Chriestenson v. Russell Stover Candies

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No. 104,412

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DEBORAH CHRIESTENSON,
Appellee,

v.

RUSSELL STOVER CANDIES and HARTFORD ACCIDENT and INDEMNITY,
Appellants.


SYLLABUS BY THE COURT


1.
Whether an injury is compensable under the Kansas Workers Compensation Act,
K.S.A. 44-501 et seq., is a question over which an appellate court exercises unlimited
review.

2.
Generally, an employee who suffers personal injury by accident arising out of and
in the course of employment is entitled to workers compensation.

3.
The phrase "arising out of" implies a causal connection between an injury, disease,
or condition and the employment.

4.
The claimant has the burden to show that an injury, disease, or condition arose out
of the employment.

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5.
Where the permanency of an injury, disease, or condition does not result from the
employment, the employer is not liable for the permanent disability.

6.
An employee is not entitled to recover workers compensation for a preexisting
condition, except to the extent that the employment causes increased disability.

7.
Proof of the causal relationship between an injury, disease, or condition and a
claimant's employment must be based on substantial evidence and not mere speculation.

8.
Opinion testimony is not substantial evidence of causation if it is based on nothing
more than post hoc, ergo propter hoc logic: the symptoms follow the exposure;
therefore, they must be due to it.

9.
Before the cause of chemical sensitivity can be established, the actual quantity or
type of contamination to which a person has been exposed must be demonstrated. The
ability to diagnose a medical condition is not the same as the ability to deduce, delineate,
and describe, in a scientifically reliable manner, the causes of such a medical condition.

Appeal from Workers Compensation Board. Opinion filed September 9, 2011. Reversed and
remanded with directions.

Brenden W. Webb, of Hoffmeister, Doherty & Webb LLC, of Overland Park, for appellants.

William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellee.

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Before HILL, P.J., GREEN and BRUNS, JJ.

BRUNS, J.: Deborah Chriestenson was awarded permanent and total disability
benefits in a 3-2 decision issued by the Workers Compensation Board (Board) more than
11 years after her employment at Russell Stover Candies ended. Although it is undisputed
that Chriestenson's preexisting chemical sensitivity may have been temporarily
exacerbated while she was employed by Russell Stover in 1997 and 1998, there is no
substantial competent evidence in the record that Chriestenson suffered a permanent and
total disability caused by her work at Russell Stover. Thus, we reverse and remand to the
Board with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Chriestenson, who is now 57 years old, worked at Russell Stover in Iola from
April 1997 to December 1998. More than 11 years later, the Board found that
Chriestenson was entitled to permanent and total disability benefits. Specifically, the
majority of the Board found that exposure to multiple chemicals during the 20-month
period Chriestenson worked at Russell Stover caused her medical condition.

Chriestenson was first diagnosed with multiple chemical sensitivity approximately
11 years before she went to work at Russell Stover. According to her medical records,
Chriestenson began having chronic headaches in 1986, shortly after new carpet was
installed in her home. Since that time, Chriestenson has continued to have periodic
problems with headaches.

In the early 1990's, several years prior to going to work at Russell Stover,
Chriestenson was treated for seizures and for tremors in her right arm. She was also
diagnosed with epilepsy and neurotoxic ataxia, which is a loss of the ability to coordinate
muscular movement related to exposure to poisonous substances. As a result of these
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neurological problems, Chriestenson's physician placed her on Dilantin to control the
seizures and on Inderal to control the tremors.

Additionally, Chriestenson smoked cigarettes before, during, and after her
employment at Russell Stover. According to her physician, Chriestenson was a fairly
heavy smoker. She also suffered from memory loss and was tested for multiple sclerosis
prior to going to work for Russell Stover.

Chriestenson worked as a plant nurse, safety coordinator, and workers
compensation benefits coordinator at Russell Stover. Her office was located across the
hall from a laundry facility. Chriestensen contends that she could smell bleach on a
regular basis in her office. She claims to have suffered respiratory symptoms as well as
increasing headaches as a result of this exposure.

