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Spencer v. E. I. Dupont De Nemours & Co.2/11/2005
This is the Court's decision on an appeal of a decision of the Industrial Accident Board ("Board") denying a Petition to Determine Compensation Due filed by the estate of Howard Spencer ("Claimant") against E. I. DuPont de Nemours & Co. ("Employer"). For the reasons explained below, the Board's decision is Affirmed.
FACTS
Claimant worked for Du Pont at its plant in Seaford, Delaware, from 1949 to 1985. During this time, he was exposed to asbestos in the course of installing and removing asbestos-containing insulation throughout the plant. Claimant was a heavy cigarette smoker until he quit in 1997. He was never diagnosed with either an asbestos-related condition or a tobacco-related condition until 2002, when he was found to have lung cancer. Claimant was hospitalized in December 2002 and died in January 2003.
In March 2003, a petition to determine workers' compensation benefits was filed on behalf of Claimant's widow, alleging that Claimant developed and died of lung cancer as a result of asbestos exposure during his work at DuPont. At the hearing conduct by the Board, Employer conceded that Claimant had died from lung cancer and that he was exposed to asbestos at work. Thus the issue to be decided by the Board was causation.
Employer's medical expert was Michael D. Walkenstein, M.D., who is board-certified to practice internal medicine, pulmonary medicine and critical care medicine. Dr. Walkenstein testified by deposition and stated only those opinions which he could attest to in terms of reasonable medical probabilities. In preparation for the hearing, Dr. Walkenstein stated that he had reviewed Claimant's medical records of office visits and medical tests over a 22-year period. He found documentation of years of heavy cigarette smoking, as well as exposure to asbestos during Claimant's work.
As a Du Pont employee, Claimant participated in the company's asbestos surveillance program, which included annual chest x-rays. Claimant's chest-rays from 1968 through 1990 showed no evidence of problems associated with asbestos exposure. Dr. Walkenstein found that Claimant had had prostate cancer but that this was unrelated to the lung cancer. Dr. Walkenstein observed that Claimant's complaint in the summer of 2002 of back and bone pain led to the ultimate diagnosis of lung cancer as the primary malignancy. Dr. Walkenstein stated that by the time cancer was diagnosed in the fall of 2002, the disease had metastasized from Claimant's lungs to his back bones, kidneys and adrenal glands. Dr. Walkenstein's expert opinion was that Claimant never suffered from asbestosis and that heavy cigarette smoking was the primary cause of the lung cancer.
Gerald L. Abraham, M.D., testified on behalf of Claimant's estate. Dr. Abraham is a board-certified pathologist who specializes in occupational medicine and asbestos-related diseases. Dr. Abraham testified that the sample drawn by the needle biopsy of Claimant's lungs in 2002 was not sufficient to determine whether or not he had asbestosis. Dr. Abraham also stated that the chest x-rays were indeterminative as to whether Claimant suffered from asbestosis. In Dr. Abraham's opinion, the thickening in the lungs noted in the November 2002 x-ray could have been as a result of exposure to asbestos but may also have resulted from Claimant's congestive heart failure.
When asked if the 2003 chest x-ray was consistent with asbestos, Dr. Abraham stated, "It could be, I mean, in this case, I think it was related to his lung cancer." Dr. Abraham concluded that both the asbestos exposure and the cigarette smoking were "substantial causes of [Claimant's] lung cancer."
The Board found th
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