February 22, 2011
JOSEPH MANES, PETITIONER-APPELLANT,
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Case No. 2007-26234.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 3, 2011 - Decided: Before Judges Axelrad and R. B. Coleman.
Petitioner Joseph Manes appeals from an April 20, 2010 judgment of the Division of Workers' Compensation (Division), following trial, dismissing his claim petition because he failed to prove his injury was causally related to work. We affirm.
On September 28, 2007, petitioner filed a claim petition with the Division, claiming "pulmonary impairment" due to "exposure to deleterious chemicals and air borne agents" throughout the course of his employment with respondent, TriSeal/Tekni-Plex, from 1970 to the present. In its answer, respondent conceded covered employment but denied petitioner suffered an injury arising out of and in the course of employment.
A four-day trial commenced on June 25, 2009 and concluded on February 19, 2010. Petitioner testified and called Dr. Malcolm H. Hermele, who was accepted as a pulmonary expert, though not board-certified in the field. Dr. Adam J. Rowen, accepted as an expert in pulmonology and board-certified in internal medicine and pulmonary disease, testified for respondent. The judge of compensation issued an oral decision on April 19, 2010, finding petitioner's proofs failed to establish a compensable injury, memorialized in an order of April 20, 2010. This appeal ensued.
Sixty-six-year-old petitioner testified that he had been employed with respondent or its predecessors for forty-three years. At the time of trial, petitioner's position was quality assurance technician, which he had occupied since approximately 1989, except for a two-year period around 1997 or 1998 when he hurt his back and worked in the press room, operating a laminating machine. He explained that respondent operates a manufacturing facility for cap liners and pharmaceutical grade tamper-proof packages. Petitioner described the overall air quality of the manufacturing plant as "very dusty" and moldy.
As a quality assurance technician, petitioner was responsible for testing samples to ensure there was a proper seal. He explained he was exposed on a daily basis to the following chemicals and their fumes: acetone; Deuben, a mixture of fifty percent alcohol, ten percent toluol and forty percent ammonia and hydroxide; and Vinyl Seal, a sealant used to prevent other chemicals from penetrating seals. While working in the "very stinky" press room, petitioner was exposed to ethyl acetate, methyl ethyl ketone, and occasionally toluene.
According to petitioner, his pulmonary problems began shortly after respondent purchased the company from the previous owners, around 1999 to 2000. He often found himself short-winded during work, became dizzy when he was exposed to the Vinyl Seal, and left work each day feeling tired. Petitioner elaborated that he would lose his breath numerous times during the day and continued to be short-winded while bending or walking. He treated in December 2006 and January 2007 with Dr. Martin Lansang of the Hunterdon Pulmonary Critical Care Center. Petitioner was prescribed an Albuterol inhaler, which he continued to use as necessary up through trial, such as when he went upstairs or before he went to bed.
Petitioner conceded he smoked cigarettes from ages nineteen to twenty-three and again from ages twenty-nine to thirty. Petitioner testified he lost thirty-eight pounds and was currently five feet eight inches tall and weighed 268 pounds. He also suffered from hypothyroidism, a partially paralyzed hemidiaphragm, cirrhosis of the liver, and sleep apnea. He discussed his medical history, which included bouts of pneumonia.
Dr. Hermele, who examined petitioner on July 30, 2007, testified he noticed poor chest wall movement on maximum inspiratory effort; however, due to petitioner's obesity, the expert was unable to determine what petitioner's normal chest wall movement should have been. Dr. Hermele diagnosed petitioner with "a combination of obstructive and restrictive pulmonary disease with interstitial fibrosis, and a right paralyzed diaphragm." He did not causally relate the paralyzed diaphragm with petitioner's occupational exposure but opined that it might have been due to nerve damage or might have been congenital. Petitioner's expert generally opined that "the pulmonary conditions are causally related to, initiated or exacerbated by the exposure to the  pulmonary noxious agents while employed by [respondent]."
Respondent's expert, Dr. Rowen, discussed the results of his October 30, 2008 examination of petitioner. He also characterized petitioner as obese, testifying this condition was consistent with petitioner's restrictive pulmonary disease and a contributing factor to his symptoms as it caused his abdomen to press upward and reduce his lung volume. He diagnosed petitioner as also having a multifactorial restrictive lung disease, interstitial lung disease, paralyzed right hemidiaphragm, obstructive sleep apnea, history of pulmonary embolism, and hypothyroidism. He found no evidence of obstructive lung disease in petitioner and explained how petitioner's lung capacity test results were consistent with a diagnosis of restrictive pulmonary disease, as opposed to obstructive lung disease. According to Dr. Rowen, petitioner's condition was consistent with congenital and non-occupational causes, such as multiple bouts with pneumonia, a prior pulmonary embolism, a paralyzed right hemidiaphragm, and obesity.
Dr. Rowen further explained that the chemicals petitioner was exposed to are generally only harmful when a person is exposed to huge quantities or actually ingests the chemicals; however, in smaller quantities, the chemicals only act as an irritant. He elaborated that if petitioner had been exposed to such high concentrations of the identified chemicals, he most likely would have collapsed on the spot.
Dr. Rowen did not find a causal relationship between the occupational exposure and petitioner's disability. He explained the stated agents are respiratory irritants that can cause coughing and occasional irritation but they normally do not cause fibrotic changes in the lungs and "are not the kind of exposures that cause obesity or even pulmonary fibrosis or a paralysis of the diaphragm." In elaborating upon his conclusion, Dr. Rowen discussed the effects of each of the various chemicals to which petitioner claimed to have been exposed.
