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Fiore v. Consolidated Freightways

Decided: February 22, 1994.

JOHN FIORE, PETITIONER-APPELLEE,
v.
CONSOLIDATED FREIGHTWAYS, INC., RESPONDENT-APPELLANT



On appeal from the Division of Workers' Compensation.

Shebell, Long and Landau. The opinion of the court was delivered by Shebell, P.J.A.D.

Shebell

[270 NJSuper Page 523] In this appeal by an employer from an award of Workers' Compensation benefits, we are called upon to determine whether and to what extent the New Jersey's Workers' Compensation Act (N.J.S.A. 34:15-1 to 128) permits an award of benefits to an employee for cardiovascular disease caused by an occupational exposure, in the absence of specific work effort or strain which causes an acute heart attack or other cardiovascular injury. This issue is compounded by the question of the applicability of N.J.S.A. 34:15-7.2 which requires that "[i]n any claim for compensation for injury or death from cardiovascular or cerebral vascular causes, the claimant shall prove . . . [that the causative] work effort or strain . . . [was] in excess of the wear and tear of the claimant's daily living . . . ." In the event such an occupational exposure-related cardiovascular disease is compensable, we must then determine whether the Workers' Compensation Judge properly found that petitioner proved all of the necessary elements of such an occupational exposure claim.

On May 4, 1987, petitioner, John Fiore (petitioner), filed Claim Petition 87-13929 with the Division of Workers' Compensation. He alleged that an occupational exposure "to deleterious substances" while working as a truck driver for respondent, Consolidated Freightways, Inc. (respondent), from 1966 to the time of filing, resulted in neurological and neuropsychiatric injury, as well as "Pulmonary-Internal, Lungs and Heart" injuries. Petitioner had previously, on October 20, 1986, filed Claim Petition 86-31585 alleging that he had suffered a heart attack while on the job with respondent on August 8, 1986. Petitioner claimed neurological, neuropsychiatric, and heart injury from this incident.

The seven days of trial on these consolidated claim petitions spanned more than two years, from September 18, 1989, to October 17, 1991. The Judge's final decision was not rendered until a year thereafter on October 8, 1992.*fn1 On May 7, 1990, Claim Petition 86-31585, which alleged that petitioner had suffered a heart attack while on the job, was dismissed by the Judge for "failure to sustain burden of proof . . . as to any specific incident." The Judge also dismissed petitioner's claim for pulmonary disability, under Claim Petition 87-13929, on the basis that petitioner's expert classified the pulmonary functional disability as "mild." See N.J.S.A. 34:15-36.

Respondent appeals the Workers' Compensation Judge's award to petitioner of thirty-three and one-third percent of partial-total permanent disability for angina and coronary artery disease caused by occupational exposure to carbon monoxide. This computed to 200 weeks of compensation at the rate of $133 per week for a total sum of $26,000. Respondent was also ordered to pay a State disability lien of $4,074.37, a Teamster Union lien of $7,483.66, and medical bills of $6,469.37.

Petitioner, thirty-nine years of age at the time his claim petitions were filed, was the only lay witness to testify at trial. He testified that he was employed by respondent starting in June 1967, as a dock worker. His job duties consisted of moving freight at the terminal, as well as from truck to truck. During the first year, petitioner performed his duties at respondent's Port Newark terminal, after which the business moved to Paterson. Petitioner continued his job as dock worker at this location for approximately three years.

Petitioner characterized the conditions in the Paterson plant as "terrible." He explained "[i]t was very old and dingy. You know, bad lighting, terrible floor, all kinds of dust and fumes and everything over there." The dust came from the freight and the fumes were allegedly caused by the trucks that were kept running from 5:00 or 6:00 a.m. to when the drivers came in at 8:00 a.m. Petitioner noted it was a "very small and old" facility with "about ten" trucks that would be started up in the morning. He also added that there were "trucks only on one side" of the terminal and ten to fifteen doors for trucks to pull in. Petitioner testified that he worked the night shifts which would be "[e]ither from 6:00 at night until 3:00 in the morning or midnight until 9:00 in the morning" with occasional overtime. Even though it would appear that only the later shift would have exposed petitioner to truck fumes, the record is not specific as to when or for how long he worked either shift.

