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Lindquist v. City of Jersey City Fire Department

February 11, 2003

RICHARD LINDQUIST, PETITIONER-APPELLANT,
v.
CITY OF JERSEY CITY FIRE DEPARTMENT, RESPONDENT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Richard Lindquist v. City of Jersey City Fire Department (A-84-01) This is a companion case to Dennis Culbert v. City of Jersey City (A-92-01)

Argued September 23, 2002 -

Decided February 11, 2003

COLEMAN, J., writing for a unanimous Court.

The issue on appeal is whether Richard Lindquist's employment as a fireman for approximately twenty-three years caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers' Compensation Act (the Act).

Lindquist was employed as a full-time fireman with the City of Jersey City Fire Department (JCFD) from July 1972 until his retirement in January 1995. He was promoted to the rank of captain in 1979. During the first ten years of his employment, Lindquist responded to about 30 to 60 large fires per year, small one-room fires, car fires, and "dump" fires. Lindquist was given a self-contained breathing apparatus that he did not use very often. During larger fires, Lindquist was exposed to heavy smoke for up to forty-five minutes and was also exposed to fires involving burning chemicals, plastics, household cleaners, and propane.

In 1982, JCFD provided all firefighters with the Scott mask, which provided oxygen or "purified air" to the user. Lindquist testified that the Scott mask did a good job of preventing fumes from entering the breathing passages, although he still inhaled smoke that seeped into the mask. He also frequently had to remove the mask either to give orders or to clear away moisture. From 1986 through 1992, Lindquist supervised the Hazardous Materials Unit, responding to both residential and industrial fires.

Prior to beginning his job with JCFD, Lindquist had not suffered from any breathing, eyes, nose, or throat problems. He testified that while a firefighter with JCFD, he was taken to the hospital for smoke inhalation numerous times and, on other occasions, was given oxygen at the scene of a fire. Lindquist retired in 1995 at the age of forty- seven, due in part to an early buy-out offer and in part to health considerations. At the time of his retirement, Lindquist was less able to perform his responsibilities as a firefighter, particularly as captain, because his energy and normal breathing capacity had gradually diminished. He suffered from constant post-nasal drip and cough, shortness of breath, dry eyes, heart palpitations, and decreased breathing capacity. Lindquist began seeing a doctor in 1995 and was successfully treated with a bronchodilator twice or three times a week. Lindquist had smoked about three quarters of a pack of cigarettes per day for about twenty-two years until he quit smoking in either 1992 or 1994.

Lindquist filed claims in the Division of Workers' Compensation against JCFD, alleging occupational exposure to respiratory irritants while employed as a firefighter since 1972. Dr. Bernard Eisenstein, a heart and lung specialist who is Board Certified in internal medicine, testified at trial on Lindquist's behalf. On January 16, 1995, Dr. Eisenstein performed a complete physical examination on Lindquist, including chest x-rays and pulmonary function tests. Based on the results of the examination and tests, Dr. Eisenstein concluded that Lindquist suffered from chronic obstructive pulmonary disease (COPD) in the form of emphysema. The doctor attributed Lindquist's condition primarily to occupational exposure as a firefighter to fire, smoke, hazardous waste, combustion, and secondarily to cigarette smoking, but was unable to allocate exact percentages to each cause. Dr. Eisenstein concluded that, based on a reasonable degree of medical probability, Lindquist suffered thirty percent partial total permanent disability. On cross-examination, Dr. Eisenstein admitted that he could not cite to any studies in which non-smoking firefighters developed emphysema.

Dr. Douglas Hutt, a physician Board Certified in internal, pulmonary, and critical care medicine testified on behalf of the fire department. At Lindquist's physical examination on December 19, 1996, he told Dr. Hutt that he could do all of his normal activities although there was a subtle difference, and that his grandfather had died from emphysema. Dr. Hutt performed a complete physical examination, including a chest x-ray and pulmonary function tests. Based on his findings, Dr. Hutt concluded that Lindquist suffers from emphysema caused by cigarette smoking. Dr. Hutt was unable to testify with 100% certainty that some of the exp osure as a firefighter could not in some way have contributed to the development of lung disease.

The Judge of Compensation found that Lindquist's occupational exposure materially contributed to the development of emphysema and awarded Lindquist a disability of thirty percent for emphysema. The Appellate Division reversed on appeal, concluding that the evidence was insufficient to establish medical causation between the employment and the emphysema.

