Sometimes prospective clients ask whether they developed cancer as a result of their job. Most claims arise from accidents and obviously cancer is a slowly developing process. However, cancer can be an occupational-related disease for which medical and disability benefits may be awarded under the North Carolina Workers’ Compensation Act. A doctor must give his or her medical opinion to a reasonable degree of medical probability that the patient was at an increased risk of developing the disease (i.e. cancer) as compared to the general population, and did in fact develop the disease as a result of exposure to a cancer causing substance at work.
Case in point: in September, a Texas firefighter was awarded workers’ compensation benefits after he developed lung, colon, and liver cancer. In the firefighter’s case, he had been a firefighter for over 20 years and was exposed to “carcinogens such as firetruck exhaust, heat, smoke, and chemicals.” The Texas administrative law judge awarded benefits, but keep in mind “Texas has a presumptive disability law that says firefighters and other first responders are presumed to have developed cancer while on the job under certain conditions.” Unfortunately, North Carolina does not have this presumption for our first responders and firefighters, and the burden of proof is more difficult in this state.
Here is a link to the OSHA website containing standards that apply to substances that are classified as carcinogens or potential carcinogens according to the National Toxicity Program.
Lung cancer is the leading cause of death for men and women in the United States. It’s greater than breast and colon cancer in women and greater than prostate, colon, pancreatic and liver cancer in men. If diagnosed early there is a 70-80% survival rate for 5 years, and a low-dose CT scan of the chest can detect 60-70% of lung cancers at an early stage. Unfortunately, there has been no significant progress in the treatment of lung cancer in 40 years and between 10,000–20,000 occupational lung cancer deaths occur each year in the United States.
One area of concern is the relationship between diesel exhaust exposure and lung cancer. In June of 2012 the International Agency for Research on Cancer (IARC) classified diesel engine exhaust as carcinogenic to humans, and studies of underground miners support that statement and also indicate that others who are around diesel fumes may be at an increased risk. Toxic chemicals in diesel gas are nitrogen oxides, sulfur oxides, carbon monoxide, benzene, PAHS (polycyclic aromatic hydrocarbons), aldehydes and nitro-PAHS.
Railroad workers, miners, truck drivers, bus operators, longshoremen and others who have been heavily exposed to diesel fumes are obviously at greater risk than those with less exposures, but even minimal exposures may cause harm. In urban areas, like lower Manhattan, there is concern that diesel exposures may be a public health hazard and detection systems have been placed in areas to collect exposure data. As for workers who have experienced intense, short-term duration to diesel fumes, a chemical called 1-hydroxypyrene may be elevated in urine, but the test for this marker is not performed by most commercial laboratories. The Mount Sinai – Irving J. Selikoff Center for Occupational & Environmental Medicine is studying diesel exposure and may be a good resource for future information, as well as the National Clean Diesel Campaign: www.epa.gov/diesel.
Federal law provides that employers with 15 or more employees cannot discriminate against employees because of genetic information.
Under a 2009 Federal law called GINA (the Genetic Information Nondiscrimination Act), employers with 15 or more employees cannot discriminate against employees because of genetic information. That information may include a past or present medical history (for example: breast cancer, diabetes, depression, or colon cancer) of family members. GINA prohibits disclosure of this sensitive information by employers and prohibits the employer from even making a request for such information. If they have this information, it must be kept in a file that is separate from the regular personnel file.
The EEOC (Equal Employment Opportunity Commission) has made regulations, effective January 10, 2011, to enforce this federal statute and allows an action for damages, including punitive damages, reinstatment and back pay, and reasonable attorney’s fees.
In the workers’ compensation setting, this information is sometimes gathered by medical experts conducting independent medical exams, by nurse case managers who may seek to find out any and all medical information about the injured worker’s family as well as the injured worker, or by family physicians who have made non-work-related entries in the medical records. However, GINA has allowed an exception to the overall thrust of the legislation by stating that if the information is relevant to the workers’ compensation claim, it can be disclosed. The legislation gives no definition of the term “relevant” and makes the interaction between the health care provider, the carrier, the employer and the employee complicated, to say the least. Lawyers who represent employees and employers should be aware of GINA and protect sensitive genetic information from disclosure, and claimants should make sure their physician is aware of it as well.
Today we have a guest post from my colleague Tom Domer of Wisconsin.
According to a growing number of scientists and doctors the newest TSA airport body scanners, known as Advanced Imaging Technology (AIT) scanners, may pose a cancer threat.*
The Transportation Security Administration (TSA) insists the scanners are safe, and cites independent studies saying the radiation levels are below acceptable limits. However, according to some doctors, even a small dose of the ionizing radiation that the machines emit could pose a danger.
The TSA has installed about 250 of these body scanners at 40 U.S. airports.
*To proceed beyond mere speculation as to causation, a competent physician would have to indicate that the workplace exposure for a substantial period of time to the radiation from airport scanning was at least a material, contributory, causative factor in the onset or progression of a worker’s cancer condition.
With over 30 years of experience representing injured workers in Wisconsin, Tom Domer was recently named the 2011 Milwaukee Workers’ Compensation Lawyer of the Year in Best Lawyers. Tom teaches the workers’ compensation course at Marquette University Law School, providing the instruction and training for many other lawyers. He lectures frequently around the nation. He also is a prolific writer, editing the national magazine Workers’ First Watch. He has co-authored over two dozen texts, including with his son and law partner Charlie, West’s Wisconsin Workers’ Compensation Law. Tom earned all his degrees in Wisconsin.