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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.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.