GARNETT LISTER V. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, ET AL.
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPI NION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : November 21, 2007
NOT TO BE PUBLISHED
2007-SC-000023-WC
APPELLANT
GARNETT LISTER
V
ON APPEAL FROM COURT OF APPEALS
2006-CA-001426-WC
WORKERS' COMPENSATION BOARD NO. 02-66259
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
HON . LAWRENCE SMITH,
ADMINISTRATIVE LAW JUDGE,
AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant failed to prove a
work-related exposure to Agent Orange or to prove that an exposure to another
chemical caused him to develop non-Hodgkin's lymphoma . The Workers'
Compensation Board and the Court of Appeals affirmed, rejecting assertions that the
ALJ misinterpreted the evidence and imposed an inappropriate burden of proof and risk
of non-persuasion . We affirm.
The claimant was born in 1949 and had an eleventh-grade education and GED
but no specialized or vocational training . After working for about three years as an
order boy for a paint company, he served in the U. S. Army as a field wireman, setting
up field telephones . In 1973 he began working for the defendant-employer. From 1974
to 1996, he worked primarily as a heavy equipment operator . During the months of
May through August, he worked in the spray department, applying chemicals to help
control roadside vegetation .
The claimant was diagnosed with non-Hodgkin's lymphoma in July, 2000, and
retired shortly thereafter. His alleged that the work-related exposure to chemicals,
particularly Agent Orange, caused him to develop the disease . He had worked for the
employer for 27 years and testified subsequently that he received both retirement and
social security disability benefits . He also testified that the disease went into remission
after chemotherapy and remained in that state when the claim was heard.
The claimant described his work in the spray department, stating that he would
put chemicals in a tank on the back of a truck, spray them on the side of the road with a
hand nozzle, and get into the tank to clean it. He also used a three-gallon back pack to
spray areas that could only be reached on foot . He stated that he used Agent Orange,
which was 2, 4, 5-T, until the 1980s; later, he used 2, 4-D. He stated that he did not
begin to use breathing protection devices until about 1994.
The claimant submitted reports from Dr. Dannaher, who is a specialist in blood
disorders and his treating oncologist . Dr. Dannaher received a history of exposure to
Agent Orange from the claimant's wife. He reported that if the claimant was actually
exposed to Agent Orange, a causal relationship between the exposure and the
development of the disease was highly probable .
Dr. Herzig is a board certified hematologist/oncologist . He evaluated the
claimant on referral from Dr. Auerbach, to determine the cause of his condition . Dr.
Herzig received a history of 28 years' exposure to insecticides and herbicides, including
three years' exposure to Agent Orange in the 1970s. He thought that there was
sufficient evidence of an association between Agent Orange exposure and the
development of malignant lymphoma . He noted that most studies have shown no
increase in malignant lymphoma in Vietnam veterans . Several studies have found an
association between phenoxy herbicide exposure and lymphoma, and the Institute of
Medicine found sufficient evidence of an association . Thus, although he acknowledged
that some uncertainty as to definite causality remained, he thought that there was
"reasonable evidence" of a causal relationship between the claimant's work exposure
and the development of his malignant lymphoma .
Dr. Auerbach, a board-certified orthopedic surgeon and independent medical
examiner, stated that he had spoken with Dr. Herzig after the evaluation . According to
Dr . Auerbach, Dr. Herzig considered "probable" to be a better word to describe the
evidence of causation than "reasonable ;" however, he also indicated that an exposure
to Agent Orange when the claimant was in service could be significant.
Dr. Kraman, a specialist in internal medicine, performed the university evaluation
required by KRS 342.315 . He received a history of exposure to herbicides, including an
exposure to Agent Orange from 1974 to1978 . He noted that the claimant's cancer had
been in remission since 2001 and that his breathing problems began in 2003. Although
pulmonary function studies revealed a mild restrictive impairment, Dr. Kraman attributed
no portion of it to exposure to herbicides. He also stated that the claimant retained the
physical capacity for the work he performed at the time of injury but that he should not
be exposed to herbicides . He did not address the cause of the lymphoma .
The employer submitted evidence from Dr. Nichols, who is board-certified in
forensic pathology; Dr. Wolens, who is board-certified in occupational and
environmental medicine; and Dr. Samkoff, who is a physician and epidemiologist . Their
testimonies indicate that Agent Orange is a mixture of 2, 4-D; 2, 4, 5-T; and 2, 3, 7, 8
tetrachlorodibenzo-p-dioxin (TODD), which is a known contaminant of 2, 4, 5-T. They
also indicate that the manufacture of 2, 4, 5-T ceased in 1969 .
Dr. Nichols noted that the claimant's potential for exposure to herbicides while
working for the defendant-employer extended from 1 :974 to 2000 and was seasonal .
