heatgain
01-07-2009, 09:16 AM
Make of this what you will, there are several layers of interest to us in this:
Alabama Court of Civil Appeals
WORKER’S COMPENSATION: Causation. Charles Atterberry worked as an automobile detailer for a car dealer for approximately two years. During that time, he used several detergents and cleaning products containing toxic chemicals. He was hospitalized in February 2007, suffering from severe respiratory distress. He remained hospitalized for three months and when he was released, he continued to suffer from low blood-oxygen levels. Atterberry filed an action seeking workers’ compensation benefits. At the time of trial, Atterberry had not yet reached maximum medical improvement (“MMI”). The trial court determined that Atterberry had suffered a nonaccidental injury and that his illness was compensable. The employer appealed.
Reversed. Legal and medical causation in cases involving a cumulative-physical stress or gradual-deterioration injuries must be established by clear and convincing evidence. At trial, Atterberry’s treating physician, Dr. Randy Dotson, a pulmonologist, testified that the chemicals that Atterberry was using are toxic and that, if aerosolized, can get into the lungs. He did not know the specific disease from which Atterberry suffered because no biopsy had been performed. The employer presented testimony from an expert indicating that Atterberry’s exposure to chemicals would not have caused his lung disease. He opined that Atterberry’s problems were related to pneumonia.
In order to prevail on a claim for disability as a result of an occupational disease, Atterberry had to show that he was at an increased risk of contracting the disease as a result of exposure in his employment or that he was exposed to a peculiar hazard in his employment in a manner substantially different that employed persons, in general, are exposed. Atterberry failed to prove that the chemicals to which he was exposed created an increased risk that he would suffer from a lung condition. Moreover, “the evidence, when viewed in its entirety, cannot be said to create a firm conviction that Atterberry’s exposure to the chemicals used in the detergents and solvents at the employer’s garage was materially in excess of the exposure to those same chemicals others face in their everyday lives.”
The judgment of the trial court is due to be reversed. Greater Mobile Chrysler-Jeep, Inc. v. Atterberry, 18 ALW 1-7 (2070562), 12/19/08, Mobile Cty.
An update: Mr. Atterberry is currently suing a local supplier of detailing products.
Alabama Court of Civil Appeals
WORKER’S COMPENSATION: Causation. Charles Atterberry worked as an automobile detailer for a car dealer for approximately two years. During that time, he used several detergents and cleaning products containing toxic chemicals. He was hospitalized in February 2007, suffering from severe respiratory distress. He remained hospitalized for three months and when he was released, he continued to suffer from low blood-oxygen levels. Atterberry filed an action seeking workers’ compensation benefits. At the time of trial, Atterberry had not yet reached maximum medical improvement (“MMI”). The trial court determined that Atterberry had suffered a nonaccidental injury and that his illness was compensable. The employer appealed.
Reversed. Legal and medical causation in cases involving a cumulative-physical stress or gradual-deterioration injuries must be established by clear and convincing evidence. At trial, Atterberry’s treating physician, Dr. Randy Dotson, a pulmonologist, testified that the chemicals that Atterberry was using are toxic and that, if aerosolized, can get into the lungs. He did not know the specific disease from which Atterberry suffered because no biopsy had been performed. The employer presented testimony from an expert indicating that Atterberry’s exposure to chemicals would not have caused his lung disease. He opined that Atterberry’s problems were related to pneumonia.
In order to prevail on a claim for disability as a result of an occupational disease, Atterberry had to show that he was at an increased risk of contracting the disease as a result of exposure in his employment or that he was exposed to a peculiar hazard in his employment in a manner substantially different that employed persons, in general, are exposed. Atterberry failed to prove that the chemicals to which he was exposed created an increased risk that he would suffer from a lung condition. Moreover, “the evidence, when viewed in its entirety, cannot be said to create a firm conviction that Atterberry’s exposure to the chemicals used in the detergents and solvents at the employer’s garage was materially in excess of the exposure to those same chemicals others face in their everyday lives.”
The judgment of the trial court is due to be reversed. Greater Mobile Chrysler-Jeep, Inc. v. Atterberry, 18 ALW 1-7 (2070562), 12/19/08, Mobile Cty.
An update: Mr. Atterberry is currently suing a local supplier of detailing products.