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The Puzzle of Proof in an Occupational Disease Case: Does Anything Go?
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The Puzzle of Proof in an Occupational Disease Case: Does Anything Go?

Workers' Compensation


The Puzzle of Proof in an Occupational Disease Case:
Does Anything Go?
1)    Does “Anything Go” After Lindquist?
The world has gone mad today
And good's bad today,
And black's white today,
And day's night today,
When most guys today
That women prize today
Are just silly gigolos
And though I'm not a great romancer
I know that I'm bound to answer
When you propose, …..
Anything goes[2]
2)    Introduction – The Burden of Proof
a)      The Issue Confronting The Compensation System
i)        The concept of a compensable industrial disease has developed only recently, and its acceptance has lagged far behind that of industrial accidents.
ii)      The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events.
iii)    As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease. A major challenge has been to establish a standard for the admission of scientific evidence.
b)     The Judge’s Role
A high judicial threshold now exists in workers’ compensation cases. Judges are required to take an active role in screening scientific evidence. They make their assessments, based on the qualifications or the credentials, of the validity of an expert’s scientific methodology, including theoretical principles, research methods, and accumulated data. This very permissive standard yields a high quantum of potential evidence that must be evaluated.
c)      The Attorney’s Role
i)        Attorneys must understand the fundamental scientific and legal principles: standards of admission; scientific research methods, statistical proof, and multiple regression.
ii)      The attorney must apply the current issues and determine how science affects them.
iii)    It can be assumed that reputable scientists and expert witnesses will disagree on points of view and therefore the attorney must ask the right questions and raise the right issues.
3)    Historical Perspective of Occupational Disease Claims
a)      Original British Effort To Establish A Workers' Compensation System
i)        In the latter half of the 19th century, England began a rapid evolution from an agrarian society consisting mainly of farming to the industrial era with its factory production based upon the advent of electricity. This significant change in the structure of society was accompanied by a need for a change in the laws which governed the society.
ii)      The original common law remedies which had been available under the British legal system were emasculated by the rapidly developing doctrines of "assumption of the risk" and "contributory negligence."
(1)   The employee was said to have assumed the risk of the employment for both usual and unusual, foreseeable and unforeseeable events.
(2)   Furthermore, any negligence on the employee's part which contributed to an injury served to defeat recovery. In 1877, the British House of Commons appointed a committee to investigate the need for legislation, and the first English Employer's Liability Act was passed in 1880. The original Act was very weak, and the defenses of assumption of the risk, the fellow servant doctrine, and contributory negligence remained viable. The Act only provided benefits for seven out of one hundred workers.
(3)   In 1897, the British legislature proposed new legislation to provide a remedy for the injured worker.
(a)    In his first public address, Winston Churchill stated, "I do not say that workmen have not been treated well in the past by the kindness and consideration of their employers, but this measure removes the question of the shifting sands of charity and places it on the firm bedrock of law..."
(b)   The authors of the legislation sought to have injured workers compensated for each industrial accident and to make the economic burden of the compensation system part of the cost of production. The employee was not required to prove negligence on the employer's part but rather had to demonstrate that the injury had occurred during the employment situation.
(c)    The Act was limited to certain occupations, which included factory labor, mine and quarry activities, and engineering. Neither the original Employers' Liability Act of 1880 nor the Workmen's Compensation Act of 1897, the latter having been intended to encourage greater attention to safety in the industrial environment, was successful in reducing the number of industrial accidents in the British workplace.
b)     The American System-Original Statutory Enactments
i)        The American legal system, which was based upon British common law, rapidly developed a need to adopt a mechanism for the delivery of benefits to injured workers during the early 20th century.
ii)      The initial workers' compensation statutes adopted by numerous states were based upon the British statute which provided for compensation benefits in cases in which traumatic accidents had occurred but not in cases in which occupational disease was involved.
iii)    While the British statute was amended by 1906 to include occupational disease, none of the American statutes reflected this modification at the time of their enactment.
