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Mary H. Sheridan, Appellee
vs.
Catering Management Inc. doing business as 1st Avenue Bar & Grill and Milwaukee insurance Company, Appellants.
 
Case:
No. A-96-399.
 
Location:
NEBRASKA COURT OF APPEALS
 
Date:
January 7, 1997, Filed
 
Attorneys:
Walter E. Zink II of Baylor Evnen Curtiss Grimit & Witt for appellants.
Darrell K. Stock of Snyder & Stock for appellee.
 
Court:
MILLER-LERMAN, Chief Justice and HANNON and IRWIN Justices.
 
Author:
The Hon. Justice Hannon
 

Catering Management Inc. doing business as 1st Avenue Bar & Grill and Milwaukee Insurance Company appeal from the judgment of the Workers' Compensation Court review panel which affirmed the trial Court's finding that Mary H. Sheridan suffered brain damage as a result of exposure to pesticides arising out of and in the course of her employment with Catering Management. For the reasons set forth below we affirm.

FACTUAL BACKGROUND

Sheridan age 33 at trial worked as a bartender at the 1st Avenue Bar & Grill beginning in June 1993. As part of her duties she normally staffed the bar by herself and ran the cash register. She also served as a cocktail waitress one night a week.

Sheridan worked the night of Saturday September 18 1993 and closed the bar at approximately 1 a.m. on Sunday September 19. After the bar was closed Larry Rezac an exterminator came to spray the premises for cockroaches which he did on a monthly basis. There is evidence that Rezac had been coming more frequently in the months prior to September 19. Rezac applied his normal base spray application of a chemical called Conquer in the cracks and crevices while Sheridan and other employees remained in the bar. After everyone left Rezac power-fogged the bar with a chemical called Prentox a mixture of pyronyl oil and Conquer. Rezac also applied a powder chemical called Drione behind the walls. The chemicals consisted of esfenvalerate pyrethrins and synergists. Rezac finished at 4:30 a.m. and instructed all humans to remain away for 4 hours.

Dianna Kindler who worked in the kitchen of the bar arrived at 8:20 a.m. on September 19 and worked until 10:30 a.m. preparing food. Kindler testified that she did not notice any fog did not have difficulty breathing did not notice any unusual sensations and did not experience any physical problems afterward.

Sheridan returned at noon to clean the bar before opening it to the public. She testified that the bar was "really foggy" and "smelled awful." Using towels and a bucket of water she washed everything in the bar that had been exposed to the chemicals. Sheridan whose hands and arms were uncovered continually dunked the towels into the water and wrung them out. She cleaned for approximately 2 1/2 hours opened the bar and then worked until midnight. She testified that while working she experienced headaches burning in her eyes and throat ringing in her ears body aches and a feeling of nauseousness. According to her testimony the following day her muscles felt paralyzed and extremely sore she could hardly talk she was experiencing seizures and she was having problems with blurry vision. Her husband Steven took her to Lincoln General Hospital.

Since September 19 Sheridan has experienced problems with her memory vision patience and temper which problems have prevented her from working and have made it difficult for her to help around the house and with her children. She testified that she experiences hundreds of "shocks through [her] body" per day and that she itches herself until she bleeds. Her husband testified that she has temper "explosions." She brought suit against Catering Management on July 15 1994 seeking workers' compensation benefits. Trial was held in March 1995 at which time a considerable amount of expert testimony was presented the significant portion of which we summarize below.

Dr. Carol Angle a physician saw Sheridan first on September 29 1993 and then again on April 6 1994. Dr. Angle testified that Sheridan suffered from persistent cognitive and emotional dysfunction which Dr. Angle described as organic brain damage. Dr. Angle opined with a reasonable degree of medical certainty that Sheridan's organic brain damage was due to toxic encephalopathy (organic brain disease) from acute poisoning by esfenvalerate (a synthetic pyrethroid and isomer of fenvalerate) other pyrethrins (natural products used as insecticides) their synergists and petroleum distillates on September 19 1993. According to Dr. Angle's calculations Sheridan could have absorbed as much as 1 percent of the total amount of the chemicals applied to the bar. Dr. Angle also testified that absorption of as little as .1 percent would have been sufficient to produce symptomatic poisoning in Sheridan.

