CP# 97-028572 Woolf v. Consolidated NDE, Inc.
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
CONSOLIDATED NDE, INC.
DECISION ON MOTION
HONORABLE TERRY DAILEY
Judge of Compensation
LEE W. SHELLY, ESQ.
Attorney for the Petitioner
LOMELL, MUCCIFORI, ADLER, AVASCHIERE, AMABILE & PEHLIVANIAN, ESQS.
By: JAMES M. MCKENNA, ESQ.
Attorney for the Respondent
This matter comes before the court by way of a Motion for Medical and Temporary Disability Benefits. The trial of this Motion started before Judge James O’Connell, Jr. who retired before the case could be concluded. The matter was further delayed by the transfer of judges, a serious automobile accident, and a serious illness of the spouse of one of those involved, all of which are irrelevant to the matter at hand. With the consent of both parties, I continued the trial relying upon the transcript of the petitioner so that his testimony did not need to be repeated. I accept his testimony as truthful and accurate.
This matter was a pleasure to try as it was so refreshing. All of the witnesses for both parties were absolutely credible and sincere in their opinions. The two expert medical witnesses were not typical "hired guns." Both are long term treating physicians (although neither was the treating physician of the petitioner) who are respected and experts in their fields. Dr. Cohen testified on behalf of the respondent and was an expert in oncology and hematology. He was both pleasant and candid. Dr. Mandell is an expert in radiation oncology. Her testimony was taken by way of video deposition due to the transfer of judges and scheduling problems. I have read the transcript and screened the video tape of her deposition. I am confident that the combination of these media put me in the same position as if the doctor had appeared before me.
The facts, as presented by the petitioner and respondent’s lay witnesses, are essentially undisputed. The 54-year-old petitioner was employed as a radiographer with the respondent and its predecessors for 18 years (from 1978 to 1996). As a radiographer, petitioner’s duties required that he go to jobsites to x-ray welds in pipes and tanks to determine the quality of the welds.
Petitioner used an isotope camera to take these x-rays. This camera contains a "pill" made of uranium. The petitioner did not install or handle the radiation directly. That was done by the manufacturer. The camera emitted gamma rays to expose films of the welds. The camera itself is lead lined.
Petitioner would place film on the other side of the object and shoot through it in order to get the exposure. Exposure times were anywhere from 30 seconds to an hour. The camera has a snorkel or tube attached to the front of it which was placed upon the area to be inspected. That tube was approximately four feet long. On the other side of the camera was a cable approximately 20' long. The petitioner would wind the cable to push the "pill" out through the snorkel or tube to the item being inspected. Thus, petitioner was approximately 25' away from the "pill" at the time it was exposed.
The "pill" or isotope depletes as time passes. Its half-life is 75 days. The source or "pill" starts out with 100 curies of radiation and in 75 days it is down to 50 curies. At that point, the time of exposure had to be doubled in order to get an x-ray. The total amount of radiation emitted, though, remained the same. The petitioner performed these activities for seven to 12 hours per day.
Throughout this process, the petitioner wore a TLD badge and carried a dosimeter, both of which measured exposure to radiation. The dosimeter determines radiation at any time. The badge was turned in and measured as to exposure on a monthly basis. There was also a survey meter which gave a dose rate immediately.
Although over time the permissible levels of radiation exposure have changed, both parties agree that the petitioner’s cumulative lifetime exposure over his 18 years of employment with the respondent was 22.467 rems. This was far less than the permissible 173 rems of lifetime occupational dose limit set by the Nuclear Regulatory Commission. The petitioner’s greatest single quarter of exposure was l.850 rems which occurred in 1986 when he was 45 years old. Clearly, the petitioner’s exposures both annually and cumulatively were a fraction of that permitted by the Nuclear Regulatory Commission (N.R.C.).
There were many other matters upon which the parties agreed. Everyone agreed that radiation can cause leukemia. Both parties agreed that we are all exposed to radiation during our lives, both natural (for example from rocks) and manmade (for example, from electrical power lines). Respondent’s witnesses agreed there was a risk of cancer associated with the petitioner’s job. It was also conceded that the risk among radiographers is greater than among the general public. Respondent’s doctor testified that leukemia is the primary disease that exposure to radiation causes. Both of the medical experts agreed that age is a risk factor for cancer. In fact, according to the respondent’s doctor it is the largest risk factor. Both of the medical experts and respondent’s radiation witnesses agreed that there is no threshold level upon which its known that one does or does not get cancer. Everyone agreed that permissible does not equal safe when it comes to radiation exposure.
