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SUPERIOR COURT OF THE STATE OF DELAWARE T. HENLEY GRAVES
R E S I D EN T J U D G E

SUSSEX COUNTY COURTHO USE
ONE TH E CIRCL E, SUITE 2 GEORG ETOW N, DE 19947 (302) 856-5257

December 20, 2005

David A. Arndt, Esquire Jacobs & Crumplar, P.A. 2 East 7th Street P.O. Box 1271 Wilmington, Delaware 19899 RE:

Robert W. Ralston 10 East 13th Street P.O. Box 1396 Wilmington, Delaware 19899

Angela Widdowson v. E.I. DuPont DeNemours & Co. C.A. No. 05A-05-004-THG Date Submitted: October 3, 2005

Dear Counsel: This is the Court's ruling on Appellant's appeal of the Industrial Accident Board's ruling denying workmens' compensation benefits. Statement of Facts Claimant-Appellant, Angela Widdowson, alleged that her husband, Guy Widdowson, developed and died from lung cancer, which was at least partially caused by his exposure to asbestos while working for E.I. DuPont de Nemours & Co. (DuPont), Employer-Appellee. Mrs. Widdowson, as the executrix of her husband's estate, filed a Petition for workmens' compensation benefits with the Industrial Accident Board (IAB) in December 2004. The case was heard by the IAB on April 13, 2005. The DuPont nylon plant was located in Seaford, Delaware. Claimant's husband worked at the plant from 1965 until his diagnosis of lung cancer in 2003. He was exposed to asbestos on a daily basis while he worked at the plant, up until the late 1980's. The exposure to asbestos was

from multiple sources: daily use of an asbestos floor sweeping compound, asbestos insulation dust released by the vibration of the nylon spinning machinery, asbestos pipe insulation dust released when it was removed from pipes near work stations, dust from asbestos insulation that was carried through the work area on the way to dumpsters; and finally, asbestos dust particles released into the air by daily floor sweeping. Employer concedes that Mr. Widdowson was exposed to asbestos while working at the plant. Mr. Widdowson smoked approximately one pack of cigarettes a day for approximately thirty years. He also was in DuPont's asbestos surveillance program for a period while working at the plant. During his time in the program, his chest was x-rayed by the plant's doctors to monitor his condition. He was released from this program when the doctors at the plant determined that he did not have asbestosis. At the hearing, Claimant presented witnesses who worked at the plant at the same time as her husband did. These witnesses explained how he and they were exposed to asbestos. Claimant testified to her husband's medical conditions and that he was not exposed to any asbestos since he left the plant in 2003. Claimant also presented doctors as expert witnesses, whose opinions attributed Mr. Widdowson's lung cancer at least partially to asbestos exposure. The details of their opinions will be discussed below. Employer presented the testimony of Dr. Walkenstein, who testified by deposition, that Mr. Widdowson's cancer was not attributable to asbestos exposure, but rather tobacco consumption. The basis of his opinion is also discussed below. On April 27, 2005 the IAB ruled in favor of Employer. The claimant has the burden of proving causation not to a certainty but only by a preponderance of the evidence.1 The IAB
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Goicur ia v. Kau ffman's F urniture, 1997 W L 8188 9, 2 (Del. S uper.), aff'd, 706 A.2d 26 (Del. 1998).

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stated that Claimant did not meet the burden of proof that her husband's lung cancer was caused by his exposure to asbestos while working at the plant. The IAB found Mr. Widdowson's lung cancer was caused by his cigarette smoking. This case dealt with an occupational disease. A claimant can only recover for an occupational disease if evidence is presented that the illness/injury was caused by the working conditions provided by the employer, and it was a natural incident of the employee's occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard of employment generally. 2 Here, the IAB found that there was significant exposure, greater than that of the general work population. However, Claimant did not show by preponderance of the evidence that the exposure caused the lung cancer. Claimant produced evidence of epidemiological studies that show the synergistic effects of exposure to asbestos and tobacco smoking. The IAB found these studies to be relevant when looking at causation, but a causation opinion cannot be based solely on statistical studies.3 The IAB agreed with Employer that Claimant has not provided sufficient, individualized proof to establish that, more likely than not, Mr. Widdowsnon's lung cancer was causally related to his exposure to asbestos.4 Standard of Review The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is based on substantial evidence.5 Questions of
2 3

Anders on v. Ge neral M otors Co rp., 442 A.2d 1359 , 1361 (Del. 1982). Lee v. A.C . & S Co. Inc ., 542 A.2 d 352, 3 55 (De l. Super. 19 87), In Re: P etition of Gr eenwo od Trust C o., 1999 W L 167792, 4 (Del. Super.). 4 IAB Decision Page 15. 5 Johnso n v. Chry sler Corp., 312 A.2 d 64, 66 -67 (De l. 1965); Genera l Motors v . Freema n, 164 A.2d 686, 688 (Del. 1960).

