Copyright

(c) 2020 Jon L Gelman, All Rights Reserved.

Saturday, February 15, 2020

The Compensability of a Cellphone Radiation Exposure


A pending case in California may have significant impact on potential workers’ compensation claims throughout the country. The case involves the causal relationship of radio frequency [RF] radiation emitted by cellphones and human cancer. Cohen v. Apple, Inc., et. al, Case 5:19-cv-05322 (Filed 08/23/19) USDCT-North District California - San Jose Division.

The targets are cellphone manufacturers Apple and Samsung, who are named defendants in a case seeking class action certification for damages flowing from RF radiation exposure when the cellphones are either used or carried on or in the close proximity to the human body. The lawsuit alleges that the manufacturers concealed testing data and scientific information from consumers of the products. See, “We tested popular cellphone for radio frequency radiation. Now the FCC os investigation,” Chicago Tribune, August 21, 2019.

The complaint was filed in August 2019 and is pending US District Court San Francisco. A motion to dismiss was filed by both defendants and Samsung moved to to submit the case to arbitration. On February 2, 2020 the judge took the motion to dismiss “under submission” and subsequently converted it to a motion for summary judgment and ordered discovery to go forward immediately. The motion fo class certification has been scheduled for October 22, 2020 and the trial scheduled to commence on July 12, 2021 in San Francisco.

The complaint alleges that, “Numerous recent scientific publications, supported by hundreds of scientists worldwide, have shown that RF radiation exposure affects living organisms at levels well below most international and national guidelines. Effects include increased cancer risk, cellular stress, increase in harmful free radicals, genetic damages, structural and functional changes of the reproductive system, learning and memory deficits, neurological disorders, and negative impacts on general well-being in humans. Thus, Defendants’ design, manufacture, and sale of smartphones that far exceed federal guidelines exacerbates the health risks to Plaintiffs and the Classes.”

Cellphones proliferate, and are a tool used employees and employers throughout the workplace. Occupational exposure to radiation has long been held to be a compensation workers’ compensation claim. Any exposure to a carcinogen at work increases the level of risk and therefore may establish causal relationship.

“A radiologist who was exposed to radiation in his workplace on a daily basis for 18 years was able to establish that the exposure was peculiar to his employment and contributed to the development of his occupationally induced chronic mylogeneous leukemia at age 53. Evidence was presented that the projected death rate from workplace exposure alone was almost three in a thousand and the rate of contracting the disease was almost five in a thousand. Additionally it was established that the uranium isotope camera utilized emitted gamma rays to x-ray welds and that the annual maximum exposure was required to be less than 5 rems. 10 C.F.R. 20.1201, 1201(a)(1)(i). The radiologist's highest annual exposure was 1,850 rems. For his 18 year of employment his permissible total would be 90 rems, while his actual exposure was 22,467 rems. Woolf v. Consolidated NDE, Inc., 350 N.J.Super. 590, 796 A.2d 906 (App.Div.2001)." Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 9.18 Cancer-Occupational exposure to carcinogens/aggravation and acceleration. (Thomson-Reuters 2020).

Recently enacted NJ legislation also establishes a presumption of causal relationship for certain classes of workers how have been exposed to radiation. Or known or suspected carcinogens. Id., Gelman, §19.28 Presumption of an occupational illness or death; Thomas P. Canzanella Twenty First Century First Responders Protection Act, N.J.S.A. 34:15-31.2, eff. July 8, 2019. Federal remedies, see also, The Energy Employees Occupational Illness Compensation Program Act of 2000 (the Act or EEOICPA; 42 U.S.C. 7384 et seq.

As the case of Cohen v. Apple, Inc. moves forward, the disclosed scientific evidence will permit workers’ compensation jurists throughout the nation guidance, in their discretion, to also evaluate the causal relationship of RF radiation generated by cellphones and human occupational exposure.

Related articles:

The Evidence Mounts on the Causal Link of Cell Phones and Cancer

Radiation Exposure: Major New Study Links Cell Phone Exposure to Cancer in Rats

Workers' Exposure to Low Dose Radiation Linked to Leukemia and Lymphoma

No, Cancer is Not Mostly Bad Luck - The Role of Environmental Factors

IARC classifies radio frequency electromagnetic fields as possible carcinogenic to humans, IARC, WHO, May 31, 2011.
….

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.

Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters