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(c) 2019 Jon L Gelman, All Rights Reserved.

Saturday, April 27, 2019

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

An employee exposed at work to flavoring ingredients including Diacetyl and Acetaldehyde, was awarded workers’ compensation benefits as a result of being diagnosed with colorectal cancer. The case is significant because the Court adopted scientific evidence that associated chemical exposure in the workplace to an increased risk of a malignancy based on expert testimony that by DNA testing, the exposed worker’s body could not detoxify from the hazardous chemical.

The injured worker was employed for about 7 years at Advanced Biotech (AB) in Paterson NJ as a working manager. The chemical company manufactured flavor ingredients and had over 1,000 chemicals on the premises. 

At the trial level the judge of compensation held: 

“[I]f in the course of [petitioner’s] work he is exposed to something that more probable than not causes him harm, he’s entitled to have that harm covered, and there’s a recognition implicit in that that we are not going to come forward with any certitude, but this man has colorectal cancer. There’s no question about that. 

“There is in his history presented no alternative cause. There is the certitude that he was exposed to a great deal of chemicals that could have harmful effects including causing cancer. That to me is sufficient for ... a finding that it is more probable than not that his exposure on this job caused the cancer he presently experiences, and I so find. 

“The respondent is responsible for treatment going forward. 

The Appellate Court held that these criteria were satisfied in establishing causal relation: 

1. “In order to establish an occupational disease, an employee typically must prove both legal and medical causation. A worker must prove that ‘the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury.’ Lindquist v. City of Jersey City Fire Dep’t, 175 N.J. 244, 259 (2003). “ 

2. “’[D]irect causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient….If the employee proffers a medical expert to prove causation, the scientific theory will be considered sufficiently reliable ‘if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991). 

3. The “’employee must demonstrate by a preponderance of the evidence that workplace environmental exposure was “a substantial contributing cause of ... [the] occupational disease.’” Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991). 

“Thus, the judge reasonably concluded petitioner established by a preponderance of the evidence that his workplace environmental exposure was “a substantial contributing cause of ... [the] occupational disease.” Lindquist, 175 N.J. at 263. Contrary to AB’s arguments, a petitioner need not prove direct causation. See id. at 259. “[P]roof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.” Ibid.” 

The reviewing tribunal also held that continued medical care is warranted. “The severity of his colorectal cancer condition (Stage IV) preclude[s] [petitioner] from return[ing] to work at the present time. Given the relatively poor prognosis associated with his severe disease, the likelihood that he will recover from his condition to the extent that he will be able to return to work in any capacity in the foreseeable future is low. As such he is deemed as permanently and totally disabled from the time of his colorectal cancer diagnosis to the present time, and going forward.” 

“The New Jersey Supreme Court in Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 814 A.2d 1069 (2003) provided a very simple and basic approach that allows for the necessary proof in complex cases. The Court recognizes that a need for guidance that existed due to an increase in the filing of complex occupational claims and the necessity for parties to rely more frequently upon new and novel scientific theories. *** The Lindquist Court, in it's quest to establish a standard for the admission for scientific evidence in workers' compensation claims, reviewed the concepts of legal and medical causation and the burden of proof required to sustain admissibility. The Court recognized that it was not necessary to prove legal causation or risk of danger within the workplace. The risk only need to have been a contributing cause.” “Medical experts—Admissibility of expert evidence.” Gelman, Jon L, Workers’ Compensation Law, 39 NJPRAC 26.4 (Thomson-Reuters 2019). 

This case takes the next step in implementing the Lindquist Doctrine as to introduction and judicial reliance upon scientific evidence to prove causation in a workers’ compensation claim. 

Proscia v. Advance Biotech, Docket No. A-3017-17T2, 2019 WL 1869015 (NJ App. Div. 2019) Decided April 26, 2019.

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.

See also:
A new wave of occupational disease - Flavor & Fragrance Lawsuits (gelmans.com)

….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman
1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.



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