c)       Early Attempts By The Courts To Deal With "Occupational Disease"
i)        New York: Triangle Shirtwaist Fire – March 25, 1911 NYC
(1)   Michigan: In 1911, the State of Michigan enacted a workers' compensation law that provided for payment to workers who were injured while in the course of their employment. Augustus Adams was employed at the Acme White Lead & Color Works in Detroit, Michigan on December 18, 1912. He was a sifter or bolter tender in the red lead plant and, in this position, came into contact with lead. On May 29, 1913, he completed his day at work but immediately became so ill that he was unable to return to his job. The employee died on June 27, 1913, of lead poisoning. The Michigan court, following precedent established in English cases, held that lead poisoning was not an "accident" but rather an "occupational disease" and therefore not compensable; it was not a sudden event occurring at a fixed time but was a gradual and slow process. Adams v. Acme White Lead and Color Works, 148 N.W. 485, 182 Mich. 157 (Mich. 1914).
ii)      California: Lester De Witt was employed as a show card sign writer. For about one and one-half years, he used dyes dissolved in wood alcohol and forced through a fine needle by air pressure to shade his colors while performing artistic writing. During a particular period of time, he used the apparatus rather extensively in his work and it was necessary for him to clean it with wood alcohol. While doing so and while washing and cleaning his hands, he used a great quantity of wood alcohol and then found that his vision was affected. He went to an oculist who fitted him for glasses but advised him that they would do very little good because the artist was suffering from a degeneration of the optic nerves. Six days later, he was entirely unable to use his eyes and thereafter sought to receive workers' compensation benefits.
(1)   Four years later, in 1918, the Supreme Court of California held that the artist was entitled to workers' compensation benefits; however, they construed the petitioner's condition not as an occupational disease but as the result of an accident that was unexpected and unintentional. The court's interpretation of the petitioner's occupational exposure to the vapor of wood alcohol in unusual quantities which resulted in the sudden impairment of his vision was defended as constituting an "accident" which arose out of and occurred during the course of his employment and was therefore compensable. Fidelity & Casualty Co. of New York v. Industrial Accident Commission of California, 177 Cal. 614, 171 P. 429 (Cal. 1918). The court struggled with expanding the term "accident" to encompass what is currently known as occupational disease but based its reluctance upon the fact that a process occurring over a long period of time would be difficult to substantiate and would lead to the filing of fraudulent claims.
iii)    Ohio: In the fall of 1915, Edwin S. Roth was 18 years of age and was employed as a common laborer. He was requested by his employer, McFeeley Brothers, to paint a building that they were in the process of constructing. Roth attempted to comply with the request; however, since the weather was cold, the paint would not flow from the brush. Not being a painter by trade, he requested assistance from the foreman, who advised him to take the paint into a small designated building and heat it so that it would be warm enough to work with in cold weather. The building had little or no ventilation. Roth continued heating the paint from time to time throughout that entire day and the next day. After the second day of working, he became ill from inhaling the poisonous fumes and gases, and his condition worsened until he died 18 days later.
(1)   Since lead poisoning was considered a usual and customary incident to someone who is a painter, compensation benefits were denied. Additionally, the court reasoned that the employee should have understood the deadly nature of the fumes that he was breathing and should have opened the windows and the doors in the building in which he was heating the paint.
(2)   The court affirmed the presumption that workers understand the dangers inherent in their jobs and carried this assumption to the case of this decedent even though he had only worked in this hazardous trade for two days. Industrial Commission of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172 (Oh. 1918)
iv)    Michigan: Charles Jerner was employed as a mahogany stainer for the Imperial Furniture Company for a period of 20 days. During that time, his duties required him to completely immerse the article he was staining into a tank containing about 50 gallons of water, 1 1/2 pounds of carbonate or bicarbonate of soda, and 6 pounds of aniline dye. After the article was removed from the tank, the employee was required to brush it off with a brush. With no protective gloves, Jerner immersed them into the stained liquid. After about 12 days of this process, he complained that his hands started to "open up," and he developed a staphylococcus infection.
