It can be challenging to prove that a fairly common cancer occurring frequently in the general population is work related. The case of Proscia v. Advanced Biotech, A-3017-17T2 (App. Div. April 26, 2019) offers interesting guidance on how an injured worker can prove such a case.
Frank Proscia worked for Advanced
Biotech (AB) from 2005 until 2013. The
company manufactures and sells natural flavor ingredients. During his employment, there was occasional
flooding in his work site in Paterson, N.J.
When that occurred, he would wear waders to walk through space to secure
manufacturing materials, which included drums filled with chemicals. He would examine and sample many containers
when they arrived and supervised pouring of chemicals by others. His desk was 15 feet away from the sealed-off
storage room where drums of chemicals were stored.
Petitioner testified that there
were multiple spills of hazardous chemicals over the years he worked at
AB. The chemicals would adhere to his
skin and clothing. There was one spill
of acetic acid in February 2011. That caused petitioner to be hospitalized on
account of breathing problems at work.
He left AB in October 2013. Two
years later, petitioner was diagnosed with colorectal cancer, and he filed a
claim petition alleging that his work exposures either caused or contributed to
the cancer.
A key fact in this case was that the expert for each side agreed that
there were about 1,000 chemicals to which petitioner was likely exposed, and
several of those chemicals were suspected carcinogens.
The petitioner’s expert testified
that Acetaldehyde and Diacetyl are carcinogenic, and they were two of the
chemicals to which petitioner was exposed.
In fact, petitioner’s expert said that Acetaldehyde is a Class One
carcinogen.
Petitioner’s expert provided statistical information on colorectal cancers, noting that 11 to 15 percent of such cancers are related to workplace chemical exposures. The expert added that petitioner, who was 42 years of age at the time, could not return to work due to his stage three or four cancer. He said that his cancer was not yet at maximal medical improvement and petitioner required more treatment.
AB’s expert disputed the testimony
that Acetaldehyde causes cancer. AB’s
expert said that there were no studies establishing such a causal
relationship. The Court noted that respondent’s
expert was an oncologist. The Court
noted that petitioner’s expert was qualified in the field of environmental and
occupational health medicine. Respondent’s
expert did agree that some of the chemicals to which petitioner claimed
exposure were carcinogenic.
The Judge of Compensation found
that it was more probable than not that petitioner’s exposure on the job caused
his cancer. The Judge ordered further
temporary disability benefits as well as further medical treatment. AB
appealed.
The Appellate Division first
observed that petitioner did not have to prove direct causation; aggravation or
exacerbation of a condition is sufficient.
The Court also commented that the Judge of Compensation is in the best
position to weigh the credibility of the expert’s testimony. “He
could, at his option, decide to give petitioner’s expert testimony greater
weight than the expert who testified on behalf of AB.” For these reasons,
the Appellate Division affirmed the ruling in favor of petitioner.
Petitioner had several key
advantages at trial. First, the experts agreed that some of the chemicals to
which petitioner was exposed were carcinogenic.
Second, petitioner proved by his testimony that he had likely exposure
to certain chemicals. Respondent did not present lay testimony disputing
anything petitioner said on exposure. That left no real dispute that there was
serious exposure to chemicals.
The Judge of Compensation seemed to accept that the two named chemicals were carcinogenic. There was nothing in the Appellate Division record showing that respondent offered medical articles debunking any relationship between Acetaldehyde and cancer. Under these circumstances, petitioner made out a very strong case. For respondent to win in a difficult case like this, its expert needed to offer into evidence persuasive scientific evidence based on medical literature establishing that there is no known causal relationship to colorectal cancer. Alternatively, respondent needed to contest the alleged exposure through lay testimony.
In a difficult case like this, the best argument that respondent had was that its expert was far more qualified than that of petitioner to give an opinion on causation, as only respondent’s expert was an oncologist. There is nothing in the appellate decision addressing that point, however, so it is hard to tell if that was argued.
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