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Thomas v. Newark Public Schools System

July 16, 2009

ERNESTINE THOMAS, PETITIONER-APPELLANT,
v.
NEWARK PUBLIC SCHOOLS SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2000-23865.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2009

Before Judges Wefing and LeWinn.

Petitioner, Ernestine Thomas, appeals from the May 5, 2008 order of the workers' compensation court dismissing her claim for benefits related to medical conditions she alleged were work-related. The workers' compensation judge based her decision upon the finding that petitioner had failed to satisfy her burden of proof by objective medical evidence that occupational conditions caused her medical problems.

We have thoroughly reviewed the record in light of petitioner's contentions on appeal that the judge held her to "an erroneous burden of proof" and that the judge's decision was "against the weight of all credible evidence." We reject those arguments and affirm substantially for the reasons set forth in the decision of Judge Sue Pai Yang rendered from the bench on May 5, 2008. R. 2:11-3(e)(1)(D). We add only the following comments.

Petitioner was employed by the Newark Public School System from 1984 until 2000, initially as a substitute teacher and subsequently as a full-time teacher and staff developer. In 1974, at the age of thirty, petitioner developed problems with asthma. From 1974 until 1987, petitioner stated that her asthma "wasn't bad. It didn't stop [her] from . . . doing anything [she] wanted to do."

Sometime in 1987, petitioner experienced "a gradual kind of slow down. . . . Not fully blown asthma attacks. [She] used [her] puffers a lot more and then [she] was on medication, . . . at home."

Petitioner's last day of employment was February 3, 2000. She had been "out since December [19]99 [be]cause [she] was really tight, . . . and got medication through that time and [she] felt better." When she returned to work on February 3, 2000, however, she "couldn't stay the day[,] . . . and [she] had to go because [she] just went into [an] asthma attack again." Although petitioner testified that her asthma condition worsened starting in 1987, she stated that "it was a lot worse just before [she] went out . . . ."

Petitioner testified that when she worked in certain parts of the school building, she noticed fumes that "smelled like gasoline or a furnace smell"; however, she could not say how frequently she smelled such fumes. Petitioner testified that she felt better when not at work on the weekends, and not exposed to the air in the school building.

Petitioner further testified that the ceilings in some rooms of the school building would occasionally leak, causing damage to some of the boxes in which she stored her belongings. She described those rooms as "damp and moldy," and stated that she was exposed to those areas approximately once a week.

Petitioner's asthma condition deteriorated rapidly after she left her employment in February 2000; she was admitted to the intensive care unit at St. Barnabas Medical Center on March 11, 2000, and to the Hospital Center at Orange on March 28, 2000. As of the time of her hearing in January 2007, petitioner was taking eleven medications daily and used oxygen. Petitioner testified that she had a history of injury in her left arm, foot surgery in 1980 and knee surgery in 1993. She also weighed 255 pounds, and, during the time of her employment, had weighed approximately 225 pounds.

Several months after her last day of work, petitioner sent a request to the Public Employees Occupational Safety and Health Program (PEOSHP) to inspect the school premises. On June 14, 2000, a PEOSHP inspector visited the school building and produced a report documenting the conditions she observed. That report noted elevated levels of carbon dioxide, obstructions in front of some air vents and limited water damage.

At trial, Michael Coyne testified as an expert on behalf of plaintiff. Coyne, an Enforcement Project Coordinator for PEOSHP, was the supervisor of the inspector who visited the school building and wrote the report. It does not appear from the record that Coyne actually participated in the ...


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