John C. Tutt v. International Paper Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-584

JOHN C. TUTT

APPELLANT

v.

INTERNATIONAL PAPER COMPANY

APPELLEE

December 8, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION

COMMISSION [NO. C910926]

AFFIRMED

Andree Layton Roaf, Judge

Appellant John Tutt filed a claim for workers' compensation benefits alleging that he had been exposed to dust and chemicals while employed by appellee International Paper Company (IP) between 1942 and 1978, which led to the precipitation, aggravation, or acceleration of his occupational injury. The Workers' Compensation Commission denied his claim. On appeal, Tutt argues that the Commission's decision is erroneous because he proved by the preponderance of the evidence that the environmental conditions existing at his place of employment, precipitated, aggravated, or accelerated his occupational injury. Alternatively, he argues that the Commission's decision is erroneous because he also proved by clear and convincing evidence, the pre-2001 burden of proof for occupational disease claims,1 that the environmental conditions existing at his place of employment, precipitated, aggravated, or accelerated his occupational injury. Tutt also argues that the ALJ erred in admitting two reports from an expert witness. We affirm.

Tutt was employed by IP and worked at its Camden, Arkansas mill for over thirty-six years. He was assigned to the pulp mill, and also worked in the caustic and wet rooms. These areas contained chemical fumes, dust, and had little ventilation. James Lee Bryant and Jessie Morris Looney, Tutt's former co-workers, described Tutt's work environment, and testified that they were exposed to asbestos dust and chemical fumes for several years, and that Tutt worked in those conditions without a protective mask. Turpentine, chlorine gas, sodium hydroxide, sulfur, and lime were chemicals identified in Bryant and Looney's testimony as chemicals that could be found in the mill during Tutt's employment. Tutt's work environment conditions are undisputed.

Tutt began smoking cigarettes during his service in World War II; however, he stopped sometime in 1964-65. Prior to quitting, Tutt had a "fifty-pack-year"2 smoking history. In 1968, Tutt was diagnosed with chronic obstructive pulmonary disease ("COPD"); however, he continued his employment until 1978 when he retired from IP due to medical problems. Tutt began experiencing breathing difficulties in the early 1970's and sought treatment from his family physician. He suffered from pneumonia-related complications, and as his condition worsened, Tutt experienced difficulty even walking. Tutt died on November 20, 1983. 3 His cause of death was listed as respiratory arrest and COPD.

Tutt was referred to Dr. James Adamson, a pulmonologist, who treated him from 1978 until 1983. At the Tutt family's request, Adamson wrote a letter on September 4, 2002, to the ALJ. In the letter Adamson stated that he was a pulmonologist from 1966 until 1992; that Tutt was his patient from 1978 until his death in 1983; and that Tutt had severe obstructive lung disease.

In another letter dated October 2, 2002, Adamson stated that the Tutt family had requested that he give an opinion "on whether Mr. Tutt's exposure to fumes and or dusts in his position at International Paper Company." Apparently, this sentence is incomplete. However, Adamson concluded that Tutt suffered from chronic obstructive airway disease, with radiographically demonstrable emphysema. Adamson opined, "Of the causes of obstructive lung disease, smoking is far and away the most common." Adamson concluded that the cause of Tutt's emphysema was smoking, but stated that occupational exposure to chlorine gas, paper dust, or sulfur of chlorine dioxide could have been a contributing agent to his severe lung obstruction. He stated, however, that nothing in the records allowed him to determine the exposure to these chemicals that Tutt experienced. At the conclusion of the letter, Adamson opined:

It is entirely possible that the fumes to which Mr. Tutt was exposed contributed to the severity of his disease. Acute chlorine inhalation is usually associated with the development of pulmonary edema that, if the person survives, does not result in any airway obstruction. Low-level, chronic exposure, however, may cause increased airway hyperactivity that is not totally reversible, even months after removal from the exposure.

