CP# 2004-6064 Hickey v. Jersey City Parking Authority
AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
JERSEY CITY PARKING AUTHORITY,
|CLAIM PETITION NO.: 2004-6064
DISTRICT OFFICE: Jersey City
The instant matter comes before the Court for trial in order to determine whether the death of EDWARD HICKEY was a consequence of occupational exposure during the course of his employment with the Jersey City Parking Authority and whether his wife LORRAINE HICKEY, the Petitioner, is entitled to dependency benefits.
On February 24, 2004 the Petitioner filed Claim Petition 2004-6064, wherein it is alleged that her husband Edward Hickey was in the employ of the Jersey City Parking Authority from 1983 as a parking attendant, that during the course of that employment he was “exposed to deleterious substances;” that he contracted esophagus cancer as a consequence of that exposure; and that he died on November 25, 2002 of esophagus cancer. She claims dependency benefits derived therefrom.
On April 6, 2005 the Respondent filed an Answer to the Claim Petition denying that the alleged injury and death arose out of and in the course of employment.
The parties were unable to come to an agreement thereafter and the matter was pretried and on October 25, 2006 trial commenced.
The parties stipulated that the decedent, Edward Hickey, was an employee of the Respondent and agreed to obtain and exchange necessary records to stipulate as to the specific dates of employment as well as his rate of pay. Such records have not yet been provided.
Admitted into evidence on October 25, 2006 as “P-1” was the Marriage Certificate memorializing the marriage of Lorraine and Edward Hickey on October 25, 1956 in Jersey City.
Admitted into evidence on October 25, 2006 as “P-2” was a Certificate of Death memorializing the death of Edward B. Hickey on November 24, 2002.
Admitted into evidence on October 25, 2006 as “P-3” was a billing statement from the McLaughlin Funeral Home for $8,457 for the funeral of Edward B. Hickey.
Admitted into evidence on March 21, 2007 as “P-4” was a letter dated May 16, 2005 from the State of New Jersey Department of Community Affairs, Division of Codes and Standards concerning 871 Bergen Avenue with attached documentation indicating asbestos removal consisting of boiler and pipes from the boiler room and the “B” level of the garage. The document shows 300 linear feet from the garage and 453 linear feet from the boiler room with anticipated waste consisting of 20 cubic yards.
Admitted into evidence on September 27, 2007 as “P-5” was the Curriculum Vitae of Plaintiff’s expert witness, Dr. George J. Ciechanowski, confirming his Certifications as a Diplomat in Critical Care Medicine, Pulmonary Medecine and Internal Medicine as well as his experience as Director of the Pulmonary Division at Christ Hospital; Director of the Medical/Surgical Intensive Care Unit at Christ Hospital and member of the New Jersey Board of Medical Examiners..
Admitted into evidence on September 27, 2007 as “P-6” was a collection of hospital records for Edward Hickey, including a narrative report from his attending physician, Dr. Mary Ibrahim, from his final day of life, November 24, 2002, presenting a Final Diagnosis of “End Stage of Cancer of the Esophagus with Metastasis and Ansarca; malnutrition; coronary artery disease and chronic obstructive pulmonary disease.”
Admitted into evidence on September 27, 2007 as “P-7” was an Independent Medical Evaluation by Dr. Malcolm Hermele based upon an examination of Edward Hickey performed July 3, 1997, concluding that he had chronic bronchitis.
Admitted into evidence on September 27, 2007 as “P-8” was the Independent Medical Evaluation Report by Dr. Joel Duberstein based upon an examination of Edward Hickey on October 5, 1999, concluding that there is “no evidence of chronic irritative industrial pulmonary disease or related disability” and reporting “normal ventilatory function” while speculating that “his symptoms may be cardiac in nature.”
Admitted into evidence on September 27, 2007 as “P-9” was a report by Dr. Ciechanowski concerning Edward Hickey based upon a review of the medical records marked as “P-6” as well as the reports of Dr. Hermele and Dr. Duberstein marked “P-7” and “P-8” respectively and concluding that Hickey’s “development of esophageal cancer was related to his chronic exposure to asbestos and other toxic fumes.”