In January 1969, petitioner became a truck driver for respondent and was still employed in that position at the time of trial. He never went back to dock or platform work. The respondent's business moved from Paterson to Wayne at about the same time petitioner became a truck driver. Petitioner had been reporting to the Wayne location for the twenty years prior to trial.

Petitioner testified at trial on September 18, 1989, that "since last January" (1989), his job duties consisted of starting the

twenty-five trucks each morning which would take about an hour.*fn2 He then makes various pick-ups and deliveries throughout the day. Petitioner had been required as a truck driver to sweep out his truck each day when it got empty. Since his hospitalization in August 1986, he has performed this task as infrequently as possible, perhaps once a week. The trucks that petitioner has driven have been diesel engine tractor-trailers, with the exception of about three years, between 1980 to 1983, when propane engines were used.

Petitioner also described the air quality at the off-site warehouses where he made deliveries and pick-ups as dusty and full of fumes from the trucks. He would, however, attempt to avoid these conditions. Petitioner estimated that he spent approximately three hours out of a twelve-hour workday driving his truck. He stated that he hasn't been able to detect any fumes inside his current cab and described the air quality in this cab for the past two years as "okay." Prior to his present cab, petitioner claimed that the air quality of the older trucks that he drove was "pretty bad." He claimed that in the winter the fumes came in while he was driving these older trucks because "everything starts loosening up." Petitioner added that he had put in complaints regarding the older trucks because they would be drafty and fumes would get into the cab. He noticed no problems with fumes in the summer when the cab windows were open.

On August 8, 1986, petitioner was performing his usual duties which involved what he called a "pedal run." A "pedal run" is a delivery and pick-up route that consists of ten or twelve "stops" in a certain area. He described the day as "very hot" with the temperature "in the nineties." Immediately before lunch, petitioner went to A.F.I. in Roseland. Prior to his stop at A.F.I.,

petitioner had made about four or five "stops." He delivered four or five "skids" or "pallets" containing loose food products of all different sizes to A.F.I. A.F.I. wanted everything "segregated," meaning the "red ones on one pallet and all the green ones on another pallet." Petitioner estimated that he was at A.F.I. for approximately two or three hours separating the cartons. In the course of these duties he began to feel "discomfort and pain." He estimated that there were a couple of hundred bundles to unload at A.F.I., with the heaviest being between forty and one hundred pounds.

No one assisted petitioner in these duties and he had to rest a few times during the course of the unloading because of discomfort on both sides of his upper chest. He started sweating and claimed "it wasn't a normal sweat." He testified that the discomfort began approximately an hour before he had finished at A.F.I. During this hour, he drank water, rested, and went slower with the unloading. When the unloading and separating was completed, he left A.F.I. and finished the rest of his route. Petitioner left work at 6 p.m. He felt "[v]ery fatigued and like drawn out." He mentioned to the supervisor when he was leaving work that he "didn't feel good that day."

He went home and told his wife that he didn't feel well. He and his wife went to Caldwell Quick Med, where the doctor gave him an EKG. The doctor advised petitioner to go to the hospital. Petitioner, again accompanied by his wife, went directly to St. Barnabas Hospital where he gave a history of being under stress at work and having chest pressure for two or three days. He was admitted for eight days, three of which were in intensive care. While there, he underwent a series of tests including a heart catheterization. His diagnosis on discharge was "occlusive coronary artery disease with mild impairment in left ventricular function."

