Court of Appeals of Texas, Dallas.

DALLAS INDEPENDENT SCHOOL DISTRICT, Appellant,

v.

Felix S. HARDIN, Appellee.

No. 05-93-00505-CV.

|

February 28, 1994.

Before THOMAS, OVARD and WHITTINGTON, JJ.

OVARD, Justice.

O P I N I O N

*1 This is a workers’ compensation case in which Felix S. Hardin (Hardin) sued Dallas Independent School District (DISD) to recover for an occupational disease. Hardin based his claim of injury on allegations that during his several years of employment at DISD, he developed an occupational disease as a result of his exposure in the workplace to asbestos and other “harmful chemicals.” The jury found that Hardin developed an occupational disease in the course of his employment with DISD which rendered him totally and permanently disabled. DISD appeals on the ground, among others¹, that the evidence is legally insufficient to support the jury finding. We agree and consequently must reverse the trial court’s judgment and render judgment in favor of DISD.

FACTUAL BACKGROUND

In October 1968, DISD hired Hardin to work in its custodial department. From 1969 to 1987, he worked in DISD’s Sprague swimming pool facility. Hardin was responsible for cleaning the Sprague building and keeping the water in the pool clean. Hardin used powdered chlorine, chlorine gas and other chemicals to clean the pool, as well as the locker and the shower rooms.

In addition to his daily cleaning activities which involved exposure to these chemicals, approximately four times a year Hardin would “shock” the pool. This procedure involved throwing one or two buckets filled with powdered chlorine into the pool. Once a year, Hardin would drain the pool and pour into it a diluted solution of muriatic acid. He would then scrub the pool with a long-handled brush.

Hardin’s duties also included checking the pool’s boiler several times a day. The insulation on the boiler’s pipes contained asbestos. The repair persons who serviced the boiler “would just take and tear [the insulation] off and throw it on the floor, and we would sweep it up.” This happened between six and twelve times a year. Hardin did not have a mask to wear when he swept the material up. Small fibers of asbestos would cling to his clothes.

Although he intended to work until he was seventy years old, Hardin developed problems with his breathing that required him to sit down and rest after walking only a short distance. Consequently, on September 1, 1987, the day of his 65th birthday, Hardin took a leave of absence from his job. Up until that date, Hardin had not missed any time from work due to any breathing difficulties, or for any other reason. Hardin was later diagnosed as having asbestosis and chronic bronchitis.

Hardin started smoking cigarettes as a teen-ager. From 1971 to 1985, Hardin quit smoking. He began smoking again in 1985. Hardin smoked approximately one pack of unfiltered cigarettes a day.

*2 On September 6, 1990, Hardin filed this lawsuit against DISD, alleging that he had suffered an on-the-job injury from his exposure to asbestos and “other harmful chemicals” which resulted in an occupational disease.

Trial of the case consisted of the testimony of Hardin; Anita Smith, a claims adjuster for DISD; and Dr. Randall L. Rosenblatt, a board-certified pulmonary specialist. Dr. Rosenblatt testified² that Hardin had asbestosis, an occupational disease,³ but that the asbestosis had not disabled him. Dr. Rosenblatt also testified that Hardin was, however, disabled due to chronic bronchitis, but that this disease was not attributable to his occupation. Dr. Rosenblatt opined that Hardin’s chronic bronchitis was attributable to Hardin’s life-long habit of smoking cigarettes.

Hardin offered into evidence Material Safety Data Sheets (data sheets), which described possible side-effects associated with the use of the chemicals that he used at the Sprague facility. A data sheet on soda ash indicated exposure to it could aggravate a breathing or respiratory disorder. A data sheet on sodium hypochlorite indicated exposure to its mist or fumes could cause bronchial irritation, coughing, difficulty breathing, nausea and pulmonary edema. A data sheet on muriatic acid indicated occupational exposures to it have led to chronic bronchitis and aggravation of pre-existing respiratory problems. A data sheet on calcium chloride indicated that its dust may cause irritation to the upper respiratory tract.

The jury found that Hardin sustained an injury due to an occupational disease and that this injury was a producing cause of Hardin’s total incapacity. The trial court granted judgment based on the jury verdict.

