On appeal from the Division of Workers' Compensation.
King, Deighan and Havey. The opinion of the court was delivered by King, P.J.A.D.
This appeal is taken from an award of compensation for occupational disability. Appellant Research Cottrell, Inc. challenges the award against it on three grounds claiming: (1) the judge erred in awarding disability at the 1980 rates where petitioner's employment and exposure ended in 1979, (2) the rule against apportionment of disability stated in Bond v. Rose Ribbon was incorrectly applied, (3) the judge erred in finding contributing exposure during petitioner's employment from August 1, 1978 to March 16, 1979. We disagree and affirm the judgment.
Petitioner Cyrus Falcon filed three occupational disability claim petitions for bladder cancer and related neuropsychiatric permanent disability naming American Cyanamid Company and Research Cottrell, Inc. as respondents. American Cyanamid employed the petitioner from 1939 until the early part of 1941. Research Cottrell employed petitioner from 1941 until March 16, 1979, excepting a period from 1942 to 1945 when Falcon was in the military. Petitioner was also employed by the Aim Corporation from May 30, 1979 until February 6, 1980 and Aim was joined in the case as part of the consolidated actions. The judge entered an award in favor of Falcon, charging Research
Cottrell, and its final insurer National Union Insurance Company with sole responsibility for the entire award which was assessed at the 1980 benefit rates. The judge established the "date of manifestation" as February 13, 1980. National Union, the final insurer for Research Cottrell, has appealed.
Petitioner worked for respondent American Cyanamid from October 1939 to April 1941. During much of this time he worked on the plant railroad moving drums containing various chemicals including sulfuric acid and beta naphthalamine (BNA). Spillage would often occur from these drums because of jostling in transit which would loosen the plugs which sealed the drums. The workmen would then have to handle the container, using only leather gloves as protection from the chemicals. The chemicals would invariably become impermeated in the gloves and when it rained they would wash through the gloves onto the workmen's hands. Falcon testified that he was a nail-biter at the time and probably frequently ingested chemicals including BNA through this habit. Over a period of a few days Falcon might handle 30 or 40 of these drums. Petitioner terminated his employment with American Cyanamid in February or March of 1941.
In April 1941 Falcon began working for respondent Research Cottrell, Inc. on a "bull gang." His duties included packing freight cars and generally helping out in the shipping of goods. During his time on the "bull gang" he would sometimes have to carry "cast iron doors" painted with a bitumastic tar paint which would not fully dry. Instead it would dry with a "skin" on top but if the skin broke, the softer material underneath would often get on the gloves which the workers wore for protection. From June 1942 to November 1945 Falcon was in the military. He returned to Research Cottrell when his tour of duty was finished and worked there for 18 months operating an acetylene burner. He then became a sheet metal mechanic, working his way through all "classes" of this position until 1967 when he was transferred to an office position in the same plant. As a sheet metal mechanic Falcon would operate all of
the machinery that processed the steel and, on a daily basis, he would get machine oils on his hands. He also would sometimes have to insulate some of the special units at the plant by covering them with chicken wire and then coating them with a bitumastic tar paint which would be applied with a trowel and then spread out with a large brush. The tar paint would often get on petitioner's hands while he was working. He only did this painting job occasionally, "not as a steady routine," simply to keep production on schedule in the plant, but when he did perform this work it would be over a period of a few days. A co-worker, Alan Cooper, testified that when he would apply the bitumastic tar paint he would also usually get it on his hands despite the fact that he was wearing gloves. Cooper also testified that there were 15 or so of these painting jobs per year in the 1950's and that this number declined from that time on.
After his transfer to office work in 1967, Falcon rarely came in contact with the bitumastic paint since he was only in the production area of the plant 10% of the time. However, sometimes he did inhale the "fumes" -- actual visible droplets of paint in the air -- if he was in an area where the painting was being done. This occurred at least through October or November of 1978. Research Cottrell closed the plant in March 1979 and Falcon consequently lost his job there.
Petitioner obtained his real estate license and then began working in a strictly office job for the Aim Corporation, a steel fabricator, in November 1980. He kept this position until November 1981 when his medical problems increased to a degree that he could no longer hold a regular job.
These medical problems began in the 1950's while he was a sheet metal mechanic. Falcon began developing recurring bladder infections every three to five years. These infections were accompanied by painful urination and pyorrhea -- pus in the urine. His original physician was a Dr. Marcus whom he continued to see until the early 1970's when blood began to appear in his urine. This "new wrinkle" greatly upset Falcon.
He then was treated by a Dr. Anderson until 1979 who referred him to a urologist, Dr. Lifland. A cystoscopy was performed in February 1980 and petitioner eventually underwent a partial cystectomy for bladder cancer. This removal of part of his bladder has greatly affected Falcon. Urination is extremely painful for him because of the numerous cystoscopies he has undergone since the February 1980 diagnosis of bladder cancer (one every three months since the first operation) and, because of decreased bladder capacity, he must always be near a bathroom. Petitioner now feels "rather useless" since he cannot work and he hates the anxiety which he has concerning the inevitable return of the cancer so much that he sometimes wishes he would "get a heart attack and get it over with." Falcon has been diagnosed as up to 75% physically disabled because of his bladder cancer and the resulting operations he had undergone (the last of which occurred in December 1983) and up to 25% psychologically disabled from that disease. He has been diagnosed as having severe traumatic anxiety psychoneurosis with depression and suicidal ideation along with "cancerphobia."
The testimony varied as to the factors which likely caused the cancer. All of the four experts who testified agreed that the BNA played a substantial role in at least initiating the genetic changes necessary to cause the cancer. However, only plaintiff's expert, Dr. Susan Daum, believed that all the exposure to all of the possible carcinogens caused the disease. Research Cottrell's two experts testified that the exposure to the fumes from the bitumastic paint while National Union was the insurance carrier (from August 1, until the plant closed on March 16, 1979) could not have possibly contributed to the cancer, considering the long latency period which bladder cancer usually has and also the minimal exposure which plaintiff had at this time. For example, Dr. Jack York compared this exposure to a lung cancer patient who has an occasional cigarette which will not affect a tumor which has already begun cell division.
Despite the testimony presented by Research Cottrell, the judge found Dr. Daum to be the most credible of the experts and awarded petitioner $99,900 (540 weeks at the 1980 rate of $185 per week based on a 75% physical disability and a 15% neuropsychiatric disability) to be paid fully by Research Cottrell through its final insurer, National Union. The calculation was made at the 1980 rate because the judge found the ...