Admitted into evidence on September 27, 2007 as “P-10” was an excerpt from the American Journal of Industrial Medicine entitled “An Epidemiologic Study of Cancer and Other Causes of Mortality in San Francisco Firefighters”
Admitted into evidence on September 27, 2007 as “P-11” was the August 3, 200 report of Dr. Mitchell Horowitz based upon a review of Edward Hickey’s medical records and concluding that the cause of death was not due to asbestos exposure but “rather …alcohol consumption, heavy cigarette smoking and GERD (gastroesophageal reflux disease).”:
Admitted into evidence on October 23, 2007 as “R-1” was an excerpt from the National Academy of Sciences web site entitled ”Asbestos: Selected Cancers.”
Admitted into evidence on December 6, 2007 as “R-2” was the curriculum vitae of Dr. William Kritzberg, the respondent’s expert witness.
Admitted into evidence on December 6, 2007 as “R-3” was a supplement to Dr. Kritzberg’s curriculum vitae.
Admitted into evidence on December 6, 2007 as “R-4” was Dr. Kritzberg’s report concerning Edward Hickey dated April 30, 2007, based upon his review of records listed therein.
The first witness presented was the Petitioner Lorraine Hickey, who testified that she married Edward Hickey on October 25, 1956 and was totally dependent upon him for support during the course of their marriage. She testified that Edward died November 24, 2002 and that he was an employee of the Jersey City Parking Authority, working at the parking garage located at Bergen and Sip Avenues. She asserted that she knew little about Edward’s work, having gone to his place of work only twice, and then only to the outside.
On cross-examination she confirmed that Edward smoked cigars, about two or three daily, but claimed he gave them up nearly 15 years ago. She also confirmed that she smoked about a half pack of cigarettes daily and had done so for “about 20 years.” She asserted that Edward stopped smoking because he had open heart surgery and that he never had any problems breathing. She said he stopped working for the Parking Authority “about 18 years ago.”
On November 15, 2007 the Petitioner presented George Adamson as a witness. He testified that he had been employed by the Respondent Parking Authority for 26 years continually up to the present and that he had worked with the decedent, Edward Hickey, at the 871 Bergen Avenue facility for “three or four years before he passed away.” He asserted that Edward Hickey “worked in the booth inside the building” and “periodically…he would have to leave the booth and park the vehicle.” He wasn’t sure how many times, but he did recall seeing Edward Hickey park vehicles in the basement area, described as space for “15 or 20 cars.” He also recalled a time when the basement area was blocked off with plastic for “weeks” for asbestos removal. On cross examination he acknowledged that he saw Edward Hickey smoke cigars. Upon questioning by the court he conceded that he drove a truck garaged at Bergen Avenue and his only opportunity to observe the decedent was limited to when he left the facility in the morning, when he returned for lunch, when he left after lunch and when he returned at the end of the day.
The next witness presented by Petitioner was David Hock, who testified that he had been employed by the Jersey City Parking Authority for almost 30 years and that he had worked at the Bergen Avenue facility. He stated that his job when he worked at Bergen Avenue was parking cars. He said he worked for 13 years at that building, which consisted of “seven floors plus a roof.” He recalls that when he was parking cars Edward Hickey was working “inside the booth.” He further testified that on occasion he worked in the booth, when on the midnight shift, because only one attendant was on duty and he had to both work the booth and park cars. He testified that he would park cars on the lower levels, including the basement and sub-basement, when on the midnight shift and that Edward Hickey worked the midnight shift “maybe two times a week” and would perform the same duties. On further questioning, however, Hock indicted that he rarely had to park vehicles when on the midnight shift; that on many of those shifts he never had to park a car in the basement; and that when he parked cars in the basement for monthly parkers he was not required to do so, but was doing it “as a favor.”
