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Robinson v. State ex rel Wyoming Workers' Safety and Compensation Division

April 2, 2009

RUSSEL R. ROBINSON, APPELLANT (PETITIONER),
v.
STATE OF WYOMING EX REL. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



Appeal from the District Court of Laramie County, The Honorable Peter G. Arnold, Judge.

The opinion of the court was delivered by: Golden, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

[¶1] Russel Robinson worked as a pipe-fitter and welder for 25 years. He developed respiratory problems that he relates to his occupation. He sought medical benefits from the State of Wyoming Workers‟ Compensation Division (the Division). The Division determined Robinson did not suffer from a work-related injury and denied benefits. After a hearing before the Office of Administrative Hearings (the OAH), the OAH agreed with the Division and denied benefits. The district court affirmed the OAH‟s decision denying benefits. We also affirm.

ISSUES

[¶2] Robinson presents three issues for our review:

I. Whether the hearing examiner‟s decision should be reversed because it is not supported by substantial evidence?

II. Whether the hearing examiner‟s decision should be reversed because it lacks critical findings of fact, willfully discounts overwhelming evidence and is internally inconsistent, thus making the decision arbitrary and capricious and otherwise an abuse of discretion?

III. Whether Robinson can be denied benefits when the hearing examiner‟s decision misapplied the appropriate legal burdens of proof, thereby committing errors of law?

FACTS

[¶3] Robinson is approximately 52 years of age and worked as a welder and pipe-fitter for 25 years. In his occupation, he was potentially exposed to welding fumes, grinding debris, toxic material and petroleum products. Robinson did not wear a respirator. He wore a welding shield, which sometimes trapped fumes under the shield. Occasionally, when one was available, Robinson would wear a mask. According to Robinson, however, a mask did little to prevent him from inhaling fumes.

[¶4] On September 3, 2004, Robinson consulted with his general physician, Dr. Laurie Palmer, at a regularly scheduled appointment for a general physical. According to Dr. Palmer‟s notes, Robinson exhibited undue shortness of breath but no cough, wheezing or coughing up blood. She ordered a chest x-ray.

[¶5] According to his report of injury, later that same day Robinson "[i]nhaled steam, coke dust and welding fumes within coker unit at Frontier Refinery causing respiratory distress which continued to escalate." The chest x-ray already ordered by Dr. Palmer was taken September 8, 2004. The radiology report stated the x-ray revealed a "[n]onfocal interstitial prominence." Robinson sought further medical attention from Dr. Palmer on September 10, 2004, complaining he had trouble breathing, he was coughing and his chest hurt. Dr. Palmer took him off work, put him on oxygen and arranged for a chest CT scan and pulmonary function tests (PFTs). The radiology report from the CT scan, taken the same day, was "minor nonfocal peribronchial thickening with no cystic changes, bronchiectasis and no honeycombing is present." The results of the PFTs, conducted September 13, 2004, were normal.

[¶6] Dr. Palmer referred Robinson to Dr. Laura Brausch, a pulmonary physician. Although Dr. Brausch does not specialize in occupational lung disorders, she has been a pulmonary physician for 21 years. Dr. Brausch first examined Robinson on September 14, 2004. From the beginning she suspected welder‟s induced pulmonary disease: "I am concerned that this patient with his wheezing, cough, mucoid sputum production, snoring and abnormal CT scan of the chest may have welder‟s induced pulmonary disease or he may actually have an infection of some sort." She personally read the x-ray and CT scan. She reported his CT scan showed "multiple small nodular type areas with some bronchiectasis." His x-ray showed "the suggestion of infiltrates." She also diagnosed him with hypoxemia, an abnormally low amount of oxygen in the blood. She kept him off work and on oxygen. She gave him an antibiotic to take in case he had an infection and arranged to see him again in a month.

[¶7] Robinson‟s next appointment with Dr. Brausch was on October 20, 2004. Robinson reported feeling a little better and his cough was down. He continued to complain of shortness of breath with exertion. Dr. Brausch continued him on oxygen, with an increased flow rate upon excess activity. Dr. Brausch noted at this time that Robinson "has interstitial lung disease and bronchiectasis on his CT scan. He has hypoxemia, and he is a welder. I am concerned that there is a welding component to this." She arranged for Robinson to undergo a bronchoscopy and transbronchial biopsies.

[¶8] Dr. Brausch conducted the bronchoscopy and transbronchial biopsies on November 5, 2004. The bronchoscopy revealed minimal foamy mucus but no other abnormalities in either lung. Four biopsy specimens were taken from Robinson‟s right lung, which were sent to a lab for testing. Dr. Brausch‟s assessment of Robinson‟s condition at the end of this procedure was "interstitial lung disease and bronchiectasis with some occupational exposure." She reported the etiology for his hypoxemia and lung disease was still to be ascertained.

[¶9] On November 8, 2004, the report from the lab on the biopsy specimens was completed. The diagnosis listed in the report in pertinent part stated there was "no interstitial lung disease identified." Dr. Brausch testified by deposition that, in her mind, this result was not definitive. She explained her biopsies were blind samples. Thus, if there was any clear lung tissue along with diseased tissue she might simply have missed the diseased tissue with her biopsy samples.

[¶10] Robinson saw Dr. Brausch again on December 17, 2004. Dr. Brausch stated she was "following him for a vague interstitial lung disease associated with very significant hypoxemia." Her diagnosis was "interstitial lung disease with hypoxemia and we can only find his job as a welder as the etiologic agent for this." She ordered another CT scan, which was performed on December 20, 2004. The radiology report from this scan noted "minimal subpleural densities particularly in the lower lobes with no discrete nodules, infiltrates, or other abnormality identified." Dr. Brausch again testified this was not conclusive, stating that if Robinson‟s lung disease involved an inflammatory process it could have improved by the time that CT scan was taken.

[¶11] The Division denied Robinson‟s claim on October 25, 2004. In response, Dr. Brausch wrote a letter to the Division dated December 17, 2004. In the letter she stated:

Mr. Robinson is a 51-year-old male who has worked in the welding industry mostly unprotected for 25 years. He has hypoxemia and interstitial lung infiltrates for which we have performed a bronchoscopy. We have a negative bronchoscopy with negative cystology and negative cultures except for a very sensitive bacteria on the wash for which he is receiving antibiotics. This is not the cause of his problem, however. His breathing tests are normal but he has very significant hypoxemia during the day and the night with oxygen saturations dropping to 74% on room air just by getting dressed and his nighttime pulse oximetry shows that 60% of the night is spent with oxygen saturations less than 88%.

The patient for a while was coughing up some sputum but now has stopped that. His main complaint is shortness of breath and hypoxemia.

The CT scans have shown interstitial lung infiltrates. It is felt that his job working as a welder with various different companies is responsible for these interstitial infiltrates as an alveolitis type pattern. It is noted that his cough has improved since he stopped welding and he does feel better although he remains hypoxemic. [¶12] At her deposition Dr. Brausch again confirmed that, although she could not be one hundred percent certain without further, invasive testing, the evidence before her pointed to the probable conclusion that Robinson suffered from work-related lung disease. The basis for her opinion was:

We have a history consistent with it, we have a patient who‟s a nonsmoker in their 40s. The picture is not clouded by smoking-induced lung disease. We have a very strong response to staying away from the work environment. And we have a history that suggests that this was not an acute bronchitis but rather a chronic ...


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