The Supreme Court granted certification.

HELD: Richard Lindquist's employment as a fireman with the City of Jersey City Fire Department caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers' Compensation Act.

1. Occupational disease coverage under the Act has evolved from providing no coverage at all to the current statutory approach of providing a general definition of compensable occupational diseases, suggesting that there are numerous diseases that may be covered. The Act involves a trade-off whereby employees give up their rights to pursue common-law remedies in exchange for automatic entitlement to specific benefits whenever they suffer a compensable injury. Courts should use this "trade-off" rationale, as well as the science of the workplace, in its efforts to determine whether a disease is related to occupational exposure. Moreover, the Act is to be liberally construed; the Rules of Evidence to not apply in compensation proceedings; and the petitioner must prove both legal and medical causation. In New Jersey, it is enough to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. (Pp. 12-20)

2. The Rubanick standard governing the admissibility and reliability of medical causation evidence should be applied in workers' compensation cases. Under that standard, when a scientific theory of causation has not yet reached general acceptance, it may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the field. (Pp. 20-21)

3. In workers' compensation cases, the appropriate standard for appellate review requires substantial deference be given to administrative determinations. The scope of appellate review is limited to whether the findings made could reasonably have been reached on sufficient credible evidence presented in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility. The petitioner has the burden of proving by a preponderance of the evidence that his environmental exposure was a substantial contributing cause of his occupational disease. (Pp. 22-23)

4. The standard articulated in Fiore for deciding occupational heart attack cases, whereby a petitioner must prove that his work exposure exceeded the exposure caused by personal factors such as cigarette smoking, is not applicable to non-heart cases. Rather, the controlling test is whether the exposure substantially contributed to the development or aggravation of the disease. Thus, Lindquist has the burden of proving by a preponderance of the evidence that his environmental exposure while fighting fires was a substantial contributing cause or aggravation of his emphysema. (Pp. 23-25)

5. The firefighters' presumption provision of the Act provides that any condition or impairment of health of any member of a volunteer fire department caused by disease of the respiratory system shall be presumed to be an occupational disease unless rebutted by satisfactory proof. The Court can find no plausible reason why the Legislature would have intended to treat differently voluntary and paid firefighters who sustain the same pulmonary conditions after fighting the same fires. Therefore, the rebuttable statutory presumption of compensability also applies to paid firefighters. Numerous states provide a similar presumption. (Pp. 25-29)

6. The Court takes judicial notice of studies it reviewed that bolster the proposition that exposure to industrial pollutants at work can cause emphysema and that, although cigarette smoking is the most important risk factor for COPD, other risk factors, including environmental exposure, can cause emphysema. Moreover, other studies present strong scientific support for the theory that firefighting is a significant cause of lung disease. Thus, there is enough scientific data in support of Lindquist's case to allow a Judge of Compensation to find in Lindquist's favor. Given the current level of scientific knowledge about emphysema, Dr. Eisenstein's testimony was not a subjective guess. There was sufficient credible evidence to support the Judge of Compensation's decision granting Lindquist disability benefits. Lindquist sustained his burden of proof and the presumption in favor of compensability has not been rebutted. (Pp. 29-51)

Judgment of the Appellate Division is REVERSED and the judgment of the Division of Workers' Compensation is REINSTATED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in JUSTICE COLEMAN'S opinion.

The opinion of the court was delivered by: Coleman, J.

Argued September 23, 2002

The issue raised in this appeal is whether petitioner's employment as a fireman for approximately twenty-three years caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers' Compensation Act. Resolution of that issue requires us to decide how much workplace contribution is enough to trigger employer responsibility. The Judge of Compensation found that petitioner's occupational exposure materially contributed to the development of emphysema. The Appellate Division reversed, finding that the evidence was insufficient to establish medical causation between the employment and the emphysema. We disagree and reverse.

I.

Petitioner Richard Lindquist was employed as a full-time paid fireman with the City of Jersey City Fire Department from July 1972 until his retirement in January 1995. He was promoted to the rank of captain in 1979. Petitioner testified that during the first ten years of his employment, he responded to "30 to 60 large fires per year," "small one-room" fires, car fires, and "dump" fires. When he began his job in 1972, each firefighter was given a self-contained breathing apparatus, "but it was just very new and people didn't seem to use it until 1982." Although petitioner was exposed to "heavy smoke" for up to forty-five minutes to an hour and a half during larger fires, he frequently did not use the apparatus. In respect of smaller fires, petitioner described the duration of exposure to smoke as follows:

Well, I guess basically outdoor fires you try to stay upwind if you can, but a lot of times they are grass fires that--down where Liberty State Park is now and the Liberty Science used to be, it is all grass area, which still has pretty much been an abandoned grass area that many times will catch on fire and the whole area would be lit, and you would be completely engulfed in smoke at the time, you couldn't get away from it.

