CP# 95-19166; 95-19217; 95-19225; 98-19220; 98-37837 Cowan v. Buffalo Steel
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
BEFORE: HONORABLE BARBARA VAN HORN COLSEY
Judge of Compensation
DAVID TYKULSKER & ASSOCIATES
By: DIANE E. RISTAINO, ESQ.
Attorney for the Petitioner
HOWARD W. CRUSEY, JR., ESQ.
By: ANN DEBELLIS, ESQ.
Attorney for the Respondent - Metz Metallurgic and
LAWRIE, COZIER & VIVENZIO, ESQS.
By: J. RUSSELL COZIER, JR., ESQ.
Attorney for the Respondent - Buffalo
ROBERT W. FRIELAND, ESQ.
By: CHARLES N. MARTEL, ESQ.
Attorney for the Respondent - EGL Company, Inc.
The petitioner, Edmund Cowan, worked for Bethlehem Steel/Buffalo Tank from 1965 to 1977, Metz Metallurgic Corporation from 1977 to 1979, Berry Group from 1979 to 1982 and EGL Company from 1982 to 1995. The petitioner has filed claims against the Respondents, basically alleging occupational exposure to “carcinogens and asbestos” resulting in “colon cancer with asbestos (sic).” An amended claim petition was filed against the Berry Group in July 2000 which deleted the claim of asbestosis allegedly resulting from work exposure with reference to that particular respondent.
The petitioner testified that he had exposure to asbestos while working at Capitol Boiler Works in Virginia from 1959 through 1960. There, according to the petitioner, he removed asbestos covers from boilers, repaired boilers, replaced the asbestos covers and created an asbestos mixture in the course of his duties. That employer is not within the jurisdiction of this court. With reference to the four named employers in the pending matters,while describing some duties in the course of his various employments, the petitioner did not specifically quantify the alleged asbestos exposure as to frequency or dosage.
The petitioner’s colon cancer did not manifest until November 1994, while the petitioner was still in the employ of EGL. The petitioner retired in 1995, stating that he chose to do so because of age. A pulmonary condition of small airways disease and pleural asbestosis was first diagnosed by petitioner=s evaluating expert, Dr. Susan Daum, in 1997. The petitioner has neither sought, nor received, any treatment with reference to his lungs.
When there are a series of employers/carriers involved in an occupational claim one of the issues becomes which entity will be responsible for the payment of Workers’ Compensation benefits assuming that the causal relationship of the disease to the employment is established. The general rule was set forth in Bond vs. Rose Ribbon & Carbon Manufacturing Company, 42 N.J. 308 (1964) and provides that the last employer when the disease manifests is liable for compensation. Manifestation is deemed to take place upon the occurrence of a medical diagnosis of the condition fixing disability, work incapacity or manifest loss of physical function.
EGL is the last employer in this matter. I am satisfied that the petitioner was exposed to asbestos in the course of his work activities with that company. I found the petitioner to be a credible witness with reference to the work involving the lining of trucks used to convey glass tubing from finishing ovens for use ultimately in making specialty lighting. I accept his testimony that the sheets of lining material bore labels indicating that asbestos was included in the contents. Respondent’s witness while denying that an asbestos product was used was not convincing when he just described the lining material as a “foam product” without any specifics as to the product’s name, or contents. He apparently relied on his personal opinion that “that you can’t buy asbestos.” With reference to a heating pipe removal project, which occurred about 4 years before he retired, whether he was involved in removal of all of the asbestos-covered vertical pipe encased in the walls, or just the exposed horizontal pipes, the petitioner nevertheless testified that the pipe joints coming through the walls were covered with asbestos and the petitioner would be involved in cutting the asbestos material with shears throwing it in a bucket and removing the asbestos from the pipes which created dust. Dust masks were provided but there was no requirement that they be worn and the petitioner who wore glasses at the time apparently found the wearing of the dust mask to be a nuisance.
To prevail in a Workers’ Compensation claim it goes without saying that the existence of a permanent disability arising out of and in the course of employment must be established. In Perez vs. Pantasote, Inc., 95 N.J. 105 (1984), the Supreme Court set forth the elements of proof necessary to sustain a claim of permanent disability saying at page 118
“. . . the employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury. The burden of proving both of these elements rests with the petitioner, since he has the onus of establishing permanent partial disability.”
