Nationwide Environmental Services, Inc. v. Beasley

2004 OK CIV APP 17, 84 P.3d 1074, 75 O.B.A.J. 650, 2003 Okla. Civ. App. LEXIS 123, 2003 WL 23283086
CourtCourt of Civil Appeals of Oklahoma
DecidedOctober 21, 2003
DocketNos. 98,950, 98,957
StatusPublished
Cited by2 cases

This text of 2004 OK CIV APP 17 (Nationwide Environmental Services, Inc. v. Beasley) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Environmental Services, Inc. v. Beasley, 2004 OK CIV APP 17, 84 P.3d 1074, 75 O.B.A.J. 650, 2003 Okla. Civ. App. LEXIS 123, 2003 WL 23283086 (Okla. Ct. App. 2003).

Opinion

Opinion by

JERRY L. GOODMAN, Presiding Judge:

¶ 1 Employer Nationwide Environmental Services, Inc., and Insurer National American Insurance Company (NAIC) seek our review of the February 19, 2003, order of a three-judge panel which affirmed the trial court’s December 6, 20Q2, order granting benefits to Employee Kenneth Beasley for injuries he sustained while working for Employer. Based upon our review of the facts and applicable law, we sustain the order under review.

FACTS

¶ 2 Employee filed a Form 3 on March 12, 2001, alleging he developed a brain tumor after being exposed to, and splashed with, toxic chemicals while working for Employer. Employer denied the injury was job related.

¶ 3 Employee began working for Employer in September 1995 as a site technician at a toxic waste site managed by Employer. His job duties included site maintenance and repair. During this time it is undisputed that he was exposed to toxic waste materials while employed in1 this capacity. His last exposure to the site was February 2001, after his brain tumor was discovered.' Employee contends the tumor was the result of his exposure to toxic waste. Employer, who had two different insurers providing workers’ compensation coverage during the period of Employee’s tenure, denied any causal connection between Employee’s exposure to the chemicals and his subsequent cancer.

¶ 4 An evidentiary hearing was held February 14 and August 16, 2002. The evidence showed that prior to beginning work with Employer in September 1995, Employee was medically tested for any pre-existing medical conditions. None were found. Employee also had no familial history of cancer or tumors. Employee testified that his job duties involved maintenance and cleanup at [1076]*1076Employer’s toxic waste facility in Criner, Oklahoma. He testified that between 20-50,000 50-gallon barrels of toxic waste chemicals were buried at the site. As the barrels leaked, the liquid was pumped out of the ground into separators, which in turn allowed the lighter toxic chemicals to be separated from the heavy toxic metals. The residue would ultimately be sent to Houston, Texas, for incineration and disposal. However, because the pumps leaked, the pipes burst, and the site often experienced electrical or mechanical problems, Employee was often exposed to, among other things, benzene, arsenic, acetone, cadmium, pesticides, tetraehlorethylene, solvents, and heavy metals. There is no evidence Employee was exposed to radiation.

¶ 5 In May 1997 Employee was conducting routine testing when an open valve spewed toxic chemicals into Employee’s face. Despite the protective eyewear he was wearing, some of the liquid entered Employee’s left eye. He washed it out and later reported to the emergency room with complaints of severe eye irritation. He was treated conservatively and, after a few days, had no further eye difficulties.

¶ 6 More than four years later, Employee was again working around the holding tanks when he testified he inhaled fumes and fainted. He was transported by ambulance to the emergency room, where doctors discovered a large brain tumor behind his left eye. He was referred to a surgeon, who removed most, but not all, of the tumor. Employee has undergone chemotherapy to try and halt the continued growth of the tumor.

¶ 7 We note Employee’s rather alarming testimony that he was constantly exposed to various toxic chemicals. He testified that though he was provided protective chemical suits, they were often of the wrong size, and would tear easily. He further testified the protective suits’ oxygen tanks were often empty, necessitating removal of the suits in order to breathe.

¶ 8 The deposition testimony and medical records of Employee’s treating surgeon and expert witness were admitted into evidence over the probative value objection of Employer. Employer’s experts’ deposition and medical reports, which denied any causal link between the introduction of toxic chemicals into the left eye and the development of a tumor behind that eye a few years later, were admitted into evidence over Employee’s probative value objection.

¶ 9 At the conclusion of the evidentiary hearing, the trial court, in a detailed and well-crafted order filed December 6, 2002, found Employee’s injuries were causally related.to his employment and found Employee to be permanently totally disabled (PTD). The trial court .ordered Employer to pay Employee temporary total disability (TTD) benefits from June 11, 2001, to December 3, 2002. The trial court found NAIC, Employer’s insurer, had coverage from October 2, 1996, until September 30, 1998, which covered the incident of direct exposure to the left eye in May 1997. The trial court also found CompSource provided workers’ compensation coverage from October 1, 1998, to the date of last exposure, February 7, 2001. The trial court apportioned liability between the two carriers at 50 percent each.

¶ 10 Employer sought review from a three-judge panel, which entered an order, filed February 19, 2003, unanimously affirming the trial court’s order. However, on March 24, 2003, a three-judge panel vacated the February 19, 2003, order in its entirety. In its place, the panel entered a new order, filed March 26, 2003. The new order corrected some dates and factual misstatements to better reflect the record.1 Both Employer’s current workers’ compensation carrier CompSource and its former carrier NAIC filed an appeal. NAIC’s appeal No. 98,957 was consolidated with Employer’s appeal, under surviving appeal No. 98,950.

[1077]*1077ANALYSIS

¶ 11 Both Employer and NAIC’s first proposition of error is that there is insufficient evidence to support the trial court’s conclusion that Employee’s exposure to the chemicals caused the brain tumor. ' Essentially, both ask us to reweigh the evidence. Employer’s appellate brief is composed primarily of extensive recitation of the medical testimony, medical treatises, and argument adduced at trial. Employer’s sole argument is that Employee’s experts’ opinions did not comply with the threshold evidentiary requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); and Christian v. Gray, 2003 OK 10, 65 P.3d 591, or with 85 O.S.2001 § 17(A)(1).2 In short, Employer asks this court to review the medical evidence already presented to the trial court, determine that the evidence does not meet the scientific validity tests set out in those eases cited above, and hold that Employee’s evidence is therefore incompetent. We decline to do so.

¶ 12 We do not weigh the evidence, but canvass the facts only for the purpose of ascertaining whether the tribunal’s decision is supported by competent evidence. Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548. The existence of evidence supporting Employer’s claim is immaterial, because appellate review is confined to a search for any competent evidence which could support the tribunal’s order. Owings v. Pool Well Serv., 1992 OK 159, 843 P.2d 380.

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2004 OK CIV APP 17, 84 P.3d 1074, 75 O.B.A.J. 650, 2003 Okla. Civ. App. LEXIS 123, 2003 WL 23283086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-environmental-services-inc-v-beasley-oklacivapp-2003.