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Diamond Fuel Oil v. O'Neal8/16/1999
Appeal from Superior Court. AFFIRMED.
In this appeal we consider the issue of a claimant's burden of proof for causation concerning a compensable occupational disease under Delaware workers' compensation law. The Superior Court reversed a denial by the Industrial Accident Board (the "Board") of appellant John S. O'Neal's ("O'Neal") claim for total disability benefits. The Board had found that O'Neal failed to prove causation. Initially, a panel of this Court affirmed the Superior Court's decision. Diamond Fuel Oil v. O'Neal, Del. Supr., No. 399, 1998, 1999 WL 86142 (Jan. 21, 1999) (ORDER). By order dated March 19, 1999, this Court granted Diamond Fuel Oil's motion for rehearing en Banc. We now find that substantial evidence does not exist to support the Board's Conclusion. Accordingly, we affirm the Superior Court's reversal of the Board decision and instruct the Superior Court to remand the case to the Board for a determination on the issue of employability and the extent of O'Neal's disability.
I.
O'Neal was employed by the employer-appellee Diamond Fuel Oil ("Employer") for approximately nine years prior to being diagnosed with chronic interstitial nephritis, a disease of the kidneys. O'Neal's duties involved service and installation of oil burner equipment and sometimes included cleaning up oil spills on residential basement floors. He also stated that routine maintenance of oil-fired devices would require him to drain oil from the equipment. He would retrieve the oil in a bucket that was then placed in his van until the end of the day when it was dumped into a tank at the shop. He further testified that on occasion he would assist in the cleaning out of tanks, resulting in his standing in two or three feet of oil inside a closed tank. The oil to which he was exposed was heating fuel oil # 2.
O'Neal testified that during the heating season he worked between sixty and eighty hours per week. On cold weather days he would have approximately fifteen to eighteen assignments per day. He also testified that he did not use respiratory equipment.
In June 1995, O' Neal first began to experience flu like symptoms and went to his family physician who referred him to Martin F. Gavin, D.O., ("Dr. Gavin"), a nephrologist, who diagnosed his kidney condition. Dr. Gavin inquired whether O'Neal had been exposed to any chemicals. In response, O'Neal obtained a Material Safety Data Sheet ("MSDS") from Employer.
The MSDS for heating fuel oil # 2 recites that this substance is in the chemical family of petroleum hydrocarbons. The MSDS further provides product health hazard information and warning, including effects of overexposure. With respect to inhalation the MSDS states that " egenerative changes in the liver, kidneys and bone marrow may occur with prolonged, high concentrations." The MSDS further provides that with respect to an acute exposure, physicians should follow patients for several days or weeks for delayed effects including "bone marrow toxicity, hepatic and renal impairment."
In July 1995, O'Neal obtained a second opinion from another nephrologist, Lindsey M. Slater, M.D. ("Dr. Slater"). Ultimately, under Dr. Slater's care, on November 2, 1995, a kidney transplant was performed using a kidney donated by his brother. On March 1, 1996, O'Neal filed a petition to determine compensation due with the Board. O'Neal contended that his kidney condition was a result of exposure to heating fuel oil # 2 during the course and scope of his employment. O'Neal was thirty-five years old at the time of the Board hearing in March, 1997.
Three doctors testified before the Board. The only testifying physician who had actually trea
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