NO. 88-482 

TN THE SUPREME COURT OF THE STATY OF MONTANA 

1989 

EARL W . ROADARMEL , 

Claimant and Respondent, 

ACME CONCRZTE COPIPANY, 

Employer, 

-vsROYAL INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge Presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

James G. 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, 1989 
Mr. 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?. Future entitlement to benefits after that date 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 Insurance Company presents the following 

issues for review: 

(1) Whether claimant proved, by a preponderance of 

the probative credible medical evidence (all of 

which was submitted by 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 statement of issues (1) and 

(2) and frames those issues as follows: 

(1) Whether the claimant proved by a preponderance 

of the evidence that he sustained an injury as a 

result of his employment with Acme Concrete 

Company. 

(2) Whether the claimant proved by a preponderance 

of the evidence that he was totally disabled as a 

result of an injury suffered during the course of 

his employment with Acme Concrete Company. 

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 in good health. Roadarmel was 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, a wax/resin, onto the cement. The nozzles 

plugged continuously because the curing agent was not liquid 

as it was supposed to he, 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. He would then wash off the nozzles and replace them 

and spray the cement until the nozzles needed to be unplugged 

again. At night, he removed each nozzle, washed it in 

Toluene and then replaced it the following morning. When he 

used the Toluene, it was not in its original barrel, but in a 

bucket. which was refilled by a mechanic whenever Roadarmel 
needed 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, the manufacturer, hut not 

disclosed to Roadarmel. It contained the following language: 

A. Identification and Emergency Information . . . Product Appearance and Odor 

Clear water-white liquid. Aromatic hydrocarbon 

odor. 

B. Components and Hazard Information 

. . . Exposure limit for total product 100 ppm (378 

mg/m3) for an 8-hour workday. 

. . . Approximate Concentration 100% 

C. Emergency and First Aid Procedures 

Eye Contact 

If splashed into the eyes, flush with clear 

water for 15 minutes or until irritation subsides. 

If irritation persists, call a physician. 

Skin Contact 

In case of skin contact, remove any 

contaminated clothing and wash skin thorough1.y with 

soap and water. 

Inhalation 

If overcome by 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 Information Variability 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 

central nervous system effects. 

Nature of Hazard 

Prolonged or repeated skin contact with this 

product tends to remove skin oils possibly leading 

to irritation and dermatitis. 

Product contacting the eyes may cause eye 

irritation. 

No one gave Roadarmel an17 c?j.rections or warnings about 

the Toluene. Each day for seventeen days, a total of 17' 

hours, Roadarmel breathed the chemical. His sweatshirt and 

clothes were 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 construction work, were no longer sensitive enough 

to feel the burning, 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 the wax/resin 

covered everything. The curing bridge, which Roadarmel 
operated, worked just behind the finish crew. If Roadarmel 

got up close to that crew, they would tell him to get back 

because "it was 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 Ling j erde 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 to working on the curing bridge he had been in the best 

shape he'd ever been in, lifting weights several times a week 

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 one particular day, Lingjerde had 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 he wiped it off, the paint had been removed 

by the spittle. Lingjerde additionally testified that he 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 

there was no water on the site to wash 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] whole body 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 additional cardioversion. 

Royal Insurance's contention is that Roadarmel's 

symptoms are not a result of his exposure to Toluene but 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. 

(Emphasis added.) 
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 to work in the construction business again 

unless he wears a portable respirator. 

The standard of review for decisions of the Workers' 

Compensation Court is whether 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. Brown v. 

State Compensation Ins. Fund (Mont. 1988) , 752 P. 2d 171, 45 

St.Rep. 508; Shupert v. Anaconda Aluminum Co. (1985), 115 

Mont. 182, 188, 696 P.2d 436, 439; Hert v. J. J. Newherry Co. 

(1978), 178 Mont. 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 by Whitehall and Bozeman 

physicians who were unable to control the cardiac arrythmias. 

He then saw medical 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 shows 
that 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 sniffers who suffer 

all of respondent's symptoms in addition to memory loss. 

Glue contains Toluene. 

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 at Montana State University, who teaches courses in 

biochemistry and toxicology explained the Poison Index 

Substance Information offered into evidence by Kenneth Kulig, 

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 susceptible and sensitized to chemicals such as Toluene, 

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 such death; but can be associated 

with transient reduction and profusion of blood output and 

can produce symptoms of lightheadedness, chest discomfort, 

weakness and shortness of 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~~ to 
impair brain function or which impair his 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 disorder prior 

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 

accelerated bv an industrial injury which arose out of and in 

the course of employment. Gaffney v. Industrial Accident 

Board of Montana (1955), 129 Mont. 394, 287 P.2d 256. 

Tim Adams, M.D. of Bozeman, advised the Workers' 

Compensation Division on November 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 death was cardiac 

arrythmia. Dr. Kulig helieves that there is no medical 

reason why Roadarmel cannot go back to work; but, he believes 

that Roadarmel has a psychological reason for not going back 

to work. Roadarmel believes he may have a dizzy spell while 
he'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 with Acme 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 the maximum time per day that a person 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 operate heavy equipment because his physical symptoms may 

recur at anytime. His history of sudden onset of these 

symptoms could he fatal to him and those around him. For the 

foregoing reasons, all gl eaned from the record, we reach the 
same conclusion that the Workers' Compensation Court reached. 

Roadarmel is entitled to temporary total disability. 

The final issue before this Court is 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 objection. 

The statutory provision in effect at the time of 

Roadarmel's injury was 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), 1.97 Mont. 

102, 641 P.2d 458. 

The judqment of the Workers' Compensation Court is 

a ?firmed. 

Justj ce 

We Concur: