January 15, 2008
SYLVIA SIMMONS, PETITIONER-APPELLANT,
FEDERATED LOGISTICS, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Docket No. 2003-3076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2007
Before Judges Weissbard, Gilroy and Baxter.
This is a workers' compensation occupational disease case. Petitioner Sylvia Simmons appeals from the October 26, 2006, order of the Division of Workers' Compensation, dismissing her claim petition for physical and psychiatric injuries allegedly arising out of her employment with respondent Federated Logistics. We affirm.
Respondent is a division of Federated Department Stores, Inc. Respondent owns and operates warehouse distribution centers where: retail items of clothing and other merchandise are received directly from the manufacturers; retail price tags for the destination stores are affixed to the merchandise; and the merchandise is re-boxed or placed in plastic bags, and shipped directly to Federated-owned department stores, such as Macy's or Bloomingdales. Petitioner worked for respondent from February 1, 1999, to May 15, 2002, at respondent's warehouse in Secaucus, a 670,000 square-foot facility. No manufacturing is performed onsite, nor is merchandise stored at the facility. Merchandise arrives from the manufacturers by truck and is unloaded at a docking platform on the first floor of the building, and then moved throughout the building by rolling racks connected to either an overhead towline, or by rolling conveyors and electric forklifts.
Generally, the workers at the warehouse are divided into job classifications: "checker/markers" and "material handlers." Checker/markers are responsible for inspecting cartons, racks of clothing, and other merchandise brought into the warehouse, ascertaining whether each carton or package contains the correct merchandise. The checker/marker then affixes price tags for the destination stores on the items of merchandise and repacks the items for shipping to that store. Material handlers are responsible for the loading and unloading of trucks, moving the merchandise throughout the warehouse, and the lifting of all heavy packages.
Petitioner was employed by respondent from February 1, 1999, to May 15, 2002, as a checker/marker. On January 21, 2003, petitioner filed her claim petition against respondent, alleging, through date of termination, occupational exposure to "dust, fumes, pulmonary irritants, bending, lifting, stress, strain, repeated manipulations, adverse environment, causing occupational conditions and diseases." Petitioner described the extent and character of her injuries as: "[d]isability involving chest, lungs, nose, throat, back, orthopedic system, internal system, nervous system, neurosis, and complications arising therefrom."
Following respondent's denial of petitioner's claim, a trial was conducted in the matter over the course of eight days, commencing November 17, 2005, and concluding August 20, 2006. Testifying on behalf of petitioner were: petitioner; Judith Hernandez, petitioner's former co-employee; Dr. Sidney E. Friedman, an internist; and Dr. I. Ahmad, an orthopedic surgeon. Testifying on behalf of the respondent were: Geri Vasquez, respondent's Human Resource Manager at the Secaucus warehouse facility; Dr. Samuel Kahnowitz, a physician specializing in pulmonary diseases; and Dr. Arthur T. Canario, an orthopedic surgeon. On October 12, 2006, the Compensation Judge issued a twenty-one-page written decision, dismissing petitioner's claim for failure to sustain her required burden of proof. A confirming order was entered the same day.
Petitioner, born January 20, 1942, commenced working at age eighteen. Initially, petitioner worked in different factories where she was exposed to dust and performed labor that required bending and lifting. In October 1986, petitioner commenced working for Speedmark, respondent's predecessor at the Secaucus warehouse, as a checker/marker, where she primarily checked and tagged approximately 500 coats a day. She continued in that position until she was terminated from employment by respondent on May 15, 2002.
