BEFORE:  DIANA FERRIERO, J.C.

APPEARANCES:

John V. Nardone, P.A.,
BY:  John V. Nardone, Attorney for Petitioner

Law Offices of Robert W. Frieland,
BY:  Steven J. Currenti, Esq., Attorney for Respondent

      This is the court’s decision in the matter of Linda Iaconetti v. Armour Products, Claim Petition 2000-8359.  Petitioner alleges occupational exposure caused her to sustain pulmonary, nasopharyngeal, ophthalmic and neuropsychiatric injuries.  Respondent admitted petitioner was in its employ for the period July 1, 1997 through May 1, 1999 earning a gross weekly wage of $480. At all times relevant, petitioner worked in an office in Lawlins Park, Wyckoff, New Jersey, an industrial complex that housed several companies.  Respondent denied the remainder of the allegations.

      Armour Products sells glass etching supplies to retail stores and to Eastern Art Glass, a mail order business.  The glass etching product comes in two forms:  Armour Etch and Etch Bath. At no time during Petitioner’s employment did respondent manufacturer the products at the Wyckoff facility.

Sydney St. James, the owner of Armour Products, testified that the product is manufactured off-site by another company and then transported in drums to a bottler who places the product into individual consumer units of either three or 12 ounces.  A 12 ounce bottle of Armour Etch was entered into evidence as P-1.  On the front of the bottle is the following warning: 

                  DANGER:  MAY BE FATAL OR CAUSE PERMANENT DAMAGE

                  TO SKIN, EYES OR RESPIRATORY TRACT.  VAPOR HARMFUL.

                  CAUSES SEVERE BURNS WHICH MAY NOT BE IMMEDIATELY

                  PAINFUL OR VISIBLE.

There are additional warnings on the back of the bottle.

      Respondent hired petitioner to work as a full-time customer service representative during the hours of 8:30 am to 5:30 pm with a 30 minute lunch break.  Petitioner testified that on one occasion respondent asked her to help etch items for display at a trade show and that on two occasions respondent asked petitioner to etch items to be used in a catalogue display.  The only protective equipment provided was gloves.  Sidney St. James denied that petitioner had any involvement making etching samples.

      Petitioner also asserted that respondent kept “open vats” of Etch Bath by the bathroom door and “every time” she went to the ladies room she inhaled the Etch Bath which smelled “vinegary” and “burned” your nose.  St. James testified that the “vat” was a one gallon plastic pail with a cover that would be filled 1/4 to 1/3 with product.  In fact, St. James brought the pail to court.  St. James admitted that the pail was kept on a counter near the ladies’ room because the final step in the etching process is rinsing the etched glass.  St. James estimated that the bucket was opened a maximum of 12 times during petitioner’s employment.  Susan Henshall, an employee of the respondent for approximately 11 years, testified that she assisted St. James in making samples about once every couple of months, but Henshall had no recollection of Iaconetti ever assisting with the making of samples.

      Iaconetti testified “everyday I would come in to work and there would be like this gray, filmy stuff on my desk like lint.” (Emphasis added.)  Petitioner claims that she had to clean her desk every morning, that the “fresh air vent [was located] right over [her] head” and that she ate lunch at her desk every day.  Iaconetti testified after working 18 months for respondent she felt “stuff” hitting her skin and that she had to rub her eyes because they would get “itchy.”  (Emphasis added.) Henshall admitted that the office dust resembled what you would find in a home.

      Iaconetti also alleged that a constant odor came into the building and that on a couple of occasions the building had to be evacuated because “the smell was so bad.”  Henshall testified that given the office was located in an industrial complex “all the buildings blended together.  There was different industries in the area and plus there was also a landscaping company in the area that dumped their debris in the back that would break down and cause odors, at times, and plus odors drifted over from Novament.”

      Novament, a metal powder manufacturing facility, was adjacent to respondent at the Wyckoff facility. Iaconetti and two co-workers Florence Kerdica and Fran Castrovinci came to believe that the dust in the office emanated from the Novament operation.  All three workers advised St. James of their concerns and in response to their complaints St. James hired a service to clean the office once per week.  She also installed a Hunter Air Cleaner with a HEPA filter, and she had the air vents professionally cleaned.