Dr. Daum, petitioner’s expert, examined him in 1997 and in 2000. On both occasions she found that the petitioner’s chest configuration was normal. The percussion note was of normal resonance. Diaphragmatic position and motion was normal. Breath sounds were normal. In the first examination the doctor testified that there was a transmitted rhonchus early in the examination which cleared after coughing. The doctor did not report any evidence of rhonchus in her second evaluation. She testified that the chest examinations were not significant for anything in particular. At the time of her first evaluation the doctor performed a spirometry test, which assesses pulmonary function. According to the doctor the test indicated some small airways abnormality in the form of a decreased force. However, upon further testing at Robert Wood Johnson Hospital, the petitioner was found to have normal forced vital capacity, interstitial capacity, and total lung capacity. It was noted that while expiratory reserve volume showed a decrease, that was probably due to the petitioner being overweight. The petitioner had a normal diffusion capacity and normal oxygen level at rest. Another spirometry test was performed in the course of petitioner’s second evaluation by the doctor. Dr. Daum testified that there was no significant difference in the two pulmonary function studies and the arterial blood-gas studies had not needed to be done since that is something that might be contemplated once every ten years. The doctor testified that both pulmonary function studies and the arterial blood-gas study did not reveal any particular functional impairment in the lungs.
Dr. Joel Duberstein examining on behalf of the respondent testified that his spirometry tests showed no evidence of any pulmonary dysfunction.
Dr. Daum testified that the x-rays taken in the course of the second evaluation of the petitioner showed some increase in bronchovascular markings. She acknowledged that the x-ray results demonstrated the mildest form of fibrosis out of 12 possibilities. Although there was some evidence that the petitioner did have pleural thickening on x-ray, there was a dispute between Dr. Daum and Dr. Duberstein as to whether the pleural thickening was present bilaterally or simply on one side. Dr. Duberstein was of the opinion that the pleural thickening was more suggestive of the petitioner=s obesity and was what he characterized as sub-pleural. Dr. Duberstein also noted thickening only on one side as opposed to bilaterally.
Although Dr. Daum testified that the pulmonary function tests that she performed and the test at Robert Wood Johnson Hospital were normal and did not show any particular functional impairment, she offered estimates of pulmonary disability. The doctor increased the estimate after her second evaluation stating that she did so because she found increased anatomical changes on x-ray and the petitioner had reported more symptoms, such as, wheezing and more shortness of breath. The latter were purely subjective complaints. The doctor did not testify that she observed them in the course of her physical examination of the petitioner. To find permanent disability there must be impairment of lung function in addition to subjective complaints or anatomic change. Perez vs. Pantasote, supra.; Rybski vs. Johns Manville Products Corporation, 185 N.J. Super. 433 (App. Div. 1982). The petitioner did not testify to wheezing and his complaints of shortness of breath and inability to rough and tumble with his grandchildren can be as readily explained by his weight and age as it can be by an alleged pulmonary condition.
Dr. Daum testified that she had abnormal readings in the FEF 25-75 portion of her spirometry tests where petitioner=s performance was indicated to be 65% of predicted at the time of the first evaluation and 60.37% in the second evaluation. When questioned about what the range for normal was Dr. Daum indicated that she disagreed with the American Thoracic Society=s established ranges of 50% and above as being normal. An abnormal reading would be an indicator of small airways disease. While the doctor diagnosed small airways disease I still note t hat she testified that there was no indication of any functional pulmonary impairment. In light of that testimony and Dr. Duberstein=s testimony as to the results of his pulmonary function testing of the petitioner being normal I find that the petitioner has failed to establish by objective medical evidence the existence of any pulmonary disability.
With reference to petitioner’s claim that his colon cancer was causally related to his exposure to asbestos entitling him to an award for permanent disability, Dr. Daum offered an estimate of permanent disability for the colon cancer resection and neuropsychiatric residuals. However, the doctor admitted that the petitioner had no functional impairment because of the resection. She also stated that she had neither performed a neurologic, nor a psychiatric evaluation of the petitioner and had just relied upon what the petitioner told her with reference to those components. The experts evaluating neurologically for the petitioner and the respondent both had objective findings of the existence of a neurologic deficit in petitioner’s hands which they attributed to the petitioner’s chemotherapy treatment for the colon cancer. Both neuropsychiatric experts diagnosed depression. Petitioner’s expert, Dr. Arthur Rothman, related the disability to petitioner’s colon cancer. Respondent’s expert, Dr. Leonard Eisenberg, did not find causal relationship to petitioner’s colon cancer. However, the petitioner in response to direct questioning testified that the colon cancer had not caused him any emotional problems. Neither “poverty of speech” which Dr. Rothman stated that the petitioner demonstrated nor “constricted mood” that Dr. Eisenberg said was demonstrated would have prevented the petitioner from responding “yes” to the question rather than “no”. The petitioner testified that he is free of the colon cancer and there is no evidence of metastasis. The only experts to address the primary issue of whether or not the colon cancer is related to exposure to asbestos were Dr. Daum, Dr. Duberstein and Dr. Ronald Gots, who also testified on behalf of the Respondent.