Petitioner testified that over the years she was exposed to dust, engine fumes, and loud noise. She stated that engine fumes emanated from tractor trailer trucks that were left with their engines idling while being unloaded and reloaded at the docking platform, which was approximately thirty feet away from the area where she worked. She also detected an odor of gasoline from the motors that operated the overhead towlines. Petitioner described the air as containing dust, which she believed came from the clothes and packing materials. The noise that she claimed she was exposed to came from the conveyor rollers that ran throughout the facility. Petitioner described herself as being exposed to the dust, fumes, and noise five days a week, seven hours a day. On days when there were slowdowns in deliveries, petitioner was reassigned to the jewelry cage in the mezzanine area, where she placed security tags on shirts, pocketbooks, jewelry, and miscellaneous items, placing the merchandise in boxes for shipping to the destination stores. Petitioner estimated that she handled approximately 500 to 1,200 items a day when assigned to the jewelry cage, and that at the end of the day her hands felt tired "with pain and soreness."
Petitioner has suffered from hypertension for approximately forty years. In July 1997, petitioner suffered a stroke, for which she was hospitalized one week, and underwent several months of rehabilitation at the Kessler Institute in West Orange. After petitioner returned to work, respondent acquired the warehouse facility, and petitioner continued to work for respondent as a checker/marker until May 15, 2002, under the same working conditions. As a result of the stroke, petitioner continues to suffer weakness of her left arm and hand, numbness in her lip, and walks with a limp.
On February 11, 2000, petitioner filed a claim petition against Speedmark, alleging that through February 1999, she had been exposed to "dust, fumes, irritants, chemicals, lint, stress, strain, arduous effort, repetitive motion, repeated bending and lifting, causing multiple occupational conditions." Petitioner described the extent and characteristics of her injuries as: "pulmonary, arthritic, orthopedic, hypertensive, cerebrovascular, cardiovascular, ontological, chest, lungs, nose, throat, arthritis, neck, back, both hands, both legs, hypertension, cardiovascular, hearing loss, neurological, [and] psychiatric." On September 25, 2001, petitioner settled her claim against Speedmark for $4,800, pursuant to N.J.S.A. 34:15-20. A confirming order, dismissing the case with prejudice, was entered that day.
Petitioner testified that presently she suffers pain in her neck; her left hand is always weak; and she has shortness of breath to where, on a good day, she can walk approximately eight blocks, but on a bad day she can only walk approximately 100 to 200 feet. Although she testified that she suffers breathing difficulties, petitioner admitted that she continues smoking cigarettes but "[n]ot a pack a week."
Judith Hernandez, a former co-employee of petitioner who was also terminated in May 2002, and presently has a similar claim petition pending against respondent, testified that she worked at the Secaucus warehouse facility for nineteen years. She described the air as containing dust, including dust from construction work that Federated performed in the facility during 2000 - 2001. She described the area where she worked with petitioner as noisy because of the conveyors. During her testimony, she identified several photographs taken by petitioner, which she described as showing dust on top of the overhead towline rails and on plastic garment bags. It was her opinion that the working conditions remained constant throughout her nineteen years of employment at the facility.
Dr. Sidney E. Friedman testified on behalf of petitioner. Friedman first examined petitioner on February 25, 2000. Petitioner's medical history disclosed that she suffered from high blood pressure for forty years, had suffered a stroke in July 1997, had coronary artery disease since 1997, had chronic back pain for three years, and had difficulty hearing for ten years. Petitioner's complaint, at the time of examination, consisted of: a chronic cough; pain; tightness; pressure in the chest; and shortness of breath "when walking, climbing stairs, lifting, bending and carrying." Friedman stated that a review of petitioner's pulmonary function tests (PFTs) disclosed evidence indicating a restrictive pulmonary disease.
Friedman's diagnosis was that petitioner suffered from chronic bronchitis with evidence for obstructive airway disease, for which he estimated a disability of 30% of total. He opined that the disability was a result of dust, fumes, and other irritants in the workplace. Friedman also diagnosed petitioner as suffering from hypertensive arteriosclerotic heart disease, probable coronary artery disease, and post-cerebral infarction with left hemiparesis for which he estimated a disability of 60% of total. He opined that this cardiovascular condition had developed and progressed in severity due to physical and emotional stress, and strain in the workplace.
