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Earl v. Johnson & Johnson

June 23, 1998

JOAN EARL, PETITIONER-RESPONDENT,
v.
JOHNSON & JOHNSON, RESPONDENT-APPELLANT.



Before Judges Baime, Brochin and Wefing

The opinion of the court was delivered by: Brochin, J.A.D.

[9]    Submitted April 22, 1998

On appeal from the Division of Workers' Compensation

Petitioner Joan Earl worked as a secretary or clerk for respondent Johnson & Johnson from 1973 to 1993. From 1985 to 1993, she worked in a building referred to as Kilmer House. She spent a significant part of every day in a small file room. The windows of the file room were nailed shut. The file drawers were lined with gypsum sheet rock which crumbled into a powder when it was rubbed. The powder got onto her hands, her clothing, and sometimes her face, and she inhaled the powder that was in the air within the file room. Outside of the file room, she worked in a small office with seven other employees. The ventilating system was inadequate, and the air was contaminated by stale cigarette smoke, employees' perfume, and exhaust fumes from a helicopter that were sucked into the building when it stopped at Kilmer House once or twice a week.

From 1985 through 1988, Ms. Earl developed difficulties in breathing, sore throats, bronchitis, and respiratory and sinus infections. These conditions were most severe while petitioner was at work. During the winter of 1989, she became seriously ill while she was at work. She could not catch her breath. When she went outside for fresh air, she was physically unable to walk to her car. A security guard called her son and he drove her to her family doctor. She was given an injection of adrenaline and some other medication. Several months later, she again experienced a sudden onset of difficulty breathing, and she was examined and treated by Dr. Nicholas Melillo, a pulmonary specialist, to whom she was referred by her family physician.

Ms. Earl was hospitalized under Dr. Melillo's care for her pulmonary conditions in 1989 and 1993. In 1989, Dr. Melillo diagnosed her as suffering from asthma and chronic obstructive lung disease, a term which, according to her expert medical witness, Dr. Malcolm Hermele, encompasses emphysema. Dr. Melillo continued to treat Ms. Earl for those conditions through the time of the trial. Neither her family doctor nor Dr. Melillo testified.

Dr. Hermele examined Ms. Earl in 1994 and 1996. He testified that she was suffering from chronic obstructive pulmonary disease, asthma, and emphysema. He expressed the opinion that in 1994, she had a permanent partial disability of sixty percent. He estimated that by 1996, as the result of her chronic obstructive pulmonary disease and asthma, her disability was seventy percent. Dr. Hermele expressed the opinion that petitioner's pulmonary condition was the result of her exposure to lung irritants at work, particularly the gypsum.

Dr. Ilia Segal was Johnson & Johnson's medical expert. He diagnosed Ms. Earl's condition as bronchial asthma or allergic asthmatic bronchitis. He estimated her permanent pulmonary disability at five percent. He did not attribute the condition to her work environment.

The workers' compensation Judge found that Ms. Earl was suffering from chronic obstructive pulmonary disease and asthma. He determined that her exposure to lung irritants at work, particularly the gypsum, was a substantial cause of her medical condition. He awarded her a forty percent permanent partial disability for the residuals of chronic asthmatic bronchitis and chronic pulmonary disease.

On appeal, Johnson & Johnson argues that there is insufficient proof in the record to support the Judge's findings. Johnson & Johnson also argues that Ms. Earl's petition should have been dismissed because it was not filed within two years after she "first knew the nature of the disability and its relation to the employment," as required by N.J.S.A. 34:15-34.

There is substantial credible evidence in the record to sustain the workers' compensation Judge's findings that petitioner suffers from a forty percent disability as the result of bronchitis and pulmonary disease which arose out of and during the course of her employment. We therefore reject the employer's argument to the contrary. Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965).

Ms. Earl filed her petition on September 10, 1993. Johnson & Johnson claims she knew the nature of her disability and its relation to her employment in 1989. N.J.S.A. 34:15-34, on which Johnson & Johnson's argument for dismissal is based, reads in part as follows:

[T]here shall be no time limitation upon the filing of claims for compensation for compensable occupational disease . . . ; provided, however, that where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease except as herein provided shall be barred unless a petition is filed . . . within 2 years after the date on which the claimant first knew the nature of the disability and its relation to the employment . . . . provided further, . . . an employee's claim ...


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