Dr. Angle also testified concerning the nature of the chemicals to which Sheridan was exposed. Dr. Angle admitted that while there were limited clinical reports of fenvalerate poisoning where brain damage symptoms lasted up to 1 year there were no human reports of esfenvalerate poisoning. However Dr. Angle testified that esfenvalerate had produced neurologic symptoms of staggering gait tremors and altered response to stimuli in rats and is three times as toxic as fenvalerate. Dr. Angle also testified that despite the fact that the pertinent literature suggested that those exposed to fenvalerate would be completely free of symptoms within 1 to 2 months and certainly by 1 year it was Dr. Angle's opinion that Sheridan had persistent symptoms and deficits and persistent evidence of organic brain damage. Dr. Angle added that it was certainly possible that pyrethrins and pyrethroids could cause neurologic injury.

Thomas Korn Ph.D. a neuropsychologist and rehabilitation consultant with specialized training in the assessment and intervention of people with various kinds of brain injuries examined Sheridan on October 5 and November 4 1993 and January 13 and June 2 1994. Korn opined with a reasonable degree of medical certainty that she sustained an encephalopathy as a consequence of her exposure to chemical pesticides which resulted in deficits in her brain functioning. Korn testified that her emotional situation depression anxiety and "catastrophic responding" were consequential to her encephalopathy. Korn further testified that the deficits were chronic or permanent in nature and that resultingly she was not a candidate for continuous competitive or even part-time employment.

Dr. Richard Andrews a neurologist who had treated other individuals with a history of toxic exposure examined Sheridan on December 20 1993. Dr. Andrews testified that based on "the best of my ability to tell and to the best degree of medical certainty that I can come to " she suffered a brain injury which was directly related to a toxic exposure that she suffered when she was exposed to pesticides and rodenticides in the course of her job. Dr. Andrews concluded that her injury was permanent and that she would be unable to sustain competitive employment.

Dr. Sharon Hammer a psychiatrist began seeing Sheridan on January 25 1994. Dr. Hammer also opined based on a reasonable degree of medical certainty that Sheridan had an organic brain disorder or an organic mood disorder and would continue exhibiting problems with memory dysfunction psychiatric sequela (modulation of emotional responses) depression and anxiety. Dr. Hammer testified that Sheridan's symptoms would be permanent.

Bart Hultine a vocational specialist and rehabilitation economist concluded in his report that Sheridan's loss of earning capacity due to her exposure to pesticides was 100 percent.

Dr. Eli Chesen a psychiatrist examined and tested Sheridan on January 25 1995. Dr. Chesen opined with a reasonable degree of medical certainty that she showed no evidence of intellectual or memory dysfunction no evidence of psychiatric or neurological injury no evidence of organic brain damage or encephalopathy and no evidence of any vocational limitations or restrictions. Dr. Chesen further concluded that she dramatically exaggerated her memory difficulties and vision problems and was "actively manipulating her answers to questions so as to show that her memory was malfunctioning . . . ." Dr. Chesen testified: "It's my belief that for reasons of both primary and secondary gain that she was attempting to look damaged to me as an examiner."

Dr. Joel Cotton a neurologist examined Sheridan on February 2 1995 and concluded that she had not suffered any physical injury to her nervous system or to her brain caused by a toxic exposure. Dr. Cotton further concluded that she was capable of performing all usual customary activity without restrictions.

Dr. Ronald Gots of the National Medical Advisory Service Inc. in an August 30 1994 report based on a review of Sheridan's medical records concluded:

It is toxicologically incorrect to assert that Ms. Sheridan's problems are related to pesticide toxicity. First of all the agents used have very minimal toxicity. The primary agent Prentox consists primarily of a pyrethrin a class of pesticides derived from chrysanthemums. The only reported cases of poisoning by this (other than children drinking it) occurred in Chinese workers who were directly and heavily sprayed. All recovered. Millions of workers and homeowners are exposed directly to applications of these pesticides with no adverse effects. Furthermore there is no way given the alleged exposure for Ms. Sheridan to have had any systemic exposure. For toxicity to occur a dose must enter the body. This can theoretically occur by drinking the chemical or inhaling a concentrated airborne mixture. Dried residue at the bar could not have entered her body.

Next Ms. Sheridan had signs of anxiety but no other physical findings or laboratory findings in the days after the alleged event. She clearly was not poisoned.

Lastly the recent diagnosis of toxic encephalopathy is readily explained by her alcoholism the most common cause of toxic encephalopathy.

Joel Coats Ph.D. a professor of entomology and toxicology at Iowa State University reported that Sheridan tested negative for the presence of esfenvalerate. Coats who had no opinion as to her susceptibility to chemicals additionally reported that he calculated her exposure to the chemicals to be 10 times less than Dr. Angle's calculation.

