CP# 95-10896 Dowd v. Supermarket Distribution Services Corporation
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
MIDDLESEX COUNTY DISTRICT, NEW BRUNSWICK
MARGARET K. DOWD,
HONORABLE PHILIP BOLSTEIN
Judge of Compensation
LEONARD & LEONARD, P.A.
By: GERALD F. DELLA SALA, ESQ.
Attorney for the Petitioner
HACK, PIRO, P.A.
By: JOSEPH V. WALLACE, ESQ.
Attorney for the Respondent
At the outset, I would like to commend the attorneys in this matter, Gerald Della Sala on behalf of the petitioner, and Joseph V. Wallace on behalf of the respondent, for the excellence of the written summations and arguments therein which they have submitted to the court. They will be marked as P-30 and R-10 respectively so as to become part of the record in this case.
The petitioner, Madeline Dowd, is the widow of James Dowd who died January 31, 1995 from complications of Non-Hodgkins Lymphoma.
On March 22, 1995, she filed a claim petition for dependency benefits, contending that the cancer from which he died was caused by a compensable occupational disease as a result of his exposure to harmful substances during his employment with the respondent.
The decedent worked for the respondent from 1980 until January 31, 1995.
His wage at the time of his last date of work was $752 per week.
The respondent admitted the employment and wage but denied all other jurisdictional facts.
The decedent began his work for the respondent in the maintenance department.
He was classified as a stationary operating engineer. He repaired pipes throughout the warehouse. The pipes were made of steel, copper, plastic and PVC.
To repair the PVC pipes, PVC-specific cleaner and cement were used. The cement contained cyclohexanone that is classified as a possible cancer hazard by the New Jersey Department of Health.
Decedent also performed painting tasks which involved removing old paint and applying new paint. Turpentine or paint thinners were used in this process to thin the paint or remove the old paint. The decedent also used the turpentine to clean his hands after painting. The turpentine contained benzene, which is categorized as a carcinogen by the New Jersey Department of Health.
The decedent was a cigarette smoker who smoked one pack of cigarettes per day from age 16 until shortly before he died. His family, consisting of a wife, a son, and a daughter, also smoked at home.
The decedent performed the duties of an operating engineer until 1993 when he was promoted to the position of chief engineer. In this position, he did no hands-on work.
The decedent was diagnosed with Non-Hodgkins lymphoma, a cancer of the lymphatic system and lymph nodes, in October 1993. His condition worsened and he died on January 31, 1995 at the Somerset Hospital.
The factual proofs were presented through the testimony of the petitioner, James Dowd (the son of the decedent), Joseph Oates, Thomas Baggs, and Wayne Hayes, both of whom were co-workers of the decedent.
The medical proofs were presented by Roland Goodman III, M.D. on behalf of the petitioner, and Bernard D. Goldstein, M.D. and Lillian F. Pliner, M.D. on behalf of the respondent.
On the basis of the proof presented to me, consisting of the testimony of the witnesses aforesaid and the documentary evidence P-1 through P-29 and R-1 through
R-9, and for the reasons set forth below, I find that the petitioner has failed to sustain the burden of proof that the death of the decedent was caused, in a material degree, by a compensable occupational disease.
N.J.S.A. 34:15-31 defines a compensable occupational disease as one which is due “in a material degree” to causes and conditions which are or were characteristic of or peculiar to a particular place of employment.
As stated in Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1 (App. Div. 1999):
The requirement to link the place of employment with the disease, by a “material degree” requires a petitioner to show the nexus by an “appreciable degree or a degree substantially greater than de minimis.” Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995). The facts of the situation “in their totality must demonstrate causality by the greater weight of the credible evidence.” Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962). Petitioner’s burden is to show by a preponderance of the evidence that the link is probable. The petitioner need not prove that the nexus between the disease and the place of employment is certain. Laffey v Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996); Wiggins v. Port Auth., 276 N.J. Super. 636, 639 (App. Div. 1994).
Magaw, supra, at 11.
