ADJ11399411 · December 22, 2023

The WCJ and WCAB found that the QME Dr. Lonky's medical opinions were substantial evidence, reasonably based on facts and history, and supported causation that applicant's cancer was caused at least in part by workplace chemical exposure.

From the decision · page 1Defendant seeks reconsideration of the Findings, Award and Order (F&A) issued by the workers' compensation administrative law judge (WCJ) on October 17, 2022, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his face, mouth, jaw, and neck in the form of squamous cell cancer and subsequent lung cancer.

QME Dr. Lonky's medical opinions were based on a thorough examination, history, and review of medical records and MSDS, and were found to be substantial evidence.

Favours Applicant prevailed

This supported the finding that applicant's cancer was causally related to workplace chemical exposure.

From the decision · page 6regarding the cause of applicant's cancer and he clearly explained why he has a "strong background in toxicology." (Joint Exh. Y, pp. 9 § 10.) Thus, Dr. Lonky's reports and deposition testimony constitute substantial evidence and we see no factual or legal basis for defendant's argument that applicant should be evaluated by a toxicologist. Further, it is important to note that a party's arguments are not in and of themselves evidence. Defendant's numerous arguments that Dr. Lonky's reports and deposition testimony are not substantial evidence appear to be legal arguments that are not based on any medical or other expert opinions.

Applicant's credible testimony and photographs showed frequent exposure to carcinogenic chemicals at work and inconsistent use of protective masks.

Favours Applicant prevailed

This supported the finding of workplace exposure as a contributing cause of cancer.

From the decision · page 9When he was doing truck repairs, applicant wore an Nl00 mask only while repairing brakes, clutches, and air filters because these made a lot of dust. Otherwise, he did not wear the Nl00 mask. While working in the shop in Calipatria, he often smelled welding fumes, diesel fumes, gas fumes, and painting fumes. Applicant stated that during 50 percent of the time that he was working in the shop, he did not have any mask or breathing protection on.

Defendant's safety officer testified that only limited gas testing was done, not for carcinogens, supporting the likelihood that carcinogens were present and applicant was exposed.

Favours Applicant prevailed

This testimony supported the conclusion that workplace exposure caused or contributed to the cancer.

Dr. Lonky opined that applicant's exposure to carcinogenic chemicals and substances at work was a significant contributing cause of his squamous cell cancer and lung cancer, supported by detailed examination, history, and review of medical records and MSDS.

The WCJ and WCAB found Dr. Lonky's opinions to be substantial evidence, not speculative, and medically probable causation based on workplace exposures.

From the decision · page 2QME Dr. Lonky evaluated applicant on December 7, 2018. (Joint Exh. U, Stewart A.

South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291

To meet causation in workers' compensation, employment need only be a contributing cause of the injury.

The Board applied this standard to find that applicant's workplace chemical exposure was a contributing cause of his cancer.

From the decision · page 6Finally, it is well established that for the purpose of meeting the causation requirement in a workers' compensation injury claim, it is sufficient if the work is a contributing cause of the injury. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489].) "...[T]he proximate cause requirement of Labor Code section 3600 has been interpreted as merely elaborating on the general requirement that the injury arise out of the employment. The danger from which the employee's injury results must be one to which he or she was exposed in the employment.... All that is required is that the employment be one of the contributing causes..." (Id., at 297 § 298 [citations omitted].) Defendant argues that Dr. Lonky "... fails to address whether the geothermal scale which was present during non-industrial activities such as road races which would have impacted exposure despite testimony that for 5-6 years applicant would go to 4 or 5 races a year, for 4-5 days, for 8 to 20 hrs. in the desert (Baja)." (Petition, p. 14.) It appears that defendant's argument ignores the fact that applicant's exposure to toxic chemicals at work was a cause of his cancer, not necessarily the cause of his cancer.

Applicant's credible testimony about frequent exposure to chemical vapors and lack of consistent mask use at work.

From the decision · page 9When he was doing truck repairs, applicant wore an Nl00 mask only while repairing brakes, clutches, and air filters because these made a lot of dust. Otherwise, he did not wear the Nl00 mask. While working in the shop in Calipatria, he often smelled welding fumes, diesel fumes, gas fumes, and painting fumes. Applicant stated that during 50 percent of the time that he was working in the shop, he did not have any mask or breathing protection on.

Photographs of applicant's workplace showing presence of various chemicals.

From the decision · page 10In addition to this evidence, the WCJ has relied upon photographs of applicant's workplace. Please see defendant exhibit H photographs 12, 35, and 36. These photographs clearly demonstrate the existence of various chemicals at the place of employment. This, coupled with applicant's credible testimony that he often smelled vapors and chemicals while at work supports the conclusion that he was exposed to chemicals.

Defendant's safety officer testified that only limited gas testing was done, not for carcinogens, supporting likelihood of exposure.