Chriestenson also claims she was occasionally exposed to methyl bromide fumes
in a room where nuts are fumigated at Russell Stover. In addition, she claims that she was
exposed to fumes from pesticides, truck exhaust, paint, and anhydrous ammonia at
various times during her employment at Russell Stover.

Chriestenson claims that her final chemical exposure at Russell Stover occurred on
December 8, 1998, when the floor to her office was stripped and rewaxed. Russell Stover
allowed Chriestenson to move from the office. However, Chriestenson contends she was
in the room for approximately 15 minutes while she collected her things. Following this
incident, Chriestenson saw a doctor retained by Russell Stover, as well as her family
practitioner.

On December 18, 1998, Chriestenson's employment at Russell Stover was
terminated. Ten days later, she signed an initial application for workers compensation
benefits. In the application, Chriestenson expressly listed the date of the accident as
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December 8, 1998. Chriestenson did not list any other exposures to chemicals in her
application.

Over the years, several hearings were held in Chriestenson's workers
compensation case. In addition, Chriestenson was seen by several doctors. Not
surprisingly, the doctors do not agree on the issue of whether Chriestenson's exposure to
chemical fumes during her employment at Russell Stover caused any permanent injury or
impairment.

An administrative law judge ultimately found that Chriestenson had experienced
temporary symptoms as the result of chemical exposure while working at Russell Stover.
In addition, he found that the medical treatment Chriestenson received prior to June 17,
2002, was adequate to relieve her temporary symptoms. Finally, the administrative law
judge found that Chriestenson did not sustain any permanent impairment from her
exposure to chemicals at Russell Stover and that there was no need for ongoing or future
medical treatment.

Chriestenson appealed to the Workers Compensation Board. In its Order, three
members of the Board found that Chriestenson's "exposure to chemicals and fumes while
working for [Russell Stover] through December 18, 1998, caused her personal injury by
accident arising out of and in the course of her employment with [Russell Stover]." The
majority also found that Chriestenson's "testimony about her personal condition, coupled
with Dr. [Grace] Ziem's testimony, establishes that it is more probably true than not that
claimant is unable to engage in substantial and gainful employment. Consequently,
claimant is entitled to receive permanent total disability benefits under K.S.A. 44-510c
(Furse 1993)."

However, two members of the Board agreed with the administrative law judge and
wrote a vigorous dissent, contending that Chriestenson "should be denied benefits beyond
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short-term medical treatment for the temporary aggravations suffered while [she] was
employed by [Russell Stover]." In particular, the dissenters stated that the majority
should not have based its conclusions regarding both causation and permanent disability
on the opinions of Dr. Ziem.

The dissent expressed concern that although the majority referred to Dr. Ziem "as
an expert in the controversial field of chemical illness," she is not board certified in any
recognized specialty. Additionally, the two dissenters were concerned by the fact that Dr.
Ziem had no information regarding the strength of the chemicals Chriestenson may have
been exposed to at Russell Stover and did not know the duration of the alleged exposures.
The dissent also noted that any information Dr. Ziem had about the types of chemicals
involved had been provided by Chriestenson more than 7 years after her employment at
Russell Stover had ended.

The dissenting opinion pointed out that Dr. Ziem did not review any of
Chriestenson's prior medical records before rendering her opinion on causation. It was
also noted that there were no contemporaneous medical reports in the record
corroborating the allegations of multiple chemical exposures at Russell Stover, with the
exception of those relating to the incident on December 8, 1998. Moreover, the two
dissenters found it significant that Dr. Ziem believed Chriestenson's history of cigarette
smoking, before, during, and after her employment at Russell Stover was irrelevant to her
workers compensation claim.

The dissent noted that Dr. Jay Zwibelman, who is board certified in psychiatry and
neurology, had found that Chriestenson's ongoing problems stem from preexisting
conditions, including her long history of cigarette smoking. It pointed to Dr. Zwibelman's
testimony that cigarette smoke is extremely toxic and that it had an impact on
Chriestenson's medical condition. Furthermore, the two dissenters found it to be
significant that Dr. Zwibelman first examined Chriestenson in February 1999, shortly
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after her employment at Russell Stover had ended, while Dr. Ziem did not see
Chriestenson until June 2006.

