NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2013
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2004-22126.
Alan T. Friedman argued the cause for appellant (Bagolie-Friedman, L.L.C., attorneys; Mr. Friedman, on the brief).
Sean T. Kean argued the cause for respondent (Cleary, Giaccobe, Alfieri, Jacobs, L.L.C., attorneys; Mr. Kean, on the brief).
Before Judges Axelrad and Sapp-Peterson.
In this appeal of the denial of petitioner John Donato's occupational disease claim, petitioner contends the judge of compensation committed reversible error when she failed to exclude the testimony of respondent Jersey City Municipal Utilities Authority's ("JCMUA") medical expert, Dr. William S. Kritzberg, and also erred when she drew an adverse inference against petitioner, who failed to produce his coronary treating physician with whom he had treated for many years. We disagree and affirm.
Petitioner was employed by respondent between 1961 and 1974. Thereafter, he became employed by a trucking company, but returned to respondent in 1986, where he remained until his retirement in 1999. Petitioner commenced his employment with respondent as a clerk, but the vast majority of his career was spent as a vehicle maintenance supervisor where he supervised the maintenance of cars, trucks, dump trucks and vacuum trucks.
As a clerk, petitioner was exposed to soot and whatever the workers brought back from the sewer plant. Likewise, as a supervisor he was exposed to dust and different kinds of toxic chemicals, including diesel fumes.
In 2004, petitioner was diagnosed with pulmonary disease. He filed a claim petition alleging that he suffered from pulmonary lung disease arising out of and in the course of his employment with respondent between 1961 and 1999. Respondent denied that petitioner's condition arose out of his employment.
The matter proceeded to trial before a judge of workers' compensation. In addition to petitioner, Dr. Malcom H. Hermele testified on his behalf. Respondent presented its executive director, Daniel Becht, and Dr. William Kritzberg as its witnesses.
Petitioner testified about his job responsibilities and expressed the belief that he had been exposed to toxic chemicals, resulting in his inability to do chores around his house like vacuuming or cleaning. Dr. Hermele found that petitioner had "permanent disability of 75% of total" as a result of "chronic bronchitis, probable restrictive pulmonary disease, small airways disease[, ] and probable COPD[.]" He opined that petitioner's condition was causally related to and/or aggravated by his workplace exposures and that "the overall disability is total, from all causes." He additionally opined that whether petitioner's breathing problems were related to his lung disease or his heart disease could not be distinguished.
Becht acknowledged that site testing revealed the presence of contamination at petitioner's work site and that the site was currently being monitored by the Department of Environmental Protection. He also acknowledged that JCMUA sued the previous property owner due to its claim of pre-existing contamination at the property. He explained that he believed the lawsuit was filed in order to recover costs associated with cleaning ...