It is also undisputed that petitioner carries what is known as a Philadelphia chromosome mentioned both in R-3 and in the treating note of June 19, 1998 of Dr. Victor Ruiz. It is also undisputed that the petitioner has chronic myelogenous leukemia which was diagnosed on January 7, 1997.
There were only two issues in dispute. The two physicians were diametrically opposed regarding the how common chronic myelogenous leukemia (CML) is as a type of leukemia. Dr. Mandell testified that CML is very rare. Dr. Cohen testified that CML is very common. The other issue of dispute is the main issue of the case — whether petitioner’s long term low-level gamma radiation exposure caused his CML. Dr. Mandell was of the opinion that it did and Dr. Cohen was of the opinion that it did not.
The burden of proof here, as in all Workers’ Compensation contested cases, rests on the petitioner. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984); Pollack v. Pino’s Formal Wear and Tailoring, 253 N.J. Super. 397, 410-12 (App. Div. 1992), certif. denied 130, N.J. 6 (1992). The burden also applies to claims for occupational disease such as the petitioner’s CML. "Compensable occupational disease" is defined at N.J.S.A. 34:15-31 to
include all diseases arising out of 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.
The proofs necessary in an occupational exposure claim are further set forth in Fiore v. Consolidated Freightways, 140 N.J. 452 (1995) which at page 479 states that:
For petitioner to prevail he must establish a link between . . . [the] disease and occupational conditions. Petitioner has the burden to prove this causal relationship 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 of legal proof.' [Citations omitted]. Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996).
I find that the petitioner has met his burden for the reasons which follow.
Clearly, the petitioner demonstrated that this (long-term low-level gamma radiation) is a cause or condition peculiar to his occupation. Very few people deal with uranium isotopes. The usual problem in a Workers’ Compensation occupational exposure case is identification of the substance to which the petitioner was exposed. In this instance there is total agreement that the petitioner was exposed to gamma radiation emitted from a uranium isotope. The next most common issue is normally whether or not that substance can be the causative agent of the disease or its spread. In this instance both parties agree that radiation can cause cancer and, more importantly, can cause leukemia. The focal issue in this matter is even more finely circumscribed. In this instance the petitioner’s burden is to prove that his long term low-level radiation exposure, well within N.R.C. permitted levels, caused his CML.
Clearly, if his exposures had been above the permissible levels, there would not have been a Workers’ Compensation trial. Importantly though, no one for the respondent was willing to say with certainty that the permissible levels by the NRC are safe. In other words permissible does not equate to safe or non-cancer causing. This seems to be because no one knows with absolute certainty.
Trial did not involve the "usual" experts. It was not the certainty of position that is normally seen regarding back injury cases. Both doctors testified that over the course of time that they had read numerous studies that formed the basis of their opinion and as I already stated they were both sincere and credible in their opinions. However, they were both largely unable to cite chapter and verse regarding these studies. I do find that there were no studies of the petitioner’s particular industry which were known. Both doctors also agreed that there are very few studies on leukemia. This seems to be because it takes full body radiation exposure which does not occur often. This largely occurs in catastrophic situations such as nuclear bombs or nuclear power plant accidents and when these exposures do occur they are at levels well beyond "permissible." Since neither doctor could point to major studies regarding low-level long term exposure to radiation they certainly could not point to studies regarding ionizing gamma radiation.
Nonetheless, Dr. Mandell, petitioner’s expert, was able to cite to a number of studies and had apparently gone to some effort to visit the Radiation Effects Research Foundation in Hiroshima, Japan. On cross-examination she held firm to her opinion that the studies of blast victims undertaken at the foundation were of value and could be extrapolated to the petitioner’s situation. Hiroshima victims are also mentioned in petitioner’s exhibit 6, The Pathology of Radiation Injury study by Luis Felipe Fajardo L-G, M.D. Petitioner’s exhibit 8, Abstract Regarding X-ray Workers in China links leukemia to radiation work. Obviously, the problem with this study was that it does not tell the amounts of such exposure although we can infer that it would have been of long term duration and certainly smaller exposure than from a bomb. Respondent’s doctor did agree though that leukemia is more common in nuclear medicine employees than in others and he was not aware of the studies brought forth by petitioner’s counsel and Dr. Mandell.