Friedman next examined petitioner on March 4, 2003, at which time petitioner primarily complained of "an increased cough that is productive of clear sputum which lasts throughout the day." She also informed Friedman that she becomes increasingly short of breath when exerting herself. She admitted to Friedman that she smoked one pack of cigarettes per week. As to his conclusion, Friedman opined that petitioner "continues to have chronic occupational bronchitis with evidence for a restrictive disease, for which I estimate an increase in disability to 35% of total," caused by dust and other pulmonary irritants in her employment at the warehouse.
Friedman last examined petitioner on January 21, 2006. Prior to that exam, petitioner's attorney had provided the doctor with a written, hypothetical question, which the attorney had prepared from petitioner's trial testimony. As to petitioner's pulmonary condition, the doctor opined that petitioner continues to have chronic occupational bronchitis, for which he estimated a permanent disability of 35% of total. As to any cardiovascular disease, the doctor, considering the facts of the hypothetical, petitioner's history, and his findings, opined that petitioner has hypertensive cardiovascular disease, "a major risk factor for the development of cerebral infarction (stroke) which did occur during her work life in 199," for which he estimated a present disability of 75% of total. He further opined that "[b]ased upon the occupational history within the realm of reasonable, medical probability[,] . . . these neurocardiovascular conditions developed and progressed in severity due to the physical and emotional stress and strain that she was under during her work life as a warehouse worker."
On cross-examination, the doctor acknowledged that cigarette smoking was a risk factor for heart disease, and could contribute to chronic arthritis. He also conceded that the cardiac condition could contribute to the petitioner's shortness of breath.
Dr. I. Ahmed testified that he first examined petitioner on March 9, 2000. Based on his physical examination, he diagnosed petitioner as suffering from a spinal sprain, arthritis, and myositis (an inflammation of a voluntary muscle). He opined that she was "totally disabled as a physiological unit." Ahmed next examined petitioner again on January 27, 2003, and reached the same diagnosis and opinion as to petitioner's disability. Ahmed determined that the orthopedic conditions and physical disability he found were causally related to petitioner's employment, and that the conditions would not improve with the passage of time. On cross-examination, the doctor acknowledged that cigarette smoking can cause restriction of blood vessels, and therefore aggravate, exacerbate, or accelerate an arthritic condition.
Geri Vasquez has been employed by respondent for eleven years. She testified that Federated assumed the operation of the Secaucus plant from Speedmark on February 1, 1999, and that she has worked at that warehouse from that day forward as the Human Resource Manager.*fn1 Vasquez testified that she is familiar with petitioner and the area of the warehouse where petitioner worked because she is in that work area "a couple of hours" a day. She stated that petitioner worked in the garment on hangar (GOH) department located on the second floor of the warehouse facility, not on the first floor where the shipping and receiving loading dock was located. Coats would be unloaded from the truck on rolling racks, and then attached to a towline where they would be pulled through the warehouse to the GOH department. The rolling racks would then be brought to the checker/markers who would take the coats off the rack, check the inventory, tag the coats, and place them in cartons or back on the rolling racks, for shipment to the destination stores. Concerning petitioner's complaint of fumes, Vasquez testified that the overhead towline motors were electrically operated, not gasoline operated; and that truck engines were not left idling at the loading dock because the trailer could be there the entire day, depending upon the merchandise being loaded or unloaded. The driver will "just drop the trailer and he will leave."
Vasquez stated that the jewelry cage, where petitioner worked when her main tasks slowed, was located in another building, connected to the main building by a corridor, approximately 250 to 300 feet away from where the loading dock was located. Vasquez acknowledged that there is noise in the facility caused by fourteen miles of conveyors that run throughout the warehouse. However, she testified that the conveyors were located approximately seventy to seventy-five feet away from where petitioner worked in the GOH department, and approximately fifty feet away from the jewelry cage on the first floor. During the day, respondent employed six cleaners who were responsible for maintaining the cleanliness of the premises, while other workers were charged with sweeping up his or her individual area at the end of the business day. Lastly, Vasquez testified that respondent employed a nurse on site from January 2001, to 2003, and petitioner's record does not disclose any complaints concerning dust, fumes, or noise during the entire term of her employment.
