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FILED
Jun 30 2011, 9:41 am

FOR PUBLICATION
ATTORNEY FOR APPELLANT: DOUGLAS A. MULANEY Elkhart, Indiana

of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: MATTHEW J. HAGENOW Newby, Lewis, Kaminski & Jones, LLP La Porte, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARK MAY, Appellant, vs. ASHLEY F. WARD, INC., Appellee. ) ) ) ) ) ) ) ) )

No. 93A02-1011-EX-1323

APPEAL FROM THE WORKERS COMPENSATION BOARD OF INDIANA Linda Peterson Hamilton, Chairperson Cause No. C-177608

June 30, 2011

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge

Mark May appeals the decision of the Full Worker's Compensation Board (the Board) denying his claim for benefits. May challenges a number of the Board's findings of fact and its ultimate conclusion that May failed to establish his sphenoid sinus cancer arose out of his employment with Ashley F. Ward, Inc. (Ashley Ward). We reverse and remand. May was employed at Ashley Ward (a machine shop with about thirty employees) from approximately 1997 to February 2005. He worked in various capacities in the AcmeGridley screw machine area, ultimately becoming a working supervisor his last three years with the company. Throughout his time at Ashley Ward, May's job duties included using grinders for about an hour and a half per day to sharpen the carbide tools from the screw machines. The tools were made of various heavy metals1 and required periodic sharpening. The grinders used to sharpen the tools were spaced six to eight feet apart. For his first several years of employment, the grinders were not equipped with any type of ventilation or vacuum system and were located in a separate small room at the facility. Sometime during the first five years of May's employment, Ashley Ward acquired new, used grinders from another company which it placed along a wall in the back of the facility. Three large exhaust fans were placed ten to fifteen feet above the grinding machines. Within six months of acquiring the grinders, Ashley Ward equipped them with a vacuum system that suctioned away and collected dust/fines during the grinding process. The collection tubes for the vacuum system were

The parties stipulated in this regard as follows: "The carbide tools were manufactured by a variety of companies. Material Data Safety Sheets maintained by Ashley F. Ward and admitted by Stipulation list several heavy metals which the cutting tools were made of." Appendix at 14.

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located directly adjacent to the grinding wheels.2 In addition to the exhaust fans and vacuum system for the grinding area, the facility had "very large exhaust fans for like in the summertime." Id. at 127. Employees at Ashley Ward were not mandated to wear any type of dust or ventilation masks while grinding. Further, according to Tirota, "the amount of dust or fines that are apparent to the individual is just not noticeable." Id. at 131. Although Tirotta was not aware of any air-quality studies over the past two decades, he indicated generally that OSHA had visited the facility in the past and had not taken issue with the grinding area. In the fall of 2004, May began having headaches and coughing up blood. Despite prior efforts, his ailment was not diagnosed until he was admitted to the ER on February 10, 2005 with a severe headache. On that date, Michael Agostino, M.D.,3 discovered a large tumor in May's sphenoid sinus. Dr. Agostino immediately biopsied the majority of the tumor which he opined had been developing for about seventeen months. The pathologist initially described the tumor as an undifferentiated carcinoma. Additional testing ruled out the possibility that the tumor resulted from melanoma, lymphoma, germ cell, or neuroendocrine. Further, testing revealed that the tumor was a surface cell type, not small cell type, meaning that the cancer "developed in the surface of the cell." Id. at 280.

According to the Director of Operations for Ashley Ward, Todd Tirota, this vacuum system "doesn't do anything as far as the actual air. It just sucks the actual grinding dust away from the machine itself and then contains it." Appendix at 128. This is unlike the Smog-Hog ventilation systems at each screw machine that "vacuums the mist out of the machine and transforms it into clean air." Id. at 124.
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Dr. Agostino is a surgeon specializing in Otolaryngology (head and neck surgery), with training in diagnosing and treating head and neck cancer.
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Following the biopsy, May underwent chemotherapy and radiation treatment. Although treatment resolved the tumor, May suffered long-term side effects rendering him totally disabled. He had additional sinus surgery at the University of Pittsburg Medical Center in August 2006. May will continue to require future medical treatment to monitor for reoccurrence of cancer and to deal with the permanent side effects from his prior surgeries, chemotherapy, and radiation. In October 2005, May filed his application for adjustment of claim. The matter was eventually submitted by written stipulation and briefs to a single hearing member of the Board. On April 16, 2010, the hearing member issued findings and conclusions and denied May's application for adjustment of claim. Specifically, the hearing member concluded, "Plaintiff has not demonstrated that his sphenoid sinus cancer was the result of an accident which arose out of and occurred in the course of his employment with Defendant". Appendix at 13. Thereafter, May filed for review by the Full Board. The Board held a hearing on August 30, 2010. The Board upheld the decision of the single hearing member modifying the award as follows: AWARD IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Single Hearing Member of the Worker's Compensation Board of Indiana that Plaintiff has not demonstrated that his sphenoid cancer was the result of an accident which arose out of and occurred in the course of his employment with Defendant, and that this was not an occupational disease situation, therefore, that Plaintiff is not entitled to any benefits and his Application for Adjustment of Claim is denied. Id. at 8 (modification emphasized). May now appeals. When reviewing a decision of the Board, we do not reweigh the evidence or judge the

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credibility of witnesses but only determine whether substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board's findings and conclusion. Bertoch v. NBD Corp., 813 N.E.2d 1159 (Ind. 2004). "Only if the evidence is of a character that reasonable [people] would be compelled to reach a conclusion contrary to the decision of the Board will it be overturned." Outlaw v. Ebrich Prods. Co., Inc., 777 N.E.2d 14, 26 (Ind. Ct. App. 2002) (quoting Perez v. U.S. Steel Corp., 428 N.E.2d 212, 216 (Ind. 1981)), trans. denied. A claimant bears the burden to prove a right to compensation. Triplett v. USX Corp., 893 N.E.2d 1107 (Ind. Ct. App. 2008), trans. denied. The Board, as trier of fact, has the obligation to issue findings that reveal its analysis of the evidence and are specific enough to permit intelligent review of its decision. Id. When it renders a negative judgment, as in the instant case, the Board's decision need only be supported by findings related to the issue of proof, not the factual question presented by the particular case. In other words, "[t]he Board is not obligated to make findings demonstrating that a clamant is not entitled to benefits; rather, the Board need only determine that the claimant has failed to prove entitlement to benefits." Id. at 1116. The negative award in this case resulted from the Board's determination that May failed to prove causation (i.e., that his cancer developed as a result of certain exposure in the workplace). May's claim was submitted for an alleged occupational disease, which is defined in Ind. Code Ann.

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