Coats explained that while fenvalerate has been used for approximately 15 years as a pesticide esfenvalerate is a relatively new chemical. Esfenvalerate and natural pyrethrins are known to affect sodium channels in the nerve thus creating ionic imbalance. Coats testified that the relevant literature shows that the most common symptoms in humans from exposure to pyrethrins and pyrethroids are itching burning and tingling sensations in exposed features of the body and that the normal length of symptoms could last up to a few days. Coats further testified that based primarily upon medical literature there was no evidence that esfenvalerate or natural pyrethrins or other synthetic pyrethroids caused permanent brain damage or permanent ill effects in humans. Coats however admitted that he did not distinguish between esfenvalerate and fenvalerate in forming his opinions despite the fact that esfenvalerate was three times more toxic. Coats also admitted that it was possible that there was no literature concerning esfenvalerate and its effect on humans that all the effects of esfenvalerate on humans were not known to science that science could not completely predict its effects and that he could not guarantee that there were no permanent effects from such an exposure. Coats testified that a large enough dose of esfenvalerate could be lethal.

The trial Court found that on September 19 1993 Sheridan suffered brain damage as a result of exposure to pesticides arising out of and in the course of her employment. The trial Court further found that she was temporarily totally disabled from September 20 1993 to and including June 2 1994 and thereafter became permanently totally disabled. The review panel affirmed the judgment.

ASSIGNMENTS OF ERROR

Catering Management and Milwaukee Insurance assign five errors; however not all of them were discussed in their brief. We do not address those errors assigned but not discussed. Scott v. Pepsi Cola Co. 249 Neb. 60 541 N.W.2d 49 (1995). Catering Management and Milwaukee Insurance's entire argument is that the trial Court erred in admitting expert testimony specifically the deposition testimony and opinions of Dr. Angle on the issue of causation without a showing that the testimony was generally accepted within the relevant scientific community.

STANDARD OF REVIEW

[1] Pursuant to Neb. Rev. Stat. SEC. 48-185 (Reissue 1993) an appellate court may modify reverse or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment order or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order judgment or award; or (4) the findings of fact by the compensation court do not support the order or award. Kerkman v. Weidner Williams Roofing Co. 250 Neb. 70 547 N.W.2d 152 (1996); Cords v. City of Lincoln 249 Neb. 748 545 N.W.2d 112 (1996). In determining whether to affirm modify reverse or set aside the judgment of the Workers' Compensation Court review panel a higher appellate court reviews the findings of the single Court who conducted the original hearing. Haney v. Aaron Ferer & Sons 3 Neb. App. 14 521 N.W.2d 77 (1994).

[2] Findings of fact made by the Workers' Compensation Court after review have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous. Kerkman v. Weidner Williams Roofing Co. supra; Cords v. City of Lincoln supra. In testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court the evidence must be considered in the light most favorable to the successful party. Kerkman v. Weidner Williams Roofing Co. supra; Cords v. City of Lincoln supra. As the trier of fact the Workers' Compensation Court is the sole Court of the credibility of the witnesses and the weight to be given their testimony. Kerkman v. Weidner Williams Roofing Co. supra.

[3] An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Berggren v. Grand Island Accessories 249 Neb. 789 545 N.W.2d 727 (1996).

ANALYSIS

[4 5] To recover compensation benefits an injured worker is required to prove by competent medical testimony a causal connection "between the alleged injury the employment and the disability." Schlup v. Auburn Needleworks 239 Neb. 854 863 479 N.W.2d 440 447 (1992). The injured worker must show by a preponderance of the evidence that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act. Id. Unless its nature and effect are plainly apparent an injury is a subjective condition requiring an expert opinion to establish a causal relationship between the incident and the injury or disability. Bernhardt v. County of Scotts Bluff 240 Neb. 423 482 N.W.2d 262 (1992).

Catering Management and Milwaukee Insurance claim that only two witnesses Coats and Dr. Angle possessed sufficient knowledge of toxicology to render an opinion on causation. Catering Management and Milwaukee Insurance argue that because Dr. Angle failed to demonstrate that the chemicals could have caused Sheridan's injury (and Coats dismissed the possibility of causation) Dr. Angle's opinions establishing causation should not have been admitted. As the main thrust of its argument Catering Management and Milwaukee Insurance ask this court to apply the "general acceptance" test for the admissibility of novel scientific evidence as set forth in Frye v. United States 54 App. D.C. 46 293 F. 1013 1014 (D.C. Cir. 1923) (lie detector test ruled inadmissible).

Neb. Evid. R. 702 Neb. Rev. Stat. SEC. 27-702 (Reissue 1995) provides:

If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise.

