On appeal from a Final Decision of the Division of Workers' Compensation.
Before Judges Shebell, Skillman and Kleiner.
The opinion of the court was delivered by KLEINER, J.S.C.
Respondent Port Authority of New York and New Jersey appeals from a judgment in the Division of Workers' Compensation awarding petitioner Richard A. Wiggins one hundred percent total permanent disability. The judgment characterized the award as "permanent aggravation of pre-existing multiple sclerosis and associated depression, neurological and psychiatric in nature. Petitioner is totaled from the neurological disability alone."
In a review of a decision of a workers' compensation Judge, the general rule is that we will only decide whether the findings made could reasonably have been reached on "substantial" or "sufficient credible evidence present in the record," considering the proof as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965). After careful review of this record and particularly the medical evidence presented, we conclude that there was insufficient credible evidence considering the proofs as a whole to support the court's award. Accordingly, we are constrained to reverse the judgment.
At trial, petitioner testified that he was then fifty years old and had been employed by respondent from March 29, 1966 until his retirement on disability on January 16, 1989. Petitioner had been assigned to various facilities in a janitorial capacity from 1966 to 1985. In 1985, he was assigned as a grounds attendant at the Newark Airport, where he worked closely with the gardener and was exposed to pesticides, insecticides and herbicides. In November 1985, he was promoted to a "trades helper" position to perform gardening. His responsibilities included cutting grass, planting seed, pulling weeds and applying fertilizer and other chemicals to the grounds and shrubs surrounding the airport. Respondent stipulated that petitioner had been exposed to milorganite Greens Keeper; Surflan and Treflan, pre-emergent weed killers; Round-up, a post-emergent weed killer; benlate; fungicide; Sevin, a beetle pesticide; dormant oil and bug spray. Working outside, petitioner was also exposed to temperature extremes.
In 1975, petitioner was diagnosed with multiple sclerosis. Since 1981, he was hospitalized on three occasions for complications related to his multiple sclerosis, including "blurry vision" and "wobbly legs." After his assignment to the gardener position, petitioner experienced discomfort when the temperature exceeded seventy-five degrees or dropped below forty degrees for a period of three hours. Petitioner's testimony was offered to establish an occupational disease within the purview of N.J.S.A. 34:15-31(a), which defines occupational diseases as those "arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation process or place of employment." Ibid. (Emphasis added.)
Because respondent stipulated that petitioner is totally and permanently disabled, at issue was the causal link between: plaintiff's emotional stress, occupational exposure to chemicals, and temperature variations; and the exacerbation of his multiple sclerosis. As noted, petitioner had the burden to prove this causal link by a preponderance of the evidence. "All that is required is that the claimed Conclusion from the offered fact must be a probable or a more probable hypothesis . . . . The test is probability rather than certainty." Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 203, 173 A. 606 (Sup. Ct. 1934) (citation omitted), aff'd, 114 N.J.L. 254, 176 A. 198 (E. & A. 1935).
There is precedent for an award of compensation or damages for the aggravation of pre-existing multiple sclerosis by trauma. See Galloway v. Ford Motor Co., 7 N.J. Super. 18, 71 A.2d 657 (App. Div.), aff'd, 5 N.J. 396, 75 A.2d 855 (1950) (compensation for heavy lifting accident that activated dormant MS); Cohrs v. Igoe Bros., Inc., 71 N.J. Super. 435, 177 A.2d 284 (App. Div. 1962) (compensation for slip and fall, blow to head that activated dormant MS); Schust v. Wright Aeronautical Corp., 7 N.J. Super. 54, 71 A.2d 894 (App. Div.) certif. denied, 5 N.J. 177 (1950) (compensation for fall from chair that activated dormant MS); Sanderson v. Crucible Steel Corp., 3 N.J. Super. 209, 66 A.2d 188 (App. Div. 1949) (compensation for blow to spine that aggravated MS); Davis v. Lotz, 126 N.J.L. 615, 20 A.2d 602 (Sup. Ct. 1941) (compensation for fall from ladder that aggravated MS); Woodle v. Sullivan, 19 N.J. Misc. 458, 21 A.2d 151 (N.J. Dept. of Labor 1941) (compensation for fall that aggravated MS). Although each of the cited cases involved trauma, theoretically there is no reason to deny compensation where a petitioner proves that occupational conditions contribute in a material degree to the aggravation or exacerbation of multiple sclerosis. N.J.S.A. 34:15-31(a) has been extended to an employee burdened with pre-existing diseases or conditions. Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 107 A.2d 801 (App. Div. 1954). The claimant must demonstrate that "conditions characteristic to the occupation . . . contributed in a material degree to [the] disability." Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 504, 631 A.2d 1274 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).
The evidence at trial was limited to petitioner's testimony, the admission of petitioner's medical records since 1975, and the conflicting expert testimony of two examining physicians.
Petitioner presented Dr. Paul Kiell, a Board Certified psychiatrist whose private practice is essentially psychiatry.*fn1 He has treated multiple sclerosis patients for psychiatric disease but has never treated multiple sclerosis. Dr. Kiell has evaluated claimants and those examinations were predominantly neurologic in nature.
Dr. Kiell evaluated petitioner on January 5, 1990 and on January 13, 1993. In comparing these evaluations, he found constancy in the degree of petitioner's disability. He concluded that occupational exposure either aggravated, accelerated or exacerbated petitioner's multiple sclerosis. Dr. Kiell's testimony ascribed three occupational facts which aggravated petitioner's multiple sclerosis: stress at work, exposure to toxic substances and exposure to temperature variations.
Petitioner referred in his testimony to two specific instances of stress at work. He related an event in which he perceived he was being subjected to racial discrimination by fellow employees and an occasion when he discovered a dead body within the Lincoln Tunnel. Dr. Kiell testified: "It's rational to assume that any non-specific stress of work can aggravate the underlying condition." That theory was explored on cross examination as follows:
Q Now, Doctor, are you aware of any studies or matters in your field, in the field of neurology, regarding the effect of emotional stress on MS patients?
A I'm aware, without citing any article, but I have read in the literature, and it is generally accepted, that emotional stress, and for the reason I gave before, does have an effect on the permeability of the blood brain barrier, therefore making the person more vulnerable to damage to the central nervous system which, if it is already present, would make him more vulnerable to any toxin invading the central nervous system.
In his findings, the Judge of compensation concluded that the causal relationship between stress of work and the exacerbation of petitioner's condition had not been proven.
Dr. Kiell opined that extreme temperatures can cause relapses of multiple sclerosis. Although he could not cite any medical literature to support this opinion, he did cite evidence in petitioner's medical records that in August 1987 and August 1988, when petitioner suffered relapses in his condition resulting in his hospitalization, the Newark geographic area experienced high temperatures. Petitioner also testified that he was extremely uncomfortable when the temperature exceeded seventy-five degrees or when he worked outdoors for more than three hours in temperatures below forty degrees. Dr. Kiell did not testify as to the extent to which temperature extremes affect multiple sclerosis, nor did he testify as to the duration of any changes in that medical condition.
The third basis for Dr. Kiell's opinion pertained to petitioner's exposure to chemicals. As with his opinion on stress and temperature variations, he could not cite any medical literature in support of that opinion. He predicated his opinion on information gathered in his general medical training and to information gleaned from "Silent Spring," a non-fiction publication by Rachel Carson. On cross-examination, the following illustrated the deficiency in the witness's opinion:
Q Okay. So, did you come up with any articles or periodicals, monthly periodicals, that indicate that ...