NO. 88-482

TN THE SUPREME COURTOF THE STATY OF MONTANA
1989

EARL W

# . ROADARMEL

### , Claimant and Respondent,

ACME CONCRZTECOPIPANY, Employer,

-vsROYAL INSURANCE COMPANY, Defendantand Appellant.

APPEAL FROM: TheWorkers' Compensation Court,TheHonorable Timothy Reardon,JudgePresidinq.
COUNSELOF RECORD:
ForAppellant:

JamesG. Edmiston, Ill;Billings,Montana
For Respondent:
Donald E. White; Bozeman,Montana W. Lee Stokes;Bozeman, Montana

-- - Submitted on Briefs: February 16, 1989 Decided: April 25, 1989Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Royal Insurance Company appeals from a judgment entered against it and in favor of claimant Earl W. Roadarmel in the Workers' Compensation Court of the state of Montana, in and for the area of Butte. The court held that Roadarmel sustained a compensable injury under $5 39-71-119, MCA, on September 18, 1986 and was entitled to temporary total disability benefits and medical benefits through December, 198?. Futureentitlement to benefits after thatdate was not determined by the court. The court also awarded Roadarmel reasonable costs and attorney fees pursuant.to S 39-71-611, MCA. The insurer appeals from the judgment. We affirm. Appellant Royal InsuranceCompanypresents the following issues forreview: (1) Whether claimant proved,by apreponderance of the probative credible medical evidence (all of whichwas submittedby deposition) that his cardiac arrythmia (irregular heartbeats)were caused by an on-the-job exposure to the chemical- Toluene. (2) Whether claimant proved by a preponderance of the probative credible medical evidence (all of which was submitted by deposition) that he was totally disabled as a result of exposure to the chemical Toluene from September 18, 1986 through December, 1987.

(3) Whether the Workers

### ' Compensation Court erred 

### by admitting into evidence over Defendant's objection articles from medical journals and treatises as exhibits.

(4) Whether the Workers

### ' Compensation Court erred. in determining that claimant's witness, Samuel J. Rogers, Ph.D. qualified as an expert witness over defendant's ohiection.

### Roadarmel disagrees with Royal's statementof issues (1)

### and (2) 

### and frames those issuesas follows: (1) 

### Whether the claimantproved by apreponderance of the evidence that he sustained an injury as a 

### result of his employment with Acme Concrete Company. (2) 

### Whether the claimantproved by apreponderance of the evidence that he was totally disabled as a result of an injury suffered during the course of his employment with Acme ConcreteCompany.
Acme is enrolled in Compensation Plan I1 

### of the Montana Workers' Compensation Act and is insured by Royal 1nsura.nce Company,the appellant. The facts from which this claim arose are as follows: Earl Roadarmel was employed by Acme as a heavy equipment operator. He had worked on highway construction steadily since 1954. 

### At the time of this injury he was 5F! 

### years old and ingood health. Roadarmelwas assigned the job of operating the curing bridge that sprayed a curing agent onto the newly-laid concrete highway. The machine bridged the entire width of the highway (40 

### to 50 

### feet) and was equipped with a hundred or more spray nozzles that sprayed the curing agent, awax/resin,onto the cement. The nozzles plugged continuously because the curing agent was not liquid

as itwas supposed tohe,but had solidified into a gel. To remedy the persistent plugging, Roadarmel had to get out of the cab, reach under the machine, unscrew the plugs, and unplug them by placing them in Toluene, a toxic chemical solvent. Hewould then wash off thenozzles and replace them and spray the cementuntil thenozzlesneeded tobe unplugged again. At night, he removed each nozzle, washed it in Toluene and then replaced it the followingmorning. When he used the Toluene, itwas not in its original barrel,but in a bucket. 