[6] Nebraska has adopted the Frye test and not the arguably more flexible standard in Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 113 S. Ct. 2786 125 L. Ed. 2d 469 (1993). See Anderson/Couvillon v. Nebraska Dept. of Soc. Servs. 248 Neb. 651 538 N.W.2d 732 (1995); State v. Carter 246 Neb. 953 524 N.W.2d 763 (1994); State v. Dean 246 Neb. 869 523 N.W.2d 681 (1994) cert. denied __ U.S. __ 115 S. Ct. 2279 132 L. Ed. 2d 282 (1995). Under the test or standard enunciated in Frye reliability for admissibility of an expert's testimony including an opinion which is based on a scientific principle or is based on a technique or process which utilizes or applies a scientific principle depends on general acceptance of the principle technique or process in the relevant scientific community. Anderson/Couvillon v. Nebraska Dept. of Soc. Servs. supra; State v. Dean supra; State v. Reynolds 235 Neb. 662 457 N.W.2d 405 (1990); State v. Tlamka 1 Neb. App. 612 511 N.W.2d 135 (1993) affirmed 244 Neb. 670 508 N.W.2d 846. Frye is the appropriate test to use in determining the admissibility of novel scientific evidence. State v. Carter supra. One benefit of Frye is that it protects courts from unproven and potentially erroneous scientific theories until those theories have been appropriately subjected to scrutiny by experts from the relevant scientific community. State v. Carter supra.

"In effect Frye envisions an evolutionary process leading to the admissibility of scientific evidence. A novel technique must pass through an 'experimental' stage in which it is scrutinized by the scientific community. Only after the technique has been tested successfully in this stage and has passed into the 'demonstrable' stage will it receive judicial recognition." State v. Carter 246 Neb. at 973-74 524 N.W.2d at 778 (quoting Paul C. Giannelli The Admissibility of Novel Scientific Evidence: Frye v. United States a Half-Century Later 80 Colum. L. Rev. 1197 (1980)).

The Frye test has been applied in Nebraska to lost enjoyment of life calculations DNA statistical probability calculations laser bullet-trajectory analysis and psychological testing methodology. See Anderson/Couvillon v. Nebraska Dept. of Soc. Servs. supra; State v. Carter supra; State v. Dean supra; State v. Houser 241 Neb. 525 490 N.W.2d 168 (1992); State v. Tlamka supra (methodology used by doctor to arrive at his opinion did not have evidential underpinning of acceptance in relevant scientific community as to who has and has not previously engaged in prior acts of sexual abuse upon child). See also State v. Patterson 213 Neb. 686 331 N.W.2d 500 (1983) (quoting Arizona court's use of Frye test with regard to hypnosis); Boeche v. State 151 Neb. 368 37 N.W.2d 593 (1949) (where court cited Frye in holding that use of polygraph had not yet received general scientific acceptance).

[7 8] When applied to the admission of particular expert testimony the Frye standard of "general acceptance within a particular scientific field" has been employed as a special foundational requirement for novel or new scientific devices or processes involving the evaluation of physical evidence such as lie detectors experimental systems of blood typing voiceprints identification of human bite marks microscopic analysis of gun residue and human leukocyte antigen testing. City of Aurora v. Vaughn 824 P.2d 825 826 (Colo. App. 1991). The Vaughn court held that the Frye test is inapplicable where there is no claim that a novel or newly developed scientific device or process is utilized by a physician in the test under consideration.

While the Frye test has never specifically been applied in a workers' compensation case in Nebraska it has been addressed by workers' compensation courts in other states including recently in Armstrong v. City of Wichita 21 Kan. App. 2d 750 907 P.2d 923 (1995). In Armstrong the claimant-employee was similarly exposed to toxic chemicals and one of the claimant's physicians diagnosed the claimant with multiple chemical sensitivities. The administrative law Court found the requisite causation and allowed the claimant to recover. The employer argued that the physician's opinion treatment and diagnosis did not pass the Daubert test and was therefore inadmissible.

[9] The Armstrong court held that in a workers' compensation case involving occupational disease a claimant is not required to prove that the treating physician's opinions diagnosis or treatment satisfies either the Daubert or the Frye test. Court reasoned: A claimant's burden of proof in a workers compensation case is to prove that it is more probably true than not true that he or she suffers from a disabling physical condition which is the result of his or her work. To require a claimant to also prove that a diagnosis is one universally recognized by and agreed upon in the medical community is above and beyond the scope and nature of the Workers Compensation Act. To apply the Daubert or the Frye standard to a workers compensation case would be to apply technical rules of procedure to which neither the ALJ nor the Board are subject. It also would require us to apply our rules of evidence to those proceedings and those rules of evidence have been held specifically not applicable. Armstrong v. City of Wichita 21 Kan. App. 2d at 758 907 P.2d at 929. We agree. We do however note that in Kansas medical testimony is not essential to the establishment of the existence nature and extent of the disability of an injured worker.

