NOT FOR PUBLICATION
Respondent Exxon-Mobile Chemical Co. (Exxon), appeals from the final administrative decision of the Division of Workers' Compensation awarding benefits to petitioner Retha Johnson. We affirm.
We discern the following facts and procedural history from the record on appeal.
Johnson worked for Exxon as a chemical operator in the synthetics division from 1988 to 2004. Her last day of work was in May 2004.
Johnson filed her workers' compensation claim petition against Exxon in July 2005. She alleged occupational injuries resulting from exposure to various substances during her employment. Exxon filed its answer in August, denying Johnson's allegations. The parties subsequently exchanged discovery.
The trial was held before a judge of compensation on five days during 2010. Johnson testified and offered one expert witness. Exxon offered two expert witnesses. The following facts were developed at the trial.
Prior to working for Exxon, Johnson worked for American Cyanamid (Cyanamid) for ten years. She initially carried bags of powdered chemicals and subsequently worked as a "magnaflox operator." Cyanamid provided Johnson with "one piece" long johns, a "one piece" white uniform, rubber gloves, and multiple layers of socks for protection. While at Cyanamid, Johnson signed a card in which she acknowledged that the plant contained formaldehyde, methyl ethyl ketone, and asbestos.
Throughout her time at Exxon, Johnson was required to mix liquid chemicals, which were obtained through fluid lines and valves, with powdered chemicals, which were stored in bags. Johnson's attorney presented her with a list of chemicals used by Exxon at the plant in which she worked. She testified: "Basically, everything on this list I used. I basically worked with." Johnson also testified that she made gasoline, additives, and synthetic lubricants such as "Mobile One."
According to Johnson, when she opened the valves "they [sometimes] leak[ed] all over [her]," and "dust from the bags... [would] get over [her] and all." She would use a hose to blow the dust off. Sometimes she was sprayed with liquid when she opened the valves, but she would continue working until she completed the product she was making, known as a "batch." Johnson's uniform consisted of cotton khaki-pants and a cotton shirt.
Each day Johnson received a "batch ticket" which stated which product she was required to make that day. The batch ticket listed the chemical ingredients she needed to make the batch. However, the batch ticket used codes rather than the names of the chemicals. Each batch ticket also stated whether the worker was required to use a half-face respirator, a full-face respirator, or no respirator.
When Johnson made a batch, she opened 2000-pound bags of powdered chemicals, which she poured into the liquid chemicals. She stated that the bags produced "a lot of dust; 2000 pounds of powder." She claimed she experienced shortness of breath and sometimes "couldn't breathe" as a result of the dust. She also worked with a fine black powder called "Darco," also known as "carbon black."
Johnson sometimes removed fatty-acid remnants from equipment known as the "decanter" and "accumulator." She monitored a gauge as a hose removed the remnants. Johnson wore a face visor and gloves during that process. However, Johnson said that at times the gauge would stick and "you got flooded.... [I]t gets all over the drum, all over you...." For the first "ten or fifteen years," Johnson also mopped the floors after her shift with "SC 106," which is xylene.
In 2000, to improve safety, Exxon provided Johnson and her colleagues with plastic suits and a different type of respirator. At that time, employees were also required to shower following each batch. Prior to 2000, employees only showered at the end of their shift.
According to Johnson, she was exposed to asbestos in 1990 when a private company came to remove the asbestos from Exxon's facility. Johnson said the asbestos was "on the pipes... in the ceiling, over the decanter, accumulator, the slurry tank." Although the company marked off the area with plastic and red tape, Johnson worked during the asbestos abatement. She testified that she "could see it in the air" beyond the areas cordoned off with plastic, and at times she had to go through the cordoned off areas to perform her job.
In May 2004, Johnson noticed blood in her urine and was subsequently diagnosed with kidney cancer. As a result, surgeons removed one of Johnson's kidneys and her spleen. She testified that she has a "mass" on her remaining kidney.
Johnson experiences shortness of breath, and cannot walk "too fast or too far," and must sleep with three pillows to help her breathe. She has a cough that produces phlegm. Johnson admitted to smoking approximately two to three packs of cigarettes per week for approximately thirty years. In addition, Johnson has hypertension and is overweight.
Johnson's expert, Malcolm Hermele, M.D., is not board certified, but performs "medical examinations with [an] emphasis on pulmonary, chest X-rays, [and] history," and has a "subspecialty" in rheumatology and internal medicine. The parties stipulated that Hermele was qualified as an expert in pulmonary medicine and internal medicine.
Hermele examined Johnson in 2006, noting that she was exposed to "a variety of pulmonary irritants and toxic substances," such as individual chemicals, "solvents,... welding [and other] fumes, cleaning fluids, asbestos,... formaldehyde, toluene, [and] various petroleum products." Hermele noted that Johnson was exposed to other "substances," which she could not identify. Hermele's description of Johnson's work environment and ailments, based on his 2006 examination, was consistent with Johnson's testimony.
