January 11, 2012
EULIET SMITH, PETITIONER-RESPONDENT,
HOME INSTEAD SENIOR CARE, RESPONDENT-APPELLANT.
On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Claim No. 2008-27595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2011
Before Judges Payne and Reisner.
Home Instead Senior Care (Home) appeals from a February 3, 2011 decision of the Division of Workers' Compensation in favor of Home's former employee, Euliet Smith (Smith or petitioner).
Because the decision of the Workers' Compensation judge is supported by substantial credible evidence and is consistent with applicable law, we affirm.
Home employed Smith, a fifty-one-year-old woman, as a live-in caregiver for an elderly woman*fn1 suffering from "a touch of Alzheimer's" disease. Smith worked for this client for about a year and four months, doing "[a]bsolutely everything in the household" including cooking, cleaning, bathing and dressing the client, and taking her to church and to medical appointments. Smith was on duty twenty-four hours a day, seven days a week with every other weekend off. Smith characterized this job as creating the "most stress [she] ever had."
Smith testified that she was required to work twenty-four hours a day and seven days a week because the client's condition meant that "she couldn't be by herself."*fn2 Smith described the client as "off the wall," and "crazy sometimes." The client would "go in the street" or "run outside" when Smith was in the bathroom, requiring Smith to "run out and catch her." Smith stated that the client was "like a little baby that you have to monitor 24 hours per day."
Smith testified that the client woke up every hour and a half, including multiple times at night. Smith was unable to get a full night's rest, because the client would wake her up to sew, feed the cats, feed the birds, cut the shrubs, and water the plants at "2 o'clock, 3 o'clock, 4 o'clock." Smith stated that she only slept "[o]n and off like may be 10, 20 minutes sometimes. The most I ever got is like an hour sleep." Smith was so exasperated with her work conditions that she complained to her employer numerous times, asked for assistance with the client, and even told the employer: "I got to leave this job." However, the employer was unresponsive to her concerns.*fn3
The job left Smith exhausted. During her weekends off, she went to church on Sunday and then slept most of the time because her body was "overwhelmed."
On July 30th, 2008, while Smith was sleeping at the client's house, the client woke up at 2:00 a.m., "rushed" into Smith's room and made "a big scream." Smith woke up shaking and shivering. She testified that it took her about a half hour before she felt well enough to get up and respond to the client's needs. At that point, she gave the woman some milk and they both went back to sleep. At around 5:30 a.m. Smith woke up with the client again and "felt funny." Smith testified that the left side of her face felt like something was pulling on it and her speech was "dreary" and "dribbling." She was also drooling, had numbness in her hand, and could barely speak.
Believing that she had suffered a stroke, Smith called Home and asked her employer to send someone to relieve her so she could go to the hospital. However, Home did not send anyone. After waiting in vain for help to arrive, Smith called the Home employee who normally relieved her on alternate weekends. When the co-worker arrived, Smith was finally able to go to the emergency room at JFK Hospital. At the hospital, Smith, who was not hypertensive or overweight, and had never smoked, imbibed alcohol or used drugs, was diagnosed to have had a stroke and was admitted into the stroke unit. Several days later, on August 5, 2008, Smith was determined to be in stable condition and was discharged from the hospital.
After her release, her treating doctors suggested that Smith not work full time. Smith then went to work for Qualcare for four hours a day, Monday through Friday. After Qualcare, Smith began to work in the hospice at JFK Medical Center for eight hours a day as a "certified home health [aide]." Smith testified that as a result of her stroke, she no longer cleaned or cooked, because she was unable to lift objects with her left hand.
At the hearing, both sides' experts agreed that Smith had a stroke. However, Home contended that the stroke was not work-related but instead was a non-compensable "idiopathic event." Smith presented testimony from Dr. Leon Waller, a board certified internist who, in thirty years of practice, had treated "scores" of stroke victims. His report, which was admitted in evidence, characterized the cause of the stroke as Smith's work load in conjunction with the work-related sleep deprivation, the emotional and physical stress and fatigue of her work, and the startling event in which the client woke her.*fn4
In his testimony, Dr. Waller explained why he concluded that the stroke was work-related. First, he was able to eliminate "any other cause" such as hypertension, smoking, or other similar risk factors. Second, he found a causal relationship between "her description of the incident and the symptoms" she described.