Respondent called Vito Goglucci as a witness. He said he had been employed by the Parking Authority for 23 years as a Supervisor and was now Director of Operations. As a supervisor he would schedule employees and oversee their work. He testified that Edward Hickey’s responsibility was primarily to man the booth and that he would rarely have to leave the booth to park a car himself. He testified further that the monthly parkers had a sticker and would park themselves, primarily in the basement levels. Daily parkers, who would utilize an attendant, primarily parked on the first through third levels. He testified that there was a closed boiler room which contained no parking spaces.
Goglucci testified that Edward Hickey “had a cigar in his mouth…even if it wasn’t lit…the majority of the time in the parking lot.” Upon cross-examination he confirmed that he had filed a case for occupational exposure, including asbestos. He asserted, however, that asbestos was removed only from the boiler room and subbasement of the Bergen Avenue facility. He asserted that the subbasement contained perhaps a dozen spaces utilized primarily for long term storage and permit parkers.
The Petitioner then presented Dr. George J. Ciechanowski who was offered as an expert entitled to present opinions on the subject of esophageal cancer in relation to exposure to asbestos. Over the objection of the Respondent the Court ruled that the witness was entitled to render such opinions and that the objections went to the weight to be afforded those opinions. Dr. Cichanowski testified that he researched the available literature concerning asbestos and esophageal cancer.
The witness was asked to assume certain facts, that Edward Hickey worked for the Respondent from 1983 through 1996; that he died November 24, 2002 at the age of 70; that he worked eight hours a day as a parking attendant in a booth located inside a multi-level parking garage; that individual vehicles stopped at the booth when entering the facility; that when he worked the evening shift he “had to go around and check the vehicles, which required him to look into the basement and subbasement; that on that shift he occasionally parked cars in the basement and sub-basement; and that asbestos was removed from the boiler room and sub-basement requiring closure of the facility during removal. The witness testified that he had available for his review the medical records marked as “P-6” as well as Dr. Hermele’s report (P-7) and Dr. Duberstein’s report (P-8).
Dr. Ciechanowski opined that Edward Hickey “did succumb to his cancer as a result of exposure to asbestos.” When asked the basis of that opinion, he asserted that the asbestos exposure is “well established” and he reiterated the conclusion in his written report (P-9) that:
as detailed above in the patient's occupational history and past medical history, the patient suffered from chronic inhalation of multiple noxious fumes, in particular, asbestos, to which he was exposed on a regular basis, as detailed in the patient's history. It's, therefore, my opinion, with a reasonable degree of medical certainty, that the patient's development of esophageal cancer was related to his chronic exposure to asbestos as well as other toxic fumes.
When asked if that opinion was directly related to the degree of asbestos exposure the witness replied “not all of it” and that:
It's related to Mr. Hickey's history of not being a significant smoker or drinker. And the reason for that conclusion is that the history delineates the fact that he smoked rarely and he drank almost as rarely as he smoked, and causally, cancer is related to both smoking and drinking very heavily in the population who drinks and smokes. So if you put that aside, because he was not doing those things, then definitely the preponderance of evidence sort of points in the other direction of asbestos and/or other noxious fumes or inhalants that may have caused this problem.
When asked the basis for his conclusion that there was “significant asbestos exposure” the witness asserted that:
I think in the history there was remediation done in the building, in the part of the building that Mr. Hickey frequented on a regular basis over many, many years. The fact that he was a parking attendant in a booth in a poorly ventilated area inside the garage where he was not, you know, able to sort of escape, and everything was indoors, and the ventilation was obviously not very good, there were many cars going in and out. In the old days brakes were made out of asbestos, so that just the act of braking probably released - you know, produced particles into the air, not to mention the fact that asbestos was used very commonly in older buildings as insulation.
When asked if a different factual finding as to the exposure would call into question the opinions expressed the witness agreed. The witness further agreed that cigar smoke tends to be inhaled less deeply than cigarette smoke and that “head and neck cancer are much more common with cigar smoking, and tobacco chewing.” He also agreed that cohabiting with a smoker increased the risk of cancer.