DISCUSSION

In point of error one, DISD contends the trial court erred in granting judgment in Hardin’s favor because there was no evidence to support the jury’s answer to question two. Question one asked the jury, “Did [p]laintiff sustain an injury due to occupational disease?” Question two asked the jury, “Was the injury due to occupational disease a producing cause of any total incapacity?” The jury answered both questions in the affirmative. DISD contends there was no evidence to support the jury’s answer to question two because “the only occupational disease shown at trial, asbestosis, was not a producing cause of total incapacity.” Because the jury did not specify which disease-asbestosis or chronic bronchi-tis-produced Hardin’s total incapacity, we will review the evidence to support a jury finding that either of these diseases caused such incapacity.

APPLICABLE LAW

A. Standard of Review

If an appellant attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof⁴, he must demonstrate on appeal that there is “no evidence” to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). When reviewing a “no evidence” point of error, we consider only the evidence, testimony, and reasonable inferences that tend to support the finding, and disregard all evidence and inferences to the contrary. See Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex. 1989); Schaefer v. Texas Emp. Ins. Ass’n, 612 S.W.2d 199, 201 (Tex. 1981). If there is any evidence of probative force to support the finding, we overrule the point of error and uphold the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989).

*3 B. Workers’ Compensation Law and Causation Requirements

1. Occupational Disease Requirement

Under workers’ compensation law, establishment of a compensable disease requires two elements. First, the disease must be occupational. To establish an occupational disease, there must be probative evidence of a causal connection between the claimant’s work and the disease, i.e., the disease must be indigenous to the work, or must be present in an increased degree in that work as compared with employment generally. See Schaefer, 612 S.W.2d at 205; Hernandez v. Texas Emp. Ins. Ass’n, 783 S.W.2d 250, 251 (Tex. App.-Corpus Christi 1989, no writ); Home Ins. Co. v. Davis, 642 S.W.2d 268, 269 (Tex. App.-Texarkana 1982, no writ). Generally, lay witness testimony is sufficient to establish a causal connection if, based upon common knowledge, the fact finder could understand a causal connection between the employment and the injury. See Hernandez, 783 S.W.2d at 252. However, Texas courts have generally held that the cause, progression, and aggravation of disease requires expert testimony to establish a reasonable probability that the disease is causally connected to employment. See Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966); Hernandez, 783 S.W.2d at 252. In workers’ compensation cases, expert medical testimony can enable a plaintiff’s case to go to the jury if the evidence establishes the reasonable probability of a causal connection between the employment and the present injury. See Schaefer, 612 S.W.2d at 202. In the absence of reasonable probability, the inference of causation amounts to no more than guesswork. See id. This precludes the plaintiff’s case from going to the jury. Id.; Myers, 411 S.W.2d at 713.

2. Producing Cause Requirement

Second, the claimant must prove a causal relationship or connection between the job-related disease and the ultimate disability. See Illinois Emp. Ins. of Wausau v. Wilson, 620 S.W.2d 169, 172 (Tex. Civ. App.-Tyler 1981, writ ref’d n.r.e.); Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16, 18 (Tex. Civ. App.-Austin 1947, writ ref’d n.r.e.). Producing cause may be proven by lay testimony. However, as discussed above, the adequacy of lay testimony to prove causation has been limited to those cases where the general experience of persons is such that they can anticipate that one event will follow another. See Griffin v. Texas Emp. Ins. Ass’n, 450 S.W.2d 59, 61 (Tex. 1969); Wilson, 620 S.W.2d at 172.

APPLICATION OF LAW TO FACTS

In this case, Hardin had to establish a causal connection between, on the one hand, his occupational disease of asbestosis and his disability, or, on the other hand, a causal connection between his disabling chronic bronchitis and his employment. At trial, Hardin’s theory was that he was for a long period of time alternately exposed in his workplace to asbestos and harmful chemicals, and that these conditions caused him to develop both asbestosis and chronic bronchitis, either of which was a producing cause of total incapacity. The only medical testimony was that of Dr. Rosenblatt. He examined Hardin on four occasions during the period from September 1987 to early 1991.

