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Pietro v. Unocal Corp.

Supreme Court of Alaska

June 25, 2010

Paul D. PIETRO, Appellant,

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[Copyrighted Material Omitted]

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Michael J. Jensen, Law Office of Michael J. Jensen, Anchorage, for Appellant.

Richard L. Wagg and Vicki A. Paddock, Russell, Wagg, Gabbert & Budzinski, P.C., Anchorage, for Appellee.

Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.


FABE, Justice.


A worker developed peripheral neuropathy in his feet and was later diagnosed with skin cancer. He asked for workers' compensation benefits for both of these conditions, alleging that they developed as a result of his exposure to arsenic during the course of his work at a fertilizer plant. The Alaska Workers' Compensation Board rejected his claims, finding that he had not proven that his conditions were work related, and the superior court affirmed the Board. We affirm the Board's finding that the employer rebutted the presumption of compensability. But because the Board failed to make adequate findings to permit review of its decisions that the worker had not proven his claims by a preponderance of the evidence, we vacate the Board's decisions and remand for further findings.


A. Pietro's Work And Medical History

Beginning in 1982 Paul Pietro worked for UNOCAL at its urea and ammonia plant in Kenai, first as a physical plant operator and then as a unit coordinator. Sometime around 1985 the physical plant began to burn waste oxazolidone from ammonia and urea production as fuel in one boiler. The waste oxazolidone was considered hazardous because it contained arsenic in concentrations exceeding environmental standards.[1] Oxazolidone was not burned continuously. According to one UNOCAL document, when it was used, oxazolidone constituted about five percent of the " total heat duty of the boiler." UNOCAL stopped burning oxazolidone in 1991 after the Environmental Protection Agency set limits on ambient arsenic levels from burning hazardous waste and UNOCAL determined that the " worst case" emissions from its boiler at the Kenai plant were " several orders of magnitude greater" than these standards.

Oxazolidone was sprayed into the boiler chamber with a gun. When he worked as an operator in the utility plant, Pietro was required to put the gun into the boiler and clean the nozzle of the gun if it plugged up. He and other workers reported that oxazolidone sprayed or spilled from the gun. According to the workers, fumes and smoke came out of the boiler when the gun was changed, and exhaust from the boiler stacks reentered the plant because of what one worker described as a " negative vacuum." In addition, the boiler where the oxazolidone was burned had a number of leaks. A UNOCAL document dated September 22, 1989, indicated that water from a leak in the boiler " contained 0.20 ppm of arsenic." Pietro and another worker testified that Pietro experienced skin contact with arsenic when he slipped in a chemical spill that contained arsenic and saturated his clothes. UNOCAL monitored the arsenic exposure of some employees, but Pietro was never selected to wear a monitor for arsenic exposure. Even after the plant stopped burning oxazolidone, arsenic remained in the boiler. A 2001 memorandum to employees set out detailed procedures to avoid arsenic and lead exposure while repairing the boiler.

According to Pietro, he began to experience burning in his feet in the late 1980s, which he initially attributed to working long hours on his feet. In 1991 Pietro filled out a health questionnaire for UNOCAL, in which he indicated he had tingling in his hands,

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arms, feet, or legs and burning in his arms or legs.[2] His health questionnaires from 1996 though 1999 did not repeat these complaints.

Pietro was diagnosed with rheumatoid arthritis in 1997 and began taking medication to control its effects. In spite of the medication, he had flares of the disease that impaired his ability to work. Pietro began treatment with Michael Armstrong, M.D., a rheumatologist, in August 2001. In March 2002, Dr. Armstrong said that Pietro could " never" return to full duty work because of his rheumatoid arthritis. Pietro eventually received both private disability insurance and Social Security disability benefits for his rheumatoid arthritis.

Pietro first brought his foot pain to the attention of his treating physicians in late 2000 and was seen by a podiatrist, Matt Heilala, D.P.M., in July 2001. Dr. Heilala diagnosed rheumatoid arthritis and plantar fasciitis. Pietro began to see providers at Alaska Alternative Medicine Clinic in 2001 after a friend from work had similar complaints. Chart notes from the clinic showed a neuropathy diagnosis.

