Workers’ Compensation Case Review: Trucker Suffering From Carbon Monoxide Poisoning Ruling

Aug 21, 2014 | WC & Other Laws

Workers’ Compensation Case Review: Trucker Suffering From Carbon Monoxide Poisoning Ruling – Workers’ Compensation Case Review: Shock Ruling: Trucker suffering from Carbon Monoxide Poisoning wins at hearing, only to have appeals Court dismiss the claim.

Workers’ Compensation Case Review: Trucker Suffering From Carbon Monoxide Poisoning Ruling

One of the more frustrating aspects of losing a case in front of an Administrative Law Judge (ALJ) is having to explain to your client that The Industrial Claims Appeals Panel (ICAO) rarely sends the case back for reconsideration and almost never reverses the previous decision and enters a diametrically opposed ruling.

Further, most cases are won based upon who the ALJ believed, and the ICAO and other Appellate Courts typically give great deference to the ALJ’s resolution of who he or she believed.  After all, the ICAO wasn’t there to listen to the testimony and “size” up the witnesses, so it was a great shock to read about a case where an injured worker won at the hearing, and then the ICAO disagreed with the Judge’s decision and entered an order dismissing the case rather than sending it back to the ALJ for further consideration.

Cory Savage, an over-the-road truck driver, began the week suffering from the stomach flu.  While driving, he began having headaches and came to feel increasingly ill.  In Colby, Kansas, he parked the truck and went to bed in the cabin with the truck motor left on as he often did.  When he failed to contact his wife that evening by phone, she called the dispatcher, and they contacted the authorities.  The police found Mr. Savage to be incoherent and largely unresponsive.

The undisputed medical evidence established that the claimant suffered from carbon monoxide toxicity.  However, the employer and insurance carrier hired a mechanical engineer to conduct tests on the truck.  The insurance carrier’s engineer determined that there was no source of carbon monoxide exposure for someone inside the cab for either a brief or extended period.  The truck was relatively new and no other drivers of the same truck reported problems when driving the same truck later.   Although Mr. Savage also had a mechanical engineer inspect the truck, he did not submit a report of testimony from his inspection.

At the hearing, the ALJ determined that Mr. Savage had sustained a compensable work injury.  The ALJ noted,

“The respondent’s inability to recreate conditions that may have caused an exhaust leak does not overcome the claimant’s testimony, [claimant’s wife’s] testimony, and medical records indicating carbon monoxide toxicity as the cause of the claimant’s injury.” The ALJ then determined, “The ALJ finds that based upon the totality of the evidence, the claimant has established that carbon monoxide toxicity is more likely than not the cause of his injury. The claimant was in the course of his employment at the time of the injury, and the injury arose out of his employment as a truck driver.”

On appeal, the Employer and Insurance Carrier argued that it is not enough to show that you are injured at work, that you must also show the injuries “arose out of” the conditions of the employment.

They do not argue the medical records are in error when they show a diagnosis of carbon monoxide poisoning. Their objection is that the claimant has not proven exposure to toxic levels of carbon monoxide can be linked to his truck. Because this is essential to the claimant’s prima facie case, this failure to establish the injury or symptoms disabling the claimant that arose out of the employee’s employment is fatal to the claim. We agree with the respondents’ position.

The ICAO reiterated that it typically must uphold an ALJ’s determination if supported by “substantial” evidence.  In practice, this means that almost any evidence, even a little and greatly outnumbered evidence, will be enough.  However, the ICAO, in this case, second-guessed the ALJ.

“However, the ALJ’s findings pertinent to the [mechanical engineer’s] tests do not appear grounded in contrary evidence. The ALJ observed the testers did not recreate the weather conditions extant on September 20, that a trailer was not attached to the tractor, that the test did not require that the truck be idled for eight hours, and that it was tested by individuals that were qualified as experts in mechanical engineering but not on the effects of carbon monoxide exposure.

Unfortunately, the ALJ made no findings as to why these circumstances were of any significance. Mitchell explained that he did monitor the weather and wind speed during the test to ensure a viable comparison of weather conditions, but there was no account available of any special weather circumstances. He explained that because the trailer had no motors itself, such as a refrigeration unit, its absence was of no consequence. Mitchell testified that once the engine was warmed up, the measurement showing no increasing accumulation in the tractor of carbon monoxide as the engine ran for three hours established there would be no reason to believe it would accumulate over eight hours either.

The ALJ had also found the claimant began suffering symptoms of headaches, nausea, and fatigue during the week prior to September 20, when no idling of the truck was involved. The evidence Mitchell was presenting was directed at the issue of whether the tractor leaked carbon monoxide into the cab. There is no explanation as to why the ALJ felt the report was weakened due to Mitchell’s lack of medical credentials.

The ICAO continued:

The confounding difficulty with the record in this claim occurs because there is significant evidence to support a finding the claimant suffered from symptoms of CO toxicity, but there is a mystery as to how that exposure came about. There is considerable evidence represented by the September 20 investigation of Mitchell and Engel showing the truck driven by the claimant featured no leak of carbon monoxide. There is a paucity of evidence to the contrary. … However, the mere fact that a claimant develops an injury during the course of his employment does not relieve him of the duty to establish the injury arose out of that employment.

The ICAO typically remands these discussions back to the ALJ to consider whether the claimant has established a link between the job and the injury.  Instead, the ICAO dismissed the claim.

Due to the absence of evidence to show a direct tie to the work itself or evidence to show that, but for the requirement of work, an employee in similar conditions would also suffer these symptoms, the claimant’s injury falls into the category of personal risk due to its idiopathic nature. That category of injury is not compensable. The claimant’s failure to present substantial evidence to directly tie his symptoms of carbon monoxide exposure to the work itself must result in a denial of his claim.

Accordingly, we conclude the ALJ’s order of compensability must be set aside and the claim dismissed.

Given the nature of the ruling, an appeal to the Colorado Court of Appeals is likely.

We’re here to help. – Workers’ Compensation Case Review: Trucker Suffering From Carbon Monoxide Poisoning Ruling

Related Topic: Are You Covered Under Workers’ Compensation When Injured Off-Premises?

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Cite:  Savage v. First Fleet, Inc, WC No. 4-929-714, August 4, 2014

Tags:  Compensability, Appeals, Arise out of