Hermele did not hear wheezes when he examined Johnson's chest, but she "had poor chest wall movement in maximum inspiratory effort." Hermele examined Johnson's extremities, which revealed no "clubbing, cyanosis, [or] edema." Hermele also testified that Johnson exhibited a prolonged expiration, meaning "she can inhale air quicker than she can expire it." Hermele categorized this as "an obstructive finding."
Hermele took an X-ray of Johnson's chest, which revealed "increased soft tissue markings,... [and] increased bronchovascular markings in the lower lung fields." Hermele performed pulmonary function tests. Johnson's results were low: "The FVC is abnormally low. The FEV1 is abnormally low and... the FEV3 is also low."
In formulating his opinion, Hermele relied on a standard medical text book and internet articles, which were admitted into evidence. The articles discussed the risk factors for renal cell carcinoma. One of the articles listed such risk factors as smoking, obesity, and exposure to asbestos, cadmium, benzene, and organic solvents.
Hermele testified that, in his "opinion within a reasonable degree of medical probability," "[Johnson's] renal cell carcinoma with metastasis to her spleen that necessitated a left nephrectomy and splenectomy [was] causally related to, and this is to a material degree, to her chemical exposure while employed by Exxon." In that regard, Hermele concluded that Johnson had a disability of "fifty-five percent of total."
In Hermele's opinion, there was a causal relationship between Johnson's work exposure and her renal cell carcinoma because Johnson was exposed, in part, to organic solvents, asbestos, petroleum products, toluene, xylene, and other chemicals. Hermele relied on Johnson's contact with large amounts of powdered chemicals, liquid spills, and fumes. However, Hermele agreed that Johnson's weight and tobacco use contributed to her renal cell carcinoma. Ultimately, he believed that all three contributed to her cancer to a "material degree," but he could not precisely apportion each factor's individual contribution.
According to Hermele, asbestos exposure is a cause "that ha[s] been associated with" renal cell carcinoma. However, he was aware of an increased development of renal cell carcinoma in individuals who smoke and are exposed to asbestos, "but that's the only thing [he was] aware of at [the] time. [He was] not aware of a huge volume of materials of association."
Hermele also opined, "within a reasonable degree of medical probability," that Johnson "has obstructive and probably restrictive pulmonary disease," which Hermele "estimated a permanent pulmonary disability of thirty-five percent of total." Hermele opined that, based on Johnson's history, her pulmonary disability was "causally related to, initiated or exacerbated by the exposure to the various pulmonary noxious agents" at Exxon. However, he conceded that other factors, such as Johnson's weight and smoking, could have also caused her pulmonary disease.
Exxon offered Stanley Fiel, M.D., an expert in internal medicine and pulmonary medicine, as its expert witness. Fiel performed his own pulmonary examination of Johnson. Johnson provided Fiel with the same history she provided Hermele, except that Fiel testified Johnson did not mention that she was exposed to asbestos. Based on his review of the hospital records, Fiel opined that Johnson's renal cell carcinoma did not metastasize to her spleen. Instead Fiel concluded that Johnson's spleen had to be removed because a surgeon accidentally "nicked" it while removing her kidney.
Fiel noted that Johnson did not display clubbing, cyanosis, or edema. He found that Johnson had decreased breath sounds, which he believed could be related to her excessive weight. However, he conceded that the decreased breath sounds could be the result of "fluid on the lungs or... a degree of emphysema or chronic obstructive lung disease."
Fiel reviewed Johnson's chest X-rays, which he concluded were not abnormal. Fiel noted that Johnson had abnormal lung function, but it was his opinion that it was not a result of work exposure. He believed the markings on the X-ray that Hermele noted could have been the result of her weight or the manner in which the technician performed the X-ray. He opined that her other ailments, such as her cough, production of phlegm, and shortness of breath, could have been caused by her history of smoking.
Fiel testified that silica, one of the chemicals used at Exxon, "can cause restrictive and obstructive" pulmonary disease. However, he did not think Johnson's test results were consistent with such exposure. Fiel concluded that Johnson had "mild lung restriction."
Exxon also offered Shanna Collie, Ph.D., as an expert on toxicology. Collie's testimony was based, in part, on peer-reviewed articles and epidemiological studies sponsored by governments, medical research facilities, and for-profit and nonprofit organizations, as well as Johnson's medical and employment records. When Collie was asked about the impartiality of the authors of the articles on which she relied, she responded that she had no reason to question their impartiality because the articles were in scientific, peer review journals.
Collie concluded that Johnson's renal cancer was not caused by her work exposure because there had been no findings of a conclusive causal relationship between any of the chemicals to which Johnson was exposed and renal cancer.
