February 21, 2008
WARREN WALERZAK, PETITIONER-APPELLANT,
DUNCAN THECKER ASSOCIATES, GARDEN STATE PRECAST, RESPONDENTS-RESPONDENTS, AND SECOND INJURY FUND, RESPONDENT.
On appeal from the Department of Labor and Workforce Development, Claim Petition Nos. 1996-045737 and 2000-034125.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 28, 2008
Before Judges Baxter and King.
This is an appeal of a workers' compensation judgment in a case which was fully tried before the Division. After petitioner's initial trial testimony, at which time the Second Injury Fund did participate in the trial, the balance of the trial was bifurcated pursuant to N.J.A.C. 12:235-7.1. The Second Injury Fund did not participate in the remainder of the trial, and the Fund was dismissed without any liability on March 19, 2007. The basis for the dismissal of the Fund was a finding that petitioner did not sustain his burden of proving total permanent disability.
Pursuant to N.J.S.A. 34:15-95, the Second Injury Fund is liable when a partially disabled worker becomes totally and permanently disabled as the result of a combination of a work-connected accident or illness and a pre-existing disability.
Trial in this matter involved two claim petitions as well as a petition seeking Second Injury Fund benefits. Claim petition number 2000-34125 alleged an occupational pulmonary and cancer disability as the result of petitioner's employment as a welder for respondents Duncan Thecker Associates and Garden State Precast. Claim petition number 1996-045737 alleged an increase in disability of a prior judgment for which petitioner received an award of 37.5% disability of the right leg against Duncan Thecker Associates. Petitioner's Second Injury Fund petition sought total permanent disability benefits.
Following trial, Judge Shteir dismissed petitioner's occupational pulmonary and cancer claim, finding that petitioner failed to meet his burden of proving causal relationship of these conditions to petitioner's exposure to toxic welding fumes and dust. Judge Shteir increased petitioner's disability to his right leg, finding 45% disability of that leg. Judge Shteir found that petitioner was not totally and permanently disabled, including his alleged pulmonary and cancer conditions. This resulted in the noted dismissal of the Second Injury Fund.
Petitioner has filed a notice of appeal on three grounds. First, petitioner alleges that Judge Shteir should have found petitioner's pulmonary and cancer conditions compensable. Second, petitioner alleges that the increased disability to petitioner's right knee was more substantial than the increase to 45% of the right leg. Finally, petitioner alleges that Judge Shteir should have awarded total permanent disability benefits to petitioner.
We address only petitioner-appellant's first and third points. At oral argument on January 28, 2008 he abandoned his second point relating to the knee claim.
At oral argument, petitioner's counsel focused on two statements in the judge's opinion where he commented that petitioner's burden was to establish that his pulmonary condition was "solely due to his employment with this respondent, or from employment and pre-existing conditions" (Pa218-9) and that "his cancer was related solely to his work with this respondent." (Pa219-7)
At oral argument petitioner's counsel focused on the use of the word "solely" as a mischaracterization of petitioner's burden of proof in the circumstance. We find these statements confusing in light of our understanding that the petitioner's work must be a substantial or material contribution to his disability, not the sole cause, to support an award.
The judge's ultimate conclusion was clear, however. He said:
As to petitioner's pulmonary disability, I find that he has failed to establish a causal relationship between the cancer that he had and his employment with this respondent. Accordingly, that claim petition is dismissed.
Petitioner did have cancer and surgery. However, he has failed to establish that that condition was related to his employment with the respondent. He is alleging that the matter he was exposed to with respondent caused the cancer. He could not sustain his burden of proof.
Respondent contended at oral argument that the judge likely misspoke on the burden of proof and sole causation point.
We think the better course here is to remand for clarification by the judge. The matter is remanded to the Judge of Compensation who should file with us directly within 30 days a supplemental opinion on his "sole" causation comments in his opinion insofar as they relate to the petitioner's burden of proof and the judge's ultimate conclusion of no causation in fact.
Remanded with instructions to the Division of Workers' Compensation; jurisdiction is retained.
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