Olson v. Federal American Partners
Decision Date | 02 August 1977 |
Docket Number | No. 4777,4777 |
Citation | 567 P.2d 710 |
Parties | Mildred OLSON, Appellant (Claimant below), v. FEDERAL AMERICAN PARTNERS, Appellee (Employer below). |
Court | Wyoming Supreme Court |
Thomas T. Zollinger, Rock Springs, signed the brief and appeared in oral argument on behalf of appellant.
Donald P. White, White, Avery & Vincent, Riverton, signed the brief and appeared in oral argument on behalf of appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
From a judgment of the district court denying claimant-appellant's claims for herself as the widow and on behalf of the dependent child of an employee covered by Wyoming's Occupational Disease Law, § 27-288, et seq., as amended, (repealed, § 4, Ch. 149, S.L.Wyo. 1975), arising out of the death of her husband, allegedly by malignancy caused by radiation, she appeals. We will affirm.
Section 27-290, of the Occupational Disease Law, stated in pertinent part:
Section 27-293 provided:
"When an employee has suffered a compensable occupational disease covered by this act, the employer's account in whose employment said employee was last injuriously exposed to the hazards of the disease at the time of exposure shall alone be liable therefore, without right to contribution from any prior employer."
Section 27-297(a) covered burden of proof:
The claimant's husband had been employed as an underground uranium miner, as follows:
Jan. 3, 1958-Feb. 27, 1970 Continental Uranium Co.
Mar. 4, 1970-Sept. 10, 1970 Federal American Partners
Oct. 11, 1970-Jan. 15, 1971 Continental Uranium Co.
Jan. 18, 1971-Dec. 29, 1971 Federal American Partners
The appellee-employer was Olson's last employer. While in that employment, he became ill and on May 23, 1973, died of lung cancer. The claimant at the trial asserted that her husband died of a lung cancer induced by occupational radiation exposure arising out of his last employment. The last employer denied liability, claiming that The court's findings were:
Olson had not been subjected to injurious radiation exposure during his employment by it, so there was no causal connection between the employment with it and the lung cancer and, additionally, that there was no certainty that his cancer developed in his employment as a uranium miner. It was admitted that the deceased was an habitual cigarette smoker, having smoked daily at least a package to a package and a half from 1949 until 1971. The record evidence indicates he may have smoked even more.
We see the only issue to be whether the trial judge erred in holding that the claimant failed in her statutory burden of proof.
Since the case is fact-oriented for disposition, the case has been predominantly studied and decided, having in mind the appellate rule that we will examine the evidence in the light most favorable to the prevailing party. P & M Cattle Company v. Holler, Wyo.1977, 559 P.2d 1019. Strangely enough here, the evidence most persuasive in support of the trial court's position came from the claimant's own expert witness. The employer's expert witness, a medical doctor, with a considerable experience in the study and treatment of cancer in uranium miners, was not in substantial disagreement. The record discloses that the trial judge was tempted to allow the employer's motion to dismiss at the close of claimant's presentation in chief, but wisely determined to hear the evidence of the employer, in order that there be a complete record of all evidence on both sides and avoid a remand because of the risk involved in an improvident early dismissal and piecemeal trial. Furthermore, as noted by the district court, the statute invoked considerations upon which this court has not previously ruled in its technical aspects, peculiar to uranium mining.
There is some similarity between Workmen's Compensation cases 1 and this one under the since repealed Occupational Disease Law but the former type case does not have the specially applicable statutory sections we must here take into account. This court has considered, however, a similar case of failure of proof under the Occupational Disease Law but involving a different lung ailment. Hammond v. Hitching Post Inn, Wyo.1974, 523 P.2d 482. The claimant must conform to the burden imposed.
Dr. Victor E. Archer, a nationally recognized expert in the field of cancer induced by radiation, associated with the mining of uranium, testified for the claimant. He was commendably frank in his appraisal of the dead miner's disease and its connotations.
It was Dr. Archer's testimony that there is a high incidence of lung cancer amongst uranium miners. In order to determine the amount of radiation to which decedent had been exposed in his lifetime, his body was disinterred and parts, particularly bones, removed for testing. The results of inhaling air laden with an inert gas, radon, a decay product of radiation, ends up as a further radiation decay product in the bones of a human being as lead-210. The amount of that end product in the bones can be measured and with adjustments for periods of nonexposure or noninjurious exposure will reveal with accuracy the amount of radon gas taken into the lungs during a lifetime of uranium mining.
As previously indicated, Olson had been employed by Continental Uranium Company upon his entry into his occupation as a miner in 1958 and worked for that company continuously until 1970, a period of about 12 years. He was with his last employer here intermittently for a total period of about 18 months. Clinical appearance of the cancer developed after 13 years of uranium mining. There is what is known as an induction-latent period, a length of time between when a man first starts uranium mining, and the advent of cancer. This period is usually around 15 years though the cancer may appear at any time after five years, here 13 years.
According to Dr. Archer, tobacco use to the extent engaged in by Olson can either be the cause of the cancer here involved or it may promote the development of cancer induced by radiation. The latter is referred to as a synergizing effect. Tobacco use also leaves lead-210 in the body. Dr. Archer explained that the incidence of lung cancer amongst uranium miners is greater to a definite extent among smoking miners than nonsmoking miners.
While the trial judge may have been able, at the most, to find that the cancer of which decedent died might have been induced by radiation from uranium mining in the first employer, the proof completely breaks down as far as "injurious exposure" with the last employer, with whom we are concerned, is involved. There was no proof that the working level of radiation in the Federal American Partners mine was not within practical prescribed limits of safety. 2 The evidence in that regard fails also to show that Olson was even working in areas of the mine where radiation at any level was present. There was no proof that Olson was "injuriously exposed" to the hazards of radiation-induced cancer with the employer here.
The clincher, however, was when the following question and answer by Dr. Archer went into the record:
3
Dr. Archer specifically testified that if the working level exposure of Olson was within the United States Government permissible limits, there would not be injurious exposure; it would not contribute to or promote a cancer induced several years earlier with a different company but not discovered until later. The proof of the employer was that the exposure was within the safe limits.
The claimant furnished no acceptable proof to the contrary.
If there is any reasonable basis for the findings of the trial judge as the fact finder, w...
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