CP# 2003-34615 Ashton v. Port Authority of NY & NJ
STATE OF NEW JERSEY
NEW JERSEY DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT
DIVISION OF WORKER’S COMPENSATION
OCEAN COUNTY C.P. 2003-34615
Port Authority of NY & NJ,
B E F O R E : HONORABLE BRADLEY W. HENSON, SR.
JUDGE OF COMPENSATION
A P P E A R A N C E S :
Thomas G. Lynch
Campbell Lynch & Ortiz, LLC
4808 Bergenline Ave.
Union City, N.J. 07087
Attorney for the Petitioner
Attorney for Respondent
On October 29, 2003, the Petitioner, Michael Ashton filed Claim Petition, 2003-34615 with the New Jersey Division of Workers’ Compensation alleging permanent disability as a result of occupational pulmonary disease.
The Petitioner began his employment with the Port Authority of New York and New Jersey on November 1, 1993. The petitioner continues to be employed by the Port Authority as an active Police Officer. Following training at the Port Authority Police Academy, Mr. Ashton was assigned to The Port Authority Bus Terminal, New York. The petitioner alleged that his employment at the Port Authority Bus Terminal included outdoor patrolling of the bus terminal traffic that emerged from and entered into the Lincoln Tunnel. In 1996, the petitioner voluntarily transferred to the Holland Tunnel where he performed similar traffic regulation duties. On the afternoon of September 11, 2001, Mr. Ashton reported to the World Trade Center to aid in the rescue and recovery efforts. The petitioner testified that he worked at the World Trade Center for a period of three weeks straight, twelve hours a day, and intermittently thereafter. The petitioner returned to his duties at the Holland Tunnel until August 2002, at which time he transferred and became a patrol officer at PATH where he is stationed currently.
Petitioner filed a claim for occupational pulmonary disease with the New Jersey Division of Workers’ Compensation on October 29, 2003, C.P. 2003-34615. Mr. Ashton alleged that his pulmonary disability arose from his exposure to a variety of known and unknown pulmonary irritants, including dust and fumes, during the course of his employment.
In order for an employee to prevail on an occupational disease claim, the conditions of compensability set forth in N.J.S.A. 34: 15-31 must be satisfied. The statute defines a “compensable occupational disease” 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.
- 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].
Exposure to generally alleged deleterious substances does not automatically equate to an injury. A compensable injury must be of “an appreciable degree or a degree substantially greater than de minimis”, N.J.S.A. 34:15-7.2, and “demonstrable objective medical evidence” should be furnished in support of a claim. N.J.S.A. 34:15-36. Our Courts have consistently required the petitioner to establish the causal relationship between his disease and occupational conditions. Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div. 1996), certif. den. 146 N.J. 500 (1996); Wiggins v. Port Authority, 276 N.J. Super. 636 (App. Div. 1994) (quoting Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 203 (Sup. Ct. 1934), aff’d 114 N.J.L. 254 (E & A 1935)).
In Laffey v. City of Jersey City, the petitioner claimed chronic bronchitis and chronic obstructive pulmonary disease as a result of constant exposure to dusts, fumes, chemicals, and other irritants while employed as a police officer for Jersey City. The Appellate Division reversed a 37 ½ % award for permanent partial disability for pulmonary disease. The Court viewed the petitioner’s subjective characterizations of his work environment and expert testimony based solely on these subjective complaints as “insufficient to justify an award on an occupational disease basis” stating that:
Where an employee seeks to recover on occupational disease because of exposure to the general environment to which the rest of the public is exposed, the employee must present sufficient credible evidence that will raise the compensation court’s determination from one of conjecture to one of cautious reasoned probability. Id. at 308. [Emphasis added].
Similarly in Wiggins v. Port Authority, supra, the compensation court’s award was reversed due to the petitioner’s failure to “provide any objective medical or scientific evidence establishing a causal link between chemical exposure and temperature variations and the exacerbation of his multiple sclerosis”. Id. at 644.
In the instant matter, as in Laffey, supra, the petitioner has failed to meet the standards of N.J.S.A. 34:15-31 with objective medical evidence that a relationship exists between his alleged exposures at various Port Authority facilities and his current respiratory symptoms. It is clear that the petitioner has not submitted medical proofs substantiating that he suffered an occupational injury that would constitute permanent disability within the meaning of the statute. N.J.S.A. 34:15-36. Though petitioner complained of dizziness, headaches and had some trouble breathing, he acknowledged that his exposure was “just part of the job” and that the air smelled like New York City, a general environment similar to that which the petitioner in Laffey, supra, was exposed. Dr. Monroe Karetzky’s examination of the petitioner on behalf of the respondent produced no evidence of lung disease or impairment of lung functions. His assessment was based on physical examination, chest x-rays and pulmonary function tests performed. The petitioner had “normal vital capacity, normal inspiratory flow rates, normal FEV and FEF ratio, normal diffuse capacity, normal level of oxygenation and normal level of carbon dioxide elimination”. No abnormalities presented themselves in the x-rays and the physical examination was negative.
