On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2005-21485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2012 -
Before Judges Lihotz, Waugh, and St. John.
Respondent Exxon-Mobile Chemical Co. (Exxon), appeals from the final administrative decision of the Division of Workers' Compensation awarding benefits to petitioner Retha Johnson. We affirm.
We discern the following facts and procedural history from the record on appeal.
Johnson worked for Exxon as a chemical operator in the synthetics division from 1988 to 2004. Her last day of work was in May 2004.
Johnson filed her workers' compensation claim petition against Exxon in July 2005. She alleged occupational injuries resulting from exposure to various substances during her employment. Exxon filed its answer in August, denying Johnson's allegations. The parties subsequently exchanged discovery.
The trial was held before a judge of compensation on five days during 2010. Johnson testified and offered one expert witness. Exxon offered two expert witnesses. The following facts were developed at the trial.
Prior to working for Exxon, Johnson worked for American Cyanamid (Cyanamid) for ten years. She initially carried bags of powdered chemicals and subsequently worked as a "magnaflox operator." Cyanamid provided Johnson with "one piece" long johns, a "one piece" white uniform, rubber gloves, and multiple layers of socks for protection. While at Cyanamid, Johnson signed a card in which she acknowledged that the plant contained formaldehyde, methyl ethyl ketone, and asbestos.
Throughout her time at Exxon, Johnson was required to mix liquid chemicals, which were obtained through fluid lines and valves, with powdered chemicals, which were stored in bags. Johnson's attorney presented her with a list of chemicals used by Exxon at the plant in which she worked. She testified: "Basically, everything on this list I used. I basically worked with." Johnson also testified that she made gasoline, additives, and synthetic lubricants such as "Mobile One."
According to Johnson, when she opened the valves "they [sometimes] leak[ed] all over [her]," and "dust from the bags . . . [would] get over [her] and all." She would use a hose to blow the dust off. Sometimes she was sprayed with liquid when she opened the valves, but she would continue working until she completed the product she was making, known as a "batch." Johnson's uniform consisted of cotton khaki-pants and a cotton shirt.
Each day Johnson received a "batch ticket" which stated which product she was required to make that day. The batch ticket listed the chemical ingredients she needed to make the batch. However, the batch ticket used codes rather than the names of the chemicals. Each batch ticket also stated whether the worker was required to use a half-face respirator, a full-face respirator, or no respirator.
When Johnson made a batch, she opened 2000-pound bags of powdered chemicals, which she poured into the liquid chemicals. She stated that the bags produced "a lot of dust; 2000 pounds of powder." She claimed she experienced shortness of breath and sometimes "couldn't breathe" as a result of the dust. She also worked with a fine black powder called "Darco," also known as "carbon black."
Johnson sometimes removed fatty-acid remnants from equipment known as the "decanter" and "accumulator." She monitored a gauge as a hose removed the remnants. Johnson wore a face visor and gloves during that process. However, Johnson said that at times the gauge would stick and "you got flooded . . . . [I]t gets all over the drum, all over you . . . ." For the first "ten or fifteen years," Johnson also mopped the floors after her shift with "SC 106," which is xylene.
In 2000, to improve safety, Exxon provided Johnson and her colleagues with plastic suits and a different type of respirator. At that time, employees were also required to shower following each batch. Prior to 2000, employees only showered at the end of their shift.
According to Johnson, she was exposed to asbestos in 1990 when a private company came to remove the asbestos from Exxon's facility. Johnson said the asbestos was "on the pipes . . . in the ceiling, over the decanter, accumulator, the slurry tank." Although the company marked off the area with plastic and red tape, Johnson worked during the asbestos abatement. She testified that she "could see it in the air" beyond the areas cordoned off with plastic, and at times she had to go through the cordoned off areas to perform her job.
In May 2004, Johnson noticed blood in her urine and was subsequently diagnosed with kidney cancer. As a result, surgeons removed one of Johnson's kidneys and her spleen. She testified that she has a "mass" on her remaining kidney.
Johnson experiences shortness of breath, and cannot walk "too fast or too far," and must sleep with three pillows to help her breathe. She has a cough that produces phlegm. Johnson admitted to smoking approximately two to three packs of cigarettes per week for approximately thirty years. In addition, Johnson has hypertension and is overweight.
Johnson's expert, Malcolm Hermele, M.D., is not board certified, but performs "medical examinations with [an] emphasis on pulmonary, chest X-rays, [and] history," and has a "subspecialty" in rheumatology and internal medicine. The parties stipulated that Hermele was qualified as an expert in pulmonary medicine and internal medicine.
Hermele examined Johnson in 2006, noting that she was exposed to "a variety of pulmonary irritants and toxic substances," such as individual chemicals, "solvents, . . . welding [and other] fumes, cleaning fluids, asbestos, . . . formaldehyde, toluene, [and] various petroleum products." Hermele noted that Johnson was exposed to other "substances," which she could not identify. Hermele's description of ...