Dr. Duberstein is Board Certified in Internal Medicine and Pulmonary Disease. Although finding permanent disability for the colon cancer, the doctor opined that the cancer was not related to the petitioner=s alleged asbestos exposure. He stated that “There is no generally accepted . . . occupational factor in the cause of colon cancer. Asbestos has been raised as a possibility by some people and is believed to be by some people. But it has not risen to the point that it is generally an accepted cause in the overall medical community.” Dr. Duberstein relied upon Harrison’s Principles of Internal Medicine, 14th Ed. which he stated was a highly respected text in the field as to the question of the relationship of occupational factors to colon cancer. The doctor stated that there was no mention of an occupational factor in colon cancer. He indicated that diet, fiber intake, hereditary factors, as well as tobacco use, are considered as being related.
Dr. Daum is Board Certified in Internal Medicine and Preventative Medicine with the sub-specialty of Occupational Medicine, and practices occupational medicine screening and preventative medicine. She attributed petitioner’s colon cancer to asbestos exposure. The doctor indicated that there were some 90 studies, or sources, for her opinion itemized in a bibliography which was not offered into evidence. However, she testified that she relied upon a study by Dr. Selikoff and others published in 1979. She stated that various federal and State agencies, including New Jersey, had issued fact sheets, or guidelines, in which it was expressed that asbestos is a carcinogen in humans and that several well-conducted epidemiological studies had shown an association between asbestos and increased incidence of gastrointestinal cancer. The doctor testified that other causative risk factors, such as smoking, which cause colon cancer to be the most common cancer in our society are additive or multiplicative with asbestos. I know it to be generally accepted, based on studies, that cigarette smoking and asbestos exposure act multiplicatively with reference to increasing incidence of lung cancer. However, I see no reference to synergistic action between asbestos exposure and other potential causative factors of colon cancer in the studies referred to in this matter. Since there appears to be no medical consensus as to cause, it appears to me to be pre-mature to assert that there is multiplicative action. Dr. Daum did not set forth a basis for that opinion.
Petitioner had a substantial history of cigarette smoking testifying that he smoked for about 15 years until age 38 and thereafter he would Astop smoking maybe four or five years@ and then he would start again. He smoked about a pack per day and indicated that he last smoked sometime during his employment with EGL. The petitioner was noted by both Dr. Daum and Dr. Duberstein to be somewhat obese which implicates diet. Smoking, being overweight and diet which are also conditions personal to the petitioner are currently being considered as factors constituting risks for colon cancer.
While arguing that asbestos is a cause of colon cancer, Dr. Daum subsequently stated that “We really don’t know the causes of colon cancer yet. It is a very common cancer.”
The Selikoff report of 1979 referred to by Dr. Daum was the result of a study of approximately 17,800 asbestos insulation workers. It was not offered into evidence. There have been subsequent studies with varying results. The study was undertaken primarily to obtain information on the combined effect of cigarette smoking and exposure to asbestos dust in respect to deaths from lung cancer and to obtain information concerning other cancers. As one of the results of the study it was concluded that:
“death rates from colon-rectum cancer are increased by exposure to asbestos dust; but it would be folly to suppose that we have precisely determined the degree of association even in this group of asbestos workers.
The credentials of Dr. Gots, who testified on behalf of the respondent, are extensive in addressing occupational causative issues as evidenced by his voluminous list of publications, lectures and teaching assignments. He is a medical doctor as well as having a Ph. D in pharmacology which encompasses toxicology. Toxicology is the field in which the doctor practices. He also testified that for “purposes of expertise, I am an epidemiologist. I’m not formally trained in epidemiology, but I’ve written chapters in books. I’ve lectured extensively and everything that is scientific in pharmacology or toxicology does involve intimately the field of epidemiology.” The doctor further stated that he had actually designed studies in epidemiology.
When asked about the medical position concerning the relationship between asbestos and colon cancer Dr. Gots respondee “unsettled that we don’t know at this point in time whether asbestos actually is a risk factor for colon cancer. Data is too variable. And for the risk factor it appears to be a rather small one.” The doctor stated that many more studies showing statistically high increases of risk would be necessary to establish that asbestos is accepted as a causative agent of colon cancer. Referring to Dr. Daum’s numbers as to increased risk, Dr. Gots indicated that it was more probable that colon cancer was not caused by asbestos. The doctor testified at length about the meaning of statistical probabilities and the level of probability which would need to be attained before the existence of a relationship between exposure to asbestos and the occurrence of colon cancer would be generally accepted by the scientific community.
Dr. Gots referred to De Vita’s textbook entitled Cancer, Principles & Practice of Oncology (1997) as being the “major most important textbook of cancer in the world.” He indicated that in the chapter which discusses the primary causes of colon cancer there was no discussion of asbestos. Dr. Gots also referred to a textbook prepared by Sleisenger and Fordtran entitled Gastrointestinal and Liver Disease. Dr. Gots pointed out that in this work there was a long chapter discussing colon cancer but nowhere in the chapter was mention made of asbestos. He alluded to a discussion in the De Vita book about pattern makers in the automobile industry being exposed to asbestos and other carcinogens. I saw no reference to that in the De Vita materials offered into evidence. However, a reference was made to automobile pattern makers in the materials from the Sleisenger and Fordtran’s textbook and asbestos was not mentioned. It was stated that the specific carcinogenic agent had not yet been identified.