The petitioner alleges that the decedent, during his employment by the respondent, was required to use products, which contained carcinogens, which caused him to develop Non-Hodgkins lymphoma, or NHL.
Although the petitioner originally contended that there were numerous carcinogenic materials, including freon, cyclohexanone, and benzene, the freon was shown to be the type which was non-carcinogenic, and cyclohexane was not shown to be carcinogenic to humans but only, by limited evidence, to possibly cause cancer of the liver and lymph in animals.
Therefore, the petitioner concentrated on attempting to show that benzene was the cause of decedent’s cancer.
The lay witnesses provided the evidence of the degree of decedent’s exposure to benzene in his work.
The petitioner testified that the decedent would come home from work and tell her of the chemicals he worked with. He mentioned that he came into contact with the benzene when he cleaned paint from his hands. She testified that he painted frequently and therefore was exposed to benzene frequently during his work for the respondent.
Decedent’s son testified that his father would use the paint thinner to wash the paint from his hands. He said that the painting would be done for a week at a time and his father did this each year that he worked for the respondent.
Thomas Baggs, who was a former chief engineer for respondent during decedent’s employment testified that Con Lux paint was used in the warehouse to paint sanitation lines on the interior perimeter of the warehouse and this was done once a year. He stated that “painting was a minimal part of the job.” He testified that turpentine or paint thinner would be used if an oil-based paint were being used.
Joseph Oates was chief engineer for the respondent from 1982 to 1995. He testified that the respondent would use Con Lux paint to paint lines on the floor and the loading dock. This was done 3-4 times per year for 8 hours. He said that he observed the decedent to perform this work a “couple of times a year”.
Wayne Hayes was also a co-worker of the decedent. He testified that the painting consisted of spraying lines on the loading dock. These were similar to the lines painted on parking lots. He stated that this work was done 3-4 times each year and took 8 hours to complete each time. Turpentine containing benzene was used to clean the heads of the sprayer and to remove the old paint from the floor
He said that the decedent performed this job “ a couple of times a year, that was about it.”
For the petitioner herein to prevail, she must prove by suitable medical evidence that the decedent’s exposure to benzene caused or contributed in a material degree to his terminal cancer.
Compensation judges must be particularly skeptical of expert testimony that supports a finding of causation on the basis of reasoning inconsistent with prevailing medical standards. See Hellwig v. J.F. Rast & Co. Inc.,110 N.J. 37 (1988). A mere assertion of an opinion that the workplace exposure was a probable cause of the disability, without any medical support thereof cannot prevail. See Laffey v. Jersey City, 289 N.J. Super. 292 (App. Div. 1996)
I find that the testimony of Dr. Goodman, and his opinion of causal relationship, falls squarely within the proscriptions set forth above.
Originally, his opinion was that the decedent’s NHL was due to his exposure to Freon at work. Later, when informed that the Freon used by the decedent was of the non-carcinogenic type, he expressed the opinion that the cause was the workplace exposures to multiple carcinogens with the greatest being exposure to benzene. He claimed that the latency period for NHL could be anywhere from a “few months up to as many as 50 years.”
Dr. Goodman was asked on cross-examination:
Q. Is it your opinion that any carcinogen may cause Non-Hodgkins Lymphoma?
He was later asked:
Q. Does it matter to you, Doctor, how much benzene he was exposed to?
A. No. Carcinogens are different from any other industrial exposures because there is no minimal acceptable level for exposure to carcinogens. It can be one molecule.
Dr. Goodman’s familiarity with benzene was limited. He did not know that benzene is found in cigarette smoke or automotive exhaust emissions.
He further testified that any carcinogen can cause any kind of cancer and that there is no organ specificity for carcinogens because carcinogens are generalized.
The respondent produced Dr. Bernard Goldstein, Dean of the Graduate School of Public Health of the University of Pittsburgh. His curriculum vitae is longer than any I have previously seen in any witness who has appeared before me. It is 41 pages long and replete with scholarly articles, many dealing with benzene.