More important is P-10, an article entitled "Radiation and Mortality of Workers at Oak Ridge National Laboratory: Positive Associations for Doses Received at Older Ages" by the Department of Epidemiology, School of Public Health, University of North Carolina at Chapel Hill. That study examined the association between low-level exposure to ionizing radiation and mortality among workers at the Oak Ridge National Laboratory between 1943 and 1972. Association was observed between the low-level exposure to external ionizing radiation, the type at issue in this case, and mortality. The association was larger for doses received after 45 years of age. This comported with a study introduced as P-11 entitled "Age That Exposure Modifies the Effects of Low-Level Ionizing Radiation on Cancer Mortality In An Occupational Cohort" by B. Ritz, H. Morgenstern and J. Monzau of the University of California which also found the age at exposure modified the effects of external radiation doses on cancer mortality. Respondent’s expert, Dr. Cohen agreed and testified that the biggest risk factor for cancer is age. The petitioner was diagnosed with cancer at the age of 54 and his age during the year of his highest exposure to gamma radiation was 45 years old. He obviously continued to be exposed to it between the ages of 45 and 54 when he ceased employment due to his cancer. Respondent’s expert, Dr. Cohen, also conceded that the level of exposure necessary to cause cancer or leukemia in an individual would vary with that individual.
Everyone was in agreement that there is no safe level of radiation exposure known. The N.R.C. in its manual candidly concedes that an "unfortunate radiographer" may get cancer. Dr. Cohen also refused to call the permissible level safe and simply called them acceptable. Petitioner’s expert, Dr. Mandell, also said that there is no threshold level at which it is known with certainty that radiation exposure is safe. She said that the best that can be made is a "guesstimate."
It is also a fact that the petitioner carries what is known as the Philadelphia chromosome which is believed to make him more vulnerable to leukemia. Dr. Mandell testified that if one has a genetic predisposition and has a full body exposure (as petitioner clearly did over many years) that this would be called "2 hits." In other words there would be the incipient gene and a second hit from an environmental risk. In this instance I would say that he had a "3 hit" situation because not only did he carry the Philadelphia chromosome, but he was over 45 years old for nine years of his low-level exposure. Dr. Cohen, respondent’s expert, was candid and, made more believable, because he did concede it to be possible that petitioner’s leukemia was caused by his low-level long term radiation exposure.
In this instance, I am drawing upon the wisdom of Judge C. J. Weintraub in his concurring opinion in Dwyer v. Ford Motor Company, 36 N.J. 487 at 516 (1962):
When the possibility of causal connection is accepted, we cannot deny relief in all cases simply because science is unable decisively to dissipate the blur between possibility and probability. In such circumstances judges must do the best they can, with the hope their decisions square with the truth, and with a willingness to consider in succeeding cases whatever contributions scientific advances may offer.
In this matter, everyone accepts that radiation can cause cancer. It is simply the level and term of the exposure creating that causal link which is in issue. Unfortunately, studies in this specific topic are rather sparse. Thus, I am accepting Dr. Mandell’s opinion as to the causal relationship of petitioner’s radiation exposure to his CML. She clearly had more studies to which she could cite and some were on point. Furthermore, she did not merely give a net opinion as to the causal relationship but did give reasons for her opinion.
For all of these reasons based upon the peculiar and individual facts of this case, I find that the petitioner’s CML was caused to a material degree by his low-level radiation exposure and is a compensable event. Obviously, if another radiologist were to contract the same unfortunate illness, it may be but will not necessarily be compensable. Obviously there is also certainly no moral culpability on the part of the respondent who has certainly abided by all of the known requirements for radiation exposure.
Petitioner shall prepare the appropriate form of Order. Petitioner has also filed a Motion regarding payment of the fee for Dr. Mandell seeking that she be paid in excess of $12,000 for her preparation and her appearance to testify. Unfortunately, I am constrained by N.J.S.A. 34:15-64A.(1)(a) & (b) which allows an evaluating physician only $200 for a medical opinion and an additional fee of not more than $250 for a court appearance to give testimony. Petitioner’s attorney has cited to no exception to this statute and I know of none. Clearly Dr. Mandell’s efforts in this matter are worth more than $450, but this is a statutory court in which the words of the statute must be followed. As to the $450 expense, it is to be split equally between the petitioner and the respondent.
Respondent is to pay $450 to State Shorthand for the stenographic services provided throughout this matter, $150 to Trainor Shorthand Services for stenographic services and on presentation of the bill from Esquire Deposition Services I will set the stenographic fee to be paid by respondent for that service. As to transcript expenses themselves, each party shall bear the cost of their respective transcripts as opposed to the above appearance fees for stenographers. Upon presentation of medical bills and information regarding temporary disability, I will set the fee of petitioner’s attorney. The attorney’s fee on the Motion will be paid by the respondent. Petitioner may wait to reimburse his attorney for his share of Dr. Mandell’s and transcript fees until funds are received from the respondent.
November 30, 2000 Terry Dailey
Judge of Compensation