May 20, 2008
CAROL A. LEONARD, PETITIONER-RESPONDENT,
MID-STATE SPRINKLER, INC., RESPONDENT-APPELLANT AND ALERT SPRINKLER SYSTEM, INC., PENRAY SPRINKLER, RESPONDENTS.
On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Docket No. 1999-20031.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2008
Before Judges Parrillo, S.L. Reisner and Baxter.
Mid-State Sprinkler, Inc. (Mid-State) appeals from an order of the Department of Labor and Workforce Development, Division of Workers' Compensation, in which a Judge of Compensation (JOC) awarded dependency benefits to petitioner-respondent, Carol A. Leonard, pursuant to N.J.S.A. 34:15-13. The JOC held that petitioner's husband, decedent Lawrence Leonard,*fn1 died of lung cancer on June 20, 1997, as a result of his exposure to asbestos while employed as a sprinkler pipe installer at Mid-State, thereby entitling petitioner to dependency benefits. We reverse.
This appeal requires us to decide whether the JOC correctly determined that Leonard, who worked for twenty-nine years as a fire sprinkler installer, was exposed to asbestos during his employment with Mid-State, whether that exposure was a material factor in causing his death from lung cancer and whether Mid-State was the last employer to expose Leonard to asbestos.
The proofs at trial established, through Social Security records, that Leonard was employed as a fire sprinkler installer and repairer with Penray Sprinkler (Penray) from 1965 to 1974, with Mid-State from 1974 to 1980, with Alert Sprinkler, Inc. (Alert) from 1980 to 1981 and with his own company, Shore Fire Protection, Inc. (Shore Fire), from 1981 to December 1995. Petitioner testified that her husband smoked approximately two packs of cigarettes a day from age fifteen to age twenty-five, quit for about ten years, and then smoked again for two years before being diagnosed with cancer in 1996. At another point in her testimony, petitioner maintained that her husband had quit smoking for as long as twenty years. She further testified that her husband would "always" come home from his job with dusty and dirty clothes when he worked at Penray, Mid-State, Alert and Shore Fire. On cross-examination, she testified that Alert was the last company where her late husband worked until he started his own fire sprinkler fitter company, Shore Fire, in 1981. She maintained that when her husband started his own company, he functioned as a supervisor and no longer had contact with asbestos. On cross-examination, however, she acknowledged that "in the beginning," he assisted his employees on the installation work and when "things started to get tight" in the 1990's, "he started putting the sprinklers up himself" and frequently came home "dirty."
Petitioner also presented the testimony of Richard Hodavance, who was the business manager of the labor union of which Leonard had been a member. Hodavance himself was a sprinkler fitter and described generally what a fire sprinkler fitter does; however, he was unable to specifically describe what Leonard did or whether Leonard had been exposed to asbestos because he did not know Leonard well, having met him only a few times.
Hodavance testified that fire sprinkler fitters install fire protection systems in both old and new buildings and in "every area from the basement to the attic." Hodavance stated that prior to 1977, asbestos and an asbestos mix were sprayed on ceiling beams as insulation; however, after 1977, spraying of asbestos was prohibited by federal law. Hodavance testified that, prior to 1990, sprinkler fitters were not "advised if there was asbestos on the ceiling beams and that was [their] biggest exposure to asbestos." Hodavance also testified that "asbestos would be . . . sprayed all over the beam[s] . . . . [and, thus, fitters] had to scrape off the asbestos" from the beams. He also maintained that fire sprinkler installers like Leonard were exposed to asbestos until approximately 1990.
Stanley Potochar, owner of Alert since 1977, testified on behalf of Alert. Potochar testified that Leonard worked for him from 1980 to 1981 as a sprinkler fitter on commercial warehouse installations where ninety percent of the work was new construction in which workers were not exposed to asbestos. The remainder was in old construction, where the potential for such exposure existed. Potochar characterized Leonard as a "heavy smoker," who would smoke on the job, at breaks and during lunch. Potochar testified that Alert's sprinkler installations on new construction did not directly involve asbestos-sprayed insulation, but some of the new installations were connected to existing buildings, which occasionally contained asbestos-sprayed insulation. Potochar insisted that the general contractor removed and "remediated" the asbestos before the sprinkler installation began.