No evidence establishing “a lessoning to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury” as required by N.J.S.A. 34:15-36 and Perez v. Pantasote, Inc., 95 N.J. 105 (1984) has been presented. In Perez, the Supreme Court held that a permanent partial disability may only be awarded if the Court finds that the petitioner has met his or her burden of proving (1) “a functional restriction of the body, its members or organs” demonstrated by “demonstrable objective medical evidence” and not upon “petitioner’s subjective complaints” and (2) whether the alleged injury “is minor or serious enough to merit compensation”. Id. at 116. Petitioner’s medical examination by Dr. Kareztky found no impairment and the petitioner is currently capable of full occupational duties. The Court in Perez, supra, held that “a condition that does not impair an employee’s working ability will be compensable only if it is serious enough to interfere with other aspects of the employee’s life”. Id. at 117. The petitioner’s expert, Dr. Leonard Joachim, was unable to specifically identify anything other than sleep related problems when questioned about the effect of the petitioner’s complaints on his overall lifestyle:
The Court: And did you talk to him about what changed in his life, what’s impaired in his life, why does he have this material impact, what’s causing him to not be able to do? I assume you considered all that.
The Witness: Yes. For example, he couldn’t do—I don’t know if I have that in the report. He had mentioned that he couldn’t do the things that he was able to do.
The Court: Do you know specifically?
The Witness: Specifically I don’t recall. I know he uses two or three pillows and he’s –
The Court: He did what?
The Witness: He had to use two or three pillows to help him breathe. He says he snores at night.
The Court: At night?
The Witness: Right.
The Court: What about during the day? How does this 50 percent of partial total disability because of his problems impact him during the day?
The Witness: Well, he has exertional chest pain, he fatigues easily and he doesn’t have endurance for repetitive tasks that he had mentioned.
The Court: Is he still working now as a police officer?
The Witness: Yes, he is.
The Court: Does this impact him, for example in being able to run after a suspect?
The Witness: I did not ask him specifically that. I don’t recall if I had.
[Dr. Joachim, May 9, 2008, 25: 12-16].
It appears from this testimony that Dr. Joachim assertions of a casual relationship between any respiratory symptoms and an alleged impairment in the petitioner’s ability to work are based solely on subjective characterizations of the petitioner.
Dr. Joachim had concluded, from his examination, that the petitioner suffered from obstructive and restrictive lung disease. However the petitioner did not inform Dr. Joachim, as he had Dr. Karetzky, that he had been diagnosed with obstructive sleep apnea in 2005; a condition that provides an explanation for the petitioner’s subjective complaints of sleeping difficulties at the time of Dr. Joachim’s examination. Obstructive Sleep Apnea is a disease that may be caused and/or compounded by obesity. The petitioner has been characterized, when examined by both doctors, as an obese male weighing approximately 217 pounds at 5’8”. Obesity is not only a contributing factor of obstructive sleep apnea but also “affects certain aspects of pulmonary studies” (Dr. Joachim, May 9, 2008, 29: 5-7). Throughout the fourteen and a half year period that the petitioner worked for respondent and claims occupational exposure he took “no medications for treatment of his pulmonary symptoms, in particular no bronchodilators or corticosteroid by inhalation” (Dr. Karetzky, May 9, 2008, 39: 9-12). The only treatment undertaken by the petitioner for respiratory related problems has been a tonsillectomy and adenoidectomy as well as an uvulectomy to treat his obstructive sleep apnea. Irregularities in the pulmonary tests done could also be attributed to the obstructive sleep apnea:
Q: How would sleep apnea and the surgeries that he had affect his test results?
A: Well, the primary manifestation of the test results is generally on the inspiratory portion of the flow volume curve, that’s the spirometry. Do you see the impaired flow rates? This would also indicate that he has difficulty performing a maximal inspiratory maneuver and also presumably will imply some limitation on his degree of inflation, but that is variable. Primarily it manifests on inspiratory volume with flattening and what’s called “sawtoothing” and also sometimes with premature ending, that he can’t blow it out because it gets trapped.” [Dr. Karetzky, May 9, 2008, 44: 11-24].
Q: On the test. If I can read it, is it FEF50? Are you with me?
Q: What’s that all about?
A: That’s a remark about the inspiratory limit, that it’s suspicious for impaired inspiratory maneuver that’s associated with obstructive sleep apena. [Dr. Karetzky, May 9, 2008, 54: 4-11].
It appears the petitioner’s obstructive sleep apnea is a pre-existing condition much like the multiple sclerosis suffered by the petitioner in Wiggins v. Port Authority, supra. Obstructive sleep apnea is the only objective medical condition that petitioner has been able to provide positive medical test results and records of an injury and subsequent treatment. Petitioner has not indicated through objective medical or scientific proof that this condition resulted from his occupational exposure. Weighed against all other subjective complaints, some of which a strongly related to obstructive sleep apnea, the proofs provided are insufficient to allow a conclusion that the petitioner has suffered a compensable injury.
Therefore, for the reasons set forth herein, I find that no objective medical evidence has been furnished to support subjective complaints of pulmonary impairment and the petitioner has not demonstrated any material lessoning of his ability to work as a result of alleged respiratory symptoms. Therefore Claim Petition 2003-34615 is hereby dismissed for failure to sustain the burden of proof. Respondent shall submit the appropriate form of Order.
Bradley W. Henson, Sr. Date:____________________