v)      The court recognized that those engaged in the dyeing of furniture with mahogany stain frequently suffered from sore hands and denied the claimant workers' compensation benefits based upon a strict interpretation of the workers' compensation statute which provided no compensation for those suffering injuries from "occupational diseases." The court further alleged that testimony was inadequate to sustain the burden of proof that a specific "accidental" injury had occurred. Jerner v. Imperial Furniture Co., 200 Mich. 265, 166 N.W. 943 (Mich. 1918)
d)     The Constant Struggle: Accidental Injury v. Occupational Exposure
i)        Minnesota: A strict adherence to the interpretation of the word "accident" led many courts to hold cases compensable only where there was an unexpected or unforeseen event, happening suddenly and violently and producing at the time a specific injury to the physical structure of the body. An employee, who suffered typhoid fever caused by drinking infected water furnished by the employer for the use of its employees, was considered not to have suffered a compensable event. The evidence produced at trial demonstrated that typhoid fever was a germ disease "produced by taking typhoid bacilli into the alimentary canal" and that the disease required more than a week after the infection to develop symptomatology that was discernable. Therefore, it was concluded that the disease did not result from an event that occurred suddenly and violently or from "injury to the physical structure of the body at the time it happens," as required by the workers' compensation statute of Minnesota in accordance with the interpretations of the English courts. Workers' compensation benefits were denied. State v. District Court, Rice County, 138 Minn. 210, 164 N.W. 810 (Minn. 1917).
ii)      New York: However, other courts in other states considered infectious diseases to be compensable events. In 1916, an employee who wore gloves and was required to handle dirty and diseased hides which contained wet salt was permitted to recover compensation benefits after he suffered an abrasion of the skin, contracted anthrax germs contained in the hides, and developed the disease. In this instance, the court of the State of New York considered the disease to be unexpected, unusual, and extraordinary and therefore, compensable. The court distinguished this case from that of an occupational disease which the court defined as "incidental to the occupation" or a "natural outcome thereof." Heirs v. John A. Hull & Co., 178 App. Div. 350, 164 N.Y.S. 767 (NY App. Div. 1917).
e)      Attempts To Encompass Occupational Disease By Statutory Change
i)        Within two decades of a majority of the states' enactment of workers' compensation systems, amendments to the statutory provisions were enacted to extend compensation benefits to occupational diseases. By statutory and judicial action, the states of California and Massachusetts were the first to recognize occupational diseases as compensable events.
(1)   California undertook a statutory amendment in 1918 to include "any injury" arising out of and in the scope of employment as compensable.1917 Cal. Stat. c. 538, ss 1-74. On the other hand, Massachusetts, which had no "accident" requirement in the statute, restricted the awarding of workers' compensation benefits in its court decisions by defining "injury" to mean sudden, unexpected incidents attributable to a specific time and place.
(2)   However, Massachusetts held the disease of an eye that was directly induced by the inhalation of poisonous gases incurred during the course of employment to be a "personal injury" within the statutory requirements and concluded that it was compensable. Hurle, 217 Mass. 226, 104 N.E. 338 (Mass. 1916).
ii)      The majority of cases have followed the lead of the English statutes and have allowed an occupational disease to be compensable for a specific list of diseases that were connected with particular occupations.
iii)    Generally, occupational disease claims, in the majority of jurisdictions, are not afforded the same liberal interpretation as claims arising out of ordinary traumatic accidents, whether the restrictions are imposed by enumeration on a list, by statutory peculiarities invoking such restrictions and limitations, or by judicial constraints.
f)        The New Jersey Experience
i)        The original Workers' Compensation Act in New Jersey, as promulgated in 1911, failed to recognize any occupational illnesses or diseases as compensable events.
ii)      In 1924, amendments were made to the New Jersey Workers' Compensation Act which enumerated ten specific diseases as compensable.
