Wis.LIRC WC Decision: Woelffer - February 3, 2000 - � 3.4 - Occupational Disease - � 3.42 - Causation in Occupational Disease Case - worker's occupational exposure to silica at least a material contributory causative factor in onset or progression of his lung cancer

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WAYNE WOELFFER (DECEASED), Applicant

KOHLER COMPANY, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1992017380

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.

ORDER

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

Dated and mailed February 3, 2000
woelfer.wsd : 175 : 5 � 3.4 � 3.42

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review that the administrative law judge erred in determining that Mr. Woelffer's death was due to an occupational illness arising out of his employment which occurred at a time while he was performing services growing out of and incidental to his employment with the employer. The employer contends that the administrative law judge erred in determining that Mr. Woelffer's silica exposure with the employer was a material contributory causative factor in the nature and onset of his cancer. The employer contends that the administrative law judge should have credited the opinion of Dr. Schlueter who reviewed Mr. Woelffer's medical records and autopsy report and stated that studies did not show a definitive link between the exposure to silica and lung cancer. Dr. Schlueter stated that even if a causal relationship between silicosis and lung cancer is accepted that the worker had at least four risk factors for cancer of the lung including a previous history of cancer in 1973 and radiation therapy to the mediastanum, and a long history of tobacco abuse and some simple silicosis. Dr. Schlueter opined that the worker's occupational exposure to silica with the employer was not the cause of his lung cancer nor did it materially contribute to his recurrent cancer by precipitation, aggravation and acceleration beyond its normal progression.

The commission remanded the matter to the department on May 25, 1999 pursuant to Wis. Stat. � 102.17(1)(g) for a third party independent physician to review the medical records and render a medical opinion concerning whether the worker's lung cancer and subsequent death was a result of his work exposure to silica with an injury date of December 14, 1991.

The employer contends that Dr. Martin's report does not meet the standard to establish that Mr. Woelffer's death was a proximate result from the work injury. The employer states that as specifically stated in Wis. Stat. � 102.46, the applicable standard proof in death benefit claims is one of proximate result or cause which is a more stringent test than the material contributory causative factor test in which the applicant's argument inappropriately relies. However, in this case, the evidence indicates that Mr. Woelffer died as a proximate result of his lung cancer. Under Wis. Stat. � 102.01 injury means mental or physical harm to an employe caused by accident or disease. Therefore, the issue in this case is whether the worker's occupational exposure to silica was at least a material contributory causative factor in the onset or progression of his lung cancer and if so, then the lung cancer meets the definition of an injury under the statute and the evidence indicates that the lung cancer caused the worker's death and therefore his death would be a proximate result of his injury.

After reviewing in depth Mr. Woelffer's medical history, Dr. Martin noted that a growing body of human epidemiological studies and experimental animal data support the hypothesis that silica is a human carcinogen. Dr. Martin stated that, however, it is not a particularly potent carcinogen and does not approach the carcinogenic potency of tobacco smoke but it does increase the risk of lung cancer approximately 1.5 to 2 times the risk of individuals who are not occupationally exposed to silica. Dr. Martin stated that to a reasonable degree of medical certainty the worker's silica exposure materially contributed to his risk of developing lung cancer but it did not substantially contribute to the risk given his tobacco use. Dr. Martin went on to state that in a stochastic event such as lung cancer any increased risk is material and therefore it is fair to say that Mr. Woelffer's silica exposure did materially contribute to his developing lung cancer to a reasonable degree of medical certainty. Dr. Martin further stated that tobacco was clearly the major cause of the worker's lung cancer, and stated in terms of attributable risk 95 percent or more of the lung cancer risk should be attributed to tobacco use and 5 percent or less attributed to silica exposure.

Although Dr. Martin's opinion could have been stated more clearly, the commission finds that Dr. Martin did determine that Mr. Woelffer's exposure to silica was a material contributory causative factor in the onset or progression of his lung cancer. Dr. Martin stated that to a reasonable degree of medical certainty the worker's silica exposure materially contributed to his risk of developing lung cancer. Dr. Talaska, who reviewed Mr. Woelffer's autopsy reports as well as the letters of Dr. Schlueter, indicated that he had a relatively low exposure to tobacco of about one-half of a pack per day and that this level of exposure is associated with a modest increase risk of lung cancer and he also stated that the worker was exposed to radiation for a very short period of time many years ago, and that most occupational studies which had shown a positive association with radiation and lung cancer deal with long-term exposure to radioactive materials. Dr. Talaska stated that of great importance were the findings at autopsy that there were multiple silicotic nodules and fibrous plural adhesions and he opined that Mr. Woelffer's chronic exposure to silica dust over his working lifetime of 31 years with the employer did make a material contribution to his development of lung cancer.

