On appeal from the Division of Workers' Compensation, 97-015642.
Before Judges Pressler, Wefing and Parrillo.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is a workers' compensation case. The issue before us is whether the New Jersey Division of Workers' Compensation properly exercised subject matter jurisdiction over the claim petition of petitioner, John J. Williams, an employee of Port Authority of New York and New Jersey for some twenty-eight years. Petitioner claims to have suffered an occupational pulmonary disease as the result of his continuous exposure to toxic substances on the job from February 1973 to some time in 1994. He worked in New Jersey, however, only during the first four months of that period and thereafter exclusively in New York at LaGuardia and Kennedy Airports. The judge of compensation concluded that the initial four-month period was sufficient to constitute New Jersey a site of the injury and, therefore, sufficient to confer subject matter jurisdiction on this State. We agree and affirm the award to petitioner of twenty percent of partial total.
The facts relevant to the jurisdictional issue are not in dispute. Petitioner is a resident of New York and has been since his employment by Port Authority in 1969. He has never lived in New Jersey. New York is the place where the employment relationship arose. For the first three to four years of petitioner's Port Authority employment he worked as an elevator operator in New York. He was then assigned to maintenance work. His first maintenance assignment was on the New Jersey side of the George Washington Bridge cleaning the toll booths and the tiled walls of the tunnels leading out of the bridge proper. He worked eight-hour shifts five days a week doing these tasks which involved strong and toxic chemicals as cleaning agents and exposed him to a constant stream of exhaust fumes from the vehicles crossing the bridge. He was usually, but not always, provided with a protective face mask. After four months, he was assigned to do substantially the same work using substantially the same chemicals at LaGuardia Airport. As he explained his job:
[At] LaGuardia I was building and grounds attendant as well. My duties there was to clean tiles. We have to go out in the taxiways, the runways. Sometimes cleaning inside the terminal with mopping and cleaning stuff like that.
After about eight years at LaGuardia Airport, petitioner was reassigned to Kennedy Airport, doing essentially the same work with essentially the same exposure to chemicals and exhaust fumes. He continued in that job at Kennedy Airport until 1994, when he accepted work as a skycap. He retired three years later in 1997. He first saw a physician, a Port Authority physician, for his pulmonary complaints in 1993 and for some time has been under the care of a physician for those complaints.*fn1
Petitioner's medical expert witness, Dr. Malcolm H. Hermele, opined, based on his examination of petitioner and his work history, that he suffers from "chronic bronchitis and probable restrictive pulmonary disease," estimated as "a permanent pulmonary disability of 40 percent." The theory of this occupational disability is encapsulated by the hypothetical question asked of Dr. Hermele:
Doctor, I want you to assume the following facts as being true. That the petitioner was employed by the Port Authority from 1969 to 1997, most of which his time was spent as a bridge and tunnel agent or maintenance man, and the last three years as a sky cap.
He testified that he was exposed during his employment to exhaust, fumes from motor vehicles, trucks, planes, buses, he was exposed to various cleaning chemicals, to dust, to dirt, smoke, sand, and that his face and uniform was dirty after work. He had complaints of coughing up phlegm, he testified he had labored breathing in the A.M., he had difficult breathing after walking two blocks, and the petitioner indicated that he smoked in the past about a pack every three days.
If these facts taken as true, are they consistent with your opinion regarding the petitioner's permanent disability and percentage that you affixed to it?
Dr. Hermele's response was as follows:
Yes, sir. It's my opinion that his chest condition was causally related to and or exacerbated by his prolonged exposure to the various pulmonary noxiousations that you mentioned while employed ...