### which was refilled by a mechanic whenever Roadarmelneeded more of it. Roadarmel was unaware that he was exposing himself to a vl-rulent,toxic chemical. He did see the empty Toluene barrels in a heap with other barrels, but he did not see a warning on the barrels as to its toxicity. No one at Acme informed him of the danger he was being exposed to nor did anyone suggest that he wear protective clothing or a respirator to protect from inhaling the solvent. There was a Material Safety Data Sheet concerning the Toluene provided to Acme by Exxon, themanufacturer, hut not disclosed to Roadarmel. Itcontained the following language: 

### A. Identificationand Emergency Information



# ..

# . ProductAppearance and Odor Clear water-white liquid. Aromatic hydrocarbon odor.
B. Componentsand Hazard Information



# . . .Exposure limit for total product 100ppm (378 mg/m3) for an 8-hourworkday.



# .. .Approximate Concentration 100%
C. Emergency and FirstAid Procedures Eye Contact
If splashed into the eyes, flush with clear water for 15minutes or until irritation subsides. If irritation persists, call aphysician. Skin Contact

In case of skin contact, remove any contaminated clothing andwash skin thorough1.ywith soap andwater. Inhalation
If overcomeby vapor, remove from exposure and call a physician immediately. If breathing is irregular or has stopped, start resuscitation, administer oxycren, if available.

### E. Health and Hazard InformationVariability Among Individuals. Health Studies have shown that many petroleum hydrocarbons and synthetic lubricants pose potential human health risks which may vary from person to person. As a 

### precaution, exposure to liquids, vapors, mists or fumes should be minimized. Effects of Overexposure (signs and symptoms of exposure) High vapor concentrations (greater than approximately 1000

### ppm) are irritating to the eyes and the respiratory tract,may cause headaches and dizziness, are anesthetic and may have other centralnervous systemeffects. Nature of Hazard Prolonged or repeated skin contact with this product tends to remove skin oilspossibly leading to irritationand dermatitis. Product contacting the eyes may cause eye irritation.
No one gave Roadarmel an17 c?j.rectionsor warnings about the Toluene. Each day for seventeen days, a 

### total of 17' 

### hours, Roadarmel breathed the chemical. His sweatshirt and clotheswere soaked with it by the end of the day. On one occasion, he placed the rag on which he wiped his hands into his hack pocket. About half an hour later he felt the rag "burning back there." He had a sense at that time that it

was "powerful.

### " His work-toughened hands, accustomed to strenuous constructionwork,were no longer sensitiveenough to feel theburning,but his sensitive buttocks area felt the burning sensation. After that realization, Roadarmel tried to keep his hands washed. This was almost impossible to do because there was seldom water on the site and thewax/resin covered everything. The curing bridge, which Roadarmeloperated,worked just behind the finish crew. 

### If Roadarmel got up close to that crew, they would tell him to get back because "itwas too stinky for them." However Roadarmel,who

was in the smell all the time, really did not notice the smell and the fumes. Another Acme employee,Glen Lingjerde t.estif ied that he worked on the Butte project and in Superior. He worked with the Toluene for about four weeks. Roadarmel took over Lingjerde's job when he quit because of the effect the Toluene was having on him. 1,ingjerde also received no warnings and was not instructed to take precautionary measures with the solvent. He testified by deposition that prior toworking on the curing bridgehe had been in thebest shapehe'd everbeen in, liftingweights several times aweek and running several miles. He lost his appetite and went from 195 to 165 pounds. He suffered severe headaches, was sick to his stomach, experienced dizziness and light headedness when he worked with the Toluene. It became apparent to him, from the pattern of his headaches and dizziness, that his time spent on the curing bridge brought

on these symptoms. On oneparticular day,Lingjerdehad been much exposed to Toluene. On the drive home he spit out the

car window. The spittle hit the side of his new Burgundy

car. Later,when hewiped it off, thepainthad been removed 

### by the spittle. Lingjerde additionally testified thathe had

seen a Toluene barrel at Superior on which there was a warning that if the solvent came into contact with the skin, it must be flushed immediately. But, he said, there was no way to do this because "you get covered with the stuff" and therewas no water on the site towash with. Lingjerde then quit. Pis weight returned to normal and his headaches eventually stopped. He spit up for quite awhile afterward and could taste the Toluene.About the last week of: the curing job, September 18, 1986,Roadarmel became dizzy and light-headed. At night when he went to bed, "it seemed like [b.is]wholebody was jumping" and often he could not sleep. About two weeks after the job

