Kelvin White v. Young Dental Manufacturing Company

An employee must present substantial and competent evidence that he or she has contracted an occupationally induced disease rather than an ordinary disease of life. The courts have stated that the determinative inquiry involves two considerations: (1) whether there was an exposure to disease which was greater than or different from that which affects the public generally; and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Hayes v. Hudson Foods, Inc., 818 S.W.2d 296 (Mo. App. 1991). The employee must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the workplace. Selby v. Transworld Airlines, Inc., 831 S.W.2d 221 (Mo. App. 1992).

In summary fashion, employee described his work as a vulcanizer: his duties principally involved numerous cycles of loading and unloading trays referred to as mold plates; these cycles lasted approximately five minutes; and employee estimated he stood still at his station approximately 60 % of his actual working time. Employee did not stand still for more than a few minutes at a time, as his job involved movement/walking near his workstation.

As of the date of trial and the date of the alleged injury, Ms. Inez Bromberg was a manager of the employer. Ms. Bromberg testified that she was familiar with the job duties of the employee as a vulcanizer. Ms. Bromberg testified that it was not possible for a vulcanizer to stand absolutely still for a long period of time in performing the job duties required of the position. A vulcanizer continuously had to move back and forth in order to unload cups, load screws and had to turn and move in order to fulfill the job duties.

Ms. Bromberg testified employees were allowed lunch breaks and restroom breaks as necessary; employees were allowed two 15-minute breaks, in addition to the lunch break; and Ms. Bromberg testified that during her tenure of employment no other employee has ever complained or reported any similar type of injury to his or her lower extremities.

Employee's medical expert was Robert Poetz, D.O. The history given Dr. Poetz by the employee, and upon which Dr. Poetz relied, was that employee's job involved continuous standing while operating a press, with only a onehalf hour daily lunch break in a 58 -hour workweek. Dr. Poetz also reviewed a job description which indicated to Dr. Poetz that employee stood in one position for up to ten hours per day.

Based on employee's description of his job and the review of the medical records, Dr. Poetz opined that employee's prolonged standing at work caused employee to develop venous stasis, a well known triggering mechanism for the development of deep vein thrombosis which employee developed and which in turn caused the pulmonary emboli. Dr. Poetz testified that prolonged standing is a common cause of venous stasis and employee's prolonged standing was the most significant factor for the development of his condition.

On cross-examination, Dr. Poetz admitted he is not board certified in vascular medicine. His opinion was based on the premise that the employee was virtually standing still for 58 hours per week with a half-hour break for lunch while performing his work duties. On further cross-examination, Dr. Poetz testified that his opinion as to medical causation would not change even if he assumed employee moved frequently throughout the workday. On additional cross-examination, Dr. Poetz testified that prolonged standing is considered, by the medical community, to be a prime source of the development of deep vein thrombosis, and such relationship is contained in the medical literature in numerous places; however, he could not cite or refer "off the top of his head" to any medical literature, treatises, etc., that medically causally related prolonged standing to the development of deep vein thrombosis.

Wayne Flye, M.D., testified in behalf of the employer. Dr. Flye is board certified in vascular surgery. Dr. Flye was requested to examine and treat employee by the employee's initial treating physician, Dr. Siddiqui. Dr. Flye began treating employee on September 5, 2001. Dr. Flye has conducted both clinical and basic research in the area of vascular medicine, and his findings have been published in scholarly scientific journals. Dr. Flye has experience in determining etiology of deep vein thrombosis and pulmonary emboli.

Dr. Flye disagreed with the assertion of Dr. Poetz that prolonged standing is considered by physicians to be a

prime source of the development of deep vein thrombosis. Dr. Flye testified that a person standing absolutely motionless could cause deep vein thrombosis. However, that occurs infrequently. Dr. Flye explained that motion by someone standing, even though they are in the same place for hours on end, brings into play the muscular pump, which are the calf muscles. The mere fact that muscles are moving tends to contract and empty the veins. The muscular pump is a very important component in keeping the blood flowing. Dr. Flye testified that a person taking steps accentuates the muscular pump even more. However, if a person could stand absolutely still for several hours at a time, it could be a cause. It is very unusual for a normal person with normal sensation to be able to stand absolutely still for any length of time.

Dr. Flye was questioned about various occupational factors and their affect on the development of deep vein thrombosis. Regarding standing, Dr. Flye testified that the critical factor is what the individual is doing while standing, not the length of time the individual stands.

Dr. Flye testified that the most common cause of a deep vein thrombosis is an injury to the lower extremity or sitting (not standing) for a long time, such as prolonged immobilization with the legs dependent while traveling on prolonged flights. Dr. Flye was unable to identify the cause of employee's deep vein thrombosis. In the opinion of Dr. Flye, who actually treated the employee, employee had idiopathic deep vein thrombosis, emphasizing that the cause was unknown. Dr. Flye noted it was not unusual for an individual to have deep vein thrombosis and be unaware of the reason for the occurrence.

On cross-examination, Dr. Flye stated that it was very unusual for deep vein thrombosis to be caused by prolonged standing. In his opinion, it occurred with bank tellers and cashiers who are sitting most of the time.

Upon reviewing the entire record, carefully reviewing the testimony of all witnesses, as well as the various exhibits offered and admitted into evidence, the Commission determines and concludes that the more believable evidence supports a finding that employee did not sustain an occupational disease arising out of and in the course of his employment as required by section 287.067 RSMo.

The ultimate determination of credibility of witnesses rests with the Commission; however, the Commission should take into consideration the credibility determinations made by an administrative law judge. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent vs. Goodyear Tire and Rubber Company, 147 S.W.3d 865 (Mo. App. 2004).

As stated previously, employee contends he contracted an occupational disease principally due to prolonged standing at work while performing his job duties. In contrast, employer contends that employee's contraction of deep vein thrombosis was idiopathic, not related to his employment and is simply an ordinary disease of life with no recognizable link to his employment.

As to this principal issue, the Commission finds the testimony and medical opinions of Dr. Flye to be credible, persuasive, and worthy of belief. In contrast, the Commission finds both the qualifications and medical opinions of Dr. Poetz to be lacking in comparison. Furthermore, the Commission finds that Dr. Poetz did not have an accurate description of employee's job duties or was not fully aware of his job description and activities during the workday, further impugning his opinions.

The Commission also determines through the testimony of the employee, that employee did not engage in motionless standing for any extended period of time while at work. Employee described picking up