Dr. Waller then described in considerable detail how sudden fright can cause increased blood pressure leading to "vascular spasm" and an "intracranial hemorrhage." He testified that the client waking Smith suddenly and frightening her most likely caused a sudden spike in her blood pressure, leading to "a small intracranial hemorrhage," which showed up on an MRI later performed at the hospital. In turn, such a hemorrhage "is often followed by some vascular spasm so that the blood supply [in the brain] is diminished. Depending on the distribution of the artery, that's what determines your symptoms."
He reiterated that the stroke Smith suffered was work-related, based on the elimination of other possible factors and considering the nature of her work. He explained that Smith's work was unusually stressful. It was "physically stressful and . . . emotionally stressful, and . . . those external stressors were what precipitated her stroke as opposed to just spontaneously in and of itself she had an intracranial hemorrhage." He further explained that "[t]he interruption of sleep habits can increase your blood pressure, certainly. Startling you [from sleep] can increase your blood pressure. A stressful work environment can increase your blood pressure." He testified that he considered "all of these things together" when he determined that Smith's work caused the stroke.
On cross-examination, he explained that "acute hypertensive episodes
can cause a stroke, and these kinds of stresses can cause hypertensive
episodes." He testified that "[a]cute stress
can cause . . . catecholamine release . . . and that catecholamine
release causes many symptoms including acute hypertension, palpations,
diaphoresis and others."
The employer's expert, Dr. Steven M. Lomazow, a board certified neurologist, specialized in treating headaches but also had considerable experience treating stroke victims. He also specialized in testifying as an expert witness for "the defense side." He agreed with Dr. Waller that Smith had no pre-existing risk factors for stroke, such as hypertension or diabetes. He testified that the stroke Smith suffered was "idiopathic," meaning that it was "of unknown cause"; neither he nor Smith's treating doctors knew what caused it. He opined, however, that the stroke was not related to Smith's employment, because being awakened suddenly and being frightened would not cause a stroke. He also opined that there was nothing in Smith's "line of work" that would make her more susceptible to having a stroke.
In response to a question from the judge as to whether a person could get excited, experience a rise in blood pressure and have a stroke as a result, the doctor testified that "it's possible, but within a reasonable degree of medical probability it's not what happened here." However, he could point to no objective evidence that "that didn't happen here." While he initially opined that Smith had no residual disability from the stroke, he admitted on cross-examination that she might have a minor residual weakness in her left hand as a result of the stroke.
In an oral opinion issued on February 3, 2011, the Workers' Compensation judge first considered Smith's testimony concerning the extremely stressful circumstances of her employment and the manner in which the stroke occurred. He also considered the testimony of the two experts, who agreed that she suffered a stroke, although they disagreed about the cause. Based on the testimony of Smith and the two experts, the judge found that Smith had a stroke "in the course of her employment while she was working" and that the injury was "compensable." The judge specifically credited the testimony of petitioner's expert that "the suddenness and nature of petitioner's awakening caused her blood pressure to surge causing the affected artery to spasm causing her stroke." He did not credit Dr. Lomazow's testimony that the cause of the stroke was unknown.
The judge awarded ten percent of partial total disability, because he found that Smith's only permanent limitation from the stroke was numbness in her left thumb. He also ordered Home to pay Smith's counsel fees and medical expenses.
Our review of the compensation judge's decision is limited. We do not decide the case de novo, but instead determine whether the judge's factual findings could reasonably have been reached on sufficient credible evidence present in the record. Shaudys v. IMO Indus., Inc., 285 N.J. Super. 407, 415 (App. Div. 1995). We may not substitute our own fact-finding for that of the compensation judge. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility" and we owe deference to the judge's expertise in workers' compensation issues. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal citation omitted).
The workers' compensation statute defines a "compensable occupational disease" as including "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." N.J.S.A. 34:15-31. However, a separate section of the statute, N.J.S.A. 34:15-7.2, specifically applies to cardiovascular or cerebral vascular incidents, including strokes. See Mathesius v. St. Barnabas Med. Ctr., 265 N.J. Super. 83, 89-91 (App. Div.), certif. denied, 134 N.J. 560 (1993).*fn5 In a compensation claim such as this one, which is based on a cerebral vascular injury (e.g., a stroke), the petitioner must meet the following proof burden:
[T]he claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.