On cross examination Dr. Chichanowski was directed to the portion of his report (P-9) entitled “Occupational History” wherein he asserts, as to Edward Hickey, that:
His booth was located within 30 feet of a row of pipes covered with asbestos insulation and the condition of the insulation was poor and deteriorated and was friable with evidence of dust trickling down from pipe coverings as noted by the patient. The garage parking area was enclosed in all sides and did not have ventilation adequate to remove noxious substances…
He was asked if he reviewed any engineering reports in preparation of his report or testimony he acknowledged that the sole source of his information was Petitioner’s counsel. He further acknowledged a body of scientific opinion that “reflux, obesity, achalasia and tobacco smoking” are significant risk factors for esophageal cancer, although he opined that reflux was not a significant factor. He was directed to Exhibit P-8, Dr. Duberstein’s report, wherein he asserts that Edward Hickey, “Used to drink one hundred beers a week for thirty years…[and] smoke twenty cigars a week for thirty years but not in four years.” He initially asserted that the Duberstein report was contradicted by Dr. Hermele’s report (P-7) “which…said that he did not.” He was thereupon confronted with the specific language of the Hermele report, which says “[Edward Hickey] is a former smoker having quit March 11, 1995 after smoking two cigarettes daily for 18 years. He is a non-drinker…” and conceded that the reports were not inconsistent. He was also confronted with the Petitioner’s testimony that she smoked and that her husband smoked two to three cigars a day and conceded that that was consistent with the Duberstein report. He was then confronted with his own report that Edward Hickey received a workers compensation award in 1963 due to lung problems related to ink fume inhalation and conceded that he was unable to address the contribution, if any, of that exposure to the risk of esophageal cancer.
The Respondent presented Dr. William Kritzberg as a medical expert witness in internal medicine. Dr. Kritzberg testified that death certificates are of little value in establishing the true cause of death in the absence of an autopsy. He did however, opine, based upon his review of records available, that Edward Hickey “expired due to complications of his esophageal carcinoma. He went on, however, to assert that there are two types of esophageal cancer, “squamous cell carcinoma and adenocarcinoma,” and that nothing in the records he reviewed enabled him to determine from which type the decedent suffered. He opined that that information was important in determining causation and not obtainable without either a lifetime biopsy or an autopsy, neither of which were accomplished. He asserted that obesity, tobacco smoking, tobacco chewing and alcohol abuse were all risk factors for esophageal cancer. He also opined that gastroesophageal reflux disease was an additional risk factor, although he did note that some gastroenterologists have a different opinion. He concluded that there was insufficient information, in the absence of an autopsy or other evidence, to determine the cause of Edward Hickey’s death or his esophageal cancer.
The evidence clearly establishes that the decedent, Edward Hickey, was married to the petitioner in this matter at the time of his death. She testified that she was wholly dependent upon the decedent and her dependency status is not disputed. There appears to be no serious dispute over the immediate cause of decedent’s death, both experts agreeing that he died of complications arising from esophageal cancer. The parties have stipulated that the decedent was an employee of the respondent, and there has been no contradiction of the assertion that the period of employment was approximately thirteen years, between 1983 and 1996. The only workplace addressed was a parking garage located at 871 Bergen Avenue in Jersey City and the only job described was that of parking attendant. It must therefore be assumed, in the absence of contrary evidence or assertion, that the majority of Edward Hickey’s time as an employee of the respondent was spent as a parking attendant at the Bergen Avenue facility. What is not conceded is the nature of the occupational exposure, if any, and the relationship of any such exposure to the illness and death of Edward Hickey.