Dr. Arthur T. Canario testified that he had examined petitioner on behalf of respondent on October 11, 2006. At the examination, petitioner's only medical complaint was "that she has the residua of a stroke that she suffered to the left side of her body while working for Speedmark," and specifically, petitioner denied any complaints to her back. On examination, Canario stated that petitioner had a full range of motion of both the cervical and lumbrosacral spine. It was his opinion that "this patient has no orthopedic complaints or findings. She has no evidence of any occupational disability . . . [and] does not require orthopedic treatment."
Dr. Samuel Kahnowitz also testified on behalf of respondent. Kahnowitz examined petitioner on January 19, 2005. During the examination, petitioner gave a history of having had episodic, non-productive cough for the past two years, but denied shortness of breath. Petitioner told the doctor that she "has been smoking one-half pack of cigarettes on a daily basis since age twenty-one." The doctor stated that petitioner's chest x-ray was normal for pulmonary markings and that the PFTs were "really unremarkable." It was his opinion that "[t]here is no evidence for the presence of primary pulmonary disease or for any degree of permanent, partial respiratory disability."
On October 26, 2006, the Compensation Judge rendered a decision wherein he determined that petitioner had failed to prove by a preponderance of the evidence that she suffered a compensable occupational disease or disability. Specifically, the Compensation Judge determined that petitioner "was not exposed to noise or deleterious substances which caused aggravated or accelerated her pre-existing pulmonary or cerebrovascular pathology." In reaching his decision, the Compensation Judge accepted Geri Vasquez's "testimony that the air was free of any significant dust because it is consistent with the nature of respondent's business and its customers' requirements," and rejected the testimony offered by petitioner and Judith Hernandez. Specifically, the Compensation Judge found that petitioner's testimony that she had been exposed to dust and fumes from tow motors and truck engines was not supported by the evidence.
[P]petitioner testified that she was exposed to dust, fumes from tow motors and trucks, which according to her testimony were approximately thirty feet from one of the locations that she periodically worked. Petitioner also testified that she was . . . exposed to noise from trucks and conveyors that carried the clothes that she was required to pack. Concerning her [exposure] to noise and fumes from the trucks, the petitioner candidly admitted that most of the time she worked "upstairs" and therefore was not exposed to noise and fumes from the trucks which made their deliveries on the ground floor.
Paradoxically, neither the petitioner nor her only fact witness testified that they ever complained to management about any of the deleterious environmental conditions which they testified about. Notwithstanding the fact that Ms. Vasquez, the Human Resource Manager for respondent[,] testified that, "[w]e run employee events. Things such as round tables for the associates to meet with an HR Manager. We get together as a group and they can explore any kinds of problems, suggestions, or issues that they may want to bring to management."
While several of the pictures do depict some dust in the air, several do not . . . I quote Ms. Vasquez's testimony because it would indicate that the photographs may have been taken at the end of the work day when the workers swept their work station. This would explain why some photographs did not reveal dust and some did show dust particles.
As I have said, this explanation perhaps could explain the reason why some pictures depict dust in the air and some do not show any dust in the work environment. Indeed, the pictures refute both Ms. Hernandez's and petitioner's impression that their testimony implied, namely, that dust permeated the work area during the entire shifts.
Respondent called Ms. Geri Vasquez, the Human Resource Manager for Federated Logistics[,] to rebut petitioner's and Ms. Hernandez's testimony that the work environment was noisy and dusty. I accept her testimony that the air was free of any significant dust because it is consistent with the nature of respondent's business and its customers' requirements.
Ms. Vasquez also contradicted the petitioner's testimony that she worked at least a part of the time near the fumes from the trucks that were unloading and loading the goods to be packed and shipped. Ms. Vasquez's testimony, which was not rebutted[,] clearly indicated that the areas [where] the petitioner worked were not as depicted by petitioner. For example, Ms. Vasquez testified that the area that the petitioner worked on the coats was "a floor away. There are no docks or anything on the second floor [where the petitioner worked on the coats] because the trucks could [not] pull up to a second floor."