Some of the fires involved burning chemicals, plastics, household cleaners, and propane.

In 1982, respondent distributed to all firefighters a protective device known as a Scott mask. The mask provided oxygen or "purified air" to the user. Petitioner testified that the Scott mask "did a pretty good job" of preventing fumes from entering the breathing passages. Nonetheless, he still inhaled smoke that seeped into the mask. He also frequently removed the mask to give orders to other firefighters and to clear moisture that accumulated on the mask.

From 1986 to 1992, petitioner was assigned to supervise the Hazardous Materials Unit of the fire department. During that time, petitioner responded to both residential and industrial fires. The burning items consisted of plastics and chemicals, causing "much more toxic smoke than the '70s and '60s." After 1992, petitioner returned to his position as captain.

Prior to commencing employment with respondent, petitioner had not experienced any problems with breathing or with his eyes, nose, or throat. He testified that during his tenure with the fire department, he was taken to the hospital numerous times. On other occasions he was administered oxygen at the scene of a fire. He suffered from shortness of breath, heart palpitations, and weakness. After responding to a toxic dump fire in 1991, petitioner and "most of the other [firefighters]" were sent to the hospital to test for arterial blood gases. Although not hospitalized, petitioner experienced throat irritation, rapid breathing, and dizziness.

Petitioner retired in 1995 at the age of forty-seven, due in part to an early buyout offer and in part to health considerations. At the time of his retirement, petitioner was less able to perform his responsibilities as a firefighter, and in particular as captain, because his energy and normal breathing capacity gradually had diminished. According to petitioner, he developed a "post nasal drip which would result in phlegm and coughing" that was "pretty constant" during his employment years. Now, those symptoms occur "[m]aybe two to three times a week." He also suffers from dry eyes and shortness of breath and is no longer able to play basketball with his son or take long walks with his wife. He is able to walk only one quarter to one half of a mile "before [he begins] breathing heavily." He cannot perform yard work or house work, such as "building sheds, [and] putting [together] decks," without some difficulty. In 1995 or 1996, petitioner began seeing a physician who prescribed treatment with a bronchodilator one or two times per week. The treatment relieves petitioner's symptoms "almost instantly."

Petitioner smoked approximately three-fourths of a pack of cigarettes per day for twenty-two years, stopping in 1992 or 1994. During the 1970s, he had a second job driving an oil truck. From 1982 through 1989, petitioner worked in residential construction in addition to his employment with the City of Jersey City. Shortly after leaving the fire department, petitioner became employed as a school bus driver.

Dr. Bernard Eisenstein testified on petitioner's behalf. Dr. Eisenstein specializes in heart and lung medicine and is Board Certified in internal medicine. He performed a complete examination of petitioner on January 16, 1995, to evaluate his pulmonary disability. In addition to the physical examination, Dr. Eisenstein performed a chest x-ray, and pulmonary function studies. The physical examination was "essentially negative, except [for] some areas of expiratory wheezing in the thorax." However, the chest x-ray was "abnormal, [and] revealed increased bronchovascular markings with large lung volume, which . . . is compatible with emphysema." The doctor explained that petitioner's x-ray revealed "a hyperinflation . . . [indicating] . . . [that petitioner] has too much air in there [and] expiratory obstruction." The results of the pulmonary function studies were "only a little abnormal."

Based on those tests, Dr. Eisenstein concluded that petitioner suffered from "chronic obstructive pulmonary disease in the form of emphysema." He attributed petitioner's condition primarily to occupational exposure as a firefighter to fire, smoke, hazardous waste, combustion, and secondarily to cigarette smoking. However, he was unable to allocate an exact percentage to each cause. Specifically, Dr. Eisenstein stated:

Firefighters get bronchitis, firefighters get emphysema, and in my experience of many years you can't tell looking at an x-ray that this is due to cigarettes and this is due to work because of an occupation . . . . In other words, emphysema can be caused by many things, as I said, so there's nothing characteristic as an occupation by a fireman, and they get a certain x-ray. There are certain changes seen in smoke inhalation, but he also can have these changes due to his exposures.

