Recognition of asbestos-related lung cancer

Symposium on asbestosBispebjerg Hospital

December 2014

Problematic verdict given by the Appeals Board in a matter of compensation for asbestos-exposed smokers. Feature article in Ugeskrift for læger (The Journal of the Danish Medical Association), May 2014, by Frost, Petersen, Thomsen, and Mikkelsen.

Lung Cancer in Denmark

• In 2012 2352 men and 2193 women were diagnosed with lung cancer

WRITING GROUP David Sherson (DS) Denmark, Jesper Bælum (JB) Denmark, Jesper Rasmussen (JR) Denmark, Karen Ege Olsen Denmark, Lene Snabe Nielsen (LSN) Denmark, Maria Albin (MA) Sweden, Niels Christian Hansen (NCH) Denmark, Søren Dahl (SD) Denmark, INTERNAL EXPERT GROUP Christy Barlow USA, Dick Heederik the Netherlands, Johnni Hansen Denmark, Jørgen Vestbo Denmark Mercello Lotti Italy, Panu Oksa Finland, Sverre Langård Norway, Thomas Kraus Germany

Asbestos is part of the cause of between 4-8 % of cases of lung cancer in men

Possible under-reporting of asbestos related lung cancer (ARCL)

National Board of Industrial Injuriesguidance on occupational diseasesTobacco consumption in connection with asbestos-related lung cancer Exposure to asbestos increases the risk of lung cancer by 2-5 times, depending on the extent of the exposure, but if a person is a smoker and is also exposed to asbestos, the risk is increased 20-50 times, depending on the exposure to asbestos and the total tobacco consumption. In other words, it is much more dangerous to be exposed to two carcinogenic substances at the same time.

As is also applied to other types of work-related lung cancer, a substantial tobacco consumption may be included as a competing factor in the assessment of the asbestos claim. Read more under 21.2.4.

Possible causes of lung cancer in asbestos exposed smoker

• Neither asbestos nor smoking• Asbestos alone• Smoking alone• Asbestos and smoking

Assessment of cause of an individual case of lung cancer – a probability assessment

10.000 men in each group followed for 10 years

Number of lung cancer cases

Surplus number of lung cancer cases

Neither asbestos nor smoking

10 -

Asbestos alone 20 10

Smoking alone 100 90

Asbestos and smoking

200 190

190 > 10 + 90

Principal verdict concerning compensation for cases of lung cancer

Lung cancer in a heavy smoker was recognized by the National Board of Industrial Injuries with an injury compensation of 5%, which was appealed.The Appeals Board changed the decision – it refused to recognize the disorder and it refused to reopen the case. This decision was brought to trial at the City Court. The medical consultant of the Appeals Board commented on the matter:"Asbestos exposure increases the risk by a factor of 2-2.5 andsmoking at least by a factor of 10. The risk from tobacco smoking therefore far exceeds that of the occupational exposure and the lung cancer is therefore most likely caused by something else than the occupational exposure.”

The Medico-Legal Council explained to the court:

The so-called etiological fraction (EF) indicates the fraction of the disease that can be eliminated, if an exposure is removed.In the case of 20 pack-years of smoking, which means a 10-fold increased risk for lung cancer, the EF is 90%, and by a 2-fold increasedrisk of lung cancer due to asbestos the EF for asbestos is 50%.That is to say that 90% of the cases can be eliminated by eliminating tobacco, and 50% can be eliminated by removing asbestos. The etiologic fraction does not add up to 100% because there is a synergistic effect between tobacco and asbestos.This also indicates that the most likely cause is tobacco smoking, but whatever the size of the tobacco smoking, asbestos exposure will double the risk of lung cancer.

Decision of principle

We recognize your lung cancer from the list ofoccupational diseases point K. 4.1. D.Your total permanent injury was at the time of ourverdict on Oct. 8, 2009 15 %. Your permanent injury resulting from the industrial injury made up, however, only 10 percent of this and therefore is below 5 %.We find that the specific risk for development of lung cancer should be compared with the risk if you had notsmoked. Therefore, smoking formed 90 percent of the total risk and the industrial injury formed 10 percent.

Problematic verdict handed down by the Appeals Board in a matter of compensation for asbestos-exposed smokers with lung cancer.Feature article in Ugeskrift for læger (The Journal of the Danish Medical Association), May 2014, by Frost, Petersen, Thomsen, and Mikkelsen.

The conclusion of the article in Ugeskrift for Læger (The Journal of the Danish Medical Association)

• No scientific basis for different reductions in injury-compensation for asbestos exposed smokers than for asbestos exposed non-smokers with lung cancer. The etiologic fraction related to asbestos will be 50-60% among both smokers and non-smokers.

• The decision of principle deprives asbestos-exposed smokers with lung cancer the right to compensation even though their risk is greatly increased due to their work with asbestos.

Judgment

The Judgment of 27 June 2014 by the Western High Court 13. Department of appeal VL B-1516-13:It is made clear from the Medico-Legal Council reply toQuestion 5 that the proportion of lung cancer cases due toasbestos exposure, is about 50% for both non-smoking andsmoking asbestos workers.The Judgment of the court:The Appeals Board is ordered to recognize that XX's permanent injury percent as a result of the recognized occupational injury in the form of squamous cell carcinoma at the time of the Board's decision on the 11th January 2013, was 15%. See: Workers' Compensation Act 18th.

The Appeals Board is now considering whether the case is so fundamental that a third instance should be sought to take the case to the Supreme Court. Such an application must be sent within eight weeks of the judgment handed down in the High Court on June 27, 2014.

January 20, 2015 The Appeals Board got permission to try the case in the Supreme Court.