Richard Kahrmann, the owner of Mid-State since the mid-1970's, testified that Leonard worked for him in the late 1970's as an installer of fire sprinkler piping. Kahrmann testified that from 1979 to 1980, Leonard installed fire sprinkler systems only in new construction. He acknowledged on cross-examination that there were occasions when new construction would be "tied" into existing sprinkler systems. Thus, at times, Leonard would have had minimal asbestos exposure at Mid-State. Kahrmann testified that when his employees, who would have included Leonard, were performing sprinkler installations in the early 1970's, no one warned them of the hazards presented by the asbestos. Even in the late 1970's, respirators were not generally provided to sprinkler installers. Regarding Leonard's smoking habits, Kahrmann stated that "it was a rare time I didn't see [him] with a cigarette."
Alfred I. Neugut, M.D., testified for petitioner as a medical expert in cancer epidemiology. Basing his opinion on Leonard's death certificate and two admission records from St. Elizabeth's hospital from July 1996 and May 1997, Neugut determined that Leonard was a "heavy smoker," had been a fire sprinkler installer for thirty years, was heavily exposed to asbestos from work, became ill in 1996, and ultimately died from lung cancer as a result.
Neugut also opined that smoking was a "major contributor" to Leonard developing lung cancer, but "asbestos would have contributed as well." Thus, based on a reasonable degree of medical certainty, Neugut testified that Leonard's occupational exposure to asbestos contributed to Leonard developing lung cancer. While Neugut admitted on cross-examination that ninety percent of lung cancer is associated with cigarette smoking, he testified that Leonard had a combination of the two - cigarette smoking and asbestos exposure - and, more importantly, Leonard had "precisely the type of lung cancer that you see in the context of asbestos exposure." Specifically, Neugut claimed that Leonard died of "non small cell cancer," which is a type of cancer that is not generally associated with smoking. Neugut did concede, however, that Leonard had none of the signs of the "clinical asbestosis" that one would expect to be present in a person who died of an asbestos-related cancer. Consequently, he explained the role of asbestos as acting "in synergy" with smoking as a cause of death:
Smoking certainly contributed to [Leonard] getting lung cancer and asbestos contributed to his getting lung cancer. My definition of a cause is something which grazes [sic] the probability of the disease occurring. It's as simple as that. So if tobacco causes his risk of lung cancer being let's say five or eight times normal and asbestos causes his risk of lung cancer being two or three times normal, then they both contributed. Which one is the cause? They're both the cause. You know, it's not a matter of, oh, I have to make that distinction. So really he should be considered [sic] to other smokers who didn't have asbestos exposure . . . . It's him compared to other smokers. That's really to me the issue.
If you want to see what rate causes lung cancer. It's different from tobacco. Cigarette smoke has chemicals in it or tobacco does which enters the blood or damage[s] the tissue in the lungs directly and directly causes lung cancer. Asbestos is a fiber. It's like a mineral. It doesn't actually enter the cells directly, but . . . it causes inflammation in the lung and it causes the damage that the tobacco made in the lung to proliferate. So it makes the damaged cells -- so that's why the two of them together are particularly dangerous because the cigarettes start the process, they damage the cells, and then they make those cells then, the ones that are damaged, multiply more than the cells which are normal and give the abnormal cells a chance to kind of grow faster than the normal cells do, and so the two together kind of synergize as they say.
William Kritzberg, M.D., testified as a medical expert on behalf of Mid-State. In contrast to Neugut's medical testimony that Leonard died from non-small carcinoma, Kritzberg testified that Leonard was diagnosed with small cell carcinoma, which is "very closely associated with smoking." Furthermore, Kritzberg opined that the "major cause" of Leonard's lung cancer and "ultimately his demise" was his "significant smoking, and not asbestosis." Kritzberg opined that Leonard's CAT scan and x-rays did not disclose any "inflammatory changes" or "fibrotic changes" that were "consistent with asbestos exposure."
