ROBERT J. MOSER JR (DEC'D), Applicant
c/o HELLENA S. MOSER
USEMCO INC, Employer
TRAVELERS INDEMNITY CO OF CT THE, Insurer
In September 2004, the applicant filed an application for hearing seeking compensation for cancer due to years of exposure to welding fumes in a poorly ventilated area. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 30, 2005.
Prior to the hearing the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $568.16. The parties also waived the procedural requirements concerning amendment of the application and answer to cover the additional claims arising from the applicant's death while this case was pending. At issue was whether, on or about March 1, 2003, the applicant sustained an accident or disease causing injury which arose out of his employment with the employer, while performing services growing out of and incidental to that employment; the nature and extent of any such injury; and the employer's liability for medical treatment expenses, death benefits, and burial expenses.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant was born in 1951 and died from lung cancer in December 2004. He had worked as a welder since he got out of high school at age 17. He worked for the employer for six years ending in March 2002.
Shortly before his death, the applicant was deposed on November 18, 2004. On deposition, he testified that before working for the employer, he did most of his work outside, summer or winter. His prior jobs involved building structures such as watertowers, and storage tanks for refineries.
The applicant's work for the employer, however, was primarily done in an enclosed 80 by 140 foot building. After the applicant began working for the employer, the employer bought a plasma arc machine used to cut parts for tanks and lift stations built by the employer. The machine operated in the enclosed building where the applicant worked. When the machine was used, it became so smoky in the building, the applicant testified, that he could not see further than 30 feet. The applicant estimated that the plasma machine was operated once or twice a day.
The applicant testified that a situation might arise where he was inside a tank doing welding where the only opening was a 24-inch manway, and a fan would be set up to pull fresh air into the tank. If the plasma machine was being operated, the smoke would be pulled into the tank. Deposition transcript, page 23. In addition, of course, there would be smoke from the welding material the applicant was actually working with himself. Indeed, he testified that he used a particular type of welding wire, a dual shield wire, that when mixed with carbon dioxide gas smoked badly. However, he testified that he used the dual shield wire in less than ten percent of the jobs.
The building the applicant worked in had big exhaust fans located in the back of the building. The applicant testified that these did not work properly. In the summer, the applicant testified, doors could be left open to provide ventilation.
The applicant complained to the employer's safety inspector about the smokiness in the building, but was told that he should expect smokiness in a welding shop. Other times the safety inspector would promise to take action, but no action would be taken. He testified that one of his prior employer's Chicago Bridge & Iron would provide plenty of ventilation, to the point a worker would not even notice the odor of smoke.
The employer's welding supervisor, Richard Haske, also testified. He estimated that it took 70 to 120 hours of welding to build the type of tanks the employer made, and that only an hour of that was spent welding the tank once its caps were on, and with six to eight hours of "inside" welding when the tank was an open-ended cylinder. August 30 transcript, page 16.
Supervisor Haske testified that there were two types of welding used, MIG wire welding (which caused smoke) and submerged arc or sub-arc (which generated very little smoke). His testimony suggests that the employer used dual shield welding material (as opposed to solid core) relatively infrequently. Transcript, page 33. Mr. Haske estimated that the work the applicant did outside of the tank would involve use of the smokier MIG wire welding about 20 percent of the time. He acknowledged that the work on the inside of the tanks all involved use of the MIG wire welding.
Supervisor Haske denied that the building where the applicant worked ever got so full of smoke that one could not see 30 feet ahead. He did admit, however, that more often than once a week the room would fill with smoke from the plasma cutter. The employer used a barn fan -- a 44-inch diameter circular fan that sat on the plant floor, to blow the smoke out of the building's doors during the summer. In the winter, the smoke was blown toward built in "make-up" blowers on the far side of the building. August 2005 transcript, page 31.
Mr. Haske admitted, too, that the applicant complained about smoke in the building to him, repeatedly, and that steps were taken to reduce the level of smoke in the plant. For example, the employer bought a plasma cutter that cuts underwater. Mr. Haske added that the employer has never been cited for having too smoky an environment. He testified that if the inside of the building got too smoky, he sent the workers out to get out of the building or to get a drink of water. He added that the air in the building cleared in 5 to 10 minutes. He said the employer did not use materials that exposed its workers to asbestos.
