Ex parte Valdez

• Decision Date: 14 January 1994
• Citation: 636 So.2d 401
• Parties: Ex parte Roxanne A. VALDEZ, et al. (Re Roxanne A. VALDEZ, et al. v. PEN GULF, INC.) 1921063.
• Court: Alabama Supreme Court

Page 401

636 So.2d 401

Ex parte Roxanne A. VALDEZ, et al. (Re Roxanne A. VALDEZ, et al. v. PEN GULF, INC.)

1921063.

Supreme Court of Alabama.

Jan. 14, 1994.

Lee L. Hale, Mobile, for petitioners.

Vaughan Drinkard, Jr. and Michael L. Cumpton of Drinkard, Ulmer & Hicks, Mobile, for respondent.

MADDOX, Justice.

This is a workers' compensation case brought by the widow and children of an employee who died of lung cancer that the plaintiffs allege was caused by exposure to an occupational hazard. The issues presented by this case are: (1) whether the trial court made sufficient findings of fact to support its judgment denying workers' compensation benefits; and (2) whether that court applied the proper criteria for determining medical causation.

Steven Valdez died of lung cancer on December 1, 1988. Mr. Valdez had been an industrial painter, coater, and sandblaster employed by the defendant, Pen Gulf, Inc., from 1986 until January 1988. After leaving Pen Gulf, Mr. Valdez worked for another company until April 1988. In the fall of 1987, while working for Pen Gulf, Mr. Valdez began experiencing pain in his back. He initially thought that he had injured his back, but he was later diagnosed with lung cancer in May 1988.

There was conflicting evidence presented at trial as to Mr. Valdez's exposure to coal- tar epoxy, which the evidence shows is a carcinogen. Michael McGhee, a former co-worker of Mr. Valdez who was also suffering from lung cancer, testified that he had worked with Mr. Valdez at Pen Gulf applying coal-tar epoxy on a steel bridge for about two weeks. However, Pen Gulf submitted daily reports indicating that Mr. Valdez never worked directly with the coal-tar epoxy or in the area where coal-tar epoxy was being applied. These reports also showed that the coal-tar epoxy was used only over a four-day period on the bridge project. The evidence also established that factors other than the coal-tar epoxy possibly contributed to his contracting lung cancer. These factors include genetic predisposition, tobacco and marijuana smoking, exposure to asbestos, and exposure to other chemical agents associated with spraying paint.

The trial court stated in its findings of fact that "[e]vidence was in conflict about the alleged exposure to coal-tar epoxies and the Court, without making a determination of that issue concludes that even if Plaintiff's evidence was believable as to that issue, that evidence failed to reasonably satisfy the Court that such exposure was a direct cause of Employee's terminal illness." (Emphasis added.) The trial court stated that "asbestos exposure and cigarette smoking alone could account for Employee's cancer and death," and then concluded that "the claimed hazard of Employee's employment did not directly or proximately cause his death and further, that Employee's disease and death were not the direct result of exposure over a period of time to the normal working conditions of his employment." (Emphasis added.)

The Court of Civil Appeals, in its opinion affirming the trial court's denial of benefits, quoted Dr. Martin Perlman, Mr. Valdez's treating physician, and the only medical expert to testify, as saying that Mr. Valdez "had a multitude of carcinogens acting on him," and that he thought "it's impossible for anybody to say which one did it." 636 So.2d at 400. The court did not include in its opinion the next sentence of Dr. Perlman's testimony, in which Dr. Perlman stated, "I think they all worked together in concert." Dr. Perlman had also testified that there were "several contributing factors" to Mr. Valdez's lung cancer. The Court of Civil Appeals concluded that the trial court did not err "in finding that [Mrs.] Valdez failed to meet the burden of proving that the decedent's lung cancer and resulting death arose out of and in the course of his employment and resulted from the nature of his employment." 636 So.2d at 401.

It appears to us that both the trial court and the Court of Civil Appeals stated and applied an erroneous standard in reaching the ultimate conclusion. The standard is not whether "such exposure was a direct and proximate cause of Employee's terminal illness," as stated by the trial court, but whether such exposure was a contributing cause of the employee's illness and resultant death. Whether the employee's exposure to asbestos and cigarette smoke "alone could account for Employee's cancer and death" is too narrowly focused as the test for concluding that the employee's cancer was not job-related. A standard by which the court determines whether other nonoccupational factors could have been sufficient to cause the illness omits the statutory test of whether the occupationally related risks contributed, along with nonoccupationally related risks, to cause the employee's illness and death. See Arthur Larson, The Law of Workmen's Compensation § 41.64(c) (1991) ("It is not necessary that the employment conditions be the sole cause, or dominant cause, so long as they are a contributing cause." (emphasis in original)).