Leonard's hospital records were admitted in evidence. Those records contain a diagnosis of "small cell carcinoma." The medical records noted that Leonard was a "heavy smoker" who smoked "four to five packs of cigarettes a day" from the time he was fifteen "until now," except for a ten-year hiatus when he had quit smoking. Kritzberg concluded his testimony by explaining the basis for his conclusion that asbestos did not cause Leonard's death:
The key point here is that . . . in order to have cancer of the lung due to asbestos, you must have asbestosis. Now, there is another point to be made[,] which is asbestosis causes or asbestos exposure if it causes asbestosis[,] will cause either mesothelioma or adenocarcinoma. The relationship in the literature goes as far as I know there is no real evidence for any connection between small cell carcinoma and asbestos exposure.
It's certainly not in the medical community and in the pulmonary community an established fact.
After agreeing that "there is a synergistic effect [between smoking and asbestos exposure] in terms of causing adenocarcinoma and possibly mesothelioma," Kritzberg commented that "to say that there is a synergistic effect, you would have to show that there is at least some damage that is demonstrable due to his alleged asbestos exposure," and here there was none.
At the conclusion of the testimony, the JOC ruled in petitioner's favor. He reasoned:
Was it established by medical evidence that it was more probable than not that the exposure to the substances to which Mr. Leonard was exposed when he was at Mid-State was to a material degree causative of the cancer which eventually took his life. We had testimony by Mrs. Leonard and I can infer from the testimony of Mr. Hodavance that petitioner was exposed to asbestos. . . . until 1981. The Social Security records . . . establish that [he] worked . . . [at Mid-State] until 1981. His wife gave unrefuted testimony that after that he went into business by himself . . . he was not involved in the day-to-day installation. He was more of a manager . . . . I conclude that his last exposure to asbestos was the last date that he was working for Mid-State and that was in 1981. . . . I conclude . . . that there was no . . . significant exposure to asbestos . . . after [he] left Mid-State. . . . [F]rom 2/1/79 to 2/1/82[,] New Jersey Manufacturers [the insurer of Mid-State] was the carrier who was on the risk. . . . [According to] Bond versus Rose Ribbon, . . . petitioner becomes eligible to receive benefits from the last employer for whom he or she worked before manifestation occurred. . . . [T]he actual cancer didn't come along . . . until about 1997. . . . [T]he material contributing factor in Mr. Leonard's death was his work at Mid-State. . . . [Thus,] he died as a result of asbestos caused by exposure while he was at Mid-State.
I found the testimony of Dr. Neugut far more persuasive than that of Dr. [Kritzberg].*fn2 Dr. Neugut's credentials are almost impeccable. . . . Dr. Neugut . . . did a pretty good job of explaining the synergy between the cigarette smoking and the asbestos and pretty well tied everything up. . . . I didn't find that Dr. [Kritzberg] successfully refuted Dr. Neugut's testimony.
I took [Leonard's] 1980 salary which was $18,970, divided that by 52. . . . [for] a rate of 364.80 and 70 percent of that would be 255.36. . . . And I will award [petitioner] that rate from June 1997 for 450 weeks and thereafter. The amount of the award is for $11,914.72.
The JOC entered a confirming order on November 8, 2006.
Mid-State filed a timely motion for reconsideration. At the hearing on Mid-State's motion, the JOC elaborated on his earlier findings and denied the motion for reconsideration. Among his reasons for doing so were: Hodavance's testimony on Leonard's exposure to asbestos, the synergistic effect testimony provided by Neugut and petitioner's settlement of her claim against Alert for $35,000, pursuant to N.J.S.A. 34:15-20, which demonstrated that petitioner "would have had difficulty proving that her husband had been further exposed to asbestos at Alert . . . ."
On appeal, Mid-State argues that it is entitled to reversal of the judgment in petitioner's favor because petitioner failed to sustain her burden of proof to establish that: (1) Leonard was exposed to asbestos while employed at Mid-State; (2) any such exposure was a "material cause" of his death; and (3) Mid-State was the last place of employment at which Leonard was exposed to asbestos. Finally, Mid-State argues that the award of dependency benefits at the rate of seventy per cent of Leonard's average weekly salary exceeded the percentage that was applicable under N.J.S.A. 34:15-13 at the time of Leonard's death in 1997.