Dr. Goldstein described the field of Public Health as including the prevention of disease, epidemiology, biostatistics, environmental health, health services, administrative health education and risk assessment.
Risk assessment in environmental and occupational health deals with toxicology and epidemiology. It includes:
Identifying a hazard, i.e., a compound that could cause an adverse effect at any level above zero,
Dose response, i.e., the relationship between the amount of the hazard and the response to that dose,
Exposure assessment, and
Although Dr. Goldstein holds the opinion that benzene, in substantial amounts, can cause Non-Hodgkins Lymphoma and has expressed that opinion in some of his writings, he acknowledges that his view is in the minority.
Despite that expressed view, he said that there was no relationship whatsoever between the decedent’s work exposures and his NHL. He explained his reasons as:
- For most cases, the cause of NHL is unknown.
- The level of exposure to benzene that would be required to cause NHL would be far higher than that to which the decedent was exposed in his workplace.
- There is no evidence that exposure to smoke from fire causes NHL. (There was testimony that the decedent was exposed to smoke from a fire in the banana room during his employment).
- Cyclohexane causes lymphatic cancer in certain species of animals but there is no evidence that it causes human lymphatic cancers.
He stated that the level of benzene exposure in ordinary daily life in New Jersey is “probably a trillion molecules of benzene” in every breath. It is in cigarette smoke and in gasoline fumes. Cigarette smokers have a significant amount of benzene exposure.
When asked about the additional effect of exposure to benzene from decedent’s washing his hands with turpentine, Dr. Goldstein said that, although there is no standard for minimum percutaneous exposure, at the level of the percentage of benzene permitted to be contained in turpentine or paint thinners, the skin damage to decedent’s hands would be so extensive, he would stop before the exposure reached toxic levels.
Dr. Goldstein said that Dr. Goodman’s approach, that once a chemical is shown to cause cancer therefore any dose makes it more likely to be causally related to that cancer, is scientifically unsound. Although he did not disagree with Dr. Goodman’s statement that it only takes one molecule of a carcinogen to affect one cell, he explained that while every cancer starts with one molecule causing one affect, the issue was not whether a cancer could be caused by that molecule but how much of a dose do you need to make it more likely than not that the cancer was caused by that chemical as opposed to whatever the background causes were.
Dr. Goldstein disagreed with Dr. Goodman’s syllogism that because chemical “A” is a carcinogen, and decedent was exposed to chemical A, then the cancer found in decedent is related to an exposure to chemical A.
Dr. Lillian F. Pliner was respondent’s last witness. She is the Director of Oncology Services at the St. Barnabas Hospital. She has treated many cases of NHL as well as other lymphatic cancers.
She reviewed the medical treatment records of the decedent and concluded that he had died from a diffused large cell lymphoma and complications following that disease.
She felt that there was insufficient scientific evidence that benzene causes NHL and further that there was insufficient evidence of a significant exposure to benzene.
She felt that the medical literature shows that benzene exposure has been associated with instances of NHL but was not found to be causative of it. Furthermore, the association has only been seen in instances where very high levels of benzene exposure were established.
With regard to the medical theory of causation espoused by Dr. Goodman,
that any carcinogen can and will cause any kind of cancer, she stated it was
While the court in Magaw, supra, allowed compensation for tonsil cancer due to second-hand exposure to cigarette smoke even in the absence of specific scientific studies establishing a link between this type of exposure and this type of cancer, they said:
While courts obviously do not wish to decide cases based on discredited science or medicine, the judicial system does not have the leisure to defer decision until proper and definitive scientific or medical studies are available. That is why, for example, “in toxic- tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.”
Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 14 (App. Div. 1999), citing Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991).
In this case, the theory of causation espoused by Dr. Goodman falls far short of this qualifying description.
Claim Petition 95-010896 is hereby dismissed for failure to satisfy the burden of proof that the death of the decedent was causally related to any occupational exposures during his employment with the respondent.
Judgment will be entered in accordance with this Decision.