Employers Mutual Liability Ins. Co. of Wis. v. Parker, 14577

• Decision Date: 31 July 1967
• Docket Number: No. 14577,14577
• Citation: 418 S.W.2d 570
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Alton A. PARKER, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 570

418 S.W.2d 570

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN Appellant, v. Alton A. PARKER, Appellee.

No. 14577.

Court of Civil Appeals of Texas San Antonio.

July 31, 1967.

Rehearing Denied Sept. 20, 1967.

House, Mercer, House & Brock, San Antonio, for appellant.

Lieck & Lieck, San Antonio, for appellee.

CADENA, Justice.

This is a Workmen's Compensation case in which Employers Mutual Liability Insurance Company of Wisconsin, defendant, appeals from a judgment rendered against it and in favor of plaintiff, Alton A. Parker, in conformity with a jury verdict to the effect that plaintiff was totally and permanently disabled due to cancer resulting from his exposure, during the course of his employment, to radiation from radioactive materials.

Defendant contends that the trial court erred in overruling its motion for judgment non obstante veredicto because there is no evidence that plaintiff's cancer was the result of work-incurred radiation.

On May 22, 1961, plaintiff began to work for a private employer engaged in the performance of work under a contract with the United States of America at a governmental installation located about ten miles west of the City of San Antonio. A pre-employment physical examination and annual physical examinations prior to April 1965, revealed no evidence that plaintiff was suffering from cancer. In April, 1965, plaintiff noticed a swelling on the left side of his neck. He consulted a doctor, who referred him to Dr. James W. Nixon, Jr. On June 15, 1965, Dr. Nixon surgically removed the mass, which was diagnosed as a 'metastatic ¹ carcinoma in the cervical lymph node.' Although a histological analysis ² of the malignant cells strongly suggested that the primary tumor was a seminoma, or cancer of the testicle, no definite conclusion concerning the site of the primary tumor was reached. While several examinations of plaintiff's testicles yielded no evidence of seminoma, the nature of the examinations was such that the possibility of a testicular tumor was not eliminated.

Under Section 20(h) of Article 8306, Vernon's Ann.Civ.St. (1967), plaintiff is entitled to compensation if his disability resulted from a disease caused by exposure to x-rays or radioactive substances. The evidence in this case is clearly sufficient to establish that prior to May, 1962, when plaintiff began work at the governmental installation, he was not suffering from cancer; that from May, 1962, to April, 1965, plaintiff was exposed to artificial ³ radiation in the course of his employment; and that by April, 1965, plaintiff had developed a cancer in the left cervical lymph node. However, mere proof that plaintiff was not suffering from cancer before exposure to radiation and that, after such exposure, he developed cancer is not sufficient, standing alone, to support a finding of causal connection between the radiation and the disease. The medical evidence in this case conforms to the well-known fact that cancer is a disease of esoteric etiology. Although, except to the legal mind, with its peculiar thought processes, it may seem anomalous to say that only experts may testify as to facts or matters concerning which they profess ignorance, it seems to be settled in Texas that the question of causal connection between a traumatic event, or series of events, and the subsequent development or aggravation of an existing tumor, is a 'question of science determinable only from the testimony of expert medical professionals .' Insurance Co. of North America v. Myers, 411 S.W.2d 710 (Tex.Sup .1967). However, Texas does not require that the expert testimony concerning causal relation be based on reasonable medical certainty. As Mr. Justice Steakley pointed out in Myers, causal connection in such a fact situation must rest on reasonable medical probabilities.

The evidence in this case discloses that from May 22, 1961, until September, 1963, plaintiff worked as a material handler. His principal duty consisted of carrying materials, some of which were radioactive, from the warehouse or storage areas to locations where other employees, known as production operators, were engaged in the assembling and disassembling of weapons, including nuclear weapons. While the evidence was conflicting as to whether the radioelements were always kept in shielded containers, the record discloses that, even if such containers were shielded, 'there was a radiation field associated with the radioactive material that would actually come out through the protective' shield. Material handlers were not furnished any apparel or other devices designed to protect them against radiation, nor was any effort made to determine the amount of radiation to which they were exposed.

In September, 1963, plaintiff's job classification was changed to that of production operator, and from that time until the neoplasm on the left side of his neck was discovered in April, 1965, he was engaged, at least from time to time, in the assembly and disassembly of nuclear weapons. Since production operators were subject to greater risk from radiation than were material handlers, they were required, when handling radioactive isotopes, to follow certain safety procedures, and were furnished protective apparel and radiation-measuring devices. The protective clothing generally consisted of leaded aprons and gloves. The standard measuring device was a film badge which was worn on the wrist or some other portion of the body, but always under the leaded glove or leaded apron. The badges, after they had been worn for a week, were sent to a laboratory for a determination of the amount of exposure to radiation. Plaintiff was issued such a badge on four occasions, and an analysis of these badges revealed only two periods of exposure, one during the period of February 17--23, 1964, and the other during the period June 8--14, 1964. An analysis of the badges worn by plaintiff during these two periods indicated that he had been subjected to a total of 36 millirems ⁴ of radiation. However, the evidence in this case amply supports the conclusion that plaintiff's exposure to radiation was greatly in excess of 36 millirems, ⁵ although it does not reveal the precise amount of exposure.

There was medical testimony to the effect that exposure to radiation Can cause cancer, and that a person working around radiation 'does have a higher than normal risk of developing malignant changes in his tissues.'

In answer to hypothetical questions concerning the probability that radiation caused plaintiff's cancer, Dr. Sidney Schiffer stated that he would not make a statement of probability either way. He merely admitted that radiation could have played a part, adding, 'we just simply don't know enough.' He further stated that, in his opinion, a diagnostician could not say whether plaintiff's cancer was caused by radiation. He listed as factors which may cause a cell to become cancerous, viruses, chemical...