[10] In Fuyat v. Los Alamos Nat. Laboratory 112 N.M. 102 811 P.2d 1313 (N.M. App. 1991) the claimant employee was exposed to aqua regia fumes. At trial experts were split as to whether the claimant's symptoms were triggered by exposure to chemicals at work. The employer argued that expert opinions establishing causation were inadmissible because they were based upon novel scientific techniques that had not gained general acceptance. The Fuyat court held that a licensed physician who had examined and treated the claimant and who had past experience with patients suffering from the same types of symptoms was qualified to give an expert opinion about the claimant's symptoms and that such testimony did not have to meet the requirements of Frye.

We recognize that the Frye test has been applied to workers' compensation cases dealing with serum blood alcohol tests see Domino's Pizza v. Gibson 668 So. 2d 593 (Fla. 1996) and infrared thermography see K-Mart Corp. v. Morrison 609 N.E.2d 17 (Ind. App. 1993). See also Garcia v. Borden Inc. 115 N.M. 486 853 P.2d 737 (N.M. App. 1993) (dissent not advocating Frye test or suggesting that court should be bound by majority view of medical profession or of any other scientific group on issue of causation).

[11 12] In Nebraska the Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence and admission of evidence is within the discretion of the Workers' Compensation Court whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Paulsen v. State 249 Neb. 112 541 N.W.2d 636 (1996). Regarding the use of evidence based on the opinion of a medical expert the witness must qualify as an expert the witness' testimony must assist the trier of fact to understand the evidence or determine a fact in issue the witness must have a factual basis for the opinion and the testimony must be relevant. Id.

[13] Dr. Angle a licensed physician had not only examined and treated Sheridan but was familiar with the symptoms of and literature on such chemical exposures. Dr. Angle testified based on her knowledge of the relevant scientific literature that (1) symptoms from fenvalerate poisoning could potentially last up to 1 year; (2) esfenvalerate has produced neurologic symptoms in rats of staggering gait tremors and altered response to stimuli; and (3) esfenvalerate is three times as toxic as fenvalerate. Based on these factors Dr. Angle opined with a reasonable degree of medical certainty that Sheridan's exposure to the toxic chemicals caused her organic brain injury. We find nothing novel in such a diagnosis. Furthermore we agree with Court in Armstrong v. City of Wichita 21 Kan. App. 2d 750 907 P.2d 923 (1995) that a claimant is not required to prove that a diagnosis is universally recognized by and agreed upon in the medical community. Such a requirement would impose an onerous burden upon the claimant in the context of workers' compensation litigation. We cannot say that the trial court abused its discretion in admitting the testimony and opinions of Dr. Angle. Dr. Angl was qualified to give an opinion as to the causation of Sheridan's symptoms.

[14 15] Even without Dr. Angle's testimony there is sufficient unchallenged evidence viewed in the light most favorable to Sheridan to support the trial Court's finding that she proved by a preponderance of the evidence causation between her employment and her injury or disability. Dr. Andrews Dr. Hammer and Korn all testified with a reasonable degree of medical certainty that Sheridan sustained a brain injury as a consequence of her exposure to the chemicals on September 19 1993. We acknowledge the conflicting expert testimony to the effect that Sheridan did not suffer any physical injury and was fabricating her symptoms. However under Berggren v. Grand Island Accessories 249 Neb. 789 545 N.W.2d 727 (1996) the compensation court is free to believe whichever experts it chooses. Triers of fact including the Workers' Compensation Court are not required to take the opinions of expert witnesses as binding Aken v. Nebraska Methodist Hosp. 245 Neb. 161 511 N.W.2d 762 (1994) and may as may any other trier of fact either accept or reject such opinions Brandt v. Leon Plastics Inc. 240 Neb. 517 483 N.W.2d 523 (1992). It is for the Workers' Compensation Court to determine which if any of the expert witnesses to believe. Berggren v. Grand Island Accessories supra. Having viewed the evidence in the light most favorable to Sheridan we cannot say that the trial Court was clearly wrong in finding that she met her burden of proof on the issue of causation.

CONCLUSION

The judgment of the Workers' Compensation Court trial Court as affirmed by the Workers' Compensation Court review panel is affirmed. We award Sheridan $1 750 in Counsel fees.

AFFIRMED.