Board Reverses Causation Decision in Complex Occupational Disease Case

By Jane Salem, staff attorney, Nashville

Last week, the Appeals Board reversed a trial court determination finding medical causation in a case where the employee alleged liver, kidney and cardiac conditions as occupational diseases. According to the Board, the lower court should’ve accepted the employer’s experts’ opinions because they were better qualified and didn’t rely on a test that said it shouldn’t be used diagnostically.

In Johnston v. Siskin Steel & Supply Co., Johnny Johnston worked for Siskin for approximately 39 years. He alleged that exposure to heavy metal contaminants caused his various diseases.

The first was granulomatous hepatitis with non-alcoholic cirrhosis of the liver. A hair test conducted revealed elevated levels of heavy metal contaminants. Johnston reported it to Siskin, which denied his claim. He later suffered a heart attack and was diagnosed with chronic kidney disease.

Johnston hired Dr. Edward Workman, who is board-certified in pain medicine, psychiatry, neurology and forensic medicine. Dr. Workman relied upon a Genova Diagnostics Elemental Analysis, otherwise known as a “Genova Screen,” to determine Johnston’s levels of contaminant exposure. He testified that the liver disease was due in large part to exposure to antimony, cadmium, lead and gadolinium as detailed in the Genova Screen. When asked whether lead exposure was the primary cause of Employee’s liver cirrhosis, Dr. Workman responded, “It’s one of several primary causes.” He further said that his exposure was a “primary cause” of Johnston’s heart attack and agreed that it was more than fifty percent the cause.

Johnston also hired Dr. Matthew Lee, a physician, pharmacist, pharmacologist, and toxicologist licensed to practice medicine in Virginia. Dr. Lee isn’t board certified nor is he licensed in Tennessee. Like Dr. Workman, Dr. Lee also relied on the Genova Screen. He concluded that heavy metals were the primary cause of the liver, heart and kidney damage.

Siskin cross-examined Dr. Lee about the Genova Screen as a diagnostic tool, when it contained a disclaimer that the screen should be used for “educational purposes, and should not be interpreted as diagnostic or treatment recommendations,” and it “is considered a screen rather than a definitive diagnostic assessment[.]” The screen recommended further testing to confirm a diagnosis.

Dr. Lee testified that the Genova Screen was “part of the clinical picture” in his analysis and an “important component” in forming his opinion.

As for Siskin’s experts, it hired Dr. Douglas Linfert, who is board certified in nephrology and internal medicine and specializes in kidneys. Dr. Linfert said the Genova Screen shouldn’t be used diagnostically. Dr. Linfert testified that, “Considering all the possible etiologies of [his] renal disease, I believe his chronic kidney disease resulted from his underlying hypertension, diabetes and vascular disease.” He concluded that any heavy metal exposure wasn’t a primary cause of Johnston’s diseases.

Further, Dr. Johnathan Schneider, a board-certified gastroenterologist, concluded that he couldn’t state whether the environmental exposures caused the liver disease, and he wouldn’t consider the Genova Screen to be a valid diagnostic test. In his opinion, the primary cause of the liver disease was a “combination of his diabetes, obesity, and high cholesterol.”

Finally, Dr. William Fleet, a cardiologist who is board certified in internal medicine, cardiology, and interventional cardiology, testified for Siskin. Dr. Fleet stated that Johnston’s congestive heart problems were caused by diabetes and coronary artery disease.

After the compensation hearing, the trial judge ordered open medical benefits and permanent partial disability totaling $172,832.

Siskin appealed to the Board, which reversed in a 19-page opinion penned by Judge Pele Godkin.

Judge Godkin cited the longstanding test for courts to apply when expert opinions conflict: “a trial court may consider, among other things, the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts.” She further reminded that the Appeals Board reviews deposition testimony and documentary evidence de novo.

The Board took issue with Johnston’s experts relying on the Genova Screen, based on the disclaimer.

Godkin wrote, “Put simply, the test itself cautions against making any diagnostic or treatment recommendations based solely on the results. Moreover, the test recognizes that, due to potential contamination of the hair sample being tested, definitive diagnosis of exposure to heavy metals should be confirmed by additional methods.”

She held, “[W]e conclude the Genova Screen, in and of itself, was an insufficient basis upon which to determine medical causation.

As to expert testimony, considering the qualifications of each expert, the Board expressed concern about Johnston’s experts. “[A]lthough both Dr. Workman and Dr. Lee are practicing physicians qualified to offer expert testimony in their respective fields, neither is an expert in the areas of liver, kidney, or heart disease nor does their testimony indicate they have experience treating these complex conditions and determining their underlying causes on a regular basis.”

In contrast, Siskin’s experts were all board-certified practitioners licensed to practice medicine in Tennessee with many years of experience in their respective fields of liver, kidney and heart disease. Each testified that part of their practice involves addressing multiple risk factors associated with complex health conditions and determining the underlying causes of those conditions.

“Drs. Linfert, Schneider, and Fleet all testified that preventative medicine is part of their practice, which they indicated includes trying to determine the cause of their patients’ underlying conditions,” the Board observed. “Employer’s experts unequivocally testified that Employee’s diseases were not primarily caused by workplace exposure to heavy metal contaminants. In addition, each expert testified that Employee’s comorbidities were not caused by Employee’s alleged exposures.”

The Board also questioned Dr. Workman’s use of the phrase “a primary cause among others,” reminding that “it is mathematically impossible to have two or more ‘primary’ causes, each contributing more than 50% to the cause of the death, disablement or need for medical treatment.”

Johnston may appeal the Board’s opinion to the Tennessee Supreme Court Special Workers’ Compensation Panel. He has 30 days to do so.

Peony

Photo by Misty D. McGrady, Bureau of Workers’ Compensation, in Nashville.

 

 

 

 

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