was finished he went to the doctor in Whitehall because he did not feel well and his wife, who is an emergency medical technician, was unable to find his pulse. The doctor prescribed a medication, but the next day his heartbeat was even more rapid. The Whitehall doctor was out of town so Roadarmel went to the emergency room of a Bozeman hospital. The doctor there cardioverted respondent's heart with electric shock to return it to a normal heartbeat. Since that time, Roadarmel has been on various medications and has undergone additionalcardioversion. Royal Insurance's contention is that Roadarmel's symptoms are not a result of his exposure to Toluenebut are psychosomatic and a result of "cardiac neurosis" caused by "non-conventional" physicians. Royal claims that the "non-conventional" physicians whom Roadarmel consulted were the only doctors who testified that Roadarmel's irregular heartbeat was caused by chemical exposure resulting in total disability. Section 39-71-119, MCA (19851, defines "injury" or "injured"as (1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury, except as provided in subsection (2) of this section; (2) 

# .

# ..Nothing herein shall be construed to exclude any other working person who suffers a cardiovascular, pulmonary, or respiratory disease while in the course and scope of his employment.

(Emphasisadded.)The medical evidence is that Roadarmel has become "sensitized"and will have a reaction whenever he encounters hydrocarbons, which could be while pumping gas, inhaling exhaust fumes,or simply encountering hydrocarbons which are profuse in the environment. It is possible that the arrythmias he experiences upon exposure could be fatal. He would not be able towork in the construction business again unlesshewears aportable respirator. The standard of review for decisions of the Workers' Compensation Court iswhether there was substantial credible evidence to support the decision of the court. Shupert

### v. Anaconda Aluminum Co. (1985), 215 Mont. 182, 697 P.2d 436. However, where critical medical evidence is entered by deposition, this Court, although sitting in review, is in as good a position as the Workers' Compensation Court to judge the weight. of the testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand. Brownv. State Compensation Ins. Fund (Mont. 1988)

## , 752 P. 2d 171, 45 St.Rep. 508; Shupert v. Anaconda Aluminum Co. (1985), 115 Mont. 182, 188, 696P.2d 436, 439; Hertv. J. J. Newherry Co.

(1978), 178Mont. 355, 360, 584 P.2d 656,659. 

### A close scrutiny hy this Court of the medical experts' testimony contained in various depositions sustains the Workers' Compensation Court's decision that respondent's exposure to Toluene rendered respondent chemical-sensitive. Roadarmel experienced dizziness, rapid heart rate, fainting and lightheadedness. He was treated byWhitehall and Bozeman physicianswho were unable to control the cardiac arrythmias. He then sawmedical doctors in Dallas, Denver, and Seattle. Each parties' counsel has been able to cull from those experts' depositions phrases which support their relative stances. However, the preponderance of the evidence showsthat there is a magnitude of medical research and clinical research that demonstrates that Toluene causes the symptoms Roadarmel is experiencing. Much of the clinical data referred to by the experts concerns glue snifferswho suffer all of respondent's symptoms in addition to memory loss. Glue containsToluene. Curt Kurtz, M.D., a 1962 graduate of Stritch Medical School in Chicago testified that it would be dangerous for Roadarmel to return to his occupation as a heavy equipment operator or to expose himself further to Toluene or similar solvents. Samuel J. Rogers, Ph.D., an associate professor of chemistry atMontana State University,who teaches courses in biochemistry and toxicology explained the Poison Index Substance Informationoffered into evidence

### by KennethKulig, M.D. Rogers said that Toluene invades an organ and disrupts the tissue structure

# ... in this case,probably the nervous system of the heart, and at that point, the tissue becomes more susceptibleand sensitized to chemicals such asToluene, solvents or adrenaline. The tissue j.s no longer able to withstand certain kinds of solvents and becomes sensitized. It reacts in an improper fashion to a normal cardiac stimulant like adrenaline. William J. Daniell, M.D. testified that ventricular arrythmias are of particular concern because of risk of sudden death. Atrial arrythmias are of less potential, far less potential, for causing suchdeath;but canbe associated with transient reduction and profusion of blood output and

can produce symptoms of lightheadedness, chest discomfort, weakness and shortnessof breath. Dr. Daniell said that the frequency of the episodes 