Finally, as to this issue, Ms. Vasquez testified that the times petitioner was required to work with jewelry, pocketbooks, and wallets, she was not exposed to any fumes because this area was "in a separate building and there were probably, off the top of my head, I say about 250 to 300 feet away . . . ."
As to the petitioner's testimony about the noise emanating from the conveyors, Ms. Vasquez testified that the petitioner worked fifty to seventy-five feet from the conveyors . . . .
Once again, petitioner offered no testimony to rebut Ms. Vasquez's estimate of the distance that the petitioner worked from the conveyors. This is important because if the petitioner worked near or adjacent to the conveyors[,] Dr. Friedman's testimony that noise contributed to the exacerbation of petitioner's cerebrovascular pathology would be more meaningful. Whereas, if the petitioner worked from fifty to seventy-five feet from the conveyors[,] his opinion of causal relationship would be less convincing . . . .
The Compensation Judge dismissed petitioner's claim for psychiatric disability "because petitioner did not submit any evidence, either by way of medical reports or testimony to establish any psychiatric disability."
As to petitioner's claim for occupational orthopedic disability, the judge dismissed petitioner's claim for failure to sustain her burden of proof. In dismissing the orthopedic claim, the judge stated:
A careful comparison of Dr. Ahmad's report dated March 9, 2000, which was done in preparation for the prior occupational claim on CP 2000-5516 and his report dated January 27, 2003, which was prepared for this matter, and his testimony indicates at best a de minimis increase in objective medical evidence of orthopedic disability, certainly not sufficient to meet the mandate of N.J.S.A. 34:15-36 . . . .
Another reason I am going to dismiss petitioner's occupational orthopedic claim is that Dr. Ahmad admitted he could not state whether the nature and extent of petitioner's disabilities that he found on January 27, 2003, would still exist today[,] i.e.[,] were permanent in nature . . . . . . . .
Thus, because of the paucity of objective, medical evidence of petitioner's orthopedic disability and her own orthopedic evaluator['s] testimony that he could not within a reasonable degree of medical probability opine that her orthopedic disability was permanent in nature, and finally his testimony that petitioner's arthritic condition could have been aggravated or accelerated by her smoking habit, I dismiss her occupational orthopedic claim for failure to sustain her burden of proof.
I only add that I accept Dr. Canario's . . . opinion that petitioner's work effort did not cause, aggravate or accelerate petitioner's arthritic condition, which presumably could have contributed to her orthopedic condition. I accept his conclusion that petitioner does not have any orthopedic disability for several reasons. First, Dr. Canario's orthopedic examination revealed no objective evidence of any disability to petitioner's cervical or lumbar spine. Indeed, Dr. Canario found a full range of motion of both the cervical and lumbar spine in flexion, extension, lateral bending and lateral rotation. Apparently, Dr. Ahmad's candid statement[,] that he could not state that the restriction of motion to the petitioner's cervical or lumbar spine that he found would be present [when] he testified[,] was correct.
Although the Compensation Judge had already determined that petitioner had not proven that she was exposed to noise or deleterious substances, which caused, aggravated, or accelerated her pre-existing pulmonary, cardiovascular, or cerebrovascular pathology, the Compensation Judge also determined that petitioner had failed to sustain her burden of proof by objective, medical evidence of any pulmonary, cardiovascular, or cerebrovascular disability, causally related to her work.
Dr. Friedman testified on behalf of the petitioner and Dr. Kahnowitz testified on behalf of the respondent. I accept the conclusion of Dr. Kahnowitz that the petitioner does not suffer from any pulmonary disability and that her cardiovascular and cerebrovascular disabilities are unrelated to her work for the respondent.
I have rejected Dr. Friedman's testimony because his conclusion that the petitioner has a pulmonary disability is contrary to the medical evidence produced at this trial, and is not based on facts adduced at this trial.