Finally, it was noted in the dissenting opinion that Dr. Zwibelman performed a full
neurological examination on Chriestenson and that the results were normal. Hence, the
two dissenters distinguished Dr. Zwibelman's causation opinion, which was based on a
review of Chriestenson's past medical history and a full neurological examination, and
from Dr. Ziem's causation opinion, which was based "almost solely" on subjective
information provided by Chriestenson without the benefit of past medical history. Thus,
the dissent concluded that Dr. Zwibelman's opinion should have been adopted by the
Board.

ISSUE PRESENTED AND ANALYSIS

The issue presented in this case is whether the Board erred in finding that
Chriestenson suffered permanent and total disability caused by exposure to chemicals
while she was an employee of Russell Stover from April 1997 to December 1998.

Standard of Review

Pursuant to K.S.A. 44-556(a), final orders of the Board are subject to review under
the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. On appeal, we must apply
the standard of review which was in force at the time the final action by the Board was
taken. See K.S.A. 77-621(a)(2); Mitchell v. Petsmart, Inc., 291 Kan. 153, 172, 239 P.3d
51 (2010). Thus, because the Order of the Board in the present case was entered on April
30, 2010, we will apply the standard of review set forth in K.S.A. 2009 Supp. 77-621.

As to questions of fact, we review the evidence in light of the record as a whole to
determine whether the findings of the Board are supported by substantial evidence. See
K.S.A. 2009 Supp. 77-621(c)(7). The term "substantial evidence" refers to "such
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evidence as a reasonable person might accept as being sufficient to support a conclusion."
Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d
239 (2009).

Moreover, "in light of the record as a whole" is statutorily defined to mean

"that the adequacy of the evidence in the record before the court to support a particular
finding of fact shall be judged in light of all the relevant evidence in the record cited by
any party that detracts from such finding as well as all of the relevant evidence in the
record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party
that supports such finding, including any determinations of veracity by the presiding
officer who personally observed the demeanor of the witness and the agency's
explanation of why the relevant evidence in the record supports its material findings of
fact. In reviewing the evidence in light of the record as a whole, the court shall not
reweigh the evidence or engage in de novo review." K.S.A. 2009 Supp. 77-621(d).

Furthermore, we may grant relief if we determine that the Board erroneously
interpreted or applied the law or if its action was otherwise unreasonable, arbitrary, or
capricious. K.S.A. 2009 Supp. 77-621(c)(4), (8). We exercise unlimited review over
questions involving the interpretation or construction of a statute and owe "[n]o
significant deference" to the Board's interpretation or construction. Higgins v. Abilene
Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).

Kansas Workers Compensation Act

The Kansas Workers Compensation Act, K.S.A. 44-501 et seq., was enacted to
award disability benefits to employees for damages resulting from injuries received at the
workplace. Whether an injury is compensable is a question over which an appellate court
exercises unlimited review. Coleman v. Swift-Eckrich, 281 Kan. 381, 383, 130 P.3d 111
(2006).

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"If in any employment to which the workers compensation act applies, personal
injury by accident arising out of and in the course of employment is caused to an
employee, the employer shall be liable to pay compensation to the employee . . . ."
(Emphasis added.) K.S.A. 44-501(a). "The phrase 'arising out of' implies some causal
connection between the accidental injury and the employment." (Emphasis added.) 281
Kan. at 383. "The burden to show that an injury arose out of employment is upon the
claimant." 281 Kan. at 384.

Where the permanency of a disease or condition does not result from the work-
related injury, the employer is not liable for the permanent disability. See Casey v. Dillon
Companies., Inc., 34 Kan. App. 2d 66, 76, 114 P.3d 182, rev. denied 280 Kan. 981
(2005). Furthermore, an employee "shall not be entitled to recover for a preexisting
condition, except to the extent that the work-related injury causes increased disability."
(Emphasis added.) K.S.A. 44-501(c).