### of arrythmia should decide whether

or not Roadarmel could return to work. If Roadarmel were havSnq arrythmias which reduce blood flow sufficientl~~ toimpair brain function orwhich impairhis ability to perform, then he should not he operating heavy equipment where he could harm himself or other people. Dr. Daniel1 thought it very likely that Roadarmel had this arrythmic disorderprior to the onset of symptoms in September, 1986. This expert opinion does not relieve Royal of liability. The rule that the employer takes the employee as he finds him is well established. The fact that an employee was suffering from a pre-existing disease or disability does not preclude compensation if the disease or disability was aggravated or acceleratedbv an industrial injurywhich arose out of and in the course of employment. Gaffney v. Industrial Accident Board ofMontana (1955),129Mont. 394, 287 P.2d 256. Tim Adams, M.D. of Bozeman, advised the Workers' Compensation Division onNovember 20, 1986 that the arrythmia

was work related. Kenneth Kulig, M.D. of the Rockv Mountain Poison Center in Denver, Colorado, is a physician and toxicologist who examined Roadarmel. He testified that one cannot predict which patients exposed to Toluene will develop arrythmias, and that not all deliberate abusers !glue and spray paint sniffers) of Toluene develop arrythmias. Because of this fact, he said, one can conclude that some patients are more sensitive to the cardiac effects of Toluene than others. He testified further that if he were Roadarmel's employer he would be reluctant to re-expose him to Toluene to see if he develops another arrythmia. Dr. Kulig told of patients who

were found unconscious or dead after Toluene abuse and said that it has to be assumed that the cause of deathwas cardiac arrythmia. Dr. Kulig helieves that there is no medical

reasonwhy Roadarmel cannotgoback towork; but, he believes that Roadarmel has a psychological reason for not going back to work. Roadarmel believes he may have a dizzy spellwhilehe's operating heavy equipment. Rut Dr. Kulig expressed the opinion that it does not really matter if the dizzy spell he fears has a physical cause or not. The result is the same--dizziness and possible fainting could occur. James K. Vincent, M.D., a specialist in cardiovascular medicine in Billings, said that not only should Roadarmel. avoid further exposure to ToLuene but that from the information about the chemical everyone should avoid it. As a consequence of our review of each physician's deposition and after a thorough reading of all evidence submitted,we agree with the Workers' Compensation Court that claimant Roadarmel has met his burden of proof by a preponderance of the evidence that there was a causal connection between his exposure to Toluene while operating the curing bridge and his subsequent cardiac arrythmias, dizziness, lightheadedness and fainting. This injury was a result of his employment withAcme Concrete Company. As to whether or not Roadarmel is permanently totally disabled, the medical evidence and testimony presented b17 Roadarmel demonstrate that although the data sheet cautioned that themaximum timeper day that aperson should be exposed to Toluene was 8 hours, Roadarmel was exposed for 12 to 14 and sometimes 16 hours per day. As a result, he has become sensitized to Toluene. Dr. Daniel1 stated that Roadarmel must avoid exposure to degreastng agents, cleaning agents, paint, paint strippers, glues, adhesives, some plastics in the manufacturing phase, fiberglass construction and anv other solvent. Some of the medical experts advise that he not operateheavy equipmentbecausehisphysical symptomsmay recur at anytime. His history of sudden onset of these symptoms could he fatal to him and those aroundhim. For the foregoing reasons, all gleaned from the record,we reach thesame conclusion that theWorkers' Compensation Court reached. Roadarmel is entitled to temporary totaldisability. The final issue before this Court is whether the Workers' Compensation Court erred in determining that claimant'switness, Samuel J. Rogers, Ph.D. qualified as an expert witness over defendant's objection. The statutory provision in effect at the time of Roadarmel's injurywas S 39-71-2903,MCA, as follows:



# ..

# . the workers' compensation judge is not hound b>7 common law and statutory rules of evidence. Appellants arguments based on statutes governing the rules of evidence are not applicable to this cause. The Workers' Compensation Court could hear even hearsay testimony. Krause v. Sears Roebuck & Co. (1982), 1.97Mont. 102, 641P.2d 458. The judqment of the Workers' Compensation Court is

a?firmed.
Justjce We Concur: