CP# 94-33446 Govern v. Harris Structural Steel
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
OCEAN COUNTY DISTRICT
C.P. # 94-033446
KATHERYN GOVERN ,
HARRIS STRUCTURAL STEEL CO.,INC.,
For the Petitioner: Madnick, Mason, Milstein, Weber, Farnsworth, & Collazo , Esquires
by: Peter Farnsworth, Esquire
For the Respondent: Howard W. Crusey, Jr., Esquire
by: Advia K. Foster, Esquire
MONCHER, LAWRENCE G., J.W.C.,
Mrs. Govern seeks dependency benefits for the death of her husband, Charles Govern, at age 69 from lung cancer which she claims was caused by his employment exposure to "dust and fumes" at Harris Structural Steel fabricating plant in South Plainfield, New Jersey from 1951 to 1985. The evidence in this record requires the conclusion that there is insufficient evidence of exposure to substances which are known or suspected carcinogens. The proofs do not permit the conclusion that Mr. Govern’s industrial exposure to pulmonary irritants caused or contributed to the non-small cell lung cancer which metastasized, causing his death on April 11, 1994.
The trial started before judge James O’Connell who retired before the case could be concluded. With consent of both parties, I continued the trial relying on the transcript of Mrs. Govern. Her testimony which was not refuted presented a graphic description of petitioner returning home each day from work covered with a black dust and dirt. Her evidence was convincing and consistent with the conclusion and stipulations entered previously during Mr. Govern’s life time claim against respondent. I accept her testimony as truthful and accurate. Nevertheless for the reasons discussed below, this is not conclusive of an exposure to substances suspected of being carcinogens. Additional evidence of exposure was furnished by material safety data sheets (MSDS) attachments to respondent’s answers to standard occupational disease interrogatories and the Division of Workers’ Compensation record of Mr. Govern’s lifetime claim against respondent for occupational pulmonary disease..
The other trial exhibits were pertinent to Mr. Govern’s health. The exhibits which are enumerated on the evidence docket were hospital records pertinent to Mr. Govern cancer diagnosis and treatment plus imaging test interpretations. Chest x\rays which were taken in the early 1990's confirm the presence of long standing chronic obstructive pulmonary disability and include a finding of right apical pleural parenchymal changes of unknown chronicity with nodules in the right middle lobe. Further studies suggested by this October 5, 1992 lung x/ray led to the eventual finding of "non-small cell carcinoma of lung" which spread to his brain and caused Mr. Govern’s death on April 11. 1994.
The testimony in this trial was continued before me with the testimony of petitioner’s expert, Dr. Hermele who is an internist with significant experience in the treatment of pulmonary disease and other ailments plus significant experience as an expert witness in those spheres. Dr. Hermele opined a causal connection between the industrial exposure which he stated causes cancer and Mr. Govern’s death. To a large degree, his testimony was more of a net opinion than a detailed explanation of the etiology of Mr. Govern’s lung cancer. His explanation of the impact on Mr. Govern and how his exposure caused lung cancer was lacking in acceptable scientific details. To a degree, it appeared to be wrong especially when compared to publications cited by respondent’s expert.
On the day Dr. Got, respondent’s expert, was to testify, I had to leave the courthouse because of a family medical emergency. At the request of respondent, I directed that Dr. Got’s testimony be taken in my court room by video deposition. I have read the transcript and screened the video tape. I am confident the combination of these media put me in the same position as if the doctor had appeared before me. Doctor Got has expertise as a toxicologist and forensic physician. His experience is based on education, industrial research experience and experience as a litigation expert on behalf of industry on many issues concerning human exposure to toxic substances. Dr. Got disputed, exposure to carcinogens, the cause of Mr. Govern’s pulmonary disease and his cancer. His testimony that Mr. Govern’s Chronic Obstructive Pulmonary Disease (COPD) was due to cigarette and pipe smoking is rejected as inconsistent with respondent’s settlement and evidence in Mr. Govern’s lifetime claim. However, his testimony of the absence of carcinogens in Mr. Govern’s work exposure was to a degree consistent with government classification of hazardous substances.
The following legal precepts are pertinent to resolution of this case.
The burden of proof here, as in all Workers’ Compensation contested cases, rests on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of the elements of the claim. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984); Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 410-12 (App. Div. 1992), certif. den. 130 N.J. 6 (1992). The same evidential standard applies to the elements of the case on which respondent bears the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995) states that
For petitioner to prevail [s]he must establish a link between ... [the] disease and occupational conditions. Petitioner has the burden to prove this causal relation by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.’ [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).