The evidence concerning exposure to “deleterious substances” is limited to testimony confirming that automobiles were regularly in the proximity of Edward Hickey’s work area and testimony and documentation of the removal of asbestos in the 871 Bergen Avenue facility. The exposure to automobiles was asserted by witness George Adamson, who testified that autos would stop at the booth manned by Edward Hickey and receive a ticket, and Vito Goglucci, who confirmed that same fact. Asbestos removal was addressed in Document “P-4” confirming removal of asbestos from a boiler room and “B level garage in the fall of 1991. Witness Goglucci testified that the material was removed from the boiler room only, and that room was closed off and separate from other parts of the building, where cars were parked. He further testified that Edward Hickey would have no occasion to enter the boiler room and that the subbasement area outside the boiler room was limited to perhaps a dozen parking spaces utilized primarily for long term storage and permit parkers. Witness Adamson recalled the basement area being blocked off with plastic for weeks due to asbestos removal. I hereby determine that automobile emissions were regularly present at the work site and that asbestos was removed from one discrete area in the subbasement and boiler room of the 871 Bergen Avenue facility.
There is some dispute over the frequency of Edward Hickey’s exposure to the subbasement area from which asbestos was removed. No witness asserted that he had any access to or exposure to the boiler room from which the bulk of the asbestos was removed. Petitioner would seek a finding that on a regular basis, at least twice weekly, Edward Hickey worked the late shift and regularly parked cars in the subbasement area and walked through the entire building, including that subbasement, for security reasons. It is not asserted that he had occasion to enter the subbasement during shifts when an attendant was present, his regular day shift. The Respondent would note that testimony was that only about a dozen spaces were located in the subbasement and those were used primarily for long term storage and permit parking. I find Vito Goglucci most credible on that issue and accept his assertions that “security” on the late shift was provided by manning the booth at the garage entrance, not by walking around the garage and that a worker on the midnight shift would rarely need to leave the booth and that permit parkers, the primary users of the lower floors of the garage, would park themselves. The two witnesses presenting a contrary view were simply not credible. George Adamson was vague in his testimony, which was contrary to the other facts and witnesses, and on cross examination he conceded that he had minimal opportunity to observe that to which he testified. David Hoch’s testimony was severely discredited by his concession that when he worked the midnight shift he rarely had to park cars and that on many of those shifts he never parked a car. I therefore find that Edward Hickey rarely had occasion to enter the subbasement area as part of his job duties and that Petitioner has failed to establish such exposure occurred, although the possibility cannot be ruled out.
As to the medical evidence, I note that Dr. Chichanowski’s opinions were based upon certain assumptions which were articulated on direct and cross examination. He assumed that Edward Hickey inhaled asbestos “to which he was exposed on a regular basis.” His written report (P-9) asserts that the booth where Edward Hickey spent most of his time “was located within 30 feet of a row of pipes covered with asbestos insulation and the condition of the insulation was poor and deteriorated and was friable with evidence of dust trickling down from pipe coverings.” On cross examination he conceded that he had no direct knowledge of the work area, but rather had relied upon information provided by Petitioner’s attorney. He further assumed that Edward Hickey was not “a significant smoker or drinker” and specifically supported his opinion of causation on the absence of those exposures. Unfortunately nothing in the record supports the description of the area surrounding the work area found in Chichanowski’s written report and factual findings articulated herein do not support the regular exposure assumed. As to smoking and drinking, the evidence is overwhelming that Edward Hickey was exposed to second hand smoke regularly, smoked both cigars and cigarettes for many years and drank 100 beers a week for thirty years up to 1995. Dr. Chichanowski himself conceded that his opinions would be called into question if his factual assumptions were found to be contrary to the actual facts. I hereby find and conclude that the very assumptions upon which Dr. Chichanowski based his opinion were contrary to the facts as indicated by the evidence. I am therefore unable to credit Dr. Chichanowski’s opinions and therefore further conclude that the petitioner has failed to meet her burden of establishing that Edward Hickey suffered an occupational exposure which constituted a substantial contributing cause or aggravation of his esophageal cancer and consequent death.
The foregoing finding makes in unnecessary to address the Petitioner’s motion to strike the testimony of Dr. Kritzberg, since I have no need to consider that testimony.
In light of the foregoing determinations the petition filed in this matter is herby dismissed, with prejudice. The Respondent shall pay the cost of stenographic services to Global Stenographic in the total sum of $1,350 for nine (9) sessions on the record.
April 2, 2008 ________________________________
KENNETH A. KOVALCIK, JWC