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Shockey v. Alloys3/17/2005
IMPORTANT NOTICE
NOT TO BE PUBLISHED PINION
THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant failed to prove that he suffered from asbestosis and dismissed his application for workers' compensation benefits. The Workers' Compensation Board (Board) and the Court of Appeals affirmed. Appealing, the claimant continues to assert that the ALJ erred by failing to consider what he maintains was uncontradicted medical evidence that his lymphosarcoma was caused, at least in part, by his exposure to asbestos. We affirm.
The claimant was born in 1947. After serving in the military, he worked as a laborer in a coke plant for about two years and was exposed to coal and other dusts. In 1972, he began working as a laborer for Inco Alloys. Later, he worked for its successor, Special Metals. He testified that he held a number of different jobs over the years and that he was exposed to asbestos and other respirable dusts on a daily basis, although the nature of the exposure varied with each job . He retired in December, 2000, due to pain from a 1980 lower back injury . He stated that he had smoked 1 1/2 packs of cigarettes daily for 40 years.
On August 26, 2002, the claimant filed an application for benefits in which he alleged an occupational lung disease due to his exposure to "asbestos, various metals and compounds, and/or other noxious dusts, fumes, and/or irritants."
The claimant introduced a medical report from Dr. Myers, who examined him on July 15, 2002, and diagnosed "ASBESTOSIS, PARENCHYMAL 1/2 t/q all zones;" "LYMPHOSARCOMA RIGHT CERVICAL NODE, ? related to asbestosis;" and "COPD, Class I." Pulmonary testing revealed a greatest FVC value of 98% of the predicted normal and a FEV1 value of 85% of the predicted normal. Dr. Myers indicated that an unspecified "disease or condition" was related to the claimant's work environment and noted that the combination of asbestos exposure and cigarette use is highly carcinogenic.
The claimant also introduced a report from Dr. Powell, who reviewed an x-ray taken on February 11, 2002. Dr. Powell found parenchymal abnormalities that were consistent with category 1/1 pneumoconiosis. He also found parenchymal and hilar calcification from a previous infection.
On October 21, 2002, Drs. Joyce and Mallampalli performed the university evaluation. The claimant gave a history of working in a metal fabrication plant since 1972, stating that his work involved checking and analyzing metals. He described using sheets of asbestos to wrap hot ingots and stated that he was around the material most of the time that he worked for the company. He described heavy dust exposure and stated that it frequently contained asbestos fibers. He stated that he was not required to wear any type of respirator and that he was not aware of the exposure until the final two years of his work. The claimant also gave a history of chewing tobacco and of smoking about 1 '/2 packs of cigarettes daily for 35 years before quitting in 2002, when he was diagnosed with cancer in a cervical lymph node. Dr. Mallampalli noted that the report of a previous disability evaluation indicated that the type of cancer was lymphosarcoma and that the claimant underwent post-operative radiation therapy.
The claimant's chest x-ray was evaluated by Dr. Joyce, a 13-reader. She foun
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