On appeal from New Jersey Department of Labor Division of Workers' Compensation. 97-028572.
Before Judges Havey, Braithwaite and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2001
This is a workers' compensation occupational disease case involving a form of cancer called chronic mylogenous leukemia ("CML"). The judge of compensation determined that Robert Woolf, a radiographer, developed this cancer as a result of his long-term, daily, workplace exposure to radiation emitted by the x-ray equipment he operated for Consolidated NDE, Inc. ("NDE"). After a plenary hearing for interim relief, the judge entered an order granting Woolf temporary disability payments and medical treatment. NDE appeals, arguing that the judge's findings were unsupported by the evidence. We reject NDE's arguments and affirm the order.
NDE employed Woolf as a radiographer from 1978 to December 31, 1996. Since the job involved radiation exposure, NDE was licensed and regulated by the Nuclear Regulatory Commission ("NRC"). See 42 U.S.C.A. § 2134(b). There is no suggestion that NDE violated those regulations in any respect.
Throughout the entire course of his employment, Woolf's job consisted of using a uranium isotope camera that emitted gamma rays to x-ray welds. His radiation exposure was constantly monitored and recorded. Under the NRC regulations, an employee's annual maximum exposure was required to be less than 5 rems. See 10 C.F.R. § 20.1201(a)(1)(i). Woolf's highest annual exposure was 1.850 rems. For the 18 years of his employment, his permissible total would thus be 90 rems, while his actual exposure was 22.467 rems. As the judge of compensation found, Woolf's "exposure both annually and cumulatively were a fraction of that permitted by the [NRC]." Nonetheless, on January 9, 1997, at age 53, he was diagnosed as having CML.
Woolf testified to the debilitating effects of the disease. Dr. Floyd Krengel's report, submitted to the judge and treated as if it had been marked in evidence, indicated that physically petitioner was "totally and permanently disabled." Dr. Robert S. Dengrove's report, treated similarly, stated that petitioner had "approximately 60 [percent] of total disability . . . due to the combined neuropsychologic and neurological conditions . . . ." No counter reports or testimony were submitted by NDE on those issues.
Dr. Lynda Mandell, a radiation oncologist and professor in the Department of Radiation Oncology and Pediatrics at Mount Sinai Medical Center in New York City, testified for Woolf based on a consideration of his history, medical records, a physical examination, and her review of the petitioner's radiation exposure records. She expressed the opinion that to a reasonable degree of medical certainty Woolf's "exposure over many years to radioactive absorption" caused his leukemia. When asked to give her reasons for reaching that conclusion, she had this to say:
We know that radiation in any form, whether it be radioactive or nonradioactive, can induce a malignant . . . a process, a tumor, either malignant or benign. And we often see this . . . even in therapeutic doses of radiation, where patients will develop a second malignancy.
[W]ith regard to leukemias, most specifically chronic myelogenous leukemia, acute chronic myelogenous leukemia and acute lymphoblastic leukemia, but more so the first two, the myelogenous series, we know from the atomic bomb survivors, and from the Chernobyl series – although many of those patients did not live long enough – that the absorption of radiation is significantly associated with these diseases.
When asked to cite any articles or treatises that would support her opinion, she referred to a 1982 book by "one of our major radiation pathologists" entitled Pathology of Radiation Injury, and then quoted one statement indicating that Japanese exposed to "total body radiation" during the bombings of Hiroshima and Nagasaki experienced "an increased incidence of various forms of leukemia . . . ." She also referred to a another research paper dealing with the Japanese experience which said that there was a strong association between atomic bomb radiation and leukemia. At that point, the direct examination was concluded.
On cross-examination, Dr. Mandell conceded that gamma rays occur in nature and that there are many other forms of radiation to which people are exposed, as well, in their ordinary lives. She also agreed that leukemia occurs in the absence of unusual radiation exposure. She further acknowledged that statistical information relating particular exposures with CML would be helpful and that there were no studies of which she was aware that had linked radiography such as Woolf performed with an increased risk of CML. She also stated that there is a logical relationship between the extent of the dose and the occurrence of CML. She agreed that if petitioner had a "Philadelphia chromosome," which he does, he would have had a genetic predisposition for developing leukemia. On redirect, she agreed that the presence of that chromosome made it more likely that his workplace exposure to radiation would result in CML.
Both sides relied on a publication issued by the NRC's Office of Nuclear Regulatory Research entitled Working Safely in Gamma Radiography, A Training Manual for Industrial Radiographers (September 1982). The relevant statements in the manual are as follows:
In fact, any amount of radiation you receive may increase your chances of developing cancer. For low doses of ...