Garner v. Hecla Mining Company , 19 Utah 2d 367 ( 1967 )

CROCKETT, Chief Justice:

Plaintiffs, the widow and children of Douglas Garner, attack the findings and order of the Industrial Commission denying benefits for his death which they contend resulted from an occupational disease caused from working as a uranium miner for the defendant Hecla Mining Company.

Mr. Garner had worked in and around uranium mines since 1940, IS years of it underground. The last eight years had been in Utah, four years of that for the defendant Hecla Mining Company. He became ill and was hospitalized on July 14, 1963. Tests were taken which revealed extensive car-cinomatosis (a form of cancer), involving the lungs, bronchus, preaortic nodes, liver, spleen, and adrenal glands. After his death, September IS, 1963, the autopsy report showed that he had severe aortic atherosclerosis and coronary atherosclerosis.

Our occupational disease statutes were enacted as an adjunct to the compensation previously provided for accidental injuries to further implement one of the main policy considerations which underlies workmen’s compensation: that industry should bear the burdens of the human casualty it causes.¹ Due largely to the difficulty in ascertaining causal relationships it has proceeded into that field with caution, limiting coverage to certain named diseases and adding: such other diseases or injuries to health which “directly arise as a natural incident of the exposure occasioned by the employment” and only where it is shown there is a “direct and proximate causal connection between the conditions of the work and the occupational disease,” and which does not result from a hazard to which the workman would have been equally exposed outside of the employment.²

Plaintiffs urge the persuasiveness of statistical data, scientific evidence and medical opinion that there is a much higher than average incidence of lung cancer in uranium miners. The hazardous agent is radon gas. When a man breathes it, it changes in several chemical steps to the end product, known as lead-210. This accumulates in the kidneys, liver, spleen and especially the bones. By autopsy it can be determined to some degree the exposure a person had to the radon gas. Correlating with this, it was shown that Mr. Garner had 34 times as much lead-210 in his bones as the average for a nonminer; and that the Hecla Mine had about 2}/¿ times as much of the radon gas as the “recommended working level” approved by the Federal Government and some states which have regulations on the subject.

The foregoing evidence came from competent sources, including Dr. Victor E. Archer, an apparently well qualified expert who had had large experience and had done investigation and research in this field. He was not the attending physician but upon the basis of the foregoing information was of the opinion that there was a very high possibility that the death of Mr. Garner resulted from lung cancer caused by the radon gas present in uranium mines. This is the foundation of plaintiffs’ argument that the Commission was capricious and arbitrary in its refusal to find that the cause of Mr. Garner’s death was an occupational disease as defined in our statutes referred to above.

We have no doubt about the propriety of receiving and considering the evidence above referred to, and of scientific data and expert opinions based thereon concerning the high incidence of lung cancer in uranium miners, because they are relevant to the critical problem here. This evidence is indeed somewhat impressive and may well be regarded as calling attention to the question whether lung cancer of uranium miners should be included in the occupational diseases specified by statute as compensable.

Under our statutes and long established decisional law there are insuperable obstacles to the granting of the relief sought by plaintiffs on this appeal: it was their burden to show affirmatively and to so persuade the Commission that Mr. Garner’s death resulted from a disease caused by his occupation. It is the prerogative of the Commission, and not of any individual witness, or even of the medical panel, to judge the credibility of the evidence, and upon the basis of the whole evidence to determine the facts. The plaintiffs having failed to so persuade the Commission, it is the duty of this court to survey the evidence in the light most favorable to the findings and order; and we cannot reverse and compel an award unless there is credible evidence without substantial contradiction which points so clearly and persuasively in plaintiffs’ favor that failure to so find must be regarded as capricious and arbitrary. Conversely, if there is any reasonable basis in the evidence, or from the lack of evidence, which will justify the refusal to so find, we must affirm.³

While it seems logical that the unusually high incidence of lung cancer in uranium miners would indicate in the same ratio the higher probability than otherwise that such was the cause of the disease, it nevertheless falls short of compelling a finding that such was the cause in any individual case. For illustration, in a more commonly known field: the fact that the incidence of lung cancer in heavy cigarette smokers is 30% to 50% higher than in nonsmokers does not necessarily compel the conclusion that any individual smoker’s case of lung cancer re-suited from cigarette smoking. The disease also arises quite independently of and therefore apparently from other causes than cigarette smoking. Incidentally on the subject of cigarettes, it was shown that Mr. Garner himself had smoked a package a day for about 20 years.

The fallacy which underlies plaintiffs’ attack on the Commission’s finding is that they improperly attempt to focus consideration of the issues exclusively upon their own view of the evidence and theories of the case. While some aspects of the statistical data and medical theories harmonize with their contention, others fail to do so. For instance, Dr. Saccomanno, the pathologist called by them, acknowledged the well known but unfortunate uncertainty as to the cause of cancer. He readily admitted that, in any given individual, “there are a great many unknown factors as to what might cause cancer” and that “ * * * it could be concluded that the radon gas alone didn’t cause the problem incident to the death, but it’s merely based on a statistical study of a given number of cases.”

Consistent with the foregoing and corroborating the existence of unknown factors and uncertainty as to causation, is the report of the medical panel to which this case was referred for examination: “We cannot confirm that the lung carcinoma was caused by exposure to uranium mining occupation.” There is thus a reasonable basis in the evidence for the refusal of the Commission to find in accordance with the plaintiffs’ contention. Upon the principles stated above it is our duty to affirm the decision.⁴ No costs awarded.

CALLISTER, HENRIOD and EL-LETT, JJ., concur.

1 . U.C.A.1953, 35-2-26, 27, first enacted in 1941 as Ch. 41, Secs. 27, 28.

2 . U.C.A.1953, 35-2-27 (28). This subsection sets out the requirements for other diseases to be included with the diseases enumerated in 35-2-27. They duplicate the requisites for proximate causation of occupational diseases in 35-2-26.

3 . See Kent v. Industrial Commission, 89 Utah 381, 57 P.2d 724; Kavalinakis v. Industrial Commission, 67 Utah 174, 246 P. 698; and for a recent case quite analogous see Vause v. Industrial Commission, 17 Utah 2d 217, 407 P.2d 1006.

4 . Ibid.; and see also Edlund v. Industrial Commission et al., 122 Utah 238, 248 P.2d 365.