Pursuant to the Workers' Compensation Act (the "Act"), N.J.S.A. 34:15-1 to -142, employers are required to provide compensation to an employee who suffers "any compensable occupational disease arising out of and in the course of his employment." N.J.S.A. 34:15-30. N.J.S.A. 34:15-31 defines "compensable occupational disease," as "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."
"The requirement to link the place of employment with the disease, by a 'material degree' requires a petitioner to show the nexus by an 'appreciable degree or a degree substantially greater than de minimis.'" Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11 (App. Div.) (quoting Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995)), certif. denied, 162 N.J. 485 (1999); see also N.J.S.A. 34:15-7.2. It is "[p]petitioner's burden . . . to show by a preponderance of the evidence that the link is probable[,]" rather than certain. Magaw, supra, 323 N.J. Super. at 11.
"[A] successful petitioner in workers' compensation generally must prove both legal and medical causation when those issues are contested." Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 259 (2003). Thus, "[t]o establish causation in an occupational disease case, an employee must satisfy a two-part test by producing evidence to establish both (a) legal causation, and (b) medical causation." Ibid. "[P]roof of medical causation means proof that the disability was actually caused by the work-related event. . . . [P]roof of legal causation means proof that the injury is work connected." Ibid.
"[A]n expert witness's conclusion . . . should be carefully evaluated in the context of both the statutory criteria and prevailing medical standards. . . . Compensation judges should be particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing medical standards." Hellwig v. J. F. Rast & Co. Inc., 110 N.J. 37, 54 (1988).
Moreover, "[t]he 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." Magaw, supra, 323 N.J. Super. at 13; see also Laffey v. Jersey City, 289 N.J. Super. 292, 306 (App. Div.) (denying workers' compensation benefits for police officer's pulmonary disease because petitioner's expert's testimony of a causal relationship was based solely on the petitioner's subjective characterizations, rather than on existing medical, epidemiological, or scientific studies establishing causation), certif. denied, 146 N.J. 500 (1996); Wiggins v. Port Auth. of N.Y. & N.J., 276 N.J. Super. 636, 644-45 (App. Div. 1994) (denying benefits to a former port authority employee because petitioner presented no objective medical or scientific evidence that chemicals and exposure to temperature variations accelerated or exacerbated plaintiff's deteriorating progression with multiple sclerosis).
"Courts generally give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (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.'" Lindquist, supra, 175 N.J. at 262 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "Deference must be accorded the factual findings and legal determinations made by 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.'" Id. at 262. (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994)).
We turn first to Mid-State's claim that the JOC erred when he concluded that petitioner's proofs demonstrated that her husband was exposed to asbestos between 1974 and 1980 when he worked at Mid-State. While the proof of exposure was far from overwhelming, we are satisfied that there was sufficient credible evidence in the record to support the JOC's findings. The testimony from petitioner that her husband came home from work each day "dusty" and "dirty"; Hodavance's testimony that fire sprinkler fitters were "very exposed" to asbestos until "about 1990"; and that even when workers were involved in "new construction," they were exposed to asbestos in the older sections of the building, was sufficient to prove that Leonard had been exposed to asbestos at Penray from 1965-1974 and at Mid-State from 1974 to 1980. Mid-State has presented no meritorious argument that would require us to disturb the JOC's finding that Leonard incurred exposure to asbestos while employed at Mid-State.*fn3
We next consider the JOC's finding that such occupational exposure was, to a material degree, a cause of Leonard's death from cancer, as required by N.J.S.A. 34:15-31. We agree with Mid-State that the JOC's conclusion that Leonard's cancer was materially caused by asbestos was not based upon substantial credible evidence in the record. We so conclude for two reasons. First, Dr. Neugut mistakenly believed that Leonard suffered from non-small cell carcinoma despite the medical records from Leonard's admission to St. Elizabeth Hospital that were admitted into evidence. Those records contained the diagnosis of small cell carcinoma. Neugut's assertion that the type of cancer from which Leonard died was associated with asbestos exposure would only have been correct if Leonard had succumbed to the non-small cell type, but that was not the case. Accordingly, Dr. Neugut's opinion was based upon a fundamentally incorrect understanding of the medical evidence.
