d. the Department failed to provide the panel physicians with material evidence that was false and misleading; and
e. the hearing officer considered facts not in evidence.
• The hearing officer erred as a matter of law by disregarding the uncontroverted opinion of Dr. Peterson.
• The hearing officer failed to make findings of fact on an issue essential to the decision, and [sic] although requested to do so.
• The decision of the hearing officer was clearly erroneous in view of the reliable, probative, and substantial ...

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