In 2001 Pietro's physician at Alaska Alternative Medicine Clinic ordered hair testing for toxin exposure. The hair test showed highly elevated levels of arsenic. In January 2002 Pietro had a urine test for toxic metals, which showed arsenic levels within the " reference range." On the advice of an attorney, Pietro consulted with occupational medicine doctors at Harborview Medical Center in Seattle. The Harborview doctors were skeptical of the validity of the hair test and ordered a twenty-four-hour urine test, even though they noted that the urine test would only reveal current exposure. The urine test showed normal arsenic limits, and the Harborview doctors' reports indicated that arsenic exposure was not a likely explanation for Pietro's neuropathy. But after nerve testing by Dr. Heilala showed evidence of peripheral neuropathy,[3] one of the Harborview physicians, Timothy Takaro, M.D., concluded in October 2002 that the nerve studies were consistent with arsenic poisoning and advised Pietro to pursue a case against UNOCAL.

Pietro also consulted with A. Lee Dellon, M.D., a plastic surgeon whose practice was " entirely devoted to peripheral nerves." Dr. Dellon rejected the idea that Pietro's rheumatoid arthritis caused his peripheral neuropathy and recommended testing to rule out other possible causes of the neuropathy. Dr. Dellon stated that if other possible causes of peripheral neuropathy were ruled out, " then the most likely cause for [Pietro's] peripheral neuropathy would be an occupational exposure to toxins."

Pietro filed a report of occupational injury in October 2002, alleging that exposure to chemicals caused neuropathy in both his feet. UNOCAL controverted all benefits in December 2002, relying on Harborview's initial medical report, which downplayed the role of arsenic in causing the peripheral neuropathy. Shortly after the controversion, Pietro filed a written workers' compensation claim alleging that the neuropathy was the result of work-related chemical exposure.

B. Other Medical Evidence

UNOCAL set up a panel of four doctors for an employer's independent medical evaluation (EIME) in July 2003. The panel consisted of a podiatrist, an orthopedic rheumatologist, a neurologist, and a toxicologist. None of the EIME doctors found a link between Pietro's symptoms and chemical exposure in the workplace. The podiatrist was not able to confirm a diagnosis of peripheral neuropathy on examination but said that arsenic exposure could lead to peripheral neuropathy. Dejan Dordevich, M.D., the EIME rheumatologist, concluded that Pietro's peripheral neuropathy was " a product of rheumatoid arthritis." Lynne Bell, M.D., Ph.D., the neurologist, was unwilling to diagnose peripheral neuropathy because no nerve conduction or EMG studies had been done, and she recommended further testing.[4]

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Brent Burton, M.D., a specialist in occupational and environmental toxicology, also examined Pietro. Dr. Burton reviewed the material safety data sheets for the chemicals that Pietro listed on his workers' compensation claim. Dr. Burton did not think that Pietro's peripheral neuropathy had been properly diagnosed and concluded that Pietro did " not have a diagnosable medical condition stemming from any workplace exposure."

Because of the differences in medical opinions, the parties requested a second independent medical evaluation (SIME). The Board arranged for Pietro to see a neurologist, Jonathan Schleimer, M.D., and a rheumatologist, Neal Birnbaum, M.D. Dr. Birnbaum agreed that Pietro had rheumatoid arthritis but found " no evidence that [Pietro's] rheumatoid arthritis [was] in any way related to any industrial exposure" because " there is no medical literature to support the development of rheumatoid arthritis as a consequence of toxin exposure." Dr. Birnbaum concluded that if Pietro had peripheral neuropathy, it should not be attributed to the rheumatoid arthritis. According to Dr. Birnbaum, neurological problems related to rheumatoid arthritis are rare and " usually occur[ ] only in the setting of severe active rheumatoid disease." He noted that Pietro's " foot symptoms predate[d] the development of any joint complaints by quite a few years."

Dr. Schleimer did nerve conduction and EMG testing and concluded that Pietro suffered from " a mild polyneuropathy with distal degeneration of sensory axons." Dr. Schleimer thought that Pietro's neuropathy was " likely related to rheumatoid arthritis." He acknowledged that peripheral neuropathy is uncommon in rheumatoid arthritis but considered it " more common than arsenic poisoning or toxicity." Dr. Schleimer also noted " no bone marrow suppression or evidence for a blood count suppression" during Pietro's " period of alleged exposure" and found " no clear documentation of a neuropathy antecedent to" the diagnosis of rheumatoid arthritis. He wrote that if Pietro did not have rheumatoid arthritis, he would consider the possibility of arsenic exposure " more seriously."

To show that his neuropathy was a cause of his inability to work, Pietro submitted to the Board letters from his healthcare providers indicating that he was disabled by his neuropathy. Pietro's attorney sent supplemental interrogatories and documents to the SIME physicians, supplying the doctors with additional medical records and information about chemicals used at the plant. After reviewing the records, Dr. Schleimer stated that he " recognize[d] that there [was] potential for exposure of this patient to heavy metals, arsenic, and other chemicals" but could not state on a more likely than not basis " that the ...

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