(1)   The compensable diseases included:
(a)   anthrax
(b)   lead poisoning,
(c)   mercury poisoning,
(d)   arsenic,
(e)   phosphorous poisoning,
(f)    poisoning from benzine and its homologues,
(g)   wood alcohol poisoning,
(h)   chrome poisoning, caisson disease, and
(i)    mesothorium or radium poisoning. Chp. 124, 1924 N.J. Laws, 231, Section 1(22b).
(2)   In 1926 radium was included
(3)   In 1937 dermatitus ventenata was included
(4)   In 1944 silicosis & asbestos were added
(5)   Those compensable illnesses generally arose from chemical or metallic poisoning. If an illness did not appear in the statute, the employee was required to pursue a common law remedy which, as described earlier, was both difficult and costly to pursue. Bodnar v. Simmons Co., 20 N.J. Super. 147, 89 A.2d 299 (N.J. Super. 1952), aff'd 23 N.J. Super. 109, 92 A.2d 642 (N.J. App. Div. 1952), aff'd 12 N.J. 361, 96 A.2d. 795 (N.J. 1953)
iii)    The addition of a right to recovery for occupational disease, as added to the Act in New Jersey, withstood a constitutional challenge and was held to be valid. A. Fishman Hat Co. v. Rosen, 6 N.J. Misc. 667, 142 A. 559 (N.J. 1928).
iv)    In 1949, a major revision was made to the occupational disease portion of the Workers' Compensation Act of the State of New Jersey, which resulted in the general recognition of illness due to occupational exposure as a compensable condition. In the revised statute, the phrase "compensable occupational disease" included all diseases arising out of or in the course of employment which are due to causes or conditions which are or were "characteristic of or peculiar to a particular trade, occupation, process or employment, or which diseases are due to the exposure of any employee to a cause thereof arising out of and in the course of his employment." Ch. 29, 1947 N.J. Laws 194, 103, Section 2.
v)      In 1979, New Jersey sought to restrict the definition of a "compensable disease" to those diseases which are due "in a material degree" to the conditions and causes that are or were characteristic of or peculiar to a particular trade, occupation process, or place of employment.
(1)   Those medical conditions in which a deterioration of either tissue, organ or part of the body has resulted from the natural aging process, were deemed not compensable. N.J.S.A. 34:15-31, amended by Ch. 283, 1979 N.J. Laws, Section 10, eff. Jan. 10, 1980.
g)      The Exclusivity Rule Circumvented by the Intentional Tort Exception – “The Millison Case
i)        The drive for economic gain by industry gave rise in the United States to a vast conspiracy to conceal medical data and to thwart claims for compensation benefits.
ii)      The asbestos industry presents a prime example of how the health of the American worker was exploited for mere economic reward in what has been termed "industrial manslaughter."
(1)   Asbestos-related disease was reported in industry more than 80 years ago. In 1906 at the Charing Cross Hospital in London, Dr. H. Montague Murray testified before a governmental commission inquiring about occupational disability and stated that he had seen a man in 1898 who was very short of breath and who had worked in an asbestos factory. The man's lungs at autopsy were badly scarred. It was Dr. Murray's prediction that, since the hazards of this exposure were now known, very few similar cases would occur in the future and that there was no need to provide compensation benefits.7 In 1924, Dr. Cooke in England reported the case of a woman who died of severe lung scarring after having spent 20 years in a textile weaving factory weaving asbestos. H.R. Rep. No. 14816, 90th Cong., 2d Sess. 349, 355 (1968)
(2)   The first epidemiological study of asbestos manufacturing plants was conducted in 1929 by Dr. Anthony J. Lanza, associate medical director for Metropolitan Life. The study concerned itself with the incidence of asbestos-related disease among manufacturing workers of several companies, which included both Raybestos Manhattan and Johns-Manville. Examination of the workers and dust counts were completed in January of 1931, but the publication of the final report was delayed until 1935. Vandiver Brown, Secretary and General Counsel for Johns-Manville, and George Hobart, outside counsel for Johns-Manville, sought to delay and edit the report so that the New Jersey Legislative Commission, which was considering the addition of silicosis to the list of enumerated compensable occupational diseases under the New Jersey Workers' Compensation Law, would not expand the list to include asbestosis. Brown insisted that Dr. Lanza should indicate in his conclusion that "clinically, it (asbestosis) is a type of (disease) milder than silicosis." The efforts by Johns-Manville's counsel succeeded in delaying the compensability for asbestosis as a disease under the New Jersey Workers' Compensation Act for about two decades.