A. Asbestosis as Producing Cause of Disability

*4 Dr. Rosenblatt stated that he diagnosed Hardin with asbestosis and that this condition resulted from his employment, i.e., Hardin suffered from an occupational disease. Here, then, Hardin had to establish a causal connection between the occupational disease of asbestosis and Hardin’s alleged total incapacity. Dr. Rosenblatt noted that the asbestosis had caused calcification of the lining around Hardin’s heart and lungs, and of his diaphragm. However, Dr. Rosenblatt also stated that the calcification was not a “functionally significant” event; Hardin’s exposure to asbestos did not place any limitations on his ability to work; Hardin’s difficulty with breathing was not related to asbestos; and Hardin did not have a significant decrease in lung function related to asbestos.

We have reviewed the substance of Dr. Rosenblatt’s testimony in its entirety and we conclude it provided no evidence that Hardin’s occupational disease of asbestosis was a producing cause of his disability. See Wilson, 620 S.W.2d at 171-72. There is no dispute that Hardin’s asbestosis was an occupational disease. However, there is no evidence that asbestosis was a producing cause of Hardin’s disability. The testimony is to the contrary. Dr. Rosenblatt categorically stated that asbestosis did not contribute to Hardin’s disability. Additionally, we have examined the record in this case and are unable to find any probative evidence to support a jury finding that asbestosis was the producing cause of Hardin’s disability.

B. Chronic Bronchitis as Occupational Disease.

Dr. Rosenblatt testified that Hardin also had chronic bronchitis. Dr. Rosenblatt explained that bronchitis is an inflammation of the bronchial tubes, while chronic bronchitis involves an actual destruction of the bronchial tubes. Dr. Rosenblatt based his diagnosis on the facts that Hardin had experienced “three months of sputum production for two consecutive years,” and that pulmonary function studies revealed Hardin had a severe breathing obstruction. However, Dr. Rosenblatt testified that Hardin’s work-related exposure to asbestos could not cause chronic bronchitis.

Additionally, Dr. Rosenblatt testified that he was able to do no more than surmise that any of the other workplace chemicals caused the chronic bronchitis. During his consultations with Dr. Rosenblatt, Hardin had not related any history of exposure to chlorine gas. Consequently, at his deposition, Dr. Rosenblatt could only hypothesize concerning the effect of these chemicals, specifically chlorine:

QUESTION: Now, assuming that … [Hardin was exposed to] chlorine gas, with that happening, do you have an opinion as to whether or not that could have anything to do with his chronic bronchitis which I’m understanding you to say limits his breathing abilities?

ROSENBLATT: The answer to that would be no, and let me then explain it. I would have expected that if people have exposure to chlorine gas or to chlorine exposure to have other mucosal surfaces to also be damaged to the same extent or to a similar extent, and that means the mucosal surfaces in the mouth and the nose and the eye. Most people who have chlorine exposure have similar damage because of the inhalation of it in order to get to the lung.

* * *

*5 QUESTION: Did you see any evidence of damage to any structure of Mr. Hardin’s body that was consistent with what would be caused by exposure to chlorine gas or chlorine?

ROSENBLATT: When I first examined him in 1987, his nose revealed normal mucosa. When I repeated the examination in 1990, October 1990, I thought his nose had some boggy mucosa. When I saw him in February of ’91, his nose had some boggy mucosa and some purulent secretions…. If he had not been exposed, he would not have-if he was exposed to chlorine gas, that would cause inflammation of the nasal mucosa as it could cause inflammation of the lung. On the other hand, he would have to have the exposure to chlorine gas between 1987-between September of ’87 and my seeing him in 1990 in order to get the change of the mucosa.

QUESTION: Let me ask you to assume he stopped working for DISD approximately October 1, of ’87. He worked for them no more after that if I am understanding you right.

ROSENBLATT: If I can then using that information, I do not think that his boggy mucosa in his nose can be related to the chlorine exposure at DISD.

QUESTION: … did you find any evidence of damage or harm to any structure of Mr. Hardin’s body as a result of exposure to chlorine gas or chlorine, assuming that he stopped working for DISD approximately October 1, 1987 and didn’t do any work for them after that?

ROSENBLATT: No, I did not.