According to Collie, reliable case studies test separate chemicals in order to determine causation, as opposed to testing solvents, that is, a group of chemicals. She testified that the internet article relied on by Hermele was published on the American Cancer Society's website and was "written for the general public and... isn't necessarily a peer review document." Collie further testified that a designation of "hazardous" on the list of chemicals offered into evidence does not necessarily indicate that a chemical is a carcinogen.
Collie, like Hermele, testified that cigarette use, obesity, and hypertension have all been linked to renal cell carcinoma. Collie, however, was emphatic that only those three factors could have caused Johnson's injuries. Many of the articles Collie relied on found those three factors to be the most significant cause of renal cell carcinoma. In fact, the textbook on which Hermele relied stated that the "strongest association" of renal cell carcinoma is with cigarette smoking and obesity.
Collie evaluated the chemicals Johnson worked with, based on the MSDA sheets Johnson produced. She testified that none of the studies she reviewed had concluded that there was a positive link between renal cell carcinoma and those chemicals. In discussing a study in which ethylbenzene was linked to renal cell carcinoma in rats, Collie testified that the result does not create a causal link in humans, because the test was confined to rats.
In an oral decision, the judge of compensation found in favor of Johnson. He relied on Johnson's testimony, citing her exposure to powdered chemicals, fumes produced from the batches she made, spills that contacted her skin, which in some instances burned her skin, her duty of drumming acids and using carbon black, and the fact that she worked on various machines while at Exxon. The judge held that, although Johnson could not identify the chemicals she worked with by name, she provided "MSDA sheets to the chemicals used in the plant." The judge listed some of the chemicals on the sheet, such as cadmium, crystalline silica, mineral oil, nathpahalene, toluene, ethylbenzene, and benzene. The judge noted that many of the listed chemicals are "toxic," some "described as carcinogens." In this regard, the judge specifically highlighted benzene and toluene which he stated consists of "various small portions of benzene." The judge questioned Collie's credibility and declined to rely on her testimony.
The judge found that Johnson had "significant exposure to asbestos." He relied on the fact that Johnson and other workers were not removed from the plant during abatement, that she saw the asbestos in the air where she was working, and that she had to walk "through the plastic sheets" in order to perform her duties.
The judge noted that both Hermele and Fiel agreed that Johnson had a disability arising from a pulmonary condition, but that they disagreed with regard to causation and extent. Based on Johnson's testimony, which the judge found to be credible, he found that she displayed symptoms of chronic bronchitis and chronic obstructive pulmonary disease. The judge found that Johnson's toxic exposure contributed to her pulmonary diseases. However, he acknowledged that she smoked cigarettes and gave Exxon a credit for Johnson's smoking.
With regard to Johnson's renal cancer, the judge found that Johnson's kidney and spleen were removed because of the renal cancer. He concluded that it was irrelevant whether the spleen was removed because the kidney cancer had metastasized or because a surgeon had damaged the spleen during surgery to remove her cancerous kidney.
The judge relied on Hermele's testimony that Johnson was exposed to "toxic and carcinogenic materials" at Exxon, which caused her kidney cancer to a "reasonable medical probability." He was critical of Collie's insistent assertion that no chemicals in the plant would have caused kidney cancer, despite their classification as carcinogens and mutagens. The judge noted that one study found that "petroleum workers on freighters had a much higher incidence of kidney cancer than even full smokers." He rejected Collie's assertion that Johnson was not a petroleum worker, noting that she worked in a petroleum factory and used the same "ingredients" that are used to make gasoline.
The judge concluded that, "[a]lthough no studies conclusively have shown that any particular chemical cause[s] kidney cancer, studies have shown that various chemicals could very well either be suspicious of the cause or shown to very well have contributed to renal cancer." The judge relied on "studies [that] showed that asbestos affects and can be a causative agent in and of itself of renal cancer." He also found that Johnson's smoking, hypertension, and weight were risk factors, but not the sole cause of her renal cancer. The judge concluded that Johnson's "exposure [to the chemicals] at Exxon... materially contributed to her renal cancer." The judge also concluded that "[t]he asbestos combined with the other carcinogens [Johnson] was exposed to certainly show a material exposure to cause a renal cancer." The judge found Johnson's disability due to her kidney was fifty percent partial total.
On August 31, the judge entered two orders of judgment in favor of Johnson. The judge awarded compensation benefits for permanent disability for "50% partial total (internal) for renal cell carcinoma, with left radical nephrectomy, and splenectomy." He awarded Johnson $433 per week for 300 weeks, a total of $127,900. He also ordered Exxon to pay $400 for Hermele's fee, $15,000 in attorney's fees, and $1,100 for the stenographer's fee. The judge also awarded compensation for permanent disability for "25% partial total... for residuals of obstructive and restrictive pulmonary disease." He awarded Johnson $197.60 per week for 150 weeks, but applied a "credit for cigarette smoking" in the amount of $12,975, for a total award of $16,665. He also ordered Exxon to pay an additional $2000 in attorney's fees.