(3)   Furthermore, industry officials such as Sumner Simpson, the President of Raybestos Manhattan, Inc., an asbestos manufacturer which had facilities based in Passaic, New Jersey, sought to suppress data to be published in a trade journal, "Asbestos," in 1935. The medical information obtained from the British studies of asbestos-related disease was effectually denied by Sumner Simpson. The editor of "Asbestos" magazine advised Simpson, "always you have requested that for certain obvious reasons, we have published nothing, and naturally, your wishes have been respected." Forty years later, in the 1970s, when documents were produced during the course of litigation against the suppliers and manufacturers of asbestos products, the correspondence between Sumner Simpson and Vandiver Brown demonstrating a coordinated and concerted effort to suppress and manipulate information was revealed. Simpson was delighted that information concerning the English medical studies of the health consequences of using asbestos had been suppressed. He stated that "the less said about asbestos, the better off we are." The conspiracy was acknowledged by reply correspondence of Vandiver Brown on October 3, 1935, when he stated, "I quite agree with you that our interests are best served by having asbestosis receive the minimum of publicity."
(4)   Through the concealment of information, industry was effective in delaying legislation providing for compensability for asbestos-related disease in the State of New Jersey for quite some time.
(a)   Prior to the amendments of 1944, asbestosis was not even considered to be a compensable disease. Ch. 88, 1944 N.J. Laws, 186.
(b)   The amendments to the New Jersey Workers' Compensation Act in 1949 kept asbestosis and silicosis separate from the general provisions of the Act. There was no allowance for partial permanent disability under the law. Perales v. Worthington Pump & Machinery Corporation, 26 N.J. Misc. 264, 60 A.2d 804 (N.J. Dept. of Labor 1948)
(c)    Finally, in 1951, decades after the conspiracy of industry had commenced, the special asbestosis and silicosis section of the Workers' Compensation Act was repealed, and asbestosis was given the same status as all other occupational diseases for compensability purposes. Ch. 59, 1951 N.J. Laws, 412.
(d)   If the employer has committed an intentional wrong, the employee may bring an action outside the Workers' Compensation Act for damages. The term "intentional wrong" is narrowly defined, and it requires a showing of deliberate intention to injure. Since the standard that defines an intent to injure is subjective, the court has adopted the "substantial certainty test." The conduct of the actor, as well as the context in which the injury occurred, are factors to be examined in determining "deliberate intention."
(i)     In the Millison claim, former employees at E.I. du Pont de Nemours & Company were examined during the course of their employment by company physicians who had knowledge of the plaintiff's exposure to asbestos and the resulting disease. The employer and its physicians fraudulently concealed the information concerning the asbestos-related illnesses disclosed on examination and deliberately exposed the plaintiffs to a continuing dangerous work environment. The court recognized a conspiratorial agreement by the employer and its medical staff to harm the plaintiffs. The intentional continuation of exposure of workers to the hazards of asbestos by the employer and the company physicians in conjunction with their fraudulent concealment of the fact that certain plaintiffs had contracted the asbestos-related disease, as shown by pulmonary function examinations and X-ray evaluations, resulted in a determination of the employer's actual intent to injure the plaintiffs.
1.      The court permitted the employees to recover directly against the employer based upon the employer's fraudulent concealment of the diseases that had already developed. It was the court's opinion that if the employees had fallen victim to workplace risks, the employer could not further mislead them. The plaintiffs were able to prove a deliberate corporate strategy to conceal the plaintiffs' asbestos-related disease, which had been previously discovered by the defendant's doctors in the corporate physical examinations. 
