Court Affirms Award to Firefighter for Occupational Colon Cancer Condition

Saturday, March 24, 2007 | 0

By John H. Geaney

Kenneth Larsen worked for the City of East Orange for 31 years ending on August 1, 2000. He alleged exposure to smoke and asbestos, among other pulmonary irritants. He had previously received an award of 7.5% for chronic bronchitis, and he reopened that award in 2001, as well as filing a claim for colon cancer related to his work. Petitioner produced Dr. Malcolm Hermele as his expert, and respondent produced Dr. Joel Duberstein as its expert. The judge of compensation awarded petitioner 27.5% for his gastrointestinal injuries from colon cancer and a bowel resection, plus 17.5%, credit 7.5% for increased pulmonary disability. The award amounted to over $85,000.

The Appellate Division credited the findings of the judge of compensation. It also found the testimony of Dr. Hermele to be persuasive. The court recited some of Dr. Hermele's findings, all of which tended to be rather subjective: "irritation of the pharynx and conjunctiva, in addition to poor chest wall movement on maximum inspiratory effort after a physical examination ." In addition, the court noted that Dr. Hermele's chest x-ray showed increased bronchovascular markings." Finally, Dr. Hermele found that his new pulmonary function test results were worse than the ones prior to the original award.

Although Dr. Duberstein is actually board certified as a pulmonary specialist, the court noted that Dr. Duberstein "acknowledged he could not rule out Larsen's exposure during the course of his work as the cause of petitioner's permanent pulmonary illness." There is no discussion in the opinion whether Dr. Duberstein's pulmonary function testing was consistent with that of Dr. Hermele.

As for the occupational colon cancer claim, the court observed that there was clear permanency from the partial removal of petitioner's colon. The court found causal relationship based on petitioner's statement that he would remove his oxygen mask often as a firefighter and was, therefore, directly exposed to asbestos. Moreover, the court noted that petitioner worked in a building which had a great deal of asbestos and he undoubtedly had exposure at work. The main firehouse contained asbestos materials where petitioner worked about 50% of his time. As for the amount of permanency from the removal of part of his colon, the court said, "The removal of a portion of an organ is relevant to the permanency of the injury. While petitioner is currently cancer free, that does not change the fact that a portion of his colon was removed to achieve such a result. Such removal is permanent. Thus, there was sufficient credible evidence to support the conclusion that petitioner suffered a permanent disability and that it was supported by objective credible medical evidence."

Perhaps the most interesting part of this case is that there is no discussion at all that petitioner actually suffered from asbestosis. Nonetheless, the link was made from exposure to asbestos to colon cancer. This reflects a growing trend among medical experts not to require actual asbestosis in order to link certain cancers with exposure to asbestos, but rather to only require proof of a high level of asbestos exposure. This case may be found at Larsen v. City of East Orange, A-6209-04T2, (App. Div. 2007).

John H. Geaney is an attorney at Capehart Scatchard. This column first appeared in the law firm's case law newsletter. The law firm's Web site is www.capehart.com.

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