Last year, a worker’s compensation court in Louisiana rejected a worker’s claim that exposure to benzene caused him to suffer from non-Hodgkin’s lymphoma. The Louisiana Court of Appeal recently affirmed that decision. A key issue on appeal was whether the worker’s compensation court gave due attention to the conflicting opinions of expert witnesses.
The Benzene Controversy
Benzene is widely used in the production of lubricants, plastics, pesticides, adhesives, and other common household products. Employees who work with chemicals in manufacturing plants may be at risk from occupational exposure to benzene.
Outside of the workplace, the most common sources of benzene exposure are cigarette smoke, gasoline, vehicle exhaust, and industrial emissions. Within the home, paints, furniture wax, and glues are among the products that might lead to low levels of benzene exposure.
Long-term exposure to benzene can harm bone marrow and lead to decreased production of red blood cells. Whether benzene exposure causes cancer has been the subject of some controversy. Over time, however, a number of agencies that conduct health research, including the World Health Organization, the National Toxicology Program, and the Environmental Protection Agency, have concluded that benzene is a human carcinogen.
David Allensworth cleaned storage tanks for Gulf South Systems and later for Grand Isle Shipyard. The tanks contained petroleum products, including gasoline, diesel fuel, and crude oil. Allensworth entered the tanks and cleaned chemical residue by hand, using suction hoses, pressure washers, scrapers, and similar equipment.
Allensworth wore a respirator and an air mask, as well as rubber gloves and a Tyvek suit, when he entered the tanks. He testified that the suits often ripped, exposing his skin to the contents of the tank, including sludge, fumes, and chemical residue. He also testified that he breathed chemical fumes when he was outside the tank and not wearing a respirator.
Allensworth noticed a variety of symptoms during his twelve-hour shifts, including nausea, vertigo, and headaches. He did not seek medical attention for those symptoms. He also smoked a pack of cigarettes each day.
About three months after Allensworth’s last employment, he visited a clinic because he was experiencing abdominal pain. He was later diagnosed with non-Hodgkin’s lymphoma. Although the cancer is in remission following treatment, Allensworth is unable to work. He filed a worker’s compensation claim, contending that exposure to benzene at his workplaces resulted in a disability.
At his worker’s compensation trial, Allensworth submitted an affidavit of Dr. Jack Saux as an expert oncologist. Dr. Saux expressed the opinion that Allensworth’s non-Hodgkin’s lymphoma was more likely than not caused by toxic exposure to benzene in gasoline and crude oil.
Dr. Saux did not personally examine Allensworth. He relied instead on information supplied in an affidavit that Allensworth prepared, on Allensworth’s medical records, on studies documenting the relationship between benzene exposure and non-Hodgkin’s disease, and on studies regarding benzene exposure and tank cleaning.
The employers both relied on the expert testimony of Dr. William Nassetta. While Dr. Nassetta acknowledged the association between benzene and lymphoma, he testified that benzene does not cause lymphoma and therefore could not have been the cause of Allensworth’s disease. Dr. Nassetta also opined that, even if benzene could cause cancer, Allensworth’s use of a respirator and Tyvek suit broke the causal connection between benzene exposure and cancer by denying a pathway for benzene to have a toxic effect.
The worker’s compensation court accepted Dr. Nassetta’s testimony and rejected the opinion expressed by Dr. Saux. It accordingly denied Allensworth’s claim for compensation. Allensworth appealed, claiming that the worker’s compensation judge did not decide the dispute between the experts correctly.
Resolution of Appeal
The court of appeals noted that expert testimony is required to support a finding of occupational disease. When expert testimony is in conflict, it is the duty of the worker’s compensation judge to determine whether the evidence presented by the employee establishes that the employee’s disease was caused by his employment. The appellate court does not second-guess that determination, provided that the judge exercised appropriate discretion in reaching a decision.
The appellate court decided that it was reasonable for the worker’s compensation judge to give less weight to Dr. Saux’s opinion because Dr. Saux’s knowledge of Allensworth’s benzene exposure was limited to the information that Allensworth stated in his affidavit. That affidavit claimed that Allensworth wore only coveralls and a regular shirt when he cleaned the tank. Had Dr. Saux known that Allensworth regularly wore a respirator and a Tyvek suit, he might have formed a different opinion.
In addition, the worker’s compensation judge was entitled to credit Dr. Nassetta’s opinion that Allensworth’s history of smoking and his family history of cancer were greater risk factors for the development of cancer than his exposure to benzene. The judge was also entitled to accept Dr. Nasetta’s testimony that Allenworth’s Hepatitis C could have caused his non-Hodgkin’s lymphoma.
Expert Opinions in Affidavits
Because there was a reasonable basis for the judge’s ruling, the appellate court rejected Allensworth’s appeal. One lesson to be learned is that experts should be given as much information as possible before they render an opinion. If Dr. Saux had known about Allensworth’s use of a respirator and Tyvek suit, he could have accounted for those facts in his affidavit.
A second lesson is that, in proceedings where evidence can be presented by affidavit, there may be an advantage to presenting live or deposition testimony instead. If Dr. Saux had been cross-examined about Allensworth’s smoking or his Hepatitis C, Dr. Saux could have explained why those factors were less likely to have caused non-Hodgkin’s lymphoma than exposure to benzene. Presenting opinions in the form of an affidavit makes it impossible for an expert to counter unanticipated arguments that are presented in opposition to the expert’s opinion.