After discharge, petitioner stayed home for approximately four or five months before returning to work. He remained under the care of a heart specialist and continued to see him for check-ups

every three months. Petitioner was prescribed one aspirin, two Lopressors, and one Isordil each day. No treating physician was produced at trial.

Petitioner's primary complaint at trial was shortness of breath. Before his hospitalization, he could walk six or seven blocks, but after his hospitalization, walks only one block before he gets short of breath. Further, petitioner testified that he used to play racquetball three times a week, but can no longer 0 play at all. Petitioner also testified that he no longer cuts the lawn or paints the house because these activities are too strenuous.

Petitioner was again hospitalized in February 1988, when he felt "spasms" in his chest. Petitioner was released after three days. Following his release, petitioner took two weeks of vacation time at home.

Petitioner's attorney concluded his direct examination of petitioner by stating he had "no further questions at this point." Over the objection of respondent's attorney, the Judge called for a five minute recess and instructed petitioner's attorney that "our case law under Hellwig*fn3 requires that the petitioner show that his work effort at work obviously was greater than his work effort at home. You have not done that . . . . We will take ten minutes and I will give you an opportunity to speak to the petitioner."

After the recess, petitioner's attorney resumed 1 direct examination of petitioner, but the Judge interrupted and explained to the petitioner that he wanted a comparison of petitioner's work effort at home to his work effort on the job. Then, over respondent's objection, the Judge took over the questioning of petitioner, inquiring about petitioner's various activities at home and at work. Petitioner answered that prior to his hospitalization, his activities at home included taking care of his lawn, painting the house, and playing racquetball. Petitioner stated that his work effort on the

job was "probably" more arduous and strenuous than his activities at home.

On cross-examination, petitioner admitted that prior to August 8, 1986, he had smoked two packs of cigarettes per day for twenty years. He also revealed that his father died of a heart attack at age 59. Further, petitioner reported that he was overweight, weighing approximately 240 to 250 pounds on August 8, 1986, and that he still weighed about the same.

Petitioner offered the testimony of Dr. Henry Velez, a boardcertified physician in internal and pulmonary medicine. Dr. Velez examined petitioner on one occasion, June 5, 1987, and reviewed petitioner's records from St. Barnabas Hospital. His examination 2 included a chest x-ray, an electrocardiogram, and a pulmonary function test.

Dr. Velez characterized the pulmonary function tests as normal. His interpretation of the x-ray was that petitioner "demonstrated peribronchial fibrosis on the chest film." He concluded that petitioner's degree of pulmonary disability was seventeen and one-half percent. This the doctor classified as "mild."

Regarding petitioner's cardiac condition, Dr. Velez testified that petitioner "was suffering from coronary artery disease, the clinical manifestation of angina, experiencing chest pain and shortness of breath." He estimated petitioner's cardiac disability at thirty-five percent of total.

A hypothetical question was placed in evidence by petitioner's attorney without objection. Based on the hypothetical question, petitioner's hospital records, and his own examination, Dr. Velez rendered an opinion that petitioner's cardiac disability was caused by "chronic exposure" to carbon monoxide while at Consolidated Freightways, and not a specific incident.

Dr. Velez stated that his reasons for this Conclusion were:

There's been exposure to carbon monoxide, a longtime exposure to carbon monoxide. With exposure 3 to carbon monoxide, it's been well-studied and well-documented that there is increased permeability of the membranes of the coronary arteries, of arteries in general, but the coronary arteries have been most studied.

There is increased permeability to lipids or to cholesterol. With that increase of permeability there's a laying-down of cholesterol, crystal plaques within the -- within the endothelium or the inner lining of the coronary artery.

In addition, besides increasing permeability by the actual process of atherogenesis of the crystals coming together and forming a plaque is enhanced by carbon monoxide.

When you arrive at a critical level, or critical stenosis -- meaning a critical narrowing of the pulmonary arteries -- the coronary arteries -- one of two things can occur. One can be angina, chest pain -- which with exertion, or you can have a myocardial ...


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