This appeal followed.
On appeal, Exxon argues that there was insufficient evidence to support the judge's findings as to exposure and causation. Instead, it argues that Johnson's medical conditions were the result of her personal lifestyle. Exxon also challenges the judge's impartiality.
We exercise a "limited" review of a judge of compensation's decision, in that our role is to determine "`whether the findings made [by the judge of compensation] could reasonably have been reached on sufficient credible evidence present in the record'" after giving due weight to the judge's expertise in the field and his opportunity to hear and observe the witnesses.
A judge of compensation's "findings are binding when based... on `sufficient credible evidence in the record.'"
Judges of compensation are regarded as having "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim."
Where scientific studies have not conclusively proven causation between a particular exposure and injury, or scientific studies have yielded conflicting results regarding causation, a petitioner is not barred from relief. The Court in
Although the record in this case reflects that scientific and medical research has not conclusively determined whether the chemicals Johnson was exposed to cause renal cell carcinoma, we conclude that there was sufficient credible evidence for the judge of compensation to find that Johnson established, by a preponderance of evidence, that the chemicals she was exposed to caused her renal cell carcinoma.
Hermele testified that Johnson was exposed to organic solvents, welding and other chemical fumes, cleaning fluids, asbestos, toluene, and petroleum products, which in his medical opinion can cause renal cell carcinoma. Hermele's opinion was based on his examination of Johnson, the chemicals to which she claimed exposure, and his review of literature discussed during his testimony. An article published by the American Cancer Society reflected that "[m]any studies have suggested that workplace exposure to certain substances increases the risk for renal cell carcinoma. Some of these are asbestos, cadmium..., benzene, and organic solvents, particularly trichloroethylene."
The record included other evidence to suggest that the chemicals Johnson was exposed to caused or exacerbated her renal cell carcinoma. A German study in the
A Canadian article entitled
Additionally, the U.S. Department of Health and Human Services'
Johnson testified that she was exposed to asbestos during the 1990 abatement. She also testified that she made gasoline and other gasoline additives. She worked with numerous petrochemicals, including zinc carbonate and zinc oxide, both of which were listed as hazardous waste because they contained cadmium. She also worked with toluene and xylene, which the record indicates are used for the production of benzene. In addition to inhaling welding and other chemical fumes while working at Exxon, she also testified that the liquid chemicals she worked with would often spill on her skin and that chemical dust covered her while she worked.
Collie, Exxon's expert, strongly disagreed with Hermele and testified to her opinion that a link between renal cell carcinoma and the chemicals to which Johnson was exposed had not been scientifically established. She also disputed Johnson's testimony with respect to the nature of the chemicals and the amount of exposure. The judge of compensation, however, chose not to credit Collie's testimony and explained his reasons for doing so, as outlined above.
While we acknowledge that the issue was hotly contested, our role is not to decide it de novo. Instead, we are required to defer to the judge's findings of fact and evaluation of the expert testimony unless they are "so `manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'"
With regard to Johnson's pulmonary disease, Hermele, who was qualified as a pulmonary medicine expert, opined that Johnson's work exposure contributed to obstructive pulmonary disease. After examining Johnson and reviewing her X-ray, Hermele stated that Johnson's X-ray revealed "increased soft tissue markings,... [and] increased bronchovascular markings in the lower lung fields." Additionally, the results of Johnson's pulmonary function tests were low or abnormally low. That testimony was also credited by the judge of compensation. Although his conclusions were disputed by Fiel, the judge of compensation credited Hermele.
We conclude that the record supports the judge of compensation's conclusion that the medical conditions caused by the exposures outlined by Johnson resulted in "restrict[ion] [of] the function of the body or of its members or organs,"
Finally, we reject Exxon's assertion that the judge of compensation was biased. There is no question that a judge is required to act fairly and impartially.
The trial in this case was a bench trial and not a jury trial. A judge's conduct in asking pointed questions and expressing skepticism about a witness's testimony is much more likely to be prejudicial in the latter context than in the former.
The transcript reveals that the judge was highly critical of many, but not all, of Collie's answers. It was apparent the judge did not find Collie credible based on what he characterized as sometimes-evasive and defensive answers. There were times when the judge interrupted or questioned Collie, but he generally did so in order to clarify his own understanding of her testimony, which was at times complicated.
Additionally, although the judge was critical of Collie and her answers, he never prevented her from answering a question, nor did he otherwise prevent Exxon's counsel from presenting its defense.
Based upon our review of the record as a whole, we find no basis to conclude that the judge was biased. His criticism and questioning of Collie did not interfere with Exxon's ability to present its case and did not display a personal bias that would warrant reversal.