November 29, 2010
JAMES P. RENNER, PETITIONER-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 peculiar about Cathleen's work that created a greater risk for pulmonary embolisms than most desk jobs.
AT&T contends that Section 7.2, governing "[c]laim[s] based on cardiovascular or cerebral causes," applies, and that under that standard Renner must show that Cathleen's lack of movement at work was more severe than her lack of movement in her daily living. By applying Section 31, AT&T argues the judge failed to conduct the correct analysis of the facts and erred by categorizing her pulmonary embolism as an occupational disease.
Our scope of review of the factual findings of a Judge of Compensation is limited. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). Here, however, we are concerned with a legal issue, i.e., which standard governs the dependency claim. We do not defer to legal rulings. Balsamides v. Protameen Chems, 160 N.J. 352, 372 (1999).
To determine what section applies, we must establish whether Cathleen's pulmonary embolism is considered an occupational disease injury or a vascular disease injury.
Before deciding whether to apply Section 31, we briefly describe the history and purpose of Section 31.
Our Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128, did not initially include coverage for occupational diseases. Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 256 (2003). Thirteen years after its passage, the Act was amended to include certain enumerated occupational diseases: "'anthrax, lead poisoning, mercury poisoning, arsenic poisoning, phosphorous poisoning, poisoning from all homologues and derivatives of benzine, wood alcohol poisoning, chrome poisoning, and caisson disease.'" Ibid. (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 175 (1985)).
Currently, Section 31 defines compensable occupational disease as:
a. For the purpose of this article, the phrase "compensable occupational disease" shall include 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.
b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable (emphasis added).
"By 'characteristic of or peculiar to' is meant conditions that one engaged in that particular employment would view as creating a likely risk of injury." Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 238 (2003) (quoting Section 31). In other words, there are specific and unique hazards associated with that job distinguishing it from other typical occupations. Ibid. (citing Lindquist, supra, 175 N.J. at 263); Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 6 (App. Div.) (claimant developed tonsil cancer after over twenty years of on-site exposure to co-worker's second-hand smoke), certif. denied, 162 N.J. 485 (1999). In his treatise on workers' compensation law, Professor Lex Larson observed that in an occupational disease case:
The cause is characteristic harmful conditions of the particular industry. The result is a kind of disability which is not unexpected if work under these conditions continues for a long time. And the development is usually gradual and imperceptible over an extended period.
[2 Arthur Larson, Larson's Workers' Compensation Law, § 42.02 at 42-6 (2000).]
"As Professor Larson explains, occupational-disease claims are an 'inherent hazard of continued exposure to conditions of the particular employment. . . .'" Fiore v. Consol. Freightways, 140 N.J. 452, 470 (1995) (quoting 1B Larson, supra, § 41.31 at 7-362).
Thus, Section 31 applies to continued occupational exposure particular to that employment. See Brunell, supra, 176 N.J. at 244-46 (development of post-traumatic stress disorder arising from recurrent traumatic events but not from a singular incident); Lindquist, supra, 175 N.J. at 249-50 (firefighter's development of emphysema after twenty-three years on the job); Goyden v. State of New Jersey, 128 N.J. 54, 54-55 (1992) (psychological illness as a result of gradual exposure to stressful work conditions); Millison, supra, 101 N.J. at 175-76 (gradual exposure to asbestos); Kane v. Durotest Corp., 37 N.J. 552, 553-54 (1962) (continued exposure to beryllium compounds while working at manufacturing plant); Bober v. Indep. Plating Corp., 28 N.J. 160, 164-65 (1958) (long-term exposure to chrome dust causing allergic reaction); Estelle v. Red Bank Bd. of Educ., 14 N.J. 256, 256-57, 260 (1954) (janitor continually exposed to coal dust); Singletary v. Wawa, 406 N.J. Super. 558, 560 (App. Div. 2009) (physical injury caused by continuous employment); Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 509-10 (App. Div. 1999) (repetitive physical actions resulting in orthopedic, neurologic, and psychiatric disabilities); Kiczula v. Am. Nat'l Can Co., 310 N.J. Super. 293, 295, 299 (App. Div. 1998) (exposure to dust and fumes in factory where aerosol cans were made). See also Diaz v. Johnson Matthey, Inc., 869 F. Supp. 1155, 1158-59, 1163 n.10 (D.N.J. 1994) (repeated exposure to platinum salts).
From our review of the history and application of Section 31, we extrapolate five common themes of occupational disease claims. First, the employee is exposed to conditions that would be viewed as creating a likely risk of injury. Second, there is continued exposure to the work conditions. Third, there is an inherent hazard of continued exposure to the conditions. Fourth, there is attached to that job a hazard that distinguishes it from the usual run of occupations. Fifth, the claim is made because of long-term exposure, not because of one specific event.
Cathleen's cardiovascular pulmonary embolism is not the type of injury Section 31 was intended to cover. AT&T required Cathleen to meet deadlines, not to sit in front of her computer and remain still. Sitting at a desk and having the flexibility to take breaks does not create a likely risk of injury. Her schedule was flexible and allowed her to work from home. Cathleen decided whether she would sit or stand, where she would sit, and for how long. While she was required to meet deadlines, she was permitted to walk around and use a speakerphone to make conference calls. Her desk job was similar to millions of other office workers, and did not present a hazard that distinguished it from "the usual run of occupations." Brunell, supra, 176 N.J. at 238. Moreover, Renner did not claim that Cathleen's blood clot developed over time because of long-term exposure to sitting at her computer desk. Rather, he claimed that it was a fresh clot that developed within hours of her death.
We hold that the standard enunciated in Section 7.2 governs Renner's claim for dependency benefits. It is undisputed that Cathleen's blood clot migrated into the main trunk of the pulmonary artery in her cardiovascular system. According to Waller, Cathleen's saddle embolus blocked blood flow and caused "basically cardiac and respiratory arrest." Cathleen's injury is the type of cardiovascular claim that Section 7.2 was meant to address.
Renner argues that if Cathleen's pulmonary embolism is a cardiovascular claim, then we should apply the standard enunciated in Fiore, supra, 140 N.J. at 459. Fiore created a special standard to address an occupational heart disease claim. Id. at 472-73. The standard combines requirements from Sections 31 and 7.2. Ibid. In Fiore, the petitioner worked as a freight mover and moved freight from truck to truck at various terminals. Id. at 461. He claimed that exposure to carbon monoxide for almost twenty years caused his angina and coronary-artery disease. Id. at 462. The Fiore standard is inapplicable because Cathleen's pulmonary embolism is not a vascular injury arising from an occupational exposure.
We remand to allow the Judge of Compensation to consider whether this claim for dependency benefits meets the section 7.2 standard. We remand because the Judge of Compensation did not consider this claim according to section 7.2. On remand, we do not anticipate the need for further testimony. The judge shall review the record and make findings of fact and conclusions of law.
Reversed and remanded. We do not retain jurisdiction.