In his oral decision, Judge Blake summarized the evidence and cited the applicable legal principles. He expressly credited the opinion of Dr. Rowen over that of Dr. Hermele as to the issue of whether or not petitioner's injury was causally related to work. He concluded petitioner did not show "through objective medical or scientific proof that his condition resulted from his occupational exposure [and] [t]he proofs provided are insufficient to allow a conclusion that the petitioner suffered a compensable injury."
Petitioner appealed, challenging the judge's factual findings and legal determinations as "inherently inconsistent and against the weight of the credible evidence in the record." According to petitioner, the unrefuted evidence clearly demonstrated he worked with well-known pulmonary irritants for over thirty-nine years and suffered from, among other things, pulmonary fibrosis. Petitioner urges that an application of the proper burden of proof and a thorough analysis of the evidence "leads to the reasonable and logical conclusion that his work exposures probably caused or contributed to his pulmonary fibrosis," requiring reversal of the decision of the judge of compensation. See Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 259 (2003) (holding that direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of the disabling symptoms is sufficient).
Petitioner further contends Judge Blake overlooked crucial evidence, failed to analyze the underlying medical records, and failed to explain in detail why he considered Dr. Rowen's conclusion more persuasive than that of Dr. Hermele. Petitioner additionally urges that the erroneous statement in the judge's opinion that petitioner smoked cigarettes for twenty-five years, rather than five years, may have skewed the judge's decision.
In a workers' compensation case, our review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Lindquist, supra, 174 N.J. at 262 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted)).
The definition of "compensable occupational disease" is found in N.J.S.A. 34:15-31(a), which reads as follows:
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.
"Material degree" is defined as "an appreciable degree or a degree substantially greater than de minimis." N.J.S.A. 34:15-7.2; Lindquist, supra, 175 N.J. at 256.
In order to prove causation in an occupational disease claim, a petitioner must produce evidence to establish both legal causation and medical causation. Lindquist, supra, 175 N.J. at 259. Legal causation means simply that "the injury is work connected." Ibid. Medical causation means that "the injury is a physical or emotional consequence of work exposure." Ibid. The burden rests with petitioner to "prove this causal link by a preponderance of the evidence." Laffey v. Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996).
Petitioner is not required to "prove that the nexus between the disease and the place of employment is certain." Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11 (App. Div.), certif. denied, 162 N.J. 485 (1999). Rather, "[a]ll that is required is that the claimed conclusion from the offered fact must be a probable or a more probable hypothesis." Wiggins v. Port Auth. of N.Y. and N.J., 276 N.J. Super. 636, 639 (App. Div. 1994) (internal citation and quotation marks omitted). The evidence offered by the petitioner must nonetheless "be such as to lead a reasonably cautious mind to the given conclusion. It need not have the attribute of certainty, but it must be well founded in reason and logic; mere guess or conjecture is not a substitute for legal proof." Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989) (internal quotation marks omitted).
Based on our review of the record and applicable law, we are satisfied the judge of compensation made credibility assessments and factual findings that are amply supported by the record. For example, Dr. Hermele offered only his opinion that petitioner was exposed to irritants and, therefore, that exposure, and not petitioner's history of pneumonia, his obesity, or his paralyzed diaphragm, caused his shortness of breath on exertion. Petitioner's expert made no distinction between a restrictive lung disease and an obstructive condition, nor did he discuss the type and intensity of exposure to the relevant solvents that would be necessary to cause lung damage as opposed to mere irritation. In other words, he offered no substantial scientific link between the testified exposure and petitioner's reduced lung capacity as was necessary to legally prove causation.
In contrast, Dr. Rowen offered a supported diagnosis that accounted for petitioner's symptoms and complaints that were not employment related. Furthermore, he credibly explained why he could not causally relate petitioner's restrictive lung condition to his exposure. Based on the testimony and evidence presented over four days of trial, the judge of compensation had ample basis to conclude that petitioner's case was comprised of no more than inference, stating, "[e]xposure to generally alleged deleterious substances does not automatically equate to an injury." Dr. Rowen presented the trier of fact with sufficient credible evidence that there were various causes for petitioner's shortness of breath that were congenital or otherwise unrelated to petitioner's employment, such as his obesity or his paralyzed diaphragm.
It is unclear why petitioner would fault the judge for failing to address the Material Safety Data sheets outlining the potential dangers of the specific chemicals, as they support Dr. Rowen's statement that the specified chemicals are merely irritants and do not cause fibrotic changes at the levels of exposure experienced by petitioner. Furthermore, these documents, which list only the potential effects exposure may have on a person's health, are not a substitute for objective medical evidence tending to prove that exposure to the chemicals caused the pulmonary diseases suffered by petitioner.
Petitioner is correct in pointing out the incorrect statement in Judge Blake's decision that petitioner smoked for twenty-five years, as petitioner testified he only smoked from ages nineteen to twenty-three and again from ages twenty-nine to thirty. Even if the judge of compensation did not merely misspeak when he made the statement, it cannot be said he "went so wide of the mark that a mistake must have been made[,]" requiring reversal. See Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). Although each expert mentioned the fact that petitioner smoked cigarettes earlier in his life, it did not appear to play a major role in either expert's opinion. Dr. Rowen based his inability to link exposure to chemicals to petitioner's pulmonary disease primarily on the fact that the chemicals to which petitioner was exposed generally act only as irritants and do not cause fibrotic changes in the lungs. Furthermore, Dr. Rowen identified petitioner's obesity and paralyzed right diaphragm as causes of his restrictive lung disease, making no mention of petitioner's former smoking habit. Indeed, Dr. Rowen testified that "[s]moking normally causes obstructive lung disease," and found no evidence of obstructive lung disease in petitioner. Accordingly, as the judge of compensation utilized the correct standard and legal analysis in reaching his ruling, his findings were amply supported by the record, and he appropriately articulated his credibility assessment, analysis, and findings, we discern no basis upon which to second-guess his decision.
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