He again reiterated, however, that the fumes to which Tutt was exposed do not cause emphysema. Adamson said that he could not change his opinion that Tutt's emphysema was caused by smoking, but that he "would have to agree, however, that occupational exposure to chlorine gas, paper dust, or sulfur or chlorine dioxide could have been contributing agents to his severe airway obstruction."

At Tutt's family's request, Dr. Christopher John reviewed Tutt's medical records and concluded that Tutt's exposure to the multiple pollutants, irritants, and asbestos precipitated and aggravated his smoking induced COPD/emphysema. John indicated that the mill was "full of industrial pollutants, many of which are recorded as causing or exacerbating underlying lung disease." John also stated that Tutt suffered from asbestosis, due to his industrial exposure to asbestos, which was never diagnosed during his lifetime; and that the constant exposure to industrial airborne pollutants aggravated Tutt's underlying bronchitis and increased the likelihood that his emphysema would become more progressive. John testified "beyond a reasonable medical doubt that [Tutt's] lungs were affected by his industrial exposure, both from an asbestos perspective and also the exposure to the dust would have aggravated his COPD."

Dr. David Hewitt, a consultant with the Center for Toxicology and Environmental Health, also reviewed Tutt's medical records. Without sufficient evidence in the record regarding Tutt's asbestos exposure, Hewitt was unwilling to state that Tutt's condition resulted from his exposure to asbestos. According to Hewitt, Tutt would have had to been subjected to heavy, intense exposure to asbestos for at least twenty years, and also noted that Tutt did not exhibit symptoms consistent with asbestos exposure.

Hewitt also discussed the aggravating effect of exposure to dust and chemicals on a person diagnosed with emphysema, and stated that the exacerbating effect would depend on the type of chemical, duration and exposure, and concentration of the chemical. However, emphysema, according to Hewitt, is considered a deep lung disease, and a water-soluble like hydrogen sulfide never makes it deep into the lungs, and therefore, would not have an effect on emphysema.

Dr. Jay Gandy, a toxicologist and UAMS professor, reviewed Tutt's medical records and testified about causation. After considering Dr. John's opinion, Gandy stated that Dr. John had failed to identify chemicals that would cause or contribute to emphysema; and that Dr. John failed to determine what dose of any of the identified chemicals was significant to cause ill health. He also criticized John's methodology for determining causation, and testified that John's opinion regarding exacerbation of Tutt's COPD was inconsistent with "what we know about irritants, specifically hydrogen sulfide and sulfur dioxide."

The ALJ decided that Tutt presented a claim for occupational disease; that there was no proof of asbestosis; that Tutt must establish by clear and convincing evidence a causal connection between his employment and disease; and that the evidence did not establish the necessary causal connection between Tutt's employment and COPD/emphysema. The ALJ also found that Tutt failed to sustain his burden of proof by clear and convincing evidence or a preponderance of the evidence that his employment precipitated, aggravated, or accelerated his lung disease. The Commission adopted the ALJ"s findings, and Tutt appeals.

Tutt argues that the Commission's decision is erroneous because he proved by both the preponderance of the evidence and by clear and convincing evidence that the conditions at IP aggravated, precipitated, or contributed to his occupational disease. We disagree.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). Substantial evidence is such relevant evidence which reasonable minds might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Id. The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Id. The Commission also has the duty of weighing the medical evidence as it does any other evidence. Id. On review, we recognize the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

Arkansas Code Annotated section 11-9-601(c)(1) (Repl. 2002) provides in pertinent part, "Where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable shall be reduced and limited to the proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability." An "occupational disease" is "any disease that results in disability or death and arises out of and in the course of the occupation." Ark. Code Ann. § 11-9-601(e)(1)(A). However, a causal connection between the occupation or employment and the occupational disease must be established by a preponderance of the evidence. Ark. Code Ann. § 11-9-601(e)(1)(B).