In addition, Dr. Voytovich evaluated Mr. Woelffer's pathological findings including his surgical pathology report on December 18, 1991 and his autopsy report on December 1, 1993 as well as the CT scan and surgical report on December 16, 1991. Dr. Voytovich stated that based on a review of radiographs and report that lung damage from characteristic lesions of silica exposure included from the post- operative chest plain film dated December 10, 1991, the right upper lung field showed no conglomerate masses and from the pre-operative CT report and scan small lobular nodular density in the left upper lobe and no other interpulmonary nodules were demonstrated. Dr. Rosenman, one of Mr. Woelffer's treating physicians, indicated in his WC-16-B dated October 4, 1996 that he died from lung cancer as a result of repeated exposure to silica and indicated that his work exposure was a material contributory causative factor in the onset of his lung cancer. Dr. Rosenman noted that the worker was diagnosed with lung cancer on December 16, 1991 when he had his left lung removed and received chemotherapy and silicosis was diagnosed by the pathologist on the left lung that was removed. Dr. Rosenman also noted that Mr. Woelffer's was found to have silicosis in his remaining right lung during the autopsy. Dr. Rosenman concluded that the worker had silicosis as documented by x-ray and pathology, and an autopsy report and died of lung cancer. Dr. Rosenman opined that the Mr. Woelffer's exposure to silica with the employer and his silicosis was a significant contributor to his death from lung cancer. Dr. Rosenman indicated that the worker's silicosis not only significantly contributed to the development of lung cancer but also hastened his death once the lung cancer had developed, and that his exposure to other carcinogens such as cigarettes and his previous radiation therapy did not negate the significant contribution as exposure to silica and the subsequent development the silicosis had on causing his lung cancer and death.

The commission credits the reports of Drs. Talaska, Voytovich, Rosenman, and Martin. Based on Dr. Martin's assessment that the worker's exposure to silica materially contributed to his risk of developing lung cancer as well as reports from Dr. Talaska and Dr. Rosenman and Dr. Voytovich the commission finds that Mr. Woelffer's occupational exposure to silica was at least a material contributory causative factor in the onset or progression of his lung cancer. Therefore, the applicant's claim for benefits was appropriately allowed.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Schlueter to be most credible. Dr. Martin's overall report was much closer to Dr. Schlueter's report than any other doctor. Dr. Martin found "Stated in terms of attributable risk, 95% or more of the lung cancer risk should be attributed to the tobacco use and 5% or less attributed to silica exposure." Dr. Martin went on to write "The cause of the lymph node changes in the hilum and the mesdiastinum can be attributed to two factors: silica exposure and radiation therapy. The pathology findings clearly demonstrated evidence of silica- related changes present in the lymph nodes both at surgery and at autopsy. Silica is known to cause lymph node enlargement and fixation, even in the presence of relatively minimal lung findings. Radiation therapy of the mediastinum is also clearly associated with changes and fibrosis to a number of organs and tissues in the mediastinum, including lymph nodes. Fibrotic changes were found throughout the mediastinum at autopsy and were consistent with radiation effects. The lymph node and hilar changes resulted in the need for more extensive surgery in 1991. I feel it is accurate to a reasonable degree of medical certainty that each (silica and radiation) contributed 50% to the mediastinal and hilar lymph node changes that resulted in the need for a more extensive surgery.

It is also true to a reasonable degree of medical certainty that this more extensive surgery had no impact on the metastatic cancer found in 1993 that ultimately resulted in Mr. Woelffer's death. In other words, the mestiastinal and lymph node changes did not materially contribute to his death from metastatic lung cancer in 1993.

In summary and to a reasonable degree of medical certainty, Mr. Woelffer's lung cancer was principally caused by and can be primarily attributed to his smoking tobacco. His radiation treatment also increased his risk of developing lung cancer but to a limited degree. His silica exposure also contributed to his risk of developing cancer to a limited degree. In my opinion, any factor that measurably increases the risk for the development of a serious fatal disease is material. However, the significance, in social terms, of relatively small additional risk posed by radiation and silica in the face of tobacco use is difficult to determine from a purely medical perspective. If apportionment were utilized, the development of lung cancer from the silica exposure would be 5% (five percent) or less of the total risk.

The silica exposure did, to a reasonable degree of medical certainty, cause changes in the mediastinum and lymph nodes such that Mr. Woeffler required more extensive lung surgery in 1991 resulting in an increased level of disability. These mediastinal changes were equally attributable to the radiation therapy he had in the 1973 and his silicosis."

I believe it is fair to say that Dr. Martin really is saying that no more than 2 1/2% of his risk was from his exposure to silica. Dr. Schlueter wrote "In summary it is my opinion to a reasonable degree of medical probability that Mr. Woelffer's exposure to silica at the Kohler Company was not the cause nor was it a materially or substantial contributing factor to development of his lung cancer. His tobacco smoking was materially or substantial contributing to the development of his lung cancer based in its relative carcinogenic potency."

For these reasons, I do not believe that the silica exposure was a material contributing factor to the applicant's development of cancer. I believe that the 2 1/2% increase in risk or at the maximum of less than 5% is not enough to be a material factor. Therefore, I would dismiss the complaint.
___________________________________________
Pamela I. Anderson, Commissioner

cc: FREIDA WOELFFER

ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

STEPHEN M SOBOTA
ASSISTANT ATTORNEY GENERAL

ATTORNEY PAUL H TEN PAS
KOHLER COMPANY

ABBY BUTLER
WORKERS COMPENSATION DIV

Appealed to Circuit Court. Appeal dismissed for failure to make State Fund a party, July 21, 2000.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]