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Culbert v. City of Jersey City

February 11, 2003

DENNIS CULBERT, PETITIONER-APPELLANT,
v.
CITY OF JERSEY CITY, 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).

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

Argued September 23, 2002 -

Decided February 11, 2003

COLEMAN, J., writing for a unanimous Court.

The issue raised on appeal is whether Dennis Culbert's employment as a fireman for more than thirty years caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers' Compensation Act.

On January 8, 1993, Dennis Culbert filed a claim petition against his employer, City of Jersey City Fire Department (JCFD), alleging that he had sustained pulmonary disability as a result of his occupational exposure while working as a firefighter since 1968. When the matter was heard in the Division of Workers' Compensation between December 10, 1997 and May 10, 2000, Culbert was still employed by JCFD as a firefighter. Culbert was fifty-three years old when he testified in 1997, and had smoked one-half pack of cigarettes daily for twenty-eight years between 1964 and 1992.

As a firefighter, Culbert responded to rubbish, car, and warehouse fires. While performing his duties, Culbert was exposed to many pulmonary irritants, including smoke, plastics, wood, household and industrial chemicals, chlorine, gases, rubber tires, dust, and diesel fuel from idling fire trucks. The combustion of rubber tires, chlorine, and plastics, as well as household and industrial chemicals, emitted toxic fumes and smoke. Although provided with protective gear, Culbert rarely wore it because it was too cumbersome or ineffective and interfered with the performance of his duties. Culbert would spend an average of forty-five minutes fighting structural fires and five to ten minutes suppressing car fires.

Culbert was never hospitalized for smoke inhalation but from time to time was given oxygen at the scene of a fire. Culbert sought treatment from his family doctor in 1995 for breathing problems and a productive cough. Culbert claims the breathing problems make it difficult to swim and climb stairs. He no longer mows the lawn because of shortness of breath.

Dr. Henry Velez, Board Certified in internal and pulmonary medicine, testified for Culbert. After examining Culbert in 1992 and 1996, Dr. Velez diagnosed Culbert's pulmonary condition as chronic bronchitis (a productive cough lasting two or three months per year for two successive years) and peribronchial fibrosis (obstruction of the airways of the lung). Dr. Velez concluded that the obstructive pulmonary disease was caused by both occupational exposure and by cigarette smoking. His conclusion was based on his professional experience and training from examining many firefighters as well as his review of medical journals and articles. Dr. Velez estimated Culbert's condition at thirty-five percent of permanent partial disability. He was unable to apportion the disability between job- related exposure and cigarette smoking but stated that the job-related exposure materially contributed to the disease process.

JCFD presented the testimony of Dr. Douglas Hutt to rebut Dr. Velez's conclusions. Dr. Hutt is Board Certified in internal, pulmonary, and critical care medicine. Dr. Hutt examined Culbert on June 12, 1996 and thereafter concluded that Culbert had some mild degree of airflow obstruction and that within a reasonable degree of medical probability, has early development emphysema caused by cigarette smoking. On cross-examination, Dr. Hutt admitted that it was possible that Culbert's work as a firefighter could be a material cause of his lung disease.

The Judge of Compensation concluded that Culbert's occupational exposure as a firefighter for more than thirty years materially contributed to the development of his chronic obstructive pulmonary disease, causing an appreciable impairment in his daily life. Accordingly, the judge awarded Culbert a permanent partial disability of twenty-five percent. The judge rejected Dr. Hutt's assertions that the disability was due to Culbert's excessive weight and cigarette smoking.

On appeal, the Appellate Division reversed the decision of the Judge of Compensation, concluding that Culbert's proofs on causation were insufficient. Relying on Fiore v. Consolidated Freightways, the panel found that petitioner had not presented evidence that his work exposure to smoke exceeded his exposure to cigarette smoke. The panel also rejected Culbert's reliance on the ...


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