On October 22, 2004, employee underwent a follow-up CT scan to rule out a kidney tumor; this study confirmed the presence of two large diverticula within the bladder, one of which held the tumor seen by Dr. Freiden. On November 9, 2004, Dr. Freiden performed an excision of bladder diverticuli, and biopsied the tumor, which was pathologically identified as a small-cell neuroendocrine carcinosarcoma.
In December 2004, employee came under the care of an oncologist, Dr. William Stephenson. Employee underwent four cycles of chemotherapy, which he tolerated well. On June 16, 2005, employee saw Dr. Stephenson complaining of intermittently severe pelvic pain. On June 17, 2005, employee underwent a CT scan of the abdomen, which revealed two new low density masses within the right lobe of the liver, suspicious for hepatic metastases.
On July 1, 2005, employee underwent a liver biopsy, which confirmed that the lesions seen in his liver represented high-grade metastatic carcinosarcoma of the type previously found in employee's bladder. On July 7, 2005, employee returned to Dr. Stephenson, who prescribed methadone and Percocet to treat the abdominal pain employee was suffering in connection with the metastasized cancer. Dr. Stephenson also referred employee to the M.D. Anderson cancer center in Houston, Texas.
Employee arrived and checked into the M.D. Anderson center on July 12, 2005. On July 13, 2005, employee took his first and only dose of methadone while in his hotel room, and immediately developed shortness of breath. Attending emergency personnel transported him to the M.D. Anderson center, where attending physicians administered epinephrine and intubated employee in an attempt to reverse what appeared to be an allergic reaction to the methadone. This was ineffective however, and employee was deemed to be in a state of septic shock with multiple organ failure. Despite an attempted emergency hemodialysis, employee died on July 14, 2005, of septic shock and metastatic bladder cancer.
On July 15, 2005, Drs. Anais Malpicia and Cesar Moran conducted an autopsy of the lungs, which revealed employee was suffering from pneumonia at the time of his death. These practitioners deemed the lung autopsy to be generally negative for granulomatous disease or emphysematous changes; although Dr. Moran noted that beryllium exposure could not be excluded. The autopsy did reveal a small focus of metastatic small cell carcinoma in the right upper lung.
On December 21, 2005, Dr. Freiden wrote a letter indicating that beryllium exposure during employee's work for employer was a potential risk factor for the development of his bladder cancer. Although employee and claimant had discussed the possibility of various occupational exposures before, it appears from this record that this was the first time a diagnostician positively identified a likely causal link between employee's work for employer and the development of the claimed work injury. We find, therefore, that December 21, 2005, was the first date upon which it was reasonably discoverable or apparent to claimant that employee's fatal bladder cancer was the product of a
Imprv No.: 05-143993
Employee: William Franken (deceased)
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compensable work injury by occupational disease.² Claimant filed her claim for compensation on May 11, 2007.
On May 9, 2007, Dr. Dempsey wrote a letter indicating that the possibility of beryllium exposure should be reconsidered as the probable cause of employee's lung condition. Dr. Dempsey noted that employee's chronic cough had previously been diagnosed as asthma or COPD (which Dr. Dempsey deemed interesting, due to employee's history of being a lifetime non-smoker), but that it had recently come to his attention that workers in employer's facility, including employee, were likely exposed to beryllium. Dr. Dempsey noted that the treatment employee received for his chronic pulmonary complaints had been only mildly successful.
**Expert medical testimony**
Claimant presents the expert medical testimony of the occupational physician Dr. Allen Parmet, who believes that employee's cancer was occupationally related to his exposure while working for employer, and that such exposure was a substantial factor in causing employee's cancer. Dr. Parmet pointed to the risk of employee's exposure to dangerous substances which were documented to have been present at employer's facility; the absence of any other known exposure or significant risk factors for developing bladder cancer; the compatibility of the typical latency period of 20 to 30 years with the timeline of employee's period of employment and subsequent development of bladder symptoms; the fact that the type of cancer found in employee's bladder is extremely rare and is seen more often in occupational exposure cases; and his opinion that occupational exposures, after smoking, are the most common cause of bladder cancers.
At his deposition, Dr. Parmet made clear that he was not linking employee's cancer to beryllium exposure specifically, but instead his opinion turned on the documented presence of multiple dangerous substances at employer's facility, including beryllium, trichloroethylene, and ionizing radiation. Dr. Parmet also discussed his firsthand expe