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[W] Hoskins v. Circle A Construction3/22/2002
2002 Opinion No. 38
Appeal from the Industrial Commission, State of Idaho.
The decision of the Industrial Commission allowing benefits and awarding attorney fees is affirmed.
This is an appeal from the Industrial Commission, which awarded benefits to Gary Hoskins (Hoskins) from January 9, 1998 through April 7, 1999 because of respiratory problems associated with metal fume fever. His employer, Circle A Construction (Circle A), contends that there is no evidence to support the Commission's findings that Hoskins was entitled to benefits from October 14, 1998 to April 7, 1999. Hoskins filed a cross-appeal, arguing that earnings from his private business should have been taken into account by the Commission and that the Commission improperly calculated his benefits. The decision of the Commission is affirmed.
I. FACTS AND PROCEDURAL HISTORY
At the time of the hearing before the Industrial Commission, Hoskins was fifty-six years old. He had worked primarily as a welder for the past 30 years. In November 1993 he began having breathing problems. He was diagnosed with chronic obstructive pulmonary disease (COPD), emphysema related to his smoking and welding activities, and asthma. He worked as a welder for Circle A and had a side business called Pro West Welding.
On January 7-8, 1998, Hoskins cut galvanized metal with a torch for about six hours in a poorly ventilated area. He experienced symptoms of respiratory distress during this work, and on January 9, 1998, was hospitalized. Dr. Bontrager diagnosed acute congestive heart failure and pulmonary hypertension. Larry Smith and Terry Billingsley, Hoskins' co-workers, also performed similar jobs on these days and became ill, but returned to work after several days.
Dr. Wayne Wright, a cardiologist, assumed Hoskins' treatment. Dr. Wright reached nine separate diagnoses for Hoskins, including acute bronchitis, severe COPD, and polysythemia. Hoskins' emergency room diagnosis did not include metal fume fever. Hoskins was discharged on January 15, 1998, and went to Dr. Ron Fullmer, who had originally diagnosed Hoskins with COPD and emphysema in 1993.
Dr. Fullmer diagnosed severe COPD:
1. SEVERE COPD. The patient's obstructive airway disease has significantly worsened over the past 3-4 years. It is interesting to note that he discontinued his smoking 4 or 5 years ago. His main exposure has been the work in the welding shop which is likely what caused the further deterioration in his pulmonary functions. The patient's recent exacerbation requiring admission to the hospital was also probably precipitated by metal fume fever, due to the fumes from cutting and welding on the galvanized metal. [emphasis added].
Dr. Fullmer placed Hoskins on continuous supplemental oxygen therapy, which continued until April 7, 1999. Circle A's expert, Dr. Emil Bardana, testified that metal fume fever is a condition that generally lasts only 2-4 days. On October 14, 1998, Dr. Fullmer recognized that Hoskins' breathing had returned to almost its pre-accident level.
Hoskins contended that the contraction of metal fume fever, combined with his pre-existing conditions of COPD, emphysema and asthma, rendered him totally and permanently disabled. The matter was heard before Commission Referee Michael Powers on September 28, 1999, who determined that Hoskins suffered an accident resulting in a personal injury on January 7 and 8, 1998, was entitled to medical benefits for three days of his hospitalization and entitled to total temporary disability benefits totaling $120.29, and that Hoskins was not entitled to attorney fees.
The Commission electe
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