FRIEDLANDER, Judge.
Mark May appeals the decision of the Full Worker's Compensation Board (the Board) denying his claim for benefits. May challenges a number of the Board's findings of fact and its ultimate conclusion that May failed to establish his sphenoid sinus cancer arose out of his employment with Ashley F. Ward, Inc. (Ashley Ward).
We reverse and remand.
May was employed at Ashley Ward (a machine shop with about thirty employees) from approximately 1997 to February 2005. He worked in various capacities in the Acme-Gridley screw machine area, ultimately becoming a working supervisor his last three years with the company.
Throughout his time at Ashley Ward, May's job duties included using grinders for about an hour and a half per day to sharpen the carbide tools from the screw machines. The tools were made of various heavy metals
Employees at Ashley Ward were not mandated to wear any type of dust or ventilation masks while grinding. Further, according to Tirota, "the amount of dust or fines that are apparent to the individual is just not noticeable." Id., at 131. Although Tirota was not aware of any air-quality studies over the past two decades, he indicated generally that OSHA had visited the facility in the past and had not taken issue with the grinding area.
In the fall of 2004, May began having headaches and coughing up blood. Despite prior efforts, his ailment was not diagnosed until he was admitted to the ER on February 10, 2005 with a severe headache. On that date, Michael Agostino, M.D.,
Following the biopsy, May underwent chemotherapy and radiation treatment. Although treatment resolved the tumor, May suffered long-term side effects rendering him totally disabled. He had additional sinus surgery at the University of Pittsburg Medical Center in August 2006. May will continue to require future medical treatment to monitor for reoccurrence of cancer and to deal with the permanent side effects from his prior surgeries, chemotherapy, and radiation.
In October 2005, May filed his application for adjustment of claim. The matter was eventually submitted by written stipulation and briefs to a single hearing member of the Board. On April 16, 2010, the hearing member issued findings and conclusions and denied May's application for adjustment of claim. Specifically, the hearing member concluded, "Plaintiff has not demonstrated that his sphenoid sinus cancer was the result of an accident which arose out of and occurred in the course of his employment with Defendant". Appendix at 13. Thereafter, May filed for review by the Full Board. The Board held a hearing on August 30, 2010. The Board upheld the decision of the single hearing member modifying the award as follows:
Id., at 8 (modification emphasized). May now appeals.
When reviewing a decision of the Board, we do not reweigh the evidence or judge the credibility of witnesses but only determine whether substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board's findings and conclusion. Bertoch v. NBD Corp., 813 N.E.2d 1159 (Ind.2004). "Only if the evidence is of a character that reasonable [people] would be compelled to reach a conclusion contrary to the decision of the Board will it be overturned." Outlaw v. Erbrich Prods. Co., Inc., 777 N.E.2d 14, 26 (Ind.Ct.App.2002) (quoting Perez v. U.S. Steel Corp., 428 N.E.2d 212, 216 (Ind. 1981)), trans. denied.
A claimant bears the burden to prove a right to compensation. Triplett v. USX Corp., 893 N.E.2d 1107 (Ind.Ct.App. 2008), trans. denied. The Board, as trier of fact, has the obligation to issue findings that reveal its analysis of the evidence and are specific enough to permit intelligent review of its decision. Id., When it renders a negative judgment, as in the instant case, the Board's decision need only be supported by findings related to the issue of proof, not the factual question presented by the particular case. In other words, "[t]he Board is not obligated to make findings demonstrating that a claimant is not entitled to benefits; rather, the Board need only determine that the claimant has failed to prove entitlement to benefits." Id., at 1116.
The negative award in this case resulted from the Board's determination that May failed to prove causation (i.e., that his cancer developed as a result of certain exposure in the workplace). May's claim was submitted for an alleged occupational disease, which is defined in Ind.Code Ann. § 22-3-7-10 (West, Westlaw through 2011 Pub. Laws approved & effective through 5/10/2011) as follows:
Ashley Ward does not dispute that the only expert witness in the case opined that May's sinus cancer resulted from his exposure to energized heavy metal during the grinding process. Ashley Ward claims, as it did below, that the doctor's opinion is based on pure speculation and conjecture, not objective evidence, that May inhaled dust generated during the process of tool sharpening. Ashley Ward asserts, "May could not see any airborne dust particles and had no evidence to prove that he inhaled activated metal dust particles through his nose during the course of his employment with Ashley Ward." Appellee's Brief at 11.
Along these lines, the Board made the following findings:
Appendix at 11-12.
In light of the record before us, we find that it strains reason to conclude that May failed to establish he was exposed to activated heavy metals in the workplace. This is true regardless of the fact that the grinders at Ashley Ward were at some point equipped with a vacuum system and separate exhaust fans.
The Material Safety Data Sheets (MSDSs) for the various tools being sharpened indicate the danger of heavy metal exposure in grinding areas like this. For example, the MSDS from Empire Tool Company for its Tungsten Carbide Tipped cutting tools warns that although the products are not hazardous in the form sold, "[s]ubsequent operations such as ... grinding may cause some of the ingredients to change to a form which could effect [sic] exposed workers." Id., at 156. With respect to certain ingredients, the MSDS notes that "CHROMIUM has a high pulmonary toxicity, is an experimental cause of neoplasm(s), and is a carcinogen", id. at 158, and "NICKLE (sic) is a potential carcinogen and can cause neoplasm(s) via inhalation".