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law are to be reviewed de novo.6 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.7 The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.8 It merely determines if the evidence is legally adequate to support the agency's factual findings.9 If the Court finds that there is substantial evidence to support the decision, it must affirm the Board's ruling, unless it identifies a clear error of law.10 Analysis In this case, three doctors gave their opinions about the cause of Mr. Widdowson's lung cancer. The Board can accept one expert's testimony over another if their opinions conflict so long as the substantial evidence requirement is satisfied.11 Their opinions were all based on substantial evidence, but their conclusions differed as to the proximate cause of Widdowson's lung cancer. When expert opinions are equally supported, but nonetheless conflict, the Board is permitted to accept the testimony of one expert over another.12 Two physicians, Drs. Daum and Abraham, testified for Claimant at the IAB hearing. They concluded that Mr. Widdowson developed lung cancer because of his asbestos exposure and his smoking. They testified about the synergistic relationship of asbestos exposure and tobacco smoking. They concluded that, but for Mr. Widdowson being exposed to asbestos at the DuPont plant, he would not have developed cancer at the time he did, if at all.

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In re Bea ttie, 180 A.2d 741, 744 (Del. Super. 1962). Ocean port Ind. v . Wilming ton Steve dores, 636 A.2 d 892, 8 99 (De l. 1994); Battista v. C hrysler Co rp., 517 A.2d 29 5, 297 (D el. 1986 ), app. dism ., 515 A.2d 397(D el. 1986). 8 Johnso n v. Chry sler Corp., 312 A.2d at 66. 9 29 Del. C. ' 10142(d). 10 E.I. DuP ont De N emou rs & Co. v. Cla yville, 2004 W L 3048548, 2 (D el. Super.). 11 DiSab atino Bro s. v. Wortm an, 453 A.2d 102, 106 (Del. 1982). 12 Id.
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Dr. Daum testified by deposition for the Claimant. Dr. Daum is certified in preventative medicine with a subspecialty in occupational medicine. She is also familiar with epidemiology. Her opinion was that Mr. Widdowson developed lung cancer as a result of his exposure to asbestos while working at the plant, combined with his smoking. Dr. Daum cited studies showing that people who are exposed to asbestos develop lung cancer at a higher rate than those who have not been exposed. She also testified that asbestos exposure combined with cigarette smoking acts synergistically to cause lung cancer at a higher rate. The synergistic effect is when two factors interact to multiply the risk. Further, she stated that a higher amount of asbestos exposure is needed to develop lung cancer than is necessary to develop asbestosis. In her opinion, Mr. Widdowson would not have developed lung cancer in the method and manner that he did but for his exposure to asbestos, but his smoking was also a cause. However, Dr. Daum admitted that she did not look at Mr. Widdowson's CT scans and did not have his medical records from his cancer treatment, but examined his chest x-rays. From these x-rays, she determined that there was pleural thickening and ST type interstitial opacities in his lung which she determined were asbestos-related developments. She also found cancer and emphysema and/or chronic obstructive pulmonary disease (COPD) along with other conditions in the lung. Dr. Daum went on to state that even though she had not reviewed any of Mr. Widdowson's CT scans, if someone found that he did not have asbestosis when reading them, then that person was not expert enough to see it. She went on to attack the trustworthiness of Employer's expert. She attacked the Employer's expert because of his opinion that asbestosis was necessary to find that asbestos caused lung cancer. She then went on to say that the majority