With respect to the statutory requisite of medical causation, we recognize that this case, involving cancer as the cause of the employee's death, is substantially different from those cases in which the disease or illness is indigenous to the workplace environment. For example, an employee who has been diagnosed as having contracted the disease of byssinosis might be able to meet the medical causation test merely by the further proof that he had a significant exposure to the hazards of cotton dust. See, e.g., Dan River Mills, Inc. v. Foshee, 365 So.2d 1232, 1236 (Ala.Civ.App.1979) ("byssinosis is caused by the inhalation of cotton dust generally"). Likewise, an underground ore miner with the disease of pneumoconiosis, could probably meet the causation requisite merely by proving the presence of the disease and the exposure to the hazards of ore dust. See, e.g., Black Diamond Coal Mining Co. v. Wilson, 274 Ala. 220, 147 So.2d 810 (1962) (holding that employee was entitled to benefits for disability caused by pneumoconiosis contracted while employed as a miner). In each of these examples, the disease is indigenous to the employee's occupation.

Cancer, on the other hand, may be caused by many factors, occupational and nonoccupational. Professor Larson, in his treatise, in a section entitled "Proving occupational causation in cancer, bronchitis, and similar cases involving smoking," states that "[a]s in the heart cases, proof of industrial causation in occupational disease-smoking cases has two components--the legal and the medical." In cases such as the one before us, which involves cancer, the claimant bears a heavier burden of proof with respect to medical causation than either of the two employees in the above examples. See Arthur Larson, The Law of Workmen's Compensation § 41.64(c) (1991) (stating that cancer "warrants a brief separate examination" to show that "the disease was an occupational disease, not an ordinary disease of life," because cancer is "very commonly produced without any occupational contribution"). Recovery in this case is dependent upon the plaintiffs' proof that the totality of the employee's work environment as a painter and sandblaster contributed to cause his cancer and thereby his death. Now that we have established the legal principles that must apply, we state why we must reverse the judgment and remand the cause.

This Court has established a two-step standard of review in workers' compensation cases: "Initially, the reviewing court will look to see if there is any legal evidence to support the trial court's findings. If such evidence is found, then the reviewing court determines whether any reasonable view of that evidence supports the trial court's judgment." Ex parte Eastwood Foods, Inc., 575 So.2d 91, 93 (Ala.1991). "[W]hen the trial court's finding is meager or omissive, this court will look to the evidence to see if the judgment can be upheld." Thompson & Co. Contractors v. Cole, 391 So.2d 1042, 1045 (Ala.Civ.App.1980). In this case, however, there is no finding of fact, not even a meager or omissive finding, as to whether Mr. Valdez was exposed to the coal-tar epoxy. Of course, it is not proper in workers' compensation cases for this Court to "consider the weight of the evidence" and to make findings of fact where the trial court has failed or refused to do so. Hall v. Teledyne Firth Sterling, 448 So.2d 395, 395-96 (Ala.Civ.App.1984).

In workers' compensation cases, the trial court "is required to make findings of fact and conclusions of law, and these findings should encompass each and every issue presented to and litigated in the trial court; where this is not done, the judgment should be reversed." Thompson & Co. Contractors v. Cole, 391 So.2d at 1045. Whether Mr. Valdez was exposed to coal-tar epoxy and, if so, the amount of his exposure, were litigated issues on which the trial court should have made findings of fact. These findings of fact are essential to the determination of medical causation. If the court found that there was no exposure, there would be no need to reach the causation issue. However, if the court found that the decedent was exposed, then a question of fact would be presented as to medical causation, for example, whether the exposure was substantial enough to be a factor contributing to the decedent's lung cancer.

"To establish medical causation the employee must show that the ... exposure to conditions was, in fact, a contributing cause of [the employee's] injury." Ex parte Price, 555 So.2d 1060, 1062 (Ala.1989) (quoting Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204, 205 (Ala.Civ.App.), cert. denied, 387 So.2d 206 (Ala.1980)). See also Mitchell v. Robinson Foundry, Inc., 603 So.2d 1048, 1050 (Ala.Civ.App.1992); Patterson v. Clarke County Motors, Inc., 551 So.2d 412, 415 (Ala.Civ.App.1989); Russell Coal Co. v. Williams, 550 So.2d 1007, 1011 (Ala.Civ.App.1989); Stebbins...