INSUFFICIENCY OF EVIDENCE OF PERMANENT AND TOTAL DISABILITY ARISING OUT OF
EMPLOYMENT

Russell Stover acknowledges there was a period of time following the incident on
December 8, 1998, for which Chriestenson was entitled to temporary workers
compensation benefits for aggravation of her preexisting sensitivity to chemicals.
However, Russell Stover contends the Board's finding that Chriestenson suffered a
permanent and total disability arising out of or caused by exposure to chemicals at her
employment was erroneous, as it was based on nothing more than speculation.

The conclusion reached by the majority of the members of the Board is largely
based on a "controversial diagnosis" that medical organizations and courts throughout the
United States have found is not sufficiently supported by science. See Kuxhausen v.
Tillman Partners, 291 Kan. 314, 315, 241 P.3d 75 (2010). In fact, the majority of the
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Board recognizes in its Order that Chriestenson's permanent and total disability claim is
largely dependent upon an "expert medical opinion concerning a controversial area of
medicine that is evolving." As a panel of this court has found, it is because the link
between sensitivity to multiple chemicals and specific exposure to any particular
chemicals "is so questionable that the diagnosis of multiple-chemical sensitivity has not
gained acceptance in the medical community." Kuxhausen v. Tillman Partners, 40 Kan.
App. 2d 930, 944, 197 P.3d 859 (2008), aff'd 291 Kan. 314 (2010).

In Kuxhausen, our Supreme Court held that it is not sufficient to establish the
cause of chemical sensitivity unless the actual level of exposure or mechanism by which
exposure causes multiple-chemical sensitivity is demonstrated. 291 Kan. at 317. Of
course, as Chriestenson correctly points out, Kuxhausen is a civil case and the technical
rules of evidence do not apply in workers compensation cases. See Boeing Military
Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 131, 764 P.2d 462 (1988), rev. denied 244
Kan. 736 (1989). Nevertheless, a claimant in a workers compensation case has the burden
to show a causal connection between a disease or condition and his or her employment.
See Coleman, 281 Kan. at 383-84.

Additionally, Chriestenson argues that there is "no requirement that a claimant's
disease or condition have a name in order to be compensable" in a workers compensation
case. See K.S.A. 44-5a01(b); Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 754,
907 P.2d 923 (1995), rev. denied 259 Kan. 927 (1996). Although this is true, this does not
remove the requirement that causation in a workers compensation case must be based on
substantial evidence and not on mere speculation. See Anderson v. Victory Junction
Restaurant, No. 95,871, 2006 WL 3056514, at *2 (Kan. App. 2006) (unpublished
opinion).

In Kuxhausen, our Supreme Court found the causation opinion rendered by an
expert witness to be inadequate because it was "ultimately based on nothing more than
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post hoc, ergo propter hoc logic: the symptoms follow the exposure; therefore, they must
be due to it." 291 Kan. at 320. Similarly, this court has held in a workers compensation
case that "[w]hen the salient question is the cause of a medical condition, the maxim of
post hoc, ergo propter hoc is not competent evidence of causation." Gann v. Driver
Management, Inc., No. 95,368, 2006 WL 3589971, at *3 (Kan. App. 2006) (unpublished
opinion). Hence, we review the record in the present case to determine whether there is
competent evidence of causation and conclude that there is not.

In its Order, the majority of the Board candidly admits that it was "persuaded" by
the testimony of Dr. Ziem in concluding that Chriestenson's employment at Russell
Stover in 1997 and 1998 caused her to be permanently and totally disabled. It appears
from a review of the record that Dr. Ziem only saw Chriestenson in person on June 28,
2006, which was more than 7 years after Chriestenson's employment at Russell Stover
ended. On the same day, Dr. Ziem issued a report in which she diagnosed Chriestenson
with toxic encephalopathy, peripheral neuropathy, and reactive upper and lower airway
disease.