His potential exposure to Agent Orange, if any, was extremely limited because 2, 4, 5-T
became unavailable after 1969. Dr. Nichols concluded : 1 .) that the claimant received
minimal exposure to Agent Orange, itself; 2 .) that 2, 4-D was proven not to be a
carcinogen ; 3.) that TODD is not carcinogenic at low levels and may not be
carcinogenic even at high levels; 4.) that the scientific literature reveals no proven
increase in non-Hodgkin's lymphoma with exposure to Agent Orange, TODD, and, 2, 4D; and 5.) that there is no scientific proof of a causal relationship between the
claimant's work and his lymphoma . In a supplemental report Dr. Nichols stated that an
oncologist treats cancer after it is diagnosed and that the proper expert to address the
causal significance of an occupational/environmental exposure is an epidemiologist .
Dr. Wolens testified that neither the Environmental Protection Agency nor the
International Agency for Research on Cancer (IARC) had concluded that there was a
causal relationship between non-Hodgkin's lymphoma and exposure to 2, 4, 5-T and 2,
4-D, which belong to a group of chemicals known as chlorophenoxyacetic acids (CPAs).
He noted that the effect of exposure to CPAs remains controversial . In his opinion, the
scientific literature does not support a causal relationship to non-Hodgkin's lymphoma,
and epidemiological studies that show a causal association are flawed . He stated in a
supplemental report that an epidemiologist is the expert most skilled to address ,
causation .
Dr. Samkoff explained that an epidemiologist has advanced training in
epidemiology and biostatistics and, therefore, is the most appropriate health
professional to determine the likelihood that a worker's disease resulted from a work
related exposure to particular chemicals. She reviewed the claimant's work history and
testimony regarding his chemical exposures . Dr. Samkoff explained that Agent Orange
was a defoliant used in the 1960s and best remembered for its military use in the
Vietnam War. She stated that according to reports issued by the Institute of Medicine
of the National Academy of Sciences, the evidence did not show that exposure to high
levels of Agent Orange in wartime conditions increased the risk of cancer in Vietnam
veterans ; however, the committee had lowered its scientific standards at the direction of
the United States Congress in order to classify the substance as a known carcinogen .
She explained why various studies that purported to show a causal relationship
between exposure to CPAs and cancer were flawed. She stated that 2, 4-D and TCDD
have not been shown to be linked to non-Hodgkin's lymphoma and noted, in any event,
that the claimant's exposures to 2, 4, 5,-T and 2, 4-D were sequential rather than
concurrent . Finally, she stated that no epidemiologic basis existed to conclude that the
claimant's exposure to Agent Orange (if indeed there was such exposure); to 2, 4, 5-T;
to TCDD; and to 2, 4-D in his work for the defendant caused him to develop nonHodgkin's lymphoma .
The ALJ noted that the claimant's disease "may or may not have been caused
by a man-made element" and determined that he failed to present credible scientific
evidence that the substance to which he was exposed was Agent Orange. Finding the
opinions of the defendant's experts to be "much more persuasive evidence," the AU
stated that they offered "cogent and credible conclusions" that challenged the
claimant's theory of causation. Although noting that he "personally may be of the
opinion that the plaintiffs condition must have been a result of his exposure to these
chemicals since nothing else adequately explains his illness," the AU found that the
claimant failed to prove that his condition was work-related . After his petition for
reconsideration was denied, the claimant appealed.
The claimant points to the statement that he failed to present credible scientific
evidence that he was actually exposed to Agent Orange, argues that his exposure was
not in controversy, and argues that the AU held him to an inappropriate standard of
proof on the matter. He also argues that the ultimate finding and statement that the
AU personally thought his condition resulted from his exposure to chemicals were
inconsistent. He asserts that if he is not entitled to prevail as a matter of law, the AU
must make additional findings to explain the decision adequately .
The burden was on the claimant to prove that his disease was work-related, a
matter that the employer has contested from the outset . Although he testified that he
was exposed to Agent Orange, he equated it to 2, 4, 5-T and also likened it to 2, 4-D,
which he used later. In contrast, the scientific evidence indicated that Agent Orange is
a compound that contains both chemicals. Despite Dr. Nichols' statement that the
claimant received minimal exposure to Agent Orange, no evidence indicated that he
actually used the compound . Thus, the AU did not err in stating that there was no
scientific evidence that the substance to which he was exposed was Agent Orange.
The claimant asserts that Dr. Dannaher's opinion supported the ALJ's belief that
his disease was work-related and that the ALJ applied an inappropriate standard in
rejecting it. What the argument overlooks is that Dr. Dannaher conditioned his opinion
of causation on the existence of an actual exposure to Agent Orange. Absent evidence
of such an exposure, no expert testimony indicated that the claimant's lymphoma was
work-related. In fact, the testimonies of Drs . Nichols, Wolens, and Samkoff indicate
that 2, 4-D; 2, 4, 5-T; and TCDD have not been shown to cause non-Hodgkin's
lymphoma, either alone or when combined .
The decision of the Court of Appeals is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT,
GARNETT LISTER :
WAYNE C. DAUB
600 WEST MAIN STREET
SUITE 300
LOUISVILLE, KY 40202
COUNSEL FOR APPELLEE,
JAMES GORDON FOGLE :
FERRERI & FOGLE
203 SPEED BUILDING
333 GUTHRIE GREEN
LOUISVILLE, KY 40202
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