The applicant has smoked cigarettes since he was about 10 to 14 years old, smoking a pack a day or perhaps more. His medical notes indicate significant exposure to asbestos while working for another employer in the early 1990s (Exhibit D, Witte consultation note dated August 4, 2003, identified as page 34 of 35) and exposure to asbestos while working in steel mills and a refinery in the 1970s (Exhibit E, Patterson note dated July 23, 2003). The applicant's family history is also significant for cancer affecting several of his siblings and his children. See Exhibit E, August 16, 2004 note of June A. Kim, M.D; Exhibit D, Witte consultation note dated August 4, 2003, identified as page 34 of 35; Exhibit E, Patterson note dated July 23, 2003.
By March of 2002, the applicant was having trouble breathing, and he quit the employer. He began working for another employer, Advance Tank, also doing welding, and worked there until he was laid off in May 2003. The applicant intended to start his own welding shop at that point, but in June 2003, he was diagnosed with cancer.
In July 23, 2003, the applicant sought treatment based on concerns about lumps on the right side of his neck. He testified, too, that inhaling dust made him feel as if he had asthma, and he would take ephedrine to clear it up. After some testing, the applicant returned to his doctor on August 1, 2003. His diagnostic assessment was "lymphaednopathy and a questionable lesion on his chest x-ray with history of asbestos exposure and long smoking history." The applicant began treatment with an oncologist which included chemotherapy for "widely metastatic poorly differentiated carcinoma of unclear origin." While the etiology was unclear, the doctor felt that with the applicant's heavy smoking history, a lung cancer was probably quite likely.
The treatment was unsuccessful; as noted above the applicant died on December 15, 2004, about 14 months after his condition was diagnosed. The death certificate lists non-small cell brochogenic carcinoma as the cause of death.
The main issue here, is the role, if any, the applicant's occupational exposure played in his cancer. Both sides submit reports from medical experts.
The applicant's expert is his oncologist, Robert S. Witte., M.D. In a practitioner's report dated August 3, 2004, Dr. Witte attributed the applicant's condition to years of exposure to welding fumes. He explained in an April 27, 2004, letter that the applicant:
Is suffering from and being treated for advanced lung cancer. He has had a long history of exposure to welding fumes at this job. There are numerous studies which show that exposure to welding fumes places people at higher risk for lung cancer.
One study done in Sweden showed a 46% excess development of lung cancer in welders. Another study performed in steel workers, who had no exposure to asbestos, showed a 22% excess risk of development of lung cancer. Data from this study suggest that there is a modest lung cancer risk from steel welding.
A further study reported in the Journal of Occupational and Environmental Medicine (volume 41, pages 294 to 303, 1999) shows that a cohort of arc welders had a cancer mortality that was significantly increased compared to a general population control. This elevation was approximately a 50 to 60% increased risk of death from cancers of the respiratory tract. This difference was felt to be statistically significant.
These and other studies suggest that Mr. Moser's undifferentiated lung cancer has a strong possibility of being caused by exposure to welding fumes.
On the form practitioner's report itself, Dr. Witte marked affirmatively both the direct cause box (adding the words "in part") and the occupational disease box. He indicated the applicant's condition was not curable and that he would probably never be able to return to work.
The employer retained David G. Blake, M.D., to do its independent medical examination. He opined the applicant's exposure to welding fumes was not a material contributory causative factor in the onset or progression of the applicant's lung cancer, but that the applicant's cigarette smoking was a direct cause of his lung cancer. He explains:
Robert Moser was a 52-year-old, lifetime heavy cigarette smoker who was employed throughout his life as a welder. He claimed a history of asbestos exposure but had no documentation of asbestosis. His malignancy was not a mesothelioma. Mr. Moser had contended occupational exposure to welding fumes as the cause of his cancer, yet he had a greater than 40-pack-a-year history of cigarette smoking.
Welders have been suspected of having a higher incidence of cancer than the general public for some time, and several studies have raised this possibility as well. Yet no definitive link exists between welding and lung cancer when one discounts the contribution that cigarette smoking or even asbestos exposure may make to such a risk. According to the National Center for Health Statistics, welders are less likely to die of lung cancers than are waiters, waitresses amusement park attendants, and bowling alley employees. Retail store workers, bookkeepers, and accountants all share approximately the same cancer death risk as do welders. In this case, the history of cigarette smoking is the critical factor as well as the cause of Mr. Moser's lung cancer.
To a reasonable degree of medical certainty, it is my opinion that Robert Moser's lung cancer was caused by cigarette smoking.
In a follow-up report, Dr. Blake commented on at least one of the studies mentioned by Dr. Witte in his report. He stated:
In his letter, Dr. Witte ... opines that studies in the medical literature suggest that Mr. Moser's undifferentiated lung cancer had a strong possibility of being caused by his exposure to welding fumes. To date, no causative link between welding and non-small-cell lung cancer has been established.