2.      The court determined that the medical departments utilized by the corporations could not be used to conceal information that would avoid the aggravation of an underlying medical condition.  Even if the employee embarked upon a workers' compensation action against the employer, that would not act as an election of remedies to bar an action for civil recovery. Millison v. E.I. du Pont de Nemours & Company, 101 N.J. 161, 501 A.2d 505 (1985), appeal after remand 226 N.J.Super. 572, 545 A.2d 213 (App.Div.1988), judgment aff'd 115 N.J. 252, 558 A.2d 461 (1989).
4)    The Rules of Lindquist
a)      The Social Compromise Theory
“The Act involves a trade-off whereby employees give up rights to pursue common-law remedies in exchange for automatic entitlement to specific benefits whenever they suffer a compensable injury.”
Millison, supra, 101 NJ at 176.
b)     Credibility / Sufficiency of Evidence
The Doctrine of Liberally construing the Workers’ Compensation Act does not extend to the credibility or weight, or sufficiency of the evidence.
c)      Legal Causation:
i)        The proof that the injury is work connected. N.J.S.A. 34:15-1, et seq.
ii)       Direct causation of the injury by exposure to a risk of danger in the workplace is not required for recovery under the Workers’ Compensation Act.
(1)   Proof establishing that the exposure caused the activation, acceleration, or exacerbation of the disabling symptoms is sufficient.
(2)   Workers' compensation claimant who seeks recovery for occupational disease is not required to prove that the nexus between the disease and the place of employment is certain. Lindquist v. City of Jersey City Fire Department, 175 N.J. 244, 814 A.2d 1069 (App Div 2003).
d)     Medical Causation
The petitioner must prove both legal and medical causation that the exposure to a risk or danger in the workplace was in fact a contributing cause if the injury. N.J.S.A. 34:15-1, et seq.
i)        Definition: “medical causation,” in a workers’ compensation context, means the injury is a physical or emotional consequence of work exposure---proof that the disability was actually caused by the work-related event.
ii)      Scientific Evidence
(1)   Frye Doctrine of “General Acceptance”-Knowing What Most Scientist Believe: New Jersey has modified and relaxed the criteria for the admission of expert testimony. In the past, the traditional approach to the admissibility of expert testimony pertaining to causal relationship had been based upon the Frye test . Frye v. United States, 293 Fed. 1013 (App.D.C.1923).
(a)   The test enunciated was whether the expert testimony to be admitted was deduced from a well-recognized scientific principle or discovery which had been sufficiently established to have gained "general acceptance" in the particular field to which it belonged.         
(b)   New Jersey had required that, in order for expert testimony to be admissible, a "general acceptance" of the expert's opinion or theory within the scientific or professional community must be demonstrated. State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984).
(c)      Three methods were utilized to determine whether an expert's testimony or scientific results could be proven to be reliable in terms of its general acceptance within the scientific community:
(i)     The testimony of knowledgeable experts; 
(ii)   Authoritative scientific literature; and
(iii)Persuasive judicial decisions which acknowledged the general acceptance of the expert testimony. Windmere, Inc. v. International Insurance Company, 105 N.J. 373, 522 A.2d 405 (1987).
(2)   Daubert:- Judges have the responsibility of evaluating the scientific validity of the basis for expert testimony.
The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. ruled that the Federal Rules of Evidence superseded the Frye test which required "general acceptance" for the admissibility of scientific evidence. The court held that the rigid "general acceptance" standard for the admission of scientific evidence was at variance with the "liberal thrust" of the Federal Rules of Evidence, and that therefore a relaxation of the traditional barriers to "opinion" testimony should be permitted. In order to determine the admissibility of scientific evidence, the trial judge must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist a trier of fact to understand the evidence or to determine fact in issue and whether the proposed testimony is based upon reasoning or methodology that is scientifically valid and applicable to the facts in issue.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Fed.Rules, Evid.Rules 104(a), 702, 28 U.S.C.A.