Moreover, an employee's pre-existing disease or infirmity does not disqualify a claim, if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. Conway Convalescent Ctr. v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark. App. 1979). Whether or not employment aggravated or accelerated an internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the Commission based on any medical testimony will not be overturned unless the evidence is insufficient to support the finding. Id.

Without reciting all of the testimony detailed in the facts section, we note that the evidence showed that Adamson was unable to conclude whether Tutt's employment with IP added to the cigarette risk as a cause of his lung disease. Further, Hewitt testified that he could not give an opinion about the aggravating effects of Tutt's exposure to chemicals at work without first determining the type of chemical, duration and exposure, and concentration of the chemical. None of this information was available, thus, Hewitt could not offer an opinion. Although Hewitt admitted that hydrogen sulfide might have some irritative effect on the upper airway, he also stated that there would be little effect on a person with emphysema. Gandy likewise testified that emphysema is a deep lung condition, and opined that the chemicals to which Tutt was exposed would not have aggravated his condition. Although Dr. John testified that Tutt's COPD/emphysema was aggravated by his employment at the mill, the Commission was not required to believe his testimony. Because the issue of aggravation is a fact question, and the requirement is that the Commission's decision be based on any medical evidence, Murphree, supra, we affirm. Further, because our decision is based on the Commission's implicit determination of credibility and the weight given to the physicians' testimony, we affirm under both the clear and convincing and the preponderance of the evidence standards.

Tutt next argues that the Commission erred by admitting into evidence the two letters written by Dr. Adamson dated September 4, 2002 and October 2, 2002. He argues that the admission of the letters violates the Arkansas Rules of Evidence.

First, it is well-settled that the Arkansas Rules of Evidence do not apply in Workers' Compensation proceedings. Davis v. Ark. Best Freight Sys., Inc., 239 Ark. 632, 393 S.W.2d 237 (1965). Second, Ark. Code Ann. section 11-9-705(c)(2)(A) (Repl. 2002), provides that any party may introduce medical reports or physician testimony by providing the opposing counsel with copies of the written reports at least seven days prior to the date of the hearing. Any party wishing to cross-examine the physician must notify the party submitting the medical report as soon as practicable so that he may make every effort to have the physician present for the hearing. Ark. Code Ann. § 11-9-705(c)(2)(B). Even if a party fails to comply with these requirements, the hearing officer may admit the reports at its discretion. Ark. Code Ann. § 11-9-705(c)(3).

Tutt admits that he received copies of Dr. Adamson's letters at least seven days before the hearing. He does not allege that he requested IP to provide Dr. Adamson at the hearing for cross-examination, and that IP failed to do so. He also admits that he did not request that Dr. Adamson be called as a witness. Tutt cannot complain because he did not comply with the statute's requirement that he notify IP as soon as practicable that the wanted to cross-examine Adamson. Moreover, the hearing officer did not abuse its discretion by admitting the reports because Tutt was not prejudiced by their admission. See Potlatch Forrests, Inc. v. Funk, 239 Ark. 330, 389 S.W.2d 237 (1965). Tutt was well aware of the contents of the letters before trial, especially because he requested the September 4, 2002 letter; and Dr. Adamson's letters were not particularly adverse to Tutt's position in that he agreed that the industrial factors may have caused some aggravation of Tutt's condition. Accordingly, we affirm on this point.

Affirmed.

Robbins and Bird, JJ., agree.

1 Arkansas Code Annotated section 11-9-601(e) was amended in 2001 and changed the burden of proving a causal connection between the claimant's occupation or employment and occupational disease from the clear and convincing standard to the preponderance of the evidence standard.

2 A "pack year" is derived by multiplying the number of packs of cigarettes smoked per day by the number of years the individual smoked. For example, a "fifty-pack-year" may be indicative of a person who smoked two packs of cigarettes per day for twenty-five years, one pack of cigarettes per day for fifty years, five packs of cigarettes per day for ten years, and so on.

3 Tutt's wife continued this claim on his behalf.