In turning to petitioner's claim that her employment with respondent either aggravated or accelerated her pre-existing cardiovascular or cerebrovascular pathology, which in turn caused an increase in her disability in these spheres, the Compensation Judge again rejected Dr. Friedman's testimony.
While I agree with petitioner's theory that noise can aggravate or accelerate cardiovascular pathology by increasing hypertension, and that this can lead to an increase of disability from a prior cerebral infarction, I reject Dr. Friedman's opinion that the increase in petitioner's pathology in these areas was aggravated or accelerated by her work for the respondent for two reasons: [o]ne, Dr. Friedman's conclusion is not based upon the facts and evidence produced at this trial. Two, any increase in the petitioner's cardiovascular pathology was caused by her genetic makeup and her continued smoking and not by her employment with the respondent . . . .
In this matter, the petitioner has submitted abundant medical literature to prove that continued noise exposure can cause, contribute to, or aggravate hypertension which can cause cardiovascular pathology, which in turn can lead to a cerebral infarction. The literature also indicates that continued exposure can cause an increase in disability in these spheres. However, it must be remembered that the petitioner ceased to be exposed to the alleged noise pollution when she was "laid-off" on May 15, 2002. This was approximately nine months after she received a Section 20 award, and over three and one-half years before Dr. Friedman examined her on January 21, 2006[,] and found causal relationship between petitioner's cardiovascular and cerebrovascular disabilities and her employment. However, because the petitioner had ceased to be exposed to the alleged offending agent - noise pollution - for over three and one-half years when Dr. Friedman examined her on January 21, 2006, his opinion that petitioner's employment caused a worsening of her cardiovascular condition [hypertension] which led to her increased cerebrovascular disability is not supported by the facts and evidence produced during this trial. I only add when Dr. Friedman examined petitioner on March 4, 2003[,] he did not indicate that petitioner's employment caused, aggravated or accelerated either her cardiovascular or cerebrovascular pre-existing pathology.
On appeal, petitioner argues that she proved a continuous occupational exposure, which caused compensable occupational diseases. Petitioner requests that because the matter has been fully litigated, we should reverse the order of dismissal and enter an award for total disability. We reject petitioner's argument and decline her invitation.
Generally, "[c]courts . . . give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). In workers' compensation cases, the scope of appellate review is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Deference must be accorded to the factual findings and legal determinations of the Judge of Compensation unless they are "'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (quoting Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 140 N.J. 277 (1995). "Accordingly, if in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999).
A Compensation Judge may accept the testimony of one expert, and reject the testimony of a second expert, as to whether there is a compensable injury. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). The Compensation Judge has the opportunity to hear witness testimony and evaluate credibility. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 166 (2004). The judge also has special expertise "with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claim." Ramos, supra, 154 N.J. at 598.
N.J.S.A. 34:15-30 provides for compensation for occupational diseases, which arise out of and in the course of employment. A compensable occupational disease is defined as including "all diseases 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." N.J.S.A. 34:15-31a. "Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable." N.J.S.A. 34:15-31b. Therefore, all compensable injuries, accidental or occupational, must arise out of the employment. Williams v. W. Elec. Co., 178 N.J. Super. 571, 578 (App. Div.), certif. denied, 87 N.J. 380 (1981).
An employee must demonstrate both legal and medical causation to succeed on an occupational exposure workers' compensation claim. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 259 (2003). "It is the petitioner's burden to establish a causal link between the employment and the disease." Kiczula v. Am. Nat'l Can Co., 310 N.J. Super. 293, 303 (App. Div. 1998). "The link must be proven by a preponderance of the evidence," ibid., and the focus is on "'the proof of a causal connection between working conditions and the harm.'" Williams, supra, 178 N.J. Super. at 578 (quoting Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 111-12 (App. Div. 1954)).