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of the scientific community finds Employer's expert's opinion requiring asbestosis for finding that asbestos triggered cancer to not be an honest opinion. Further, Dr. Daum testified after reviewing DuPont medical records from the 1990's that Mr. Widdowson had an illness of the lung which was consistent with asbestosis. She also stated that asbestosis is not necessary to find that lung cancer was caused by asbestos exposure and that asbestosis does not itself cause cancer. Further, she testified that when a person both smokes and is exposed to asbestos, you cannot say what the primary cause of the cancer is. She cited epidemiological studies to support her testimony that the combination of smoking and asbestos exposure has a synergistic effect. In her opinion, but for the asbestos exposure, Mr. Widdowson would not have developed cancer. Based on the facts presented to Dr. Daum about Mr. Widdowson's exposure to asbestos at the DuPont Plant, she believed that he was exposed to enough asbestos to cause lung cancer. The exposure as described to her would exceed the amount that the general population is exposed to and would be sufficient to cause asbestosis. She stated that if there was visible dust in the plant as described by witnesses who worked there, the level would be five or six fibers per cubic centimeter or higher. Dr. Abraham also testified for the Claimant by deposition. Dr. Abraham is a pathologist. He testified, after reviewing DuPont's medical records, pathology reports, and biopsy slides, that Mr. Widdowson died from lung cancer. His opinion was that Mr. Widdowson's smoking and his exposure to asbestos were the substantial causes of his cancer. Dr. Abraham also stated that the cancer could have been caused by either smoking or asbestos exposure alone. He also testified that it is not necessary for a person to have asbestosis to develop lung cancer. He supported his opinion by referring to the Helsinki Criteria, an international report which lists the risks of 6

exposure to certain materials, which was of the same opinion as him. After being told of how much asbestos Mr. Widdowson was exposed to, Dr. Abraham stated that, but for the asbestos exposure, Mr. Widdowson would have been less likely to get lung cancer when he did, if at all. Dr. Abraham also reviewed slides of a needle aspiration biopsy done on Mr. Widdowson's lung. He found that the test allowed him to diagnose cancer, but was insufficient to evaluate the lung tissue for asbestosis or examine it for asbestos fiber or body content. After being given a description of the asbestos exposure that Mr. Widdowson was subjected to, he stated that such exposure was sufficient enough to raise the risk of getting lung cancer either with or without smoking. In addition, he reviewed Dr. Daum's x-ray readings. Dr. Walkenstein testified by deposition for the Employer. Dr. Walkenstein is board certified in internal medicine and pulmonary medicine. He reviewed Mr. Widdowson's medical records along with diagnostic studies. Dr. Walkenstein's opinion is that Mr. Widdowson's lung cancer was not caused by asbestos exposure. Dr. Walkenstein reviewed Mr. Widdowson's 2003 CT scan and found that evidence that his emphysema had worsened since his last CT scan in 2001. He testified that emphysema is not caused by asbestos exposure and the changes in his emphysema were characteristic of tobacco smoking. Dr. Walkenstein agreed that it is more likely for a person to develop an asbestos-related disease as the amount of asbestos exposure and the intensity of such exposure increases. He also discussed how Mr. Widdowson was in the asbestos surveillance program and received regular chest x-rays and pulmonary function studies until early 2000. The records from the program show no indication of Mr. Widdowson suffering from any asbestos-related diseases. The 2001 CT scan showed no pleural thickening with calcification, which is frequently developed by people with significant asbestos exposure. There was no evidence of Mr. Widdowson having 7

pleural plaque in his lungs on any of his CT scans. Dr. Walkenstein reviewed Mr. Widdowson's x-rays and saw nothing that pointed to asbestos-related disease. Dr. Walkenstein also points out that Mr. Widdowson had an air flow obstruction which is consistent with a finding of emphysema, but inconsistent with asbestosis. Also, later tests did not show any restrictive airway disease so if earlier tests showed such a disease; it could not have been asbestosis because it is an irreversible fibrotic process which can only get worse, not better. Mr. Widdowson's medical records from the 1980's to the early 2000's were reviewed by Dr. Walkenstein and he found only one occasion where a doctor heard crackles in Widdowson's lungs, which cleared after treatment. Further, Mr. Widdowson's most recent examination by a pulmonologist lacked any finding of crackles. People with asbestosis develop crackles which are permanent so Mr. Widdowson could not have asbestosis. Dr. Walkenstein's opinion is that Mr. Widdowson's lung cancer was caused by his tobacco smoking. He found that the presence of emphysema was consistent with his opinion. Even though it was conceded that Mr. Widdowson was exposed to asbestos, there were no physical findings to support any asbestos-related lung disease. Dr. Walkenstein stated that he believes that asbestosis is necessary to relate lung cancer to asbestos exposure. Claimant appealed the IAB's ruling based on two arguments. First, she argues that the IAB erred as a matter of law in its application of Lee v. AC & S Co., Inc.13 Second, she argues that the IAB erred as a matter of law in requiring additional evidence of asbestos-related symptoms and/or disease to link asbestos exposure to the development of lung cancer,

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542 A.2d 352, 355 (Del. Super. 1987).

