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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...