In the course of his testimony Dr. Duberstein made reference to Harrison’s Principles of Internal Medicine and stated that asbestos is not listed as a cause of colon cancer in that work.. Dr. Daum, while not denying that Harrison’s is the leading textbook in internal medicine, stated that most occupational factors are not in there and took the position that one would not go to such a text for occupational medical references. Dr. Gots responded to that argument very effectively when he wrote
“The fact is, essentially all textbooks of gastroenterology as well as internal medicine do not list asbestos as a known cause of colon cancer. Those texts are perfectly appropriate because they are the texts that are used by individuals who evaluate and treat these diseases. The fact that occupational medicine physicians may, in some cases, believe otherwise, does not make that belief scientific knowledge, if it has not reached the relevant practitioners in the field: the internists and gastroenterologists. It has not reached those relevant practitioners in the field, as indicated by the citations in the textbooks of internal medicine and gastroenterology.”
It is to be noted in this matter that the pathology slides of the petitioner’s colon resection specimen did not reveal the presence of any asbestos bodies.
Dr. Daum testified that with respect to the question of cancer causation she ascribes to the single molecule theory saying “ . . . a single molecule of asbestos interacts with single molecules of DNA. So cells form and another single molecule, five, six times interacts with some cells that have been genetically mutated five or six steps. That’s what it takes which is why the threshold for carcinogenic chemicals are done at .5 ccs for asbestos.” Thus she is indicating that exposure to just one molecule of asbestos would cause the development of cancer. While espousing this theory the doctor had also testified that very little is known about the molecular biology. I believe the doctor’s single molecule theory to be an extraordinary postulate. No studies, reports or treatises were offered or referred to in support of that theory. To accept it requires a leap of faith which I do not find reasonable to take.
Dr. Gots was questioned about governmental entities stating that there is an association between asbestos and colon cancer. The doctor pointed out that there is a distinction between association and causation saying that association “simply means that two things are found in conjunction with one another not necessarily meaning that one caused the other.” He went on to indicate that “it really takes a causative body of robust and strong evidence before association becomes causation.
Dr. Daum further made the assertion that she did not believe any independent doctors do not think that colon cancer is related to asbestos.. She defined an independent doctor as being one not hired to have an opinion for insurance companies or to write papers for asbestos and doctors in places like Mt. Sinai Hospital and other university settings. Her definition impliesthe existence of extreme bias in the opinions of “non-independent” doctors as she has defined them. Although Dr. Daum classified herself as an independent doctor, to my knowledge (and it has been my experience) Dr. Daum testifies regularly for petitioners which certainly indicates its own type of bias in this matter particularly in view of the doctor’s apparent readiness to ascribe a percentage of permanent disability based partly on the resection of a portion of the bowel for which, according to the doctor, the petitioner had no symptoms and partly on neurologic and psychiatric residuals for which she did not conduct an examination.
The petitioner has the burden to demonstrate by a preponderance of the evidence that his environmental exposure was a substantial contributing cause of his alleged occupational disease.
Dr. Daum was petitioner’s expert on causation. “The mere assertion of reasonably probably contributory work connection by a medical witness cannot justify an award.” Laffey v. City of Jersey City 673 A2d 838, 845. I do not find Dr. Daum’s opinion as to the causal relationship of the petitioner’s colon cancer to occupational exposure to asbestos to be reliable in light of her somewhat conflicting testimony that on the one hand asbestos causes colon cancer while on the other hand the causes of colon cancer are not known, that she espouses a single molecule theory while stating that little is known about the molecular biology as a whole, that she acknowledges that the number of people who develop colonrectal cancer from occupational exposure is small, that the pathology slides of the petitioner’s colon resection specimen did not reveal the presence of any asbestos bodies.
Dr. Daum agreed that there are multiple conflicting studies on the question of asbestos being causative of colon cancer and that the issue remains controversial in the medical community. It cannot be overlooked that there are many potential factors in the development of colon cancer being studied. Age, weight, diet and smoking are some of those potential causes. Petitioner is in the age group where colonrectal cancer is most frequently seen, is overweight and has smoked significantly in the past and off and on thereafter. The presence of those non-occupational risk factors in this petition also can not be ignored. The petitioner has not sustained the burden of proof in establishing that his colon cancer was causally related to work-related asbestos exposure.
The claim petitions are dismissed.
Barbara Van Horn Colsey
Judge of Compensation
May 23, 2003