• Chemical Exposure Case!? Fear Not! You Are Not at the Mercy of the Claimant’s Physician
  • November 30, 2017 | Author: Matthew T. Austin
  • Law Firm: Goldberg Segalla LLP - Rochester Office
  • Imagine receiving a medical report from an oncologist that notes “myelodysplastic changes to chromosome 3 and chromosome 7.” Imagine further that you see such language as “cytogenetics” that reports “abnormal results,” or that both “monosomy 7 and fusion RPM 1/MECOM typically correlate with myelodysplastic syndrome and acute myeloid leukemia.”

    Imagine further that this medical report is attached to a C-3 opening a claim for a causally-related occupationally acquired cancerous condition. Certainly, the highly technical language of cancer diagnoses (in this case acute myeloid leukemia) is a cause for concern. Indeed, this last sentence just may be an understatement. The purpose of this writing is to provide you with some practical guidance in the event that such a claim comes across your desk.

    Generally, such a claim for Workers’ Compensation becomes a battle of the experts. Therefore, it will come down to which expert is deemed more credible by a judge. Certainly, your defense counsel can provide you with the names of a good oncologist, internist, or occupational health expert. However, there is more than just the medical record and an examination that the medical consultant needs in situations such as these. Your medical consultant should review a number of documents that can provide an accurate understanding of what a claimant was exposed to and by how much.

    First, you should seek from the employer the Safety Data Sheets (SDS) of the chemicals used at the facility. They have other names, such as “material safety data sheets,” or “chemical safety data sheets.” The SDS are used as a system of cataloging information on chemicals, chemical compounds, and chemical mixtures. The SDS information may typically include instructions for safe use and potential hazards associated with the particular material product, as well as toxicology information. In the United States, the Occupational Safety and Health Administration (OSHA) requires that SDS sheets be readily available to all employees for potential harmful substances handled in the workplace under the hazard communication regulations promulgated by OSHA. As of December 1, 2013, the US adopted a 16-section Safety Data Sheet Form which is to bring new Safety Data Sheets to comply with the Globally Harmonized System (GHS) of classification in labeling of chemicals. All of this should be reviewed by your medical expert. Indeed, prior cases promulgated by the Workers’ Compensation Board have found that a claimant’s treating physician as not being credible because the Material Safety Data Sheets, in conjunction with testimony from employer witnesses, demonstrated that the alleged chemical compound that caused the cancer was not present at the workplace.

    With that said, you should also immediately obtain a full medical release from the claimant to review his entire medical history. For such information can assist your medical consultant in finding and determining some other reason for the cause of the diagnosis.

    For an example, the scientific and genetic analyses done by an oncologist to determine a diagnosis of Acute Myeloid Leukemia do not necessarily establish causal relationship. Certain genetic changes can be an indication of bone marrow damage, which leads to the conclusion of a potential exposure, but it is not a diagnosis of exclusion. Bone marrow damage can be the result of a prior exposure to radiation due to chemotherapy, rather than exposure to a chemical in the workplace. Another example would be alleged asbestos related lung cancer. A claimant’s long history of cigarette smoking can raise doubt on a treating physician’s opinion of causal relationship.

    Another helpful piece of information is the dosage of the alleged exposure. Obtaining OSHA’s safety recommendations as it relates to certain chemical compounds can assist to defeat a claim for such an occupational exposure case. OSHA does promulgate a baseline safety measurements for a number of harmful chemicals (usually indicating a “part per million” measurement). OSHA deems these levels safe for long term exposure. Air quality tests, for example, can provide your medical consultant an idea of what a claimant’s long term exposure actually amounted to, if anything. Further, the Workers Compensation Board has found an opinion provided by a medical expert on causal relationship is speculative without knowing the actual level of exposure.

    Certainly, these considerations are not an exhaustive list. And, just because you’ve obtained this information, does not mean you have a slam dunk win. But, moving quickly to obtain this information will help you and your defense counsel evaluate the claim and find the right medical consultant to review and examine the claimant to assist in the defense of the claim.