      Iaconetti testified that the cleaning of the air vents exacerbated her working conditions:  “…the stuff that was coming in through the fresh air vent from the company next door came in more now because there was no dirt in the vent to block it.  So I was getting showered with this stuff…it actually felt like it was pelleting [sic] me but it was so fine…”  (Emphasis added.)

      The Occupational Safety and Health Administration (hereinafter “OSHA”) was contacted.  The parties dispute who made the call.  However, admitted into evidence as R-4 is a letter from OSHA in response to St. James’ “request for the personal and wipe sample[s].”  The sampling took place on May 24, 1999.  The petroleum distillates sample “were found to be below the detection limit of the analytical instrumentation.”  Likewise, the zinc, nickel oxides as nickel and chromium samples were “found to be below the detection limit of the analytical instrumentation.”

      OSHA also took wipe samples from and around computers and a table.  The concentrations of nickel oxides as nickel, zinc oxide as zinc and chromium were all below the OSHA Permissible Exposure Limit (hereinafter “PEL”).  Finally, OSHA took a sample from the vent pipe on the roof top of Armour Products on July 8, 1999 and again found that the concentration of nickel was below the OSHA PEL.

      Petitioner claimed she was in excellent health when first hired by respondent.  However, she testified that she began “losing energy”, “falling asleep at her desk”, getting “headaches”, feeling “achy”, getting “numb” lips and often waking “totally discombobulated.”  Iaconetti also claims she developed a persistent cough which began approximately six months before she left respondent’s employ.  Petitioner identified “a girl Florence” who continually coughed.  Although she developed these symptoms, petitioner never asked respondent to provide her with treatment.  Rather, petitioner obtained treatment through her private physicians.

      Petitioner’s current complaints are daily headaches, constant cough (especially on rainy days), loss of voice, achy joints, tired, numbness in her arms and skin eruptions on her head and arms.  She also claims scar tissue developed in her eyes because of her work exposure.

      Petitioner gave no psychiatric complaints during her testimony.  Therefore, her claim for psychiatric disability is dismissed for failure to sustain the burden of proof.

      Iaconetti admitted to smoking, on average, one pack of cigarettes per day over the last 30 years.  During her employment with respondent, Iaconetti smoked a half pack of cigarettes per day.

      Iaconetti and her co-workers Kerdica and Castrovinci all filed third party claims against Novamet for the alleged exposure.  The three women split a gross settlement of $40,000.  On at least one occasion, Kerdica and Castrovinci were present in the courtroom during this trial.  However, at no time did petitioner call these women in support of her claim.

      N.J.S.A. 34:15-31 defines compensable occupational disease as “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.”  (Emphasis added.) A decision in an occupational exposure case must be based on “objective, quantitative evidence…and cannot be based on the claimant’s subjective characterization of the work environment.”  Laffey v. Jersey City, 289 N.J.Super. 292, 306-307, certif. denied 146 N.J. 500 (1996).  It is the court’s decision that petitioner failed to sustain her burden of proof.

      To begin, petitioner completely failed to prove that the exposure allegedly suffered while employed by respondent was anything other than de minimis.  The OSHA testing results were the only objective evidence produced on this issue and all results reflected that the levels were below OSHA PEL for the substances sampled.  Petitioner consistently testified to “stuff” being on her desk, to “stuff” hitting her skin.  However, she not once identified what the “stuff” was.  There was a complete lack of evidence as to the composition, chemical makeup of this “stuff.”  Petitioner apparently wants the court to accept that simply because a metals processing plant was adjacent to her place of employment that this “stuff” had to be a by product of Novamet’s manufacturing process.  The court is not able to make such an evidential leap.

      Petitioner also complained about odors emanating from the “vats” of Etch Bath near the ladies’ room. I did not find petitioner’s testimony credible on this issue.  By describing the containers holding the Etch Bath as “vats”, Iaconetti clearly sought to give the court the impression that the making of the etched glass samples was a large, constant operation conducted by respondent. In other words, the court believes that Iaconetti exaggerated the extent and frequency etched samples were made. The testimony of St. James and Henshall are inconsistent with petitioner’s testimony. The one gallon pail used to make the samples clearly fails to qualify as a “vat.”

      Again, the court is left to wonder why the petitioner did not call her former co-workers Kerdica and Castrovinci to corroborate her testimony, especially since they were present during part of the trial.  The court infers from the non-production of Kerdica and Castrovinci that they would not have corroborated petitioner’s testimony.

