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

JOHN ALONZO, Applicant

ALUMINUM CASTING & ENGINEERING, Employer

NATIONAL SURETY CORP, Insurer


WORKER'S COMPENSATION DECISION

Claim No. 2001-047415


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 August 7, 2003
alonzoj . wsd : 101 : 9  ND § 3.42

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

1. Background.

The applicant was born in 1959. He worked for the employer, an aluminum foundry, for 13 years from 1986 to 1999. He was exposed to substantial amounts of crystalline silica at work.

In early 1999, the applicant saw his primary care doctor, Dr. Brand, about symptoms of shortness of breath and wheezing. Dr. Brand referred him to Dr. Lambert, a pulmonary specialist. Eventually, the applicant's right lung was removed, and cancer diagnosed. He then began treating with Dr. Pierce, an oncologist. His treating medical doctors have not released him to work.

The applicant was a smoker. The medical notes (and they are summarized in the testimony at pages 20 to 23), indicate he smoked one or two packs a day for much of 25 years. He finally quit in August 1999.

The applicant has not been diagnosed with silicosis despite his exposure to sand and dust at work. None of the treating doctors have given that diagnosis, nor is silicosis included among the inclusive list of diagnoses given in the discharge note following his hospitalization for the pneumonectomy surgery. See exhibit G February 23, 2000 discharge note of O'Hair. Finally, an October 1997 report of Theodore Hubley, M.D., reported that there were no signs of interstitial lung disease, that is, silicosis. See exhibits J and 8.

2. Expert opinion.

The vocational experts agree the applicant--who has had a lung removed--is permanently and totally disabled on an odd lot basis. Exhibits D and 7. The only issue thus is causation. Both parties have supplied expert medical opinion regarding the cause of the applicant's disability.

Treating primary doctor Thomas Brand opined that the applicant's disability from stage III lung cancer, COPD, (1) and status post pneumonectomy (lung removal) secondary to lung cancer, was caused by his employment exposure to silica and sand particles at work. See exhibit B. He rated permanent partial on a functional basis at 50 percent, but noted the applicant could not return to work due to the pneumonectomy.

The applicant's treating pulmonary specialist, Steve Lambert, M.D., was rather less certain. In his practitioner's report (Exhibit C), he listed "sand and silica exposure at work" as the work exposure to which the applicant attributed his condition. However, in response to the question of whether work directly caused the disability, he wrote "maybe" adding "silica dust exposure may have contributed to p[atient's] COPD."

In response to the question of whether the applicant suffered from a condition caused by an appreciable period of work place exposure that is at least a material contributory causative factor in the onset or progression of the condition, the doctor wrote:

"Unknown, there is little evidence that exposure to silica dust predisposes to the development of lung cancer."

Dr. Lambert believed permanent partial disability "may be 20% [because] of contribution of his smoking induced COPD."

The applicant's oncologolist, Brenda Pierce, M.D., did not give an opinion on causation, but she did opine that it was not known whether he would ever be able to return to work. Exhibit E.

The applicant also submits some treatises. One is Rosenman, "Mortality among Persons with Silicosis Reported to Two State Based Disease Surveillance Systems." Exhibit J. In summary

...despite small numbers, this study supports the association between an increased likelihood of lung cancer (less than twofold increase) in patients having silicosis."

Id., at pages 7-8.

The applicant also submits a report from the International Agency for Research on Cancer (IARC). The report documents the conclusions of an IARC working group in October 1996. See exhibit K. The conclusion of the report was that overall the epidemiological findings supported increased lung cancer risks from inhaled crystalline silica resulting from occupational exposure, id., at 208, and that:

"Crystalline silica inhaled in the form of quartz or cristobalite from occupational sources is carcinogenic to humans. [Emphasis in original.]"

Id., at 211.

The employer and its insurer (collectively, the respondent) offer the opinion of Stuart A. Levy, M.D. Exhibit 1, April 30, 2002 report of Levy. He noted that there was no evidence of silicosis in the preoperative lung scans, or on the lung tissue examined after the pneumonectomy surgery. He noted a "recent superb treatise on the subject ... convincingly demonstrated that the carcinogenicity of silica in humans has never been demonstrated in any of the quoted studies," citing Silica, Silicosis, and Lung Cancer; a response to a recent working group report, Hessel, P.A., et al., JOEM 42:704-720 2000. Exhibit 1, report of Levy, page 5. He noted, too, that even in the controversial statement from the American Thoracic Society (ATS), the conclusion was reached that "for workers exposed to silica but [who] do not have silicosis, there is insufficient evidence to link exposure to silica with lung cancer." Exhibit 1, report of Levy, page 5.