(Emphases added). Dr. Rosenblatt also stated that chlorine can cause some irritation to the bronchial tubes; obstruction to air flow; acute lung injury; exacerbation of pre-existing chronic bronchitis; and residual effects from chronic exposure. However, he said there was insufficient data to substantiate the theory that even chronic exposure to chlorine causes chronic bronchitis.

When asked for his opinion concerning what was the cause of Hardin’s chronic bronchitis, Dr. Rosenblatt responded it was “most likely secondary to his cigarette smoking.” When asked if he had an opinion as to whether chlorine caused any of Hardin’s chronic bronchitis, Dr. Rosenblatt responded that any answer he gave would be based on surmise. When asked if it is normal for a person who has smoked a pack of cigarettes a day for fifty years to have chronic bronchitis, Dr. Rosenblatt answered “yes.”

Reasonable medical probability linking a disease with employment must be more than coincidence, guesswork or surmise. See Schaefer, 612 S.W.2d at 202. We conclude there is no medical evidence linking Hardin’s chronic bronchitis with his workplace.

See Wilson, 620 S.W.2d at 171-72.

There being no medical evidence that the condition of the workplace contributed to Hardin’s chronic bronchitis, the issue then becomes whether the Material Safety Data Sheets, combined with Hardin’s testimony and the factual circumstances of this case create, as Hardin argues, “a direct causal relationship between Hardin’s job-related exposure to chemicals and his resulting chronic bronchitis.”

*6 Generally, lay witness testimony is sufficient to establish a causal connection where, based upon common knowledge, the fact finder could understand a causal connection between employment and a physical injury. See Hernandez, 783 S.W.2d at 252. However, generally, Texas courts have required expert testimony to establish causation in cases dealing with disease, rather than injury. See Pegues, 514 S.W.2d at 494; Myers, 411 S.W.2d at 713; Hernandez, 783 S.W.2d at 253. This is so because the cause of disease is more difficult to ascertain than the cause of a physical injury, and thus, it is less likely that a jury will have the common knowledge that is required to establish the causal connection between employment and the disease. See Pegues, 514 S.W.2d at 494; Myers, 411 S.W.2d at 713; Hernandez, 783 S.W.2d at 253.

As applied to this case, we conclude that expert testimony is required where, as here, Hardin alleges that employment caused or aggravated the disease of chronic bronchitis. See Parker, 440 S.W.2d at 46; id. Because there is no expert medical testimony that linked Hardin’s exposure to workplace chemicals to his developing chronic bronchitis, we conclude there is no evidence linking Hardin’s bronchitis to his workplace.

Even if expert medical testimony were not required in this case, we also conclude that the Material Safety Data Sheets provided no evidence of causation. The data sheet on muriatic acid merely stated that exposure could cause chronic bronchitis. The other Material Safety Data Sheets indicated the other chemicals used by Hardin at the Sprague pool could exacerbate a pre-existing respiratory problem. In the absence of reasonable probability, the inference of causation amounts to no more than guesswork. See Schaefer, 612 S.W.2d at 202; Myers, 411 S.W.2d at 713. Probability must be more than coincidence or surmise. Schaefer, 612 S.W.2d at 202.

We have reviewed Dr. Rosenblatt’s testimony in its entirety, as well as Hardin’s testimony and his trial exhibits. We hold that the evidence is legally insufficient to support a jury finding either that Hardin’s asbestosis was a producing cause of total incapacity or that his chronic bronchitis arose out of his employment.

We sustain DISD’s legal sufficiency point. Because of our disposition of this point, it is unnecessary to discuss DISD’s remaining points. We reverse the trial court’s judgment and render judgment that Hardin take nothing on his claims against DISD.

	Footnotes
1		DISD also complains of the factual sufficiency of the evidence to support the jury finding, as well as the trial court’s refusal to submit certain proposed questions to the jury. Because of our disposition of DISD’s legal sufficiency ground, we do not reach its remaining points of error.
2		Dr. Rosenblatt testified via deposition.
3		By statute, asbestosis is an occupational disease. See Tex. Rev. Civ. Stat. Ann. art. 8306, § 20 (Vernon 1967).
4		In a workers’ compensation case, the burden of proof is on the employee to prove his injury arose out of his employment. See Parker v. Emp. Mut. Liability Ins. Co. of Wis., 440 S.W.2d 43, 45 (Tex. 1969).