In sum, while the amount of exposure might be up for debate, it cannot be reasonably disputed that May was exposed to activated heavy metals on a consistent basis while working at Ashley Ward. Moreover, the record clearly reveals that during the first several years of his employment, May was exposed to substantially more heavy metal dust because the old grinders did not have separate ventilation or vacuums.
May's treating physician, Dr. Agostino, presented expert testimony linking May's workplace exposure to his sphenoid sinus cancer, an uncommon cancer. Dr. Agostino testified that as a head and neck surgeon, he has training and experience in treating, diagnosing, and establishing a cause with respect to various forms of head and neck cancer. The doctor explained that sinus cancers such as May's are not typically associated with smoke or secondhand smoke and that "heavy metal exposure is one of the reasons that patients develop sinus cancers." Id., at 253. Dr. Agostino indicated that it was his practice when diagnosing and treating sinus cancers to inquire about the patient's vocational, medical, and family history to determine possible causes of the cancer. According to Dr. Agostino, he asked patients if they smoked, whether they had received radiation for acne or tonsil disease when they were children, or whether "they had any other exposure to known carcinogens" such as "cutting a lot of wood", which exposes those in the timber industry to certain oils in the wood that can cause cancer. Id., at 265. Dr. Agostino indicated that he questioned May on these matters. Dr. Agostino emphasized, "one of the first questions I ask when someone has a cancer in their sphenoid sinuses is `Are you ever exposed to any heavy metals?'" Id., at 265. When he asked May this question, May responded that he "grind[s] with cobalt all the time." Id., The doctor then requested to see the various MSDSs from Ashley Ward to determine the types of heavy metals to which May had been exposed.
In addition to May's cancer being consistent with exposure to activated heavy metals at the workplace, Dr. Agostino explained how May's anatomy may have made him more susceptible to cancer developing in this way. Particularly,
Id., at 266.
Following the biopsy, the pathologist was initially unable to determine the origin of the tumor, describing it as an undifferentiated carcinoma. A number of additional tests were performed which ruled out several types of cancer and indicated that the tumor was a surface cell type, indicating that the cancer originated in May's sinus and did not spread through the blood or other areas of his body.
When asked whether the amount of dust in the workplace would affect his analysis on the cause of May's tumor, Dr. Agostino testified:
Appendix at 267-68.
Finally, the doctor was asked during the deposition to address the fact that no other employee of Ashley Ward had developed similar cancer. He explained, "given the rarity of this type of tumor in an individual, one would likely suspect that the incidents of these types of tumors are gonna be low." Id., at 273. He noted that "the whole incident of maxillary sinus cancer is pretty rare, probably maybe one in a 100,000 or more." Id., at 274. When an individual is exposed to environmental factors in the workplace (such as heavy metal or timbering), the likelihood of such cancer, according to Dr. Agostino, is increased to "one in several thousand to 10,000 probably." Id., Thus, the fact that none of Ashley Ward's other thirty some employees have been similarly affected means nothing. Moreover, we can find no support in the record for Ashley Ward's broad, general assertion that "May's condition is unique within the machine shop industry". Appellant's Brief at 13.
In sum, Dr. Agostino's expert medical opinion was based on his training and experience in the area of head and neck cancers, his treatment of May from the time of diagnosis, May's employment, and the information obtained from the
In light of the record before us, we conclude that the evidence is undisputed and leads inescapably to a result contrary to the Board's conclusion that May failed in his burden of establishing causation. May adequately established that his cancer was the result of an occupational disease. Accordingly, we reverse the decision of the Board and remand for further proceedings consistent with this opinion.
Reversed and remanded.
BAILEY, J., and BROWN, J., concur.
Appellant, Mark May, by counsel, filed an Appellant's Motion to Publish Memorandum Decision.
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:
1. The Appellant's Motion To Publish Memorandum Decision is GRANTED and this Court's opinion heretofore handed down in this cause on June 30, 2011, marked Memorandum Decision, Not for Publication is now ORDERED PUBLISHED.
FRIEDLANDER, BAILEY, BROWN, JJ., concur.
The instant case is distinguishable from Outlaw v. Erbrich Prods. Co., Inc., 777 N.E.2d 14, in which we found that the Board was free to reject the expert's opinion because it was so lacking in probative value as to be insufficient to prove the existence of a causal relationship. Id., at 29 ("an expert's opinion is insufficient to establish causation when it is based only upon a temporal relationship between an event and a subsequent medical condition"). In Outlaw, the chemicals at issue were unknown, the employer directly refuted the expert's testimony with its own expert, and the expert had not sufficiently accounted for the possibility of alternative causes. Because the expert's opinion was based primarily on the existence of a temporal relationship, we found that it amounted to subjective belief and unsupported speculation. Outlaw v. Erbrich Prods. Co., Inc., 777 N.E.2d 14. Such is not the case here.