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erroneously creating an additional requirement to the two-prong test found in Air Mod Corp. v. Newton14 and Anderson v. General Motors Corp.15 Claimant asserts that the IAB believed that Claimant's experts only relied on epidemiology statistical studies in forming their causation opinions. Claimant states that the IAB improperly held that epidemiological studies cannot be used to prove causation independent of other evidence citing Lee and In RE: Petition of Greenwood Trust16. Claimant goes on to point out that her experts relied on other evidence when forming their causation opinions. Her experts also reviewed x-rays, pulmonary function tests, the history of Mr. Widdowson's asbestos exposure, and his history of smoking. The above argument fails because the IAB properly applied the cited cases to the facts. The IAB, in its decision, did not refuse to give weight to the Claimant's experts. The IAB merely reiterates that statistical studies are relevant when determining causation, but causation cannot be based solely on these studies. The IAB was aware that the Claimant's experts did not solely rely on statistical studies because it laid out in the Summary of the Evidence section of its decision how these experts relied on other evidence including medical tests and witness accounts about the amount of exposure. Therefore, the IAB did not err as a matter of law. The IAB, as the finder of fact, accepted the Employer's opinion over the Claimant's as it is allowed to. Claimant further attacked the IAB's ruling by stating that it added an additional requirement to the test for determining whether a compensable occupational disease exists. The test comes from the Anderson and Air Mod cases. To recover benefits for an occupational disease claimant must prove that (1) the disease was a natural incident of the working conditions
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215 A.2d 434 (D el. 1965). 442 A.2d 1359 (Del. 1982). 1999 WL 167792(Del. Super.).

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of the employment; and (2) the employment has a hazard distinct from and greater than the hazards present in employment generally. 17 Employer has conceded that the second prong of the test is satisfied because there was significant asbestos exposure above what would be present in employment generally. Claimant was still required to prove the first prong that her husband's disease naturally occurred because of the working conditions. The claimant has the burden of proving that compensation is warranted in order to recover from the employer.18 Claimant provided evidence that her husband's lung cancer was caused by a combination of asbestos exposure and tobacco smoking as testified to by his two experts. However, Claimant did not prove by preponderance of the evidence that Mr. Widdowson's lung cancer was caused even partially by his asbestos exposure. No evidence was presented that there was any asbestos in his lungs or that his lungs were affected by asbestos through any medical tests. This is the opposite of E.I. DuPont DeNemours & Co. v. Clayville19 , where there was proof of asbestos exposure affecting the claimant's lungs. Here, all the medical tests only showed conditions caused by smoking, such as emphysema. DuPont presented testimony that Mr. Widdowsons's lung cancer was caused solely by tobacco smoking. The IAB, as finder of fact, can choose to accept one party's expert over another, as long as the substantial evidence requirement is satisfied.20 The substantial evidence requirement was satisfied and the IAB accepted Employer's expert opinion over Claimant's. Therefore, the IAB did not err as a matter of law, because Claimant did not prove that compensation was deserved by a preponderance of the evidence.

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Greenw ood Tru st, 1999 W L 167792 (Del. Super.). Goicuria, 1997 WL 81889, 2 (Del. Super.). 2004 WL 3048548 (D el. Super.). DiSab atino Bro s., 453 A.2d at 106.

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Claimant argues that the IAB erred as a matter of law by requiring some proof that the asbestos exposure had an impact on her husband. Claimant's argument is that once it is conceded that asbestos can cause cancer and that Mr. Widdowson was exposed to asbestos at his employment, and this exposure has a hazard risk greater than the hazards of the general work population, then her case is proven without the necessity of linking her husband's medical condition to the conceded risk. The IAB only required that Claimant satisfy the first prong of the test by proof that the asbestos exposure had some effect on Mr. Widdowson; that is, to show that this exposure caused his cancer. It did not require anything more than satisfaction of the accepted test for recovery for an occupational disease. Therefore, the IAB correctly applied the Air Mod/Anderson causation standard to the evidence presented and ruled without erring as a matter of law. The IAB based its decision on the facts presented and therefore cannot be overturned by this Court unless there was an abuse of discretion by the IAB. The IAB conducted the hearing appropriately and ruled within its powers. This Court is satisfied that the IAB's decision is based on sufficient evidence. While reviewing this case, no error of law or abuse of discretion has been found. Therefore, the decision of the IAB should be affirmed. Conclusion For the above stated reasons, the IAB's decision should be upheld. Very truly yours,

T. Henley Graves THG/jfg oc: Prothonotary cc: Industrial Accident Board

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