Where respondent urges an alternative factual proposition or legal conclusion which will exonerate or mitigate its liability, it, and not the petitioner, bears the burden of proof and the burden of persuading this tribunal to its view on that issue. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995).
The Workers’ Compensation Act "is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses." Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to "liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . ." Ibid. This directive for liberal construction of the Act continues. Fiore, supra., 140 N.J. at 465. On the other hand, this does not extend to ignoring the burden of proof. It does not release petitioner from the burden to persuade the trier of fact that his factual contentions are valid.
This occupational disease claim must satisfy the statutory definition
a.. [T]he phrase "compensable occupational disease" shall include all diseases arising out and in the course of employment which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment. [Emphasis added.]
b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable. N.J.S.A. 34:15-31.
This statute is a part of a legislative plan to contain compensation costs as a balance for increased disability benefits for serious injuries. Fiore v. Consolidated Freightways, supra.,140 N.J. at 468. Previously it was only necessary to show the occupation was a contributing cause. Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103 (App. Div. 1954). Now it must be shown the disease or the acceleration of the occupational condition was "due in a material degree" to the exposure. Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503-508 (App. Div. 1993), certif. den. 135 N.J. 304 (1994) and Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988). Further the employee must show the exposure or condition was characteristic of or peculiar to the occupation, process or place of employment and the material cause of the occupational disease. Fiore v. Consolidated Freightways, supra. 140 N.J. at 468-70. Compensation judges have been instructed to consider scientific literature and medical literature on issues of medical causation. Fiore at 475- 76 ; Wiggins v. Port Authority of New York and New Jersey, 276 N.J. Super. 636, 644 (1994).
I carefully reviewed the record in this case reading the transcripts and trial exhibits several times. I had the benefit of thoughtful trial briefs submitted by very capable trial counsel. I am required to reach the conclusion that petitioner has failed to establish that Mr. Govern’s lung cancer was caused or aggravated by his employment exposure at respondent’s facility. Environmental conditions which are claimed to be the cause of an occupational exposure must be shown with particularity to be the active agent causing the compensable injury. A subjective generalized characterization of the environment does not meet the statutory standard for liability. Laffey v. City of Jersey City, supra., 289 N.J. Super. at 306. Laffey teaches that there must be more than mere dust and fumes. There must be identification of the substance and scientific proof that it probably was the causative agent of the disease or its spread. Fiore, at 452. While petitioner’s counsel sought out identification of the substances present in the work place and presented proofs, the MSDS documents, still the causal connection is lacking. There was sufficient justification to find and believe that Mr. Govern was exposed to a large quantity of dust and substances which caused COPD. When seeking an explanation of specific disease processes which have can developed in the absence of industrial exposure, such as lung cancer, more particularity is required by Laffey and Fiore. It is not here. Mr. Govern’s fatal disease was a personal catastrophe, the medical evidence does not show with sufficient particularity the substances to which he was exposed to were the cause of his lung cancer. Asbestos, which is the usual suspect in industrial causation of cancer, was not present in this case.
Mr. Govern worked as a laborer, crane operator, and as a working yard foreman throughout the nine buildings and the several yards of this metal fabricating facility. This was not a steel plant. There is no suggestion in the record that there were any furnaces or other similar equipment common to a steel mill. This facility was one where they apparently warehoused and assembled products from manufactured steel. The crane where he spent a good deal of time would be well removed from the actual metal cutting work. One is tempted to say that because Mr. Govern worked in a dirty environment and was exposed to a large quantity of dust and oily solvent fumes which did contribute to a material degree to the development of COPD that this same exposure caused the development or spread of lung cancer in his right middle lobe which latter metastazied and spread to his brain. I have reviewed the trial record numerous times looking for that proof which would permit me to reach such a conclusion.
I closely examined the record of the April 3, 1989 judgment in claim petition number 88-255708 where this respondent consented to entry of a judgment awarding Mr. Govern pulmonary disability arising from his work exposure. The record in that litigation includes a stipulation that petitioner was exposed to "dust and other noxious substances." The report of respondent’s forensic pulmonary examiner opined that Mr. Govern suffered from chronic obstructive pulmonary disease. The judgment entered, after a brief hearing, included an award for permanent pulmonary disability. The record of that hearing contains no further proof of the specifics of the occupational environment beyond this. Proof of causal connection between his occupational exposure and the fatal lung cancer depends on the evidence submitted in this hearing.