      Moreover, reference to a “vinegary” odor that burned your nose each time one frequented the ladies’ room is insufficient under N.J.S.A. 34:15-31.

This was not a constant odor that petitioner smelled from her desk.  Again, this odor, at best, would fall into the de minimus category.

      Dr. Jeffrey Nahmias, a pulmonary specialist, testified on behalf of the petitioner.  Dr. Nahmias opined that petitioner developed spasmodic dysphonia, laryngeal dyskinesia and cough variant asthma due to her work at respondent facility.  Dr. Nahmias based his diagnosis, in part, on the history he took from petitioner.  Dr. Nahmias testified that petitioner told him she was exposed to “silver, copper, zinc, nickel powders and hydrochloric acid.”  But as stated previously, petitioner completely failed to produce objective, quantitative evidence that she was exposed to any of those materials. The record is totally devoid of any evidence to suggest that petitioner was exposed to silver, copper, zinc, nickel powders and hydrochloric acid. The information upon which Dr. Nahmias relied came from petitioner herself.  Thus, under Laffey, Dr. Nahmias’ opinion must be rejected because it is based upon Iaconetti’s subjective characterization of what she was exposed to while working for respondent. Id.

      Likewise the opinions of Doctors West and Klein, petitioner’s evaluating otolaryngologist and ophthalmologist, respectively, must be rejected because again these opinions were based upon Iaconetti’s subjective characterization of what she was exposed to while working for respondent.  Id.

      Petitioner did tell the doctors that she was exposed to “dust” and Susan Henshall testified there was dust but in amounts one would find at home.  Therefore, there was nothing peculiar or characteristic about the level of dust at respondent’s facility.

      Assuming arguendo that petitioner established exposure sufficient to satisfy the mandate of Laffey, petitioner’s experts have not persuaded the court that the exposure caused her current complaints.

       Dr. Nahmias failed to produce, or testify to, any medical and/or scientific studies that would link petitioner’s condition to her alleged occupational exposures while in respondent’s employ.

      Dr. Nahmias did testify that nickel chromium and hydrochloric acid are found “to a very small degree” in cigarette smoke.  Petitioner admitted to smoking an average of one pack of cigarettes a day for 30 years.  Thus, it can be argued that petitioner’s own personal smoking habit is responsible for any long term exposure petitioner claims to nickel chromium and hydrochloric acid.

      The court also rejects Dr. Nahmias’ opinion that petitioner suffers from laryngeal dyskinesia because Dr. Nahmias did not conduct the definitive test to determine that condition, namely a laryngoscopy. Dr. West is the only doctor in this case to conduct a laryngoscopy.  Dr. West found “vocal cord polyps and some swelling of the laryngeal artenoids.”

      The court finds the opinion of Dr. Rowen, respondent’s evaluating pulmonologist, to be more persuasive regarding the cause of petitioner’s condition. Dr. Rowen had petitioner undergo pulmonary function testing, and the results were consistent with mild airway obstruction. Dr. Rowen opined that petitioner suffers from mild chronic obstructive pulmonary disease (hereinafter “COPD”) secondary to smoking, tobacco dependence and vocal cord polyps secondary to smoking.  Dr. Rowen further opined that based upon the objective evidence presented Iaconetti was exposed to negligible amounts of contaminants during her tenure with respondent. 

      It is accepted medical fact that smoking causes COPD and that COPD causes one to cough. Petitioner has smoked for 30 years averaging one pack of cigarettes per day.  It should come as no surprise that her smoking has adversely affected her lungs and the quality of her voice. It also is widely accepted that vocal polyps cause hoarseness of voice and occasional dysphonia.

      Dr. Rowen’s opinion is consistent with the facts produced at trial and “it is based on a sound, adequately founded methodology involving data and information of the type reasonably relied on by experts in the scientific field.”  Rubanick v. Witco Chemical Corp., 125 N.J. 421, 431 (1991).  None of petitioner’s evaluating doctors produced studies establishing a link that the exposures alleged by the petitioner caused the conditions alleged. 

      Fees are as set forth in the attached Order of Dismissal.

                                       ________________________________

                                       Diana Ferriero, J.C.