July 16, 2009
ERNESTINE THOMAS, PETITIONER-APPELLANT,
NEWARK PUBLIC SCHOOLS SYSTEM, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2000-23865.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 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 inspection; rather, his testimony was based primarily upon his subordinate's report.
Coyne stated that he was concerned about the "elevated carbon dioxide levels" noted in the report. However, he "ha[d] no idea how long this elevated [carbon dioxide level] existed in th[e] building[.]" Coyne further noted that the report described water-damaged materials that could create a mold problem; once again, he was unable to say how long those materials had been present prior to the investigation date.
Sidney Friedman, M.D., a pulmonary expert, also testified on behalf of petitioner, whom he first examined in March 2003. He noted at that time that petitioner was moderately obese and had audible wheezing, which he described as indicative of asthma. Dr. Friedman diagnosed petitioner with chronic occupational asthmatic bronchitis, and opined further that she met the criteria for chronic obstructive pulmonary disease (COPD), resulting in a sixty-five percent total lung disability.
Dr. Friedman examined petitioner again in September 2006, at which time he noted that her condition had deteriorated markedly. Petitioner had a continuous cough and also suffered from an enlarged heart and chronic pulmonary disease. Dr. Friedman testified that: based on occupation[,] it was [his] opinion that [petitioner's] exposure to numerous inhalants such as dirt, fumes, poor ventilation or in her classroom where she taught, other poor irritants that [petitioner] mentioned to [him] during the evaluation played a role in the development of her chronic airways disease. And as time went on this evolved into the syndrome of chronic obstructive pulmonary disease.
On cross-examination, Dr. Friedman acknowledged that petitioner's husband was a smoker and that, if he smoked indoors and petitioner "was able to inhale that," her asthma and COPD would be adversely affected. Dr. Friedman further acknowledged that petitioner's obesity could make her asthma "worse[.]"
Ilia Segal, M.D., testified as a pulmonary expert on behalf of respondent. Dr. Segal also examined petitioner in 2003. He diagnosed petitioner as having adult-onset asthma, which he described as "persistent[,]" adding that it "deteriorates with age because other diseases, other morbidities start aggravating the asthma." Dr. Segal also opined that obesity exacerbates an asthma condition, but disagreed with Dr. Friedman's diagnosis of COPD. Rather, Dr. Segal concluded that petitioner's asthma had merely worsened as she aged. Dr. Segal also denied that carbon dioxide by itself would have had an adverse effect on petitioner's asthma condition, noting that the levels of carbon dioxide would "have to be astronomical to the point where they would condemn or close the building right away . . . ."
Judge Yang delivered an oral opinion from the bench on May 5, 2008. The judge found that petitioner's testimony consisted of "self-serving statements" that were not corroborated by any other witness. Therefore, the judge concluded that petitioner's claims lacked credibility. The judge noted that Dr. Friedman's expert opinion was based exclusively upon information provided by petitioner and not "on any objective quantifiable evidence." The judge accepted Dr. Segal's explanation of petitioner's condition as a natural deterioration of her adult-onset asthma over time.
The judge noted that if petitioner's condition had been caused by her occupation in the school district, one would reasonably expect that condition to improve after she left her employment; this was clearly not the case here.
Specifically, the judge stated:
A decision in an occupational exposure case must be based on some objective quantifiable evidence. It cannot be based on the claimant's subjective characterization of the workplace environment.
I reject Dr. Friedman's testimony and findings, because it's not based on any objective quantifiable evidence. He has completely failed to produce any objective quantifiable evidence of what [petitioner] was exposed to, and . . . Dr. Friedman's opinion must be rejected, because it's based upon petitioner's subjective characterization of what she was exposed to while working for respondent.
Even assuming . . . arguendo that petitioner met the legal causation standard . . . , Dr. Friedman has not persuaded the [c]court that the exposure aggravated or exacerbated her asthma to cause the COPD. Dr. Friedman failed to produce or testify to any medical or scientific studies that would link petitioner's condition to the alleged occupational exposure while in the respondent's employment.
I find that petitioner has failed to meet the medical causation requirement in order to prove the pulmonary case to be compensable.
