Outlaw v. Erbrich Products Co., Inc.

758 N.E.2d 65, 2001 Ind. App. LEXIS 1956, 2001 WL 1419029
Indiana Court of Appeals·Decided November 14, 2001·No. 93A02-0106-EX-399·Published·Cited by 9 cases

Opinion

*66 OPINION

VAIDIK, Judge.

Case Summary

Ella M. Outlaw appeals the decision by the Worker's Compensation Board of Indiana (Board) ruling that Outlaw should take nothing on her application. Specifically, Outlaw alleges that the Board did not issue specific findings of fact consistent with an earlier opinion by this court. Because the findings of fact issued by the Board were not sufficiently specific to support its decision on Outlaw's claim, we reverse and remand with instructions for the Board to make additional findings.

Facts and Procedural History

This is the second time that this cause has been appealed. Outlaw began working for Erbrich Products Company (Erbrich) in the early 1980s. Outlaw primarily worked on the factory's production line for toilet bow! cleaner. On occasion, however, Outlaw also worked on the mustard, vinegar, bleach, fabric softener, and ammonia lines. Record at 372-73. 1 During her employment at Erbrich, Outlaw was exposed to a variety of chemicals including ammonia, hydrochloric acid, sodium hypochlo-rate, acetic acid, and formaldehyde as well as asthmagine that was contained in the glue on the back of the labels affixed to the products. Record at 1830, 142. In addition, Outlaw was exposed to numerous chemical spills on the toilet bow! line and a large spill on the bleach line that resulted in the evacuation of the factory and the surrounding neighborhood. Record at 371-72.

Prior to and during her employment with Erbrich, Outlaw was a daily smoker and suffered from several bouts of bronchitis. Record at 149, 346-47. In 1991, Outlaw began experiencing severe respiratory problems, and she sought treatment at Wishard Hospital Outlaw's treating physician advised her to quit her job, and Outlaw ultimately did leave her job. Eventually in 1993, Outlaw was referred for medical treatment to Dr. Joe G.N. Garcia, director of the Indiana University Occupational Lung Center. Record at 121, 169. Dr. Garcia concluded that Outlaw suffered from occupational asthma brought on primarily by her exposure to chemicals found in the Erbrich factory. Record at 133-34, 142, 150.

Outlaw filed an application of adjustment of claim with the Board. A single hearing officer heard Outlaw's case. On July 28, 1999, the hearing officer issued an order rejecting Outlaw's claim, which included the following findings:

1. It is further found that based on the deposition of Dr. Garcia, Dr. Garcia was provided with an erroneous history by the plaintiff as the doctor indicates that the plaintiff was continuously exposed to chemicals involving ammonia, hydrochloric acid, sodium hypochlorite, acetic acid, formaldehyde, and fabric softener.
2. -It is further found that such history is not true and that so called batches of toilet bowl cleaner did not include all of such chemicals and, in fact, if they did the mere combining of such chemicals would cause immediate adverse chemical reaction.
3. It is further found, therefore, that Dr. Garcia's conclusions are of less probative value based on the erroneous history provided to him.
4. It is further found that the toilet bow! cleaner in question contained a less than 10% concentration of hydrochloric acid and that the other ingredients were basically detergents and perfume.
*67 5. It is further found that at concentrations lower than 20% the vapor pressure of hydrochloric acid is so low that virtually none of the acid would exist in vapor form.
6. It is further found that the doctors describe plaintiffs disease in terms of her lower respiratory tract and that if hydrochloric acid were a causative agent one would expect that there. W'ould be demonstrable damage to plaintiff's up-iratory tract, which th der-Siernzgsgggsogatrtiferewislcno sued? 11133; a age evident.
T. It is further found that the plaintiff is a long-time cigarette smoker and that . . she has given different statements re-arding the cessation of her smoking, garcing tO € the credibility of which must be questioned.
8. It is further found that based upon the evidence herein, the plaintiff has failed to demonstrate that she suffered from respiratory problems arising out of and in the course of her employment with the defendant herein.

Record at 7-8. Outlaw appealed the decision to the full Board. On May 15, 2000, the full Board affirmed the decision. Outlaw then appealed to this court, and on January 19, 2001, we issued an opinion reversing and remanding the case to the full Board with instructions for the Board to "review the evidence relevant to Outlaw's exposure to chemicals other than those used to make the toilet bow! cleaner and make specific findings thereon." Outlaw v. Erbrich Prods. Co., 742 N.E.2d 526, 531 (Ind.Ct.App.2001). In addition, we found that the Board's determination involving Dr. Garcia's testimony was not supported by the record and that the Board made no finding as to the significance of Outlaw's smoking history. 2 Id. at 580-31

Upon remand, the Board issued additional findings in support of its original gward. In its additional findings released on June 5, 2001, the Board found:

A.) That the plaintiff worked primarily on the toilet bow! cleaner line.
B.) It is further found that the plaintiff . also worked on the mustard line.
. . C.) It is further found that the evidence of plaintiff's work on the other lines did . ) Ly not include evidence “of quantitative exposure to other chemicals as opposed to . : working on an area of the line where . boxes were made or other operations.
D.) It is further found that evidence of (2 t - ' qualitative exposure to a given chemical TS mt sufficient ‘prcfbatlve evidence t? indicate a quantitative exposure sufficient t . ffeet the bod ien a given crieet on vhe body.
E.) It is further found that Dr. Houser ° . : based his testimony in part on the bowl " , cleaner containing ammonia and other hemical by Tos test chemic S “as evidenceo by ms tesumony at deposition page 36.
f 2. F.) It is further found that the plaintiff had chlf'onlc br'onchms which pre-existed her claim herein.
G.) It is further found that plaintiff continued to smoke as evidenced by her elevated carboxyhemoglobin levels in 1998.
H.) It is further found that plaintiffs condition did not improve when she was no longer exposed to the work environment by virtue of her having left her employment.
I.) It is further found that plaintiffs pulmonary and other lab studies are *68 consistent with heavy cigarette smoking as the causative factor in her present condition and the undersigned finds the same to be true. '

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Outlaw v. Erbrich Products Co., Inc., 758 N.E.2d 65, 2001 Ind. App. LEXIS 1956, 2001 WL 1419029 (Ind. Ct. App. 2001).

758 N.E.2d 65 (Outlaw v. Erbrich Products Co., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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