Dr. Levy went on to point out that there is no evidence that the applicant has or had silicosis, which according to the ATS was a necessary precondition for the development of lung cancer. He concluded the evidence overwhelmingly supported the conclusion that the applicant's lung cancer was the result of tobacco abuse. He did not believe there was sufficient evidence to say within a reasonable degree of medical probability that exposure to silica was a material contributory causative factor in the cause of the applicant's lung cancer. He did rate permanent partial disability, regardless of cause, at 60 percent -- or at least opined the applicant had lost 60 percent of his lung function.

Dr. Levy testified at the hearing. He pointed out that exhibit 12, a pathology report, was the "gold standard" in establishing that the applicant did not have silicosis. Transcript, page 29. He testified, too, that the type of cancer the applicant had was the kind commonly associated with cigarette smoking, transcript, page 31, and that the applicant told him he smoked two packs a day for 25 years before stopping in 1999. Transcript, page 32. He also testified, as he indicated in his report, that there is little evidence silica dust predisposes to the development of lung cancer.

The respondent also submits the "ATS article" or the report of American Thoracic Society, "Adverse Effects of Crystalline Silica Exposure," Am J. Respir Crit Care Med, Vol. 155 pp.761-765, 1997, which states in part:

The available data support the conclusion that silicosis produces increased risk for bronchogenic carcinoma. The cancer risk may also be increased by smoking and other carcinogens in the workplace. Epidemiological studies provide convincing evidence for increased cancer risk among tobacco smokers with silicosis. Less information is available for never-smokers and for workers exposed to silica but who do not have silicosis. For workers with silicosis, the risks of lung cancer are relatively high and consistent among various countries and investigators. Silicosis should be considered a condition that predisposes a worker to an increased risk of lung cancer."

Exhibit 4, page 3.

3. Discussion.

The ALJ found for the respondent, and concluded the applicant did not establish that his disability from cancer resulted from work exposure. He cited several reasons, including: no evidence of silicosis, the long term smoking, Dr. Hubley's opinion, the less than enthusiastic opinion of Dr. Lambert regarding causation, and the persuasive opinion of Dr. Levy.


The applicant appeals, noting that Dr. Levy admitted the exposure was significant, that Dr. Levy admitted the question of the causal role of silica in lung cancer was controversial, and that in the Woelffer case the commission held (as Dr. Levy confirmed on cross-examination) that even a five percent causative role of silica in causing cancer -- assuming it is established -- is material.

However, the commission agrees with the ALJ. First, Dr. Lambert, the treating pulmonary specialist, indicated that the silica exposure only "may" have contributed to the COPD. This falls short of the reasonable degree of medical certainty or probability standard, which requires an opinion that work at least probably caused the injury. (2)    Moreover, Dr. Lambert indicated that it was "unknown" whether the silica exposure caused the cancer, noting there was little evidence of a connection. See exhibit C.

Second, the treatises, including the Rosenman article and the ATS article, particularly, support a causal connection between silica exposure and cancer when the affected worker has silicosis as opposed to mere silica dust exposure. The applicant in this case does not have silicosis.

The commission realizes that in two recent cases, Thomas Boncher v. Bay Engineering Castings, WC Claim No. 2002028116 (LIRC, June 5, 2003) and Wayne Woelffer v. Kohler Company, WC Claim No. 1992017380 (LIRC, February 3, 2000), the commission found for a worker who developed cancer after prolonged silica exposure. However, in both Boncher and Woeffler the workers, while cigarette smokers, had silicosis. Again, the applicant here does not have silicosis. Further, of course, each case must be judged on the expert opinions submitted as evidence in that case, and here the opinion of the applicant's treating pulmonologist was equivocal on causation.


cc: 
Attorney Thomas M. Domer
Attorney Richard T. Mueller


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Footnotes:

(1)( Back ) Chronic obstructive pulmonary disease.

(2)( Back ) The supreme court has held that the words "likely," "liable," and "probable" are sufficient to connote reasonable probability as opposed to possibility, whereas "perhaps" or "might be" are insufficient. Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959). 

 


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