The doctor concluded that, "based upon a reasonable degree of medical probability," petitioner suffered "30 percent of partial total" permanent disability. On cross-examination, Dr. Eisenstein admitted that he could not cite any studies in which non-smoking firefighters developed emphysema.

In response to Dr. Eisenstein's testimony, respondent presented the testimony of Dr. Douglas Hutt. Dr. Hutt is Board Certified in internal, pulmonary, and critical care medicine. During his examination of petitioner on December 19, 1996, petitioner informed Dr. Hutt that his primary symptom was a post-nasal drip that began one year after he retired from the fire department. Petitioner also told the doctor that "he really wasn't very short of breath and could do all of his normal [activities] including normal walking and even walking upstairs and even doing some exercise including some mild jogging." However, petitioner advised Dr. Hutt that he noticed "a subtle difference in his ability to exercise and he really wasn't sure if this was related to some underlying medical condition or breathing problem or possibly because he was just getting older." Dr. Hutt further testified that petitioner "did not think this was a major problem at the time" of the examination. He noted that petitioner "did not remember any long term symptoms that he had after any of the . . . exposures to any of the[] bad fires." Additionally, petitioner told Dr. Hutt that "he smoked about three quarters of a pack [of cigarettes] a day for [twenty-two] years and that . . . his family pressured him to stop smoking about five years before [the] interview, but he did not stop because he was having breathing problems." He also told Dr. Hutt that his brother and sister suffer from allergies and that his grandfather died from emphysema.

Dr. Hutt performed a complete physical examination of petitioner including a chest x-ray, which revealed that petitioner's lungs were over-inflated and "that the lung fields themselves are very, very big." Finally, Dr. Hutt performed a complete set of pulmonary function tests. The results showed that petitioner "had some mild airflow obstruction," that he suffers from "air trapping," which means that petitioner retains almost three and a half liters of air in his lungs after a complete exhale, and that his diffusing capacity - the ability of the lungs to transfer oxygen from the air to the bloodstream - was moderately to severely reduced. Dr. Hutt stated that petitioner's reduced diffusing capacity "correlates with destruction of lung tissue, lung injury, possibly scarring between the alveoli, which are the small air sacs, and the capillaries, which are small blood vessels" and "almost always [indicates] lung injury."

Based on the physical examination and the diagnostic testing, Dr. Hutt concluded that petitioner suffers from emphysema caused by petitioner's cigarette smoking. According to the doctor, "even though only [twenty percent] of people that smoke cigarettes actually get emphysema, that number is [between seventy and eighty percent] higher if you have relatives that smoke cigarettes and get emphysema which is true in this patient's family in his grandfather." He concluded that petitioner suffered "approximately [thirty percent] pulmonary impairment."

Dr. Hutt acknowledged that many studies show that firefighters suffer from air flow obstruction and chronic bronchitis; however, he stated that "many of these studies . . . did not account for cigarette smoking" and "[n]one of the studies that [he had] seen . . . demonstrated conclusively or in any way that firefighters are [at] a greater risk for developing emphysema." Thus he concluded that [s]ince there's no data to suggest firefighters with exposure on the job can develop emphysema, the patient definitely has emphysema, he has a smoking history, which is clearly the most common cause of emphysema, and there's a strong family history of emphysema which increases your risk of developing emphysema from cigarette smoking, I believe that within a reasonable degree of medical probability that the patient's emphysema is related to his cigarette smoking.

According to the doctor, out of approximately "a hundred" studies concerning firefighters and lung disease in general, none address emphysema but rather deal with air flow obstruction, chronic bronchitis, and other "more serious diseases." He stated that he had not "seen [studies] that specifically mention emphysema as an increased risk when you factor out cigarette smoking in firefighters." Dr. Hutt further testified that one significant difference between exposure to firsthand cigarette smoke and occasional exposure to smoke from fires is that cigarette smoking continuously exposes the airways to smoke, whereas occupational smoke exposure to the airways during fires is sporadic.

In response to questions by the court, Dr. Hutt stated that "chemical exposures aren't generally felt to cause emphysema." He admitted, however, that he could not say "with 100% certainty . . . that some of the exposure that [petitioner] might have had on his job may [not] have ...


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