March 20, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 -- Remanded February 21, 2008 -- Resubmitted March 10, 2008
Before Judges Baxter and King.
On February 21, 2008 we remanded after oral argument for clarification on the issues of causation and burden of proof. We retained jurisdiction.
The judge of compensation has now forwarded to us his "Supplemental Decision" dated March 3, 2008. He said in full:
This is the matter of Walerzak against Duncan Thecker Associates. The matter is before me on remand from the Appellate Division. The Appellate Division of the Superior Court raised an issue on a word that I used in my decision. I stated in my decision that the petitioner's burden of proof was to prove that his work was the sole cause of his cancer. This is clearly wrong, and it was an error that I said that in dictating my decision.
Based on the proofs before me I found that petitioner did not meet his burden of proof which was based upon the material degree standard, that is that he did not prove that his employment was the material cause of his cancer. I did not intend to suggest that the sole cause was the standard, and in my opinion on another part I indicated the material degree standard, which is the correct standard be used.
We affirm on the opinion of the Judge of the Division for reasons stated in his original oral decision of March 29, 2007 and his supplemental decision of March 3, 2008.
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