Petitioner argued that the record of Mr. Govern’s total disability judgment justifies a conclusion that Mr. Govern’s lung cancer was consequence of his industrial exposure. That judgment entered on April 3, 1989, awarded 85% permanent disability for the consequences of both a back injury and a pulmonary disability. There was no attribution of separate disability to each impairment. Respondent’s expert, in that case, Dr. Burke opined that Mr. Govern had chronic obstructive pulmonary disability which was disabling to the extent of 12 ½ %. Looking at the record it is clear that no medical witnesses testified that the liability was non-existent. The judge based her decision on stipulations and 4 medical expert reports. The oral decision, the Judgment, and the Decision of Eligibility for Second Injury Fund Benefits make no mention of pulmonary impairment due to any other cause. There was no mention of the specifics of the exact nature of the exposure in the pleadings or medical reports.
Neither counsel in Mrs. Govern’s case participated in her husband’s case so they could give no help beyond the bare bones of that limited record. Based on my knowledge of the procedure then prevailing, it is obvious that this was a settlement or consent judgment. A close examination of Dr. Burke’s report and the report of petitioner’s expert Dr. Goodman convinces me that the pulmonary disability was serious and at least 30%. The obvious diagnosis was COPD. There was no evidence at that date of any parenchial pathology. The limited record from Mr. Govern’s trial contains no finding or concession of exposure to cancerigenic substances. The medical reports and the judges decision is limited to a recognition of exposure to irritative substances, dust and fumes, which caused a chronic cough and shortness of breath as were readily discovered on pulmonary function testing. There is mention of his former cigarette and pipe smoking habit which had ceased 5 years earlier. That record makes no finding that smoking was responsible for his COPD.
There was no credible proof here that the mere presence of COPD is a marker that this person would contract cancer. Whatever the genetic facts might be, there was no evidence on that subject. This record contains no medical treatises supporting petitioner’s medical theory of the case. Dr. Hermele gave no proofs beyond the MSDs and his generalized statement that certain aeromatic hydrocarbons were present in the atmosphere to which Mr. Govern was exposed. The pertinent MSDSs i.e. carbomastic 90 aluminum, kerosene fumes, iron oxide, and paint thinner, were cited by him as justifying his opinion that they were inhaled at the work place. He opined that Mr. Govern had an exposure to iron particles and welding fumes which caused siderosis, a lung disease caused by deposit of iron particles in the lung.
Siderosis is almost always diagnosed by chest x/ray or biopsy. The medical record contains no such diagnosis.. Dr. Hermele insisted that siderosis causes cancer. Yet Dr. Hermele presented no medical texts or treatises to support that proposition. Nor could he explain how the exposures would result in cancerous cells beyond stating the cancerigenic substances irritate lung tissue and cause a break down in DNA. I questioned the doctor in an attempt to elicit more detail on the mechanics of the initiation of the disease but obtained no more that I previously stated in this opinion. Dr. Hermele touched on exposure to silica as a possible cause of cancer, while that is well known, there was no diagnosis here of silicosis or of any silica presence in Mr. Govern’s lungs.
Fiore teaches that the proponent of theories such as advanced by petitioner must present adequate medical explanation supported by scientific proofs. Petitioner’s expert’s theory of causation was more of a net opinion. No medical studies were presented. They were unable to present any treatises or medical research papers which justify their position. Dr. Got disputed that siderosis had any known relationship to lung cancer and pointed to its absence from government lists of cancer causing chemicals. He gave a well reasoned presentation that the substances which Dr. Hermele relied upon are a threat in different settings such as steel mills, but would not be present as fumes in sufficient intensity in the atmosphere of a steel fabricating facility. His testimony here was more convincing and better supported by medical data.
After I reached the conclusion that Dr. Got’s testimony refuting the occupational causation was more believable, I conducted my own medical literature search to determine if I could find any support for petitioner’s thesis or touched upon it. If it existed, I intended to bring it to the attention of both counsel for comment by their expert. I found no such proofs. I was unable to find any papers in a Medline search which associated siderosis with cancer.
If there was an aggravating factor in this man’s environment which precipitates lung cancer, it is his former habit of tobacco smoking. Both experts were in agreement that this is a likely cause of lung cancer. Petitioner urged that it was a combination of exposure. Dr. Got opined that this was the likely cause. I am unconvinced that the greater weight of the evidence permits a finding of causal relation to the workplace environment.
For the foregoing reasons, judgment will be entered dismissing the dependency claim petition.
Respondent shall pay a stenographic fee to John P. Trainor , Inc. of $150 and State Shorthand of $150 and all expenses and copy costs related to the testimony of Dr. Got.
Dated: June 27, 2000 Lawrence G. Moncher
Lawrence G. Moncher, J.W.C.