Kent v. Goodyear Tire and Rubber Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Ronald R. Holliger
• Citation: Kent v. Goodyear Tire and Rubber Co., 147 S.W.3d 865 (Mo. App. 2004)
• Decision Date: 02 November 2004
• Docket Number: No. WD 63481.,WD 63481.
• Parties: Duane KENT, Deceased, Lawanda and Bethany Kent, Respondents, v. GOODYEAR TIRE AND RUBBER COMPANY and Travelers Indemnity Company of America, Appellants.

147 S.W.3d 865

Duane KENT, Deceased, Lawanda and Bethany Kent, Respondents, v. GOODYEAR TIRE AND RUBBER COMPANY and Travelers Indemnity Company of America, Appellants.

No. WD 63481.

Missouri Court of Appeals, Western District.

November 2, 2004.

Randall W. Schroer, Kansas City, for Appellant.

Elizabeth Diane Baker, Kansas City, for Respondent.

RONALD R. HOLLIGER, Judge.

Goodyear Tire and Rubber and its insurer appeal a workers' compensation award by the Labor and Industrial Relations Commission. The Commission awarded death benefits to the widow and minor child of a deceased employee, Duane Kent, on the basis that his work as a tire retreader was a substantial factor in causing him to suffer lung cancer, which ultimately caused his death.

Goodyear raises three points on appeal. In Point I it claims that the Commission erred in finding that the workplace conditions caused Kent's lung cancer because there was not substantial and competent evidence from which to find, as required, that Kent's illness (defined by Goodyear as metastatic adenocarcinoma) was caused by exposure at work. Point II claims that the Commission acted without or in excess of its powers and that the award was against the overwhelming weight of the evidence because Goodyear's experts were overwhelmingly more credible and the Commission did not properly consider the opinion of the administrative law judge. Point III argues that the Commission acted without or in excess of its powers because it improperly disregarded one of the expert opinions offered by Goodyear. Affirmed.

Facts

Duane Kent worked in the tire industry beginning in 1957 until 1998, with the exception of a three-year military tour in the early 1960's. During most of Kent's career in the tire industry he was involved in retreading and repairing truck tires.

The process of retreading tires involves grinding off old tread, placing a thin layer of rubber onto the tire, putting on new tread, putting the tire into a chamber, and vulcanizing the tire in order for the new tread to adhere to the old tire. Vulcanization involves intense heat under pressure. Various chemicals are used in the process, including solvents and adhesives. "Curing" tires and "vulcanizing" tires refer to the same process.

Part of Kent's duties required him to "buff" the tires. The "buffing" of tires produced dust that invariably ended up on Kent. Kent's wife testified that he would come home covered with black particles on his clothing, in his hair, in his eyes, in his nose, in his mouth, and even his wallet. His wife had to wash his clothes separately because of the quantity of black particles that would be on his clothing. The plant manager also stated that it would not be unusual for Kent to be covered with a fine dust because Kent did the grinding of the tires.

Most of Kent's work took place on the other side of the plant from the curing chamber where the majority of chemicals were used, but Kent "floated" when needed to other areas of the plant. Additionally, Kent's "buffing" responsibility took place near the curing chamber. The workers at the retreading plant were provided with particle masks but no respirator system.

Kent never smoked and was not exposed to second hand smoke. Two of his homes were tested for radon and both homes tested negative for any significant radon exposure.

Kent was diagnosed with metastatic adenocarcinoma of the lungs in August of 1998 and received workers' compensation benefits until October of 1999. Kent was prescribed chemotherapy by Dr. Larry Rosen, an oncologist, for his cancer which eventually spread to his brain. Kent underwent various cancer treatments over the next year until he died on December 9, 2000.

Standard of Review

This is an appeal from an award from the Labor and Industrial Relations Commission. When reviewing such an award, appellate courts "must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). "Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record." Id. at 223. The reviewing court is no longer required to view the evidence in the light most favorable to the Commission's decision. Id.

Discussion Point I

Occupational diseases are compensable under the Missouri Workers' Compensation Act, § 287.067.1 & .2. The statute requires that the condition be an "identifiable disease arising with or without human fault and in the course of the employment." Id. Subsection 2 of Mo.Rev.Stat. § 287.067 adopts the causation standard for occupational disease claims as stated in § 287.020.2; the employee's work must be "a substantial factor" in causing the medical condition. Thus, for an injury to be compensable under the Missouri Workers' Compensation Act, the work performed must have been a substantial factor in causing the medical condition or disability.