As the dissenting members of the Board pointed out, Dr. Ziem did not review
Chriestenson's prior medical records relating to her chemical sensitivity and neurological
problems before rendering her causation opinion. In addition, Dr. Ziem admitted during
her deposition testimony in this case that she did not have any information on the
quantity of chemicals to which Chriestenson was exposed at Russell Stover. Moreover,
when asked about other factors such as conditions in Chriestenson's home and her
smoking habit, Dr. Ziem stated that they were irrelevant. Likewise, when Chriestenson's
prior neurological conditions were brought to Dr. Ziem's attention during her deposition,
she stated that they were also irrelevant.

When Dr. Ziem was asked in her deposition about the level of exposure to
chemicals at Russell Stover, she stated that the concentrations were high enough to cause
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symptoms. Such reasoning is a classic example of post hoc, ergo propter hoc logic and is
not helpful in establishing a causal connection between the alleged permanent disability
and Chriestenson's employment at Russell Stover. Thus, although we do not question Dr.
Ziem's ability to render opinions regarding Chriestenson's symptoms and diagnosis, we
find that her causation opinion is not based on substantial evidence.

Our research has revealed that several courts across the United States have also
had difficulty with causation opinions expressed by Dr. Ziem in chemical sensitivity
cases. In Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008), Dr.
Ziem was not permitted to testify on causation in an civil lawsuit against a manufacturer
and seller of a floor covering product. The Georgia Supreme Court upheld a trial court's
determination that "Dr. Ziem's methods [are] based only on her own experience and
opinions, without any support in published scientific journals or any reliable techniques
for discerning the behaviors and effects of the chemicals contained" in the floor covering
product. 283 Ga. at 279.

Likewise, in Wynacht v. Beckman Instruments, Inc., 113 F. Supp. 2d 1205 (E.D.
Tenn. 2000), the United States District Court for the Eastern District of Tennessee did not
allow Dr. Ziem to offer an opinion on causation in a product liability case arising out of
alleged exposure to chemicals in the workplace. Although the court found her qualified to
diagnose medical conditions and treat patients, it found that "[t]he ability to diagnose
medical conditions is not remotely the same . . . as the ability to deduce, delineate, and
describe, in a scientifically reliable manner, the causes of those medical conditions." 113
F. Supp. 2d at 1209. See also Minner v. American Mortg. & Guar. Co., 791 A.2d 826,
849 (Del. Super. 2000) (Dr. Ziem's opinions regarding multiple-chemical sensitivity and
causation were excluded from the jury in a civil case as "unreliable" and "based on
nothing other than speculation."); Yang v. E.I. du Pont de Nemours & Co., No.
Civ.A.04A-01-0008 MMJ, 2004 WL 3029943, at *5 (Del. Super. 2004) (unpublished
opinion) (Delaware Industrial Accident Board did not accept Dr. Ziem's testimony on
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causation in case involving exposure to chemical fumes.); Chanin v. Eastern Virginia
Med. School, 20 Va. App. 587, 590, 459 S.E.2d 523 (1995) (Virginia Workers
Compensation Commission found the opinion of Dr. Ziem was "'based on an incorrect
understanding of the facts of the claimant's work environment'" in case involving claim
of multiple-chemical sensitivity.).

We have focused on the testimony of Dr. Ziem because the majority of the Board
makes it clear that it relied upon her causation opinion. We note, however, that Dr.
Richard Hull has rendered a similar opinion regarding causation. In reviewing his
testimony, we find that Dr. Hull's causation opinion is also based on post hoc, ergo
propter hoc logic and likewise does not constitute competent evidence of causation.

Accordingly, we reverse the Board's finding that Chriestenson suffered a
permanent and total disability arising out of or caused by her employment at Russell
Stover from April 1997 to December 1998. In light of our holding, we remand this case
to the Board for further action consistent with this opinion. Specifically, we direct the
Board to determine the amount of workers compensation benefits to which Chriestenson
may be entitled as a result of any aggravation of her preexisting chemical sensitivity
while she was employed by Russell Stover.

Reversed and remanded with directions.