The uncontroverted testimony established that no accepted scientific evidence holds that small cell carcinoma, the type of cancer from which Leonard died, is associated with asbestos exposure. Consequently, Neugut's opinion that asbestos exposure was a material cause of Leonard's cancer is not based on well-accepted medical theory and data. To the contrary, as admitted by Neugut and confirmed by Kritzberg, small cell carcinoma like that suffered by Leonard is very closely linked to cigarette smoking, a significant fact in light of Leonard's history of smoking four to five packs a day for thirty-five years. Both experts testified that it is only non-small cell carcinoma, which Leonard did not have, that is associated with asbestos. Under all of these circumstances, Neugut's opinion that asbestos exposure caused Leonard's death was not based upon the objective scientific evidence that Lindquist and Magaw demand. Accordingly, the JOC's acceptance of Neugut's opinion is not entitled to our deference. See Close, supra, 44 N.J. at 599.
Second, the JOC's conclusion that Neugut "did a pretty good job of explaining the synergy between cigarette smoking and the asbestos" and "pretty well tied everything up" is also flawed. Both Neugut and Kritzberg testified that asbestos exposure, when combined with cigarette smoking, can cause cancer; however, Kritzberg added an important condition. He emphasized that asbestos exposure is not a "synergistic" cause of cancer unless asbestos produces asbestosis, which is a pathologic condition of the lungs. Neugut agreed with Kritzberg that Leonard's lungs showed no symptoms of asbestosis. When confronted with that fact, Neugut asserted that asbestos exposure had nonetheless caused Leonard's cancer because, according to Neugut, a cause is "something which grazes[sic]*fn4 the probability of the disease occurring." Neugut's definition of medical causation is, however, at odds with Magaw, which requires a petitioner to demonstrate the nexus by an "appreciable degree or a degree substantially greater than de minimus." Magaw, supra, 323 N.J. Super. at 11 (quoting Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995). In light of the absence of any evidence that Leonard suffered from symptoms that would suggest asbestosis, the JOC's acceptance of Neugut's smoking/asbestos "synergy" opinion was error because there was no substantial or credible evidence in the record to support such an opinion. Accordingly, for all these reasons the JOC erred when he concluded that petitioner's proofs established "medical causation." See Ibid.
In light of that conclusion, we need not address MidState's two remaining arguments because the failure of proof of "medical causation," standing alone, warrants reversal. Nonetheless, we comment briefly on the JOC's conclusion that Mid-State was the "last injurious exposure." When an employee's occupational disease does not become evident until after the last of his successive employments has already ended, and he is no longer exposed to the work conditions that give rise to the disease, determining which employer is responsible is difficult, if not impossible. Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 311 (1964). These problems are exacerbated in light of the long latency period of many occupational diseases. Levas v. Midway Sheet Metal, 337 N.J. Super. 341, 350 (App. Div. 2001). To resolve this complex successive employer problem, the Court held in Bond that one method of establishing liability is to hold the employer at the time of the last injurious exposure responsible. Bond, supra, 42 N.J. at 311.
Here, although not called upon to squarely decide the issue, we do have serious reservations about the JOC's finding that Mid-State was the employer who caused the "last injurious exposure." Hodavance's testimony that sprinkler installers like Leonard were exposed to asbestos until approximately 1990, when combined with petitioner's testimony that her husband came from his work at Alert each day just as "dirty" as he had been when he worked earlier at Mid-State, causes us to question whether the JOC's finding was supported by sufficient credible evidence in the record.
In light of our conclusion that medical causation was not established and that the award in petitioner's favor must be reversed, we perceive no need to address Mid-State's final argument that the JOC erred when he determined that the dependency award should be seventy percent of Leonard's final salary at Mid-State. We note that on June 25, 2007, this Court entered an order that stayed the judgment in petitioner's favor.
Reversed and remanded for the entry of an order dismissing the petition with prejudice.