With regard to factual issues, the appellate court defers to the Labor and Industrial Relations Commission's decisions regarding the weight given to witnesses' testimony, and is bound by the Commission's factual determinations when the evidence supports either of two opposing findings. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 761 (Mo.App.2002); Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236, 241 (1932). A single expert's opinion may be competent and substantial evidence in support of an award of benefits, even where the causes of the occupational disease in question are indeterminate in nature. Kelley v. Banta & Stude Constr. Co., 1 S.W.3d 43, 48 (Mo.App.1999).

Goodyear argues on appeal, essentially, that the Commission's characterization of Kent's disease was overbroad and generic thus leading to an incorrect conclusion not supported by substantial and competence evidence. Goodyear argues that the proper characterization of Kent's disease is not lung cancer but the specific kind of lung cancer called metastatic adenocarcinoma. Characterizing Kent's disease as such allows Goodyear to argue that respondent has failed to establish causation and thus failed to prove an essential element of his action. In other words, Goodyear argues that Kent was required to produce evidence of a specific chemical causing the specific disease metastatic adenocarcinoma (not simply lung cancer). Because he did not, Goodyear argues that he failed to make a submissable case under the Workers' Compensation Act.

Based upon review of various studies, Kent's history, and his medical records, Dr. Larry Rosen, the treating oncologist, concluded that Kent's work was a causative factor of his cancer. Specifically, Dr. Rosen, the only cancer specialist in the case, found:

Mr. Kent was a non-smoker. He worked for Firestone Tire Company for many years and then for Goodyear Tire beginning in 1987. I believe that Mr. Kent's lung cancer resulted from exposure to chemicals in the tire industry and furthermore his exposure to these products was greater than that which affects the public generally. I have reviewed Mr. Kent's medical records and I have reviewed various articles in the literature. My opinion expressed above is based on reasonable medical certainty.

Dr. Andrew Myers also concluded that Kent's work was a substantial factor in causing Kent's lung cancer. Meyers reached this conclusion after examining Kent, the medical journals, and Kent's medical records. Meyers attributed causation of the lung cancer to Kent's work because Kent never smoked, was not exposed to second hand smoke, and radon exposure was ruled out as a source. Meyers concluded that Kent's exposure in the tire industry was a substantial factor in his development of cancer because the main causes of lung cancer were ruled out as a source and because Kent had a lengthy work history in the tire industry.

Goodyear produced three experts in support of its position. Dr. Doull, a clinical toxicologist, testified that workers in similar conditions to Kent's often develop lung cancer but not necessarily adenocarcinoma. Dr. Doull reviewed the chemicals that Kent was likely exposed to while at work and concluded upon reasonable medical certainty that none of the chemicals were responsible for Kent's disease.

Dr. Barkman, an internal/environmental medicine and pulmonary disease specialist, relied upon Dr. Doull's toxicology data, his general medical and pulmonary knowledge, and the information provided to him in reaching his conclusions. He did no independent research for the case. Dr. Barkman testified that adenocarcinoma can arise from anything that can scar the lung or even spontaneously. He testified that there was not enough evidence in Kent's case to persuade him that there was a causal connection between Kent's cancer and his employment. Barkman did acknowledge that there was scholarship on both sides of the issue of cancer caused by dust exposure.

Finally Dr. Kerby, a specialist in internal medicine and pulmonary disease, examined Kent shortly before he died. Dr. Kerby's opinion was that Kent's lung cancer was not caused by his employment as a tire retreader. Dr. Kerby identified faults in the four studies and excerpts that performed testing of the causal connection between cancer risks and working in the rubber industry. He concluded that none of the studies met the "Bradford Hill" criteria to establish causation between exposure and the disease. When questioned as to what could be the cause of Kent's cancer, Kerby stated that a fair proportion of lung cancers are caused by unknown sources and are a common phenomenon of aging.

Analysis

Goodyear first argues that Kent has failed to prove causation because he showed only a generic causal connection and failed to link Kent's specific disease (metastatic adenocarcinoma) to a specific chemical Kent...