(3)   Reliance-Based Test:
The NJ Supreme Court has now adopted a reliance-based standard of admissibility [Rubanick], which permits the admission of expert testimony based upon the expert's methodology.
(i)    In toxic substance litigation, the court has departed from the traditional test governing the admissibility of expert testimony. Even if the causation has not yet reached general acceptance, it may be found to be sufficiently reliable for admissibility if it is based upon a sound scientific methodology that involves data and information of the type reasonably relied upon by experts in the particular field, and if such scientific knowledge is offered by an expert who is sufficiently qualified by either education, knowledge, training or experience in the particular field of science. The court further determined that the expert must possess a demonstrated professional capacity to assess the scientific significance of the data and information and to explain the bases for the opinion reached.
(ii)   Two employees were exposed to PCB's at their place of employment. One employee worked from 1974-1979, was diagnosed in 1979 at the age of 28 as suffering from colon cancer, and died within one year of diagnosis. Another employee who worked for 30 years for the same employer was diagnosed with colon cancer and died at age 52. The plaintiff offered, as an expert, an individual who held a doctorate in biochemistry, had been a primary researcher at the Sloan-Kettering Cancer Center in New York City for over 37 years, was a member of the National Large Bowel Cancer Committee, associate editor of the publication General Cancer Research, and had personally authored or participated in the publication of approximately 170 scientific articles of which approximately 15 concerned carcinogeneses. 
(iii)  The expert's testimony was offered to establish causation between the exposure to PCB's and the colon cancer and was based upon several factors, including a low incidence of cancer in males under 30, the decedent's personal history, including diet, smoking habits, and family history, the fact that 5 out of 105 employees at the same employer developed cancer during the relevant period, "a very large body of evidence" showing that PCB's produced cancer in experimental animals, and 13 articles concerning the effects of exposure to PCB's on animals and human beings. 
(iv). The court took into consideration the difficulty of estimating the impact of environmental and occupational carcinogens and the lack of clear insights into the disease's (cancer's) molecular basis. The court enunciated that the purpose of science is to learn physical facts whereas the purpose of law is to resolve disputes and to facilitate a structure for the organization of a just society. The court concluded that determining the reliability of a complex theory of causation in toxic substance litigation was not a question of law, but rather a question of fact. Rubanick v. Witco Chemical Corp., 125 N.J. 421, 593 A.2d 733 (1991). See also, Gelman, § 26.4  NJ Workers’ Compensation Law, Medical Experts--Admissibility of Expert Evidence
1.      The testimony of a physician/epidemiologist concerning studies that demonstrated a positive correlation between asbestos and colon cancer was admissible. The testimony of the expert concerning the studies demonstrated positive correlation as to cause and effect and was considered admissible even though the physician stated that the authoritative studies generally showed risk factors below 2.0.      
2.      A laborer and truck driver who was required to load asbestos debris and dump asbestos waste for over 30 years died of colon cancer that had metastasized to his lungs. The plaintiff's medical expert, a licensed physician who specialized in occupational medicine and who had a doctorate in epidemiology, testified that it was his opinion that the exposure to asbestos did not cause the cancer but that it substantially contributed to the development of the disease. The court rejected the requirement of a 2.0 relative risk threshold standard and followed the court's prior ruling that a review of the relative risk factors could determine whether the medical evidence was sufficient to support causal relationship between the exposure and the disease process. In this instance the court deemed the evidence acceptable based upon the fact that the medical expert's statistical meta-analysis reflected a Standard Mortality Ratio of 1.61 (61% increase in the risk of colorectal cancer mortality) and the fact that the risk was statistically significant, namely that the asbestos exposure was a significant factor in addition to other factors such as diet, genetic factors, rare diseases and sedentary lifestyle. The expert was also able to relate asbestos exposure to other carcinogenic risk factorsJones v. Owens-Corning Fiberglas Corporation, et al., 288 N.J.Super. 258, 672 A.2d 230 (App.Div.1996).
