LYLE BEYERSDORFF (Dec'd), Applicant
c/o LORRAINE BEYERSDORFF

L & S ELECTRIC INC, Employer

LIBERTY INSURANCE CORP, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 21, 2006
beyerly . wsd : 175 : 8 ND § 3.42

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant, the wife of the deceased worker, Lyle Beyersdorff, contends in her petition for commission review the administrative law judge erred in determining that Mr. Beyersdorff did not suffer a work-related occupational injury due to his exposure to nickel in the workplace, leading to his lung cancer on or about April 25, 2001. The applicant contends the administrative law judge should have credited the opinion of Mr. Beyersdorff's treating physician, Dr. Greaves, who opined the applicant's exposure to nickel from his welding tasks at work caused his lung disease. The evidence did not indicate the applicant was a cigarette smoker or that he was exposed to a great deal of cigarette smoke during his lifetime. However, Dr. Greaves noted in his report dated February 7, 2003, that welders may be exposed to nickel oxide, especially when welding on nickel alloys or stainless steel. Dr. Greaves admitted that an interpretation of studies in this area is hampered by the simultaneous exposure of welders to chromates and perhaps other carcinogens. Dr. Greaves stated that on the basis of several epidemiological studies showing an increased risk of respiratory cancer in welders, it was concluded that such risk especially in high alloy and stainless steel welders, could be related to the presence of chromium and nickel in the welding fumes, however this possibility is currently being investigated. Dr. Greaves concluded that regarding Mr. Beyersdorff and his lung cancer, the long latency of lung cancer development after exposure, the limited number of employee's performing this task, and the limited number of non-smoker's developing lung cancer, make a definitive determination of the exact mechanism of disease pathogenesis not possible. Dr. Greaves admitted that while other confounding factors such as radon exposure, passive cigarette smoke and diet may in some degree modify the risk from his exposure to inorganic nickel substances in the workplace, Dr. Greaves believed the primary cause of Mr. Beyersdorff's cancer was more his workplace exposure than all other potential causes. However, Dr. Greaves admitted that the correlation between the welding exposure of welders and the onset of lung cancer was currently being investigated.

Dr. Levy, prepared several reports on behalf of the employer. Dr. Levy, a pulmonary specialist, stated on August 26, 2003, there were no detectable levels of nickel, lead, copper or chromium found during an air quality study performed by OSHA at the employer's premises on January 17, 2003. Dr. Levy stated there was no objective evidence the applicant was exposed to any detectable nickel or nickel compounds at work. Dr. Levy stated in a second report dated September 24, 2003, the applicant's exposure to nickel in 1995 was below the OSHA requirements, and no nickel was detected in 2002 in his breath zone. Dr. Levy opined the applicant's work as a machinist for the employer was not a material contributory causative factor in the onset or progression of his lung cancer. Dr. Levy stated in a third report dated February 25, 2005, the applicant's home when measured for radon levels was 160 percent of the EPA recommended action limit, but subsequent remedial action since those readings have lowered the radon level. Dr. Levy stated the survey results provided evidence to support his opinion that within a reasonable degree of medical probability, the applicant's lung cancer was caused by a lifetime of exposure to high levels of radon in the homes in which he has lived. The applicant admitted in his testimony that he had lived at his current residence since 1972, and his mother's home for the first 22 years of his life.

Dr. Blume also prepared a report on behalf of the employer dated March 4, 2003, and stated that exposure to nickel provides a relatively low degree of risk for lung cancer based on epidemiologic findings. Dr. Blume noted by history a thermospray powder other than powder O52 was used prior to the early 1990s, and it did not contain nickel. Dr. Blume stated that based upon his review of the data, a lung cancer risk related to nickel exposure, was not apparent in the applicant's machinist work. Dr. Blume concluded there should be a serious exploration of alternative lung cancer risk factors in the applicant's case, especially the possibility of radon exposure, since he lived in the same residence for a long time, and it was a known high radon area.

The ALJ credited Dr. Levy's assessment. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant to overturning the administrative law judge's credibility assessment. The commission finds Dr. Levy's report to be complete and persuasive. Dr. Levy noted the results of the applicant's exposure to the radon in his residence, which showed significant levels of radon, also a known carcinogenic factor. Dr. Blume corroborated Dr. Levy's assessment. The evidence did not indicate the applicant had an extensive exposure to nickel in the workplace as a welder and a machinist, and Dr. Levy admitted that a relationship of nickel oxide when welding, and the risk for lung cancer was currently being investigated. Given the evidence of the applicant's exposure to nickel at work, and based on the radon levels in the applicant's home, and based on Dr. Levy's report as well as Dr. Blume's report, the evidence was sufficient to raise a legitimate doubt the applicant's exposure to nickel at work was at least a material contributory causative factor in the onset or progression of his lung cancer. Therefore, the administrative law judge appropriately dismissed the applicant's claim with prejudice.

cc:
Attorney Patrick Gillick
Attorney James Moermond
Mrs. Lorraine Beyersdorff
Ms. Jennifer Lattis
Ms. Abby Butler

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