The [c]court finds the opinion of Ilia Segal, M.D., . . . to be more persuasive regarding the cause of petitioner's condition. While Dr. Segal could not produce meaningful pulmonary function tests due to petitioner's inability to cooperate as required, I accept Dr. Segal's diagnosis that petitioner has moderately severe bronchial asthma and restrictive pulmonary disability secondary to morbid obesity, and there were clearly signs of additional pathology from obstructive sleep apnea caused by her obesity. In 2003, petitioner weighed 245 pounds and she was 5'3-1/2" tall. So this is severe obesity.
It was Dr. Segal's opinion, which I accept, that the petitioner's bronchial asthma pre-existed the employment and is not occupational in nature and he states, "There's no history typical for occupational asthma in this case. No one correlated a high carbon dioxide level to have exacerbated or aggravated the asthma."
I accept Dr. Segal's explanation that with occupational asthma the petitioner's asthma should have improved when she stopped working if it were, in fact, due to allergens in the workplace, but that did not happen. Her condition actually got worse. The [d]octor felt that this was a pattern of a slow worsening of her disease as often happens with adult[-]onset . . . asthma.
[Dr. Segal] said [petitioner] did not acquire another disease between 2003 and 2006, when she was diagnos[ed] with COPD, just that her pattern worsened for her asthma and the worsening of the asthma can mimic COPD, and I accept Dr. Segal's explanation.
I find Dr. Segal's opinion is consistent with the facts produced at trial and is based on an adequate well-founded methodology involving the information of the type reasonably relied upon by experts, since he has for many years experienced treating patients with pulmonary problems.
The judge found, therefore, that petitioner failed to meet her burden of proof and dismissed the matter with prejudice.
We note that our review of the decision of a workers' compensation judge is limited. Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 15 (App. Div.), certif. denied, 162 N.J. 485 (1999). We must affirm unless the judge's findings could not "reasonably have been reached on sufficient credible evidence present in the record." Ibid. Further, due regard must be accorded to the compensation judge's "expertise and ability to evaluate witness credibility." Ibid.
In order to prevail upon her workers' compensation claim, petitioner had the burden to show that she suffered from a compensable occupational disease, which, under N.J.S.A. 34:15-31(a), is defined as one "arising out of and in the course of employment, which [is] 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." Moreover, it was petitioner's burden to "link" her medical condition to her place of employment by a "'material degree[,]'" which means "by an 'appreciable degree or a degree substantially greater than de minimis.'" Magaw, supra, 323 N.J. Super. at 11 (quoting Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995)).
N.J.S.A. 34:15-36 requires that petitioner prove a compensable occupational disease by "demonstrable objective medical evidence. . . ." The "'mere assertion of reasonably probable contributory work connection by a medical witness cannot justify an award.'" Laffey v. City of Jersey City, 289 N.J. Super. 292, 306, (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962)), certif. denied, 146 N.J. 500 (1996). The lack of objective medical evidence establishing a causal link will generally defeat a petitioner's claim. Id. at 303, 306.
Considering the record in light of these controlling legal principles, we concur with the Judge Yang's conclusion that petitioner failed to sustain her burden due to her lack of objective medical evidence. Where, as here, petitioner has failed to satisfy her initial burden of proof, respondent has no obligation to prove that petitioner's injuries were attributable to causes other than the workplace. Thus, petitioner's reliance upon cases such as Ducasse v. Walworth Mfg. Co., 1 N.J. Super. 77, 84 (App. Div. 1948), and Calicchio v. Standard Brands, Inc., 1 N.J. Super. 276, 279-80 (App. Div. 1949), is misplaced.
We further reject petitioner's reliance upon our decision in Kiczula v. Am. Nat'l Can Co., 310 N.J. Super. 293 (App. Div. 1998), in which we affirmed the workers' compensation judge's determination that the petitioner's pulmonary disease had been exacerbated by her employment at a steel can factory. Id. at 295. There, unlike this case, the record contained compelling evidence that the petitioner's condition improved considerably once she was away from her workplace. Id. at 299. Here, the evidence is to the contrary; petitioner's condition continued to deteriorate after she left her employment in February 2000.
In sum, we conclude that "petitioner has done no more than offer subjective characterization about h[er] work environment[,] . . . [and] has failed to provide quantitative evidence concerning the level of pollution [s]he was exposed to, the component elements of the pollution, or the duration of exposure in any measurable manner." Laffey, supra, 289 N.J. Super. at 306. Her claim was properly denied.
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