3.      The court's review in determining whether or not to admit expert testimony is limited to whether the expert's testimony is based upon scientifically sound reasoning and methodology. Testimony of a self-validating expert who relies upon his or her own unsubstantiated personal beliefs is not admissible. An epidemiologist, who was not a medical doctor, was permitted to testify that asbestos caused colon cancer in a specific individual. The expert's opinion was based upon sound and well-founded methodology that was supported by some expert consensus. The studies relied upon by the expert were of the type reasonably relied on by comparable experts in their particular field. Therefore a presumption was created that the reliance was reasonableLandrigan v. Celotex Corp., 127 N.J. 404, 605 A.2d 1079 (1992). The "net opinion" of a physician expert was admissible to establish the causal relationship between asbestos exposure and colon cancer. Even though the epidemiological studies did not demonstrate a relative risk factor in excess of 2.0, the testimony was permitted as it was based upon epidemiological studies, the plaintiff's employment history, and the absence of a history of colon cancer in the worker's relatives. Caterinicchio v. Pittsburgh Corning Corp., 127 N.J. 428, 605 A.2d 1092 (1992).
4.      In workers' compensation cases, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on sound, adequately-founded scientific methodology involving data and information of type reasonably relied on by experts in the scientific field; evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training, and experience in a specific field of science, and expert must possess demonstrated professional capability to assess the scientific significance of underlying data and information, to apply scientific methodology, and to explain bases for the opinion reached. Lindquist v. City of Jersey City Fire Department, 175 N.J. 244, 814 A.2d 1069 (App Div 2003).
a.      Claimant who sought workers' compensation for emphysema as an occupational disease was not required to prove that his work exposure exceeded the exposure caused by smoking cigarettes. Id.               
b.       Rebuttable presumption under workers' compensation provision that a health condition of a member of a voluntary fire department caused by a disease of the respiratory system is an occupational disease provided certain preconditions for the presumption are met applies to paid firefighters as well. 
c.       Rebuttable presumption under workers' compensation provision that a health condition of a member of voluntary fire department caused by a disease of the respiratory system is an occupational disease, provided certain preconditions for the presumption are met, applies to paid firefighters as well. N.J.S.A. 34:15-31, subd. a; N.J.S.A. 2A:84A, App. A, Rules of Evid., N.J.R.E. 201(b)(3), 202(b), 803(c)(18).
d.      Sufficient scientific evidence existed to support the decision by the Judge of Compensation that the claimant, who smoked three-fourths of a pack of cigarettes a day for 22 years, had proven by preponderance of evidence that his 23-year employment as a firefighter was a material cause of his emphysema; while claimant's expert did not cite any scientific studies showing that firefighting caused emphysema, scientific articles reviewed by Supreme Court verified that acute smoke exposure could damage lungs, noted a correlation between firefighting and increased risk of emphysema, and indicated it was unusual for someone of claimant's relatively young age and smoking history to contract emphysema. Id.
iii)    The Test
(1)   The evidence must be based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.
(2)   The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training, and experience in the specific field of science. 
(3)   The expert must possess a demonstrated professional capability to assess the scientific significance of underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached.
iv)    The evidence need only be “competent”. Gilligan v. International Paper Co.,  24 N.J. 230, 131 A.2d 503 (1957).
v)     No need for a Rule 104 “gatekeeper hearing”
Since the Rules of Evidence do not apply in a workers’ compensation proceeding, the respondent is unable to see a N.J.R.E. 104 hearing to challenge the admissibility of the petitioner’s expert testimony with respect to medical causation.

The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900 have represented injured workers and their families who have suffered occupational accidents and illnesses.

[2] Cole Porter, 1934.

Recommended Citation: Gelman, Jon L.,  The Puzzle of Proof in an Occupational Disease Case: Does Anything Go?, (2020),


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