Material degree means an appreciable degree or a degree substantially greater than de minimis. [N.J.S.A. 34:15-7.2.]
Section 7.2 requires the worker to demonstrate that a heart attack or cerebral vascular event resulted from something other than the stress and strain of everyday living or from a pre-existing condition that could have precipitated the attack at any time.
Section 7.2 . . . requires proof that the work effort was "qualitatively more intense than the strain of the physical activity to which the worker was accustomed in his leisure time." The section focuses "attention on the intensity and duration of the precipitating work effort or strain in evaluating its capacity to cause cardiac dysfunction." Second, section 7.2 redefines "material degree" to mean "an appreciable degree or a degree substantially greater than de minimis." . . .
The Legislature enacted section 7.2 to prevent recovery from cardiac incidents that as a matter of circumstance happen to manifest themselves in the workplace. Thus, section 7.2 reinstates the presumption that coronary-artery disease and heart attacks are the result of natural causes. Requiring a comparison between the work effort and daily-living effort relieves employers of liability for heart attacks that were as likely to have occurred outside the workplace. [Fiore v. Consol. Freightways, 140 N.J. 452, 467-68 (1995) (citations omitted).]
In Fiore, the claimant was overweight and a smoker, but he claimed that environmental factors at work caused him to develop a heart condition. Reading sections 31 and 7.2 together, the Court held that Fiore was required to meet the standards of both sections. Id. at 472-73. Unlike Fiore, however, this case does not involve dual causation. Smith did not have a pre-existing risk factor or a pre-existing non-work-related condition that was likely to have caused her stroke.
In a brief notable for its repetition, Home argues that petitioner failed to prove the elements of either an occupational injury under N.J.S.A. 34:15-31, or a traumatic/cardiovascular injury under N.J.S.A. 34:15-7.2. However, Home's arguments are largely premised on the testimony of its expert that Smith suffered an idiopathic injury that was not caused by her work. The compensation judge found otherwise, and we find no basis in this record to overturn his decision.
First, we cannot agree with Home's argument that Smith's expert was unqualified and rendered a net opinion. Dr. Waller had treated many stroke victims in his years of medical practice. He provided extensive testimony about the causes of strokes and explained in detail why he concluded that a combination of pre-existing work-related stress and the sudden shock at work caused Smith's stroke. See Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981). The fact that Dr. Waller did not produce any medical treatises to support his opinion is not fatal to his testimony. In fact, neither side's expert was able to cite to any specific medical treatises to support their views. They both relied on their general medical training and experience. The failure to cite medical treatises did not render either of their opinions net.
Second, we find no basis to disturb the judge's decision to credit Dr. Waller's testimony about the cause of the stroke. When pressed on cross-examination, Dr. Lomazow finally admitted that Dr. Waller's description of the four causes of strokes was correct, although he asserted that there were many other causes as well. He admitted that Dr. Waller's explanation of the cause of petitioner's stroke was "possible" although he considered it unlikely. Dr. Lomazow also sought to minimize Smith's overall stress level, thus placing the wake-up incident out of context. For example, he characterized Smith's workload as "normal," disregarding the extended, horrendously stressful work experience she described in her testimony, which was clearly "in excess of the wear and tear of [her] daily living" outside of the job. N.J.S.A. 34:15-7.2. We owe great deference to the judge's evaluation of the witnesses' credibility, and nothing in this record leads us to depart from that standard. See Close, supra, 44 N.J. at 599.
Crediting the testimony of Smith and her expert, the stroke she suffered fits within N.J.S.A. 34:15-7.2, as an injury "produced by work effort or strain involving a substantial condition, event, or happening in excess of the wear and tear of the claimant's daily living" that caused the injury "in a material degree." Contrary to Home's appellate argument, Smith proved that the stroke "arose out of and in the course of" her employment. N.J.S.A. 34:15-7. See Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986). To the extent not specifically addressed here, Home's appellate arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).