In studies that have been suggestive of increased risk, when mesothelioma and cigarette smoking are taken into account, no significant increased risk of lung cancer arises. The study that Dr. Witte quoted from The Journal of Occupational and Environmental Medicine which suggests that the cohort of arc welders had a cancer mortality significantly increased compared to the general population once again demonstrated the above-mentioned fact. When controlled for the large excess in mortality from mesothelioma, lung cancer mortality was not significantly increased in this population.
It is my opinion that this data does not support the contention that Mr. Moser's employment as a welder was causative with regard to his lung cancer.
The employer also offers a copy of the Journal of Occupational and Environmental Medicine (1) article discussing the study at Exhibit 3. Dr. Blake's comments are apt. To quote from the Journal article itself:
. . . the observed elevated mortality from all cancers, cancers of respiratory organs, and particularly cancers of the lung, seems to disappear completely after exclusion of asbestos-related cancers. This leads us to the interpretation that the results of the present study do not indicate an increased cancer risk that might be attributable to exposure to welding fumes. The observed occupation-related increase of cancer mortality is likely to be predominately due to asbestos exposure.
. . .
Conclusions.
. . .
3. The apparent asbestos exposure, in combination with the lack of a clear dose-effect relationship regarding exposure to welding fumes, indicates that the asbestos exposure and not the exposure to welding fumes is the cause of the increased lung cancer risk.
Exhibit 3, second and third last pages.
However, Dr. Blake himself goes on to state:
Certainly one could consider the possibility that exposure to welding fumes may have been a factor in the development of lung cancer in this case, but Mr. Moser's history of smoking was the only substantiated material contributory causative factor in the development of his disease.
The ALJ found for the applicant. She concluded that whether he was working inside a capped tank (where he was exposed to welding smoke and recirculated smoky air from the plasma cutter) or outside (where he was exposed to the smoky air from the plasma cutter), the employment exposure posed a health hazard. She noted that eventually the employer replaced the plasma cutter machine with one that cut under water, but that prior to that he was exposed to poorly ventilated smoky air. The ALJ also characterized Dr. Witte's opinion as based on medical expertise, practice, and a common-sense view of the medical literature. She regarded Dr. Blake's opinion as more limited, noting it was based on a German study begun in 1980 shortly after asbestos regulation was begun.
However, Dr. Blake relies on an article in the Journal of Occupational and Environmental Medicine in April 1999. Further, that April 1999 article is the one to which Dr. Witte referred in his opinion, and that article does say that the increased cancer risk to welders is associated with asbestos exposure, rather than welding fumes themselves. It does not appear that Dr. Witte criticized the methodology employed either in the article or the German study to which it referred.
As Dr. Blake points out, the Journal of Environmental and Occupational Medicine article relates increased cancer in welders to mesothelioma from asbestos exposure, but the applicant did not have mesothelioma nor has exposure to asbestos been proven in his employment with the employer. Because Dr. Witte's opinion on causation is grounded in a large part in an article which does not support his conclusion, the doctor's opinion in this case is less credible than Dr. Blake's.
Further, the applicant's exposure to fumes from cutting steel with the plasma cutter was not discussed in Dr. Witte's opinion which refers only to the exposure to welding fumes. Moreover, the applicant had a 40-year, pack-a-day cigarette smoking history. His siblings, and apparently two of his children, also developed cancer at relatively young ages.
The commission appreciates that his employment exposure need not be the sole cause or the main factor in the applicant's fatal lung cancer. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Id; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942). Nor does the commission purport to resolve in any absolute sense the question of whether exposure to welding fumes may be proven to be a material factor in the progression or development of lung cancer. However, the applicable causal standard has not been met by the record in this case. Consequently, the application must be dismissed.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed April 14, 2006
moserro . wrr : 101 : 8 ND 3.42
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not confer with the presiding ALJ concerning witness credibility and demeanor. The commission did not reverse based on a different view of the credibility of Mr. Haske, the only witness who testified before the ALJ. Rather, the commission's reversal is based on a different conclusion as to the persuasiveness of the opinions of the medical experts, who, like the applicant, did not testify before the ALJ. See Hermax Carpet Marts. v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Rick Neimeier
Attorney John A. Griner
Jennifer Lattis
Abby Butler
Hellena S. Moser
Appealed to Circuit Court. Affirmed January 16, 2007. Appealed to the Court of Appeals. Affirmed, unpublished per curiam decision, August 9, 2007.
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]