McDaniel v. North Dakota Workers Compensation Bureau

1997 ND 154, 567 N.W.2d 833, 1997 N.D. LEXIS 173, 1997 WL 453640
CourtNorth Dakota Supreme Court
DecidedAugust 11, 1997
DocketCivil 960383
StatusPublished
Cited by22 cases

This text of 1997 ND 154 (McDaniel v. North Dakota Workers Compensation Bureau) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDaniel v. North Dakota Workers Compensation Bureau, 1997 ND 154, 567 N.W.2d 833, 1997 N.D. LEXIS 173, 1997 WL 453640 (N.D. 1997).

Opinions

MESCHKE, Justice.

[¶ 1] Gary McDaniel appealed a judgment affirming the Workers Compensation Bureau’s denial of benefits for his bladder cancer that he claims was presumptively caused by his work as a firefighter. We reverse and remand for further fact-finding on why substantial medical evidence favorable to McDaniel was ignored, and to apply the correct law of causation.

[¶ 2] McDaniel, a fireman for the City of Minot for over twenty-seven years, fought an average of fifty to one hundred active fires each year. Those fires, he asserts, exposed him to a significant amount of toxic fumes and smoke containing polycyclical aromatic hydrocarbons, carcinogens associated with bladder cancer. McDaniel has also smoked between one-half and two packs of cigarettes a day for over thirty years.

[¶ 3] In November 1992, doctors diagnosed McDaniel with bladder cancer, and he had several surgical operations to remove the cancer. He applied for worker’s compensation for his medical treatment.

[¶ 4] The Bureau had Dr. Robert Brownlee perform an independent medical examina[835]*835tion. In his 1993 report, Brownlee concluded McDaniel’s smoking more likely caused his cancer: “It would be difficult to separate the exposure from cigarette smoking and the possible exposure from firefighting but I would think in this case that the evidence would lean towards the use of cigarettes being a factor rather than significant exposure in the work place.” The Bureau found bladder cancer was not an occupational cancer for firefighters and, even if it was, McDaniel’s smoking more likely caused the cancer. The Bureau denied his claim, and McDaniel sought reconsideration.

[¶ 5] In a 1995 deposition, Brownlee testified smokers are twice as likely to get bladder cancer as non-smokers. He was not aware of studies connecting bladder cancer to firefighting, but believed such a relationship was logical: “I would think that it would be common sense to assume that, if you add toxic exposure to the toxins that we understand from cigarette smoke, ... the damage would be greater than for either one by itself.” Contrary to his 1993 letter, Brown-lee conceded he could not say whether McDaniel’s smoking or his job exposures played a more significant role in causing his bladder cancer.

[¶ 6] Dr. Michael McGrail, Jr., testified by deposition to a reasonable degree of medical certainty that bladder cancer is an occupational cancer for firefighters. He relied on several studies and emphasized two that show a three times greater risk of bladder cancer for firefighters. McGrail testified a doctor must evaluate a firefighter’s work history to address his level of risk, and concluded McDaniel’s smoke exposure from firefighting placed him at risk. McGrail agreed smoking is the greatest risk factor for bladder cancer, but was unable to agree that it more likely caused McDaniel’s cancer:

[W]e could say that the data supports an argument that at least 50 percent of the risk for bladder cancer was occupational. Although this may be true, it is not always applicable to the real world, where malignancies rarely present [themselves] in 50 percent increments. Perhaps a more realistic question is, would the individual have developed the cancer if it were not for the occupational exposure.

McGrail concluded, even with McDaniel’s smoking history, his firefighting added to his risk of bladder cancer: “I do not feel that I can say that without the possibility of occupational exposures that Mr. McDaniel would have developed bladder cancer on the basis of his smoking alone.”

[¶ 7] Dr. Marc Sehenker testified by deposition about the established link between smoking and bladder cancer. He also testified, in his opinion, bladder cancer is not an occupational cancer for firefighters, and he attacked studies connecting firefighting to bladder cancer. With his opinion that firefighting is not an established risk factor for bladder cancer, Sehenker believed firefighting would not be a contributing factor to McDaniel’s cancer. Even if he accepted the association between bladder cancer and firefighting, Sehenker asserted “the risks would be less than two and would not be a more probable than not contributing factor.” He concluded “[McDaniel’s] bladder cancer is more probably related to his history of cigarette smoking.”

[¶ 8] In addition to medical testimony, the hearing officer received into evidence several published studies linking bladder cancer to firefighting. E.g., Tee L. Guidotti, Occupational Mortality Among Firefighters: Assessing the Association, 37 J. Occupational & Envtl. Med. 1348, 1354 (1995)(firefighters are twice as likely to die from bladder cancer); Susan R. Sama et al., Cancer Incidence Among Massachusetts Firefighters, 1982-1986, 18 Am. J. Indus. Med. 47, 47 (1990)(1.59 times greater risk); John E. Vena & Roger C. Fiedler, Mortality of a Munici-palr-Worker Cohort: Fire Fighters, 11 Am. J. Indus. Med. 671, 671 (1987)(2.86 times greater risk). The hearing officer found bladder cancer to be an occupational cancer for firefighters, raising the presumption that McDaniel’s cancer was fairly traceable to his job. Neither McDaniel’s employer, nor the [836]*836Bureau dispute this finding on appeal, and the evidence clearly supported the presumption that McDaniel’s cancer was fairly traceable to his job.

[¶ 9] However, the hearing officer found that the Bureau had rebutted the presumption, and that smoking more likely caused the cancer:

By the greater weight of the evidence, the Bureau has effectively rebutted [McDaniel’s] contention of entitlement by reason of the presumption clause. Testimony revealed that polyairomatic hydrocarbons and other carcinogens are evident in cigarette smoke and cigarette smoking is a known cause of bladder cancer. Dr. Brownlee states that [McDaniel’s] bladder cancer was more probably attributable to heavy cigarette exposure as opposed to occupational smoke and fumes.
“A consistent relationship has been demonstrated between cigarette smoking and bladder cancer, and the rate of bladder cancer is twice as high in people who smoke as in people who do not smoke.” ([Dr. Brownlee’s testimony], pg.14).
“... he ([McDaniel]) is more likely to develop bladder cancer because of exposure to cigarette smoke.” ([Dr. Brown-lee’s testimony], pg.17).
“My opinion is that his ([McDaniel’s]) bladder cancer is more probably related to his history of cigarette smoking.” ([Dr. Sehenker’s testimony], pg.19).
See, also, Exhibits B5 and B14 as demonstrating the link between cigarette exposure and [McDaniel’s] bladder cancer.

The hearing officer recommended denial of McDaniel’s claim, and the Bureau adopted this recommendation. McDaniel appealed. The district court summarily affirmed the Bureau, and McDaniel appealed to this Court.

[¶ 10] McDaniel argues the hearing officer erred in finding the Bureau rebutted the presumption that traced his cancer to his firefighting work. He asserts the Bureau had the dual burden of showing that a non-work condition caused his cancer and that it was the more likely cause. McDaniel argues the hearing officer only required the Bureau to show a non-work-related condition contributed to his cancer to conclude the Bureau had rebutted the presumption.

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McDaniel v. North Dakota Workers Compensation Bureau
1997 ND 154 (North Dakota Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
1997 ND 154, 567 N.W.2d 833, 1997 N.D. LEXIS 173, 1997 WL 453640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-north-dakota-workers-compensation-bureau-nd-1997.