An employer contested a widow’s application for workers’ comp death benefits, arguing there wasn’t enough proof her husband’s fatal illness was work-related. Did a court grant her benefits?
Dennis Holbert worked for JBM Inc., a company based in Tennessee that manufactures and installs steel structures throughout the U.S.
On Aug. 12, 2012, JBM sent Holbert along with other workers to Pennsylvania for the installation of a synthetic gypsum system at a cement plant. On Aug. 27, Holbert went to a walk-in clinic with a cough, congestion, post-nasal drip, headache, fatigue and chills. He said he’d had the cough for three days and it was getting worse. Doctors diagnosed sinusitis and prescribed antibiotics.
On Aug. 31, Holbert was in a coma on life support, diagnosed with pneumonia and septic shock.
Holbert briefly emerged from the coma on Oct. 10, but died on Oct. 12, 2012. The final autopsy report listed two immediate causes of death: acute gastric hemorrhage of a gastric ulcer, and disseminated systemic Aspergillosis – a fungal infection, typically found in patients with suppressed immune systems or lung disease.
In applying for workers’ comp death benefits, Holbert’s widow alleged her husband died as a result of inhaling dust in the course of his job for JBM. A trial court ruled she met her burden of proof and awarded her death benefits. JBM appealed, claiming there wasn’t enough medical proof Holbert’s death was work-related.
In a deposition, the first doctor who treated Holbert said:
“Because we didn’t identify any pathogens, infectious pathogens, it is reasonable to attribute the cause of [his] pulmonary process to his environmental exposures that he encountered while he was working locally.”
The doctor said it was “more likely” Holbert’s work exposure led to his death, and she could say that with a reasonable degree of medical certainty.
An infectious disease doctor who also treated Holbert in the hospital said his illness and death were precipitated by occupational inhalation. The doctor said a number of tests were done to look for viruses, and they were “unable to come up with any positive.”
When Holbert briefly regained consciousness two days before his death, he told the infectious disease doctor he had been “breathing in grout and epoxy type substances at his work prior to the onset of his symptoms.”
“You would have to be almost imbecilic not to think that that had no relationship to his illness,” the doctor said.
Despite that, a doctor hired by JBM to review Holbert’s medical records had a different opinion. He said negative cultures couldn’t rule out an infection and the autopsy showed no evidence of inhalation injury.
To make this case more complex, there are differing accounts about Holbert’s health before and shortly after he left for Pennsylvania. His widow said Holbert had no cough or sinus problems in the weeks before he left. Holbert had his annual physical on July 23, 2012. He had no cough according to the record.
One of Holbert’s co-workers said about a month before leaving for the Pennsylvania job, Holbert had a “nagging cough, like allergies.”
Another co-worker said Holbert “seemed to be under the weather” with a sinus-related ailment before they left.
In reviewing the decision by the trial court, the appeals panel noted:
- His primary care physician saw him less than a month before he left for the job, and noted no sinus or lung problems.
- The autopsy found no evidence of long-term, ongoing lung disease.
- The doctor hired by the company didn’t treat Holbert; his opinions were based only on his review of the medical records.
- The infectious disease doctor who treated Holbert said if there had been an infection, Holbert’s body would have responded to the broad, anti-infection medications given to him.
- Absolute medical certainty is not required to establish causation in workers’ comp cases.
- Holbert’s treating physicians – specialists in infectious disease, internal medicine, pulmonary medicine and critical care – all said his death, more likely than not, was due to workplace exposure.
For those reasons, the appeals court affirmed the decision of the trial court. Holbert’s widow should receive workers’ comp death benefits.
(Sheila Holbert v. JBM Inc., Supreme Court of TN, Special Workers’ Compensation Appeals Panel, No. 188830-3, 11/1/17)