On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2007-29662.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 6, 2010 - Decided: Before Judges Cuff and Fasciale.
Petitioner James P. Renner filed a dependency claim after his wife, Cathleen, died on the job from a pulmonary embolism. Renner contends that because Cathleen's desk job required her to sit for long periods of time, she developed a blood clot in her leg that embolized in her pulmonary artery and killed her.
Cathleen's employer, AT&T, appeals from a March 8, 2010 order of judgment awarding Renner workers' compensation dependency benefits. The primary question is whether to apply the occupational disease standard, N.J.S.A. 34:15-31 (Section 31), or the standard governing cardiovascular injury or death, N.J.S.A. 34:15-7.2 (Section 7.2). AT&T argues that the compensation judge erred by applying Section 31. We agree, reverse and remand for the judge to determine whether Renner qualified for benefits.
Cathleen worked at AT&T for twenty-five years and was a salaried manager at the time of her death. She organized business continuity plans and was working on plans in the event of an AT&T employee strike. AT&T permitted Cathleen to work from home three days per week; she worked the other two days in the office. AT&T provided her with a laptop and speakerphone to work at home. When Cathleen worked from home, she sat at her computer for long hours to meet various deadlines imposed by AT&T. Although she had a "nine-to-five" job, at home she worked all hours of the day and night.
On Monday, September 24, 2007, Cathleen began working on a project at home in the evening. Although the length of time she worked that night is contested, computer records demonstrate that Cathleen sent an email to a co-worker at 12:26 a.m. The record does not demonstrate what Cathleen did between 12:26 a.m., and 7:00 a.m.
When her son awakened at 7:00 a.m., Cathleen was at her desk in her home office. She took him to the bus around 7:50 a.m., and as she walked out of the house, she grabbed her leg and said "ow." At 9:00 a.m., Cathleen advised a co-worker that she was not feeling well but would keep working to complete the project. She finished the project from home and sent an email to a co-worker at 10:30 a.m. At 11:34 a.m., Cathleen called 9-1-1 because she could not breathe. She was pronounced dead when she arrived at the hospital.
In the autopsy report, the examiner recorded the cause of death as a pulmonary thromboembolism. The examiner located a clot in her cardiovascular system*fn1 and he explained in the report that "[a] coiled, 6.0 x 3.5 x 1.5 cm. thromboembolus is within the main trunk of the pulmonary artery, extending into the left main branch."
Dr. Leon H. Waller, petitioner's expert, opined that sitting for a long time precipitates stasis of blood flow that leads to developing blood clots. Waller opined that Cathleen's clot formed after she sat down to work that night. Cathleen's clot migrated into the main trunk of the pulmonary artery in her cardiovascular system. He explained that the blood enters into the right side of the heart and is then pumped into the lungs. The main pulmonary artery "branches into the right and left so it goes [into] the right lung and left lung." He said "[a]t the bifurcation she had what's called saddle embolus . . . it blocks blood flow to both sides of the lung . . . it causes basically cardiac and respiratory arrest and that's what happened to her."
AT&T admitted that the clot developed within twelve to twenty-four hours before her death; however, it contested that the clot was caused solely by Cathleen sitting at her desk that night. Respondent's expert, Dr. William S. Kritzberg, opined that Cathleen's pulmonary embolism was caused by a combination of various risk factors. Cathleen was forty-seven years old, morbidly obese (she weighed 304 pounds resulting in constriction of blood flow), had an enlarged heart, and began taking birth control pills shortly before her death. Kritzberg stated that "it is obvious that one of the factors that made her morbidly obese was the fact that she was not getting enough physical activit[y]." Kritzberg explained that a sedentary style of living can contribute to the development of a clot.
On March 4, 2010, the compensation judge rendered an oral decision. Using the occupational disease standard contained in Section 31, the compensation judge concluded that Cathleen's death was compensable because her "job required her to be inactive for long periods." He found that the occupational exposure was Cathleen "sitting at a computer, made necessary by her job [, and that] was a material condition which was characteristic of her profession . . . ."
On appeal, AT&T argues that the judge applied the wrong standard to Cathleen's cardiovascular injury. It argues that her death did not occur because she worked in a sedentary job over a long period of time. AT&T maintains that Cathleen's clot occurred on a specific date rather than gradually developing over time as a result of sitting at her computer. AT&T explains that there was nothing unusual or ...