Not only must there be a link, but the workplace conditions must be "characteristic to the . . . place of employment," Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 13 (App. Div.), certif. denied, 162 N.J. 485 (1999), or to the "particular trade or occupation," Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994); see N.J.S.A. 34:15-31a. Moreover, the work place conditions must contribute to a material degree to "the aggravation or exacerbation" of the injury in order to be compensable. Kiczula, supra, 310 N.J. Super. at 300. The "material degree" requirement mandates that petitioner "show the nexus by an 'appreciable degree or a degree substantially greater than de minimis.'" Magaw, supra, 323 N.J. Super. at 11 (quoting Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995)); see Laffey v. City of Jersey City, 289 N.J. Super. 292, 304 (App. Div.), certif. denied, 146 N.J. 500 (1996).
Medical causation is proof that the "injury is a physical or emotional consequence of work exposure[;] . . . that the disability was actually caused by the work-related event." Lindquist, supra, 175 N.J. at 259. However, an employee need only demonstrate that "the work[-]related activities probably caused or contributed to the . . . disabling injury as a matter of medical fact." Ibid. While an employee's "subjective reaction is not to be disregarded," there must be "objective medical evidence," which demonstrates that the "work exposure was to a material degree a contributing factor." Williams, supra, 178 N.J. Super. at 585; see Perez, supra, 278 N.J. Super. at 283.
"The record as a whole "'must demonstrate causality by the greater weight of credible evidence.'" Magaw, supra, 323 N.J. Super. at 11 (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962)). Moreover, a judgment of compensation cannot be based on a medical expert's mere assertion of a "reasonably probable contributory work connection" without supportive medical sources. Laffey, supra, 289 N.J. Super. at 306. The absence of any objective medical or scientific evidence establishing a causal link between petitioner's place of employment and a claimed occupational disease will usually be fatal to the petitioner's workers' compensation case. Wiggins v. Port Auth., 276 N.J. Super. 636, 644-45 (App. Div. 1994). It is against these principles that we consider petitioner's argument.
We have reviewed the argument raised in light of the entire record, and we determine that the findings of fact are supported by the record, and that the Judge of Compensation identified the applicable law and correctly applied the law to the facts. The Compensation Judge engaged in a credibility determination, and an independent evaluation of the medical evidence in arriving at his findings that petitioner did not suffer a compensable disability caused by occupational exposure. Giving due weight to the Compensation Judge's experience and opportunity to view the witnesses and evidence, we determine no reason to interfere with the Compensation Judge's decision.
Petitioner argues that the Compensation Judge improperly referenced in his opinion: 1) petitioner's failure to offer proof "that the so-called noise pollution was at a level that OSHA [Federal Occupational Safety and Health Act] required ear protection"; and 2) testimony from other workers' compensation cases. "I only add, in many occupational cases petitioners had testified that when their requests for earplugs or masks have been denied, they brought the protective gear themselves. Once again, in this matter there is no such testimony."
We agree that the statements complained of were improper. Petitioner's claim was not that she suffered a hearing loss from the noise, but rather, that the noise adversely affected her cardiovascular and cerebrovascular systems. Also, a compensation judge should not rely on testimony from other compensation cases. Laffey, supra, 289 N.J. Super. at 307. Although it would have been better if the statements complained of were not contained in the judge's opinion, we determine that they were harmless. The point which the Compensation Judge was attempting to emphasize was that petitioner had not voiced any prior complaints to management concerning the noise levels which she now complains of. "To be sure in my own mind that petitioner never complained about the noise level[,] I asked Ms. Vasquez[,] respondent's Human Resource Manager[,] 'did you find any complaint about anything from Ms. Simmons?' To which she responded, 'No, sir.'" The lack of any prior complaint is a matter that the judge could consider in evaluating the petitioner's testimony concerning the amount of dust and fumes, and the level of noise in the workplace. The improper use or consideration of some evidence does not require reversal where there is other sufficient, credible evidence "independent of improper evidence, that supports the findings made by [the finder of fact]." Reinhart v. E.I. Dupont De Nemours, 147 N.J. 156, 166 (1996). Such is the case here.