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BEFORE:

                HONORABLE PHILIP A. TORNETTA,
                Judge of Compensation

APPEARANCES:

                GLEN KAPLAN, ESQ
                Attorney for Petitioner

                OFFICES OF WILLIAM BARRETT
                 BY: WILLIAM DALZELL, ESQ.
                 Attorney for Respondent

   

This is the court’s decision in the matter of Annie Johnson v. Campbell Foundry, CP No. 2007-11564.

Introduction

            In this matter, the issue before the court is  whether the petitioner, Annie Johnson, (hereinafter “petitioner”), is entitled to receive dependency benefits  pursuant   to N.J.S.A. 34:15-13 for the death of her husband, Rasberry Johnson, (hereinafter “decedent”), which she claims was caused by the decedent’s employment with respondent, Campbell Foundry (hereinafter “respondent”).

Procedural History and Statement of Facts

            Petitioner filed a claim petition on May 1, 2007 alleging that the decedent sustained an occupational disease arising out of and in the course of his employment with respondent resulting in his death.  Respondent filed  an answer to the claim petition on June 21, 2007   stating that it had not paid any medical expenses or burial expenses, it had not furnished any medical aid and it does not agree with the information concerning the dependents named in the Dependency Claim petition. A pre-trial memorandum was entered by the court on  June 10, 2009. The trial commenced on January 6, 2010 and continued on September 21, 2010,  and  December 14, 2010, at which time the trial concluded. The parties stipulated that  the decedent had been employed by respondent until 1999[1] and that his gross weekly wage in 1999 was  $1000.00. 

            Petitioner  and decedent were married  on October 18, 2002. They had both been  previously married and divorced. (P-1 Evid.)  They had known each other for approximately 25 years and had lived together for a period of time  prior to their marriage. Decedent died  on January 19, 2007 and the immediate cause of death indicated on the death certificate was adenacarcinoma of the lung. (P-2 Evid.)  Petitioner testified that decedent had worked as a floor supervisor[2] for respondent and did not work for any other employer and to the best of  her  knowledge, decedent did not smoke. Decedent would work  from 6:00 a.m. to 6:00 p.m. Monday through Friday and occasionally on Saturday and Sunday. When petitioner would pick up decedent at work, decedent’s hat, goggles, face and clothes were covered with black soot and dust

            Dr. Leonard Joachim testified on behalf of petitioner. He is  licensed to practice medicine by the State of New Jersey  and is board certified in internal medicine and had held a fellowship in pulmonary medicine. Dr. Joachim reviewed decedent’s death certificate, a Material Data  Safety Sheet ( P-7 Evid.),  medical records from St. Barnabas Hospital, which included diagnostic studies, physicians’ reports, an operative report, pathology reports, and a report of a CAT scan of the chest performed  by Northfield Imaging Center.  Based upon his review of these records and documents, Dr. Joachim learned that decedent had smoked at one point in his life, but had  been a non-smoker for the  thirty year period prior to being diagnosed on December 4, 2006 with  adenocarcinoma, a form of  lung cancer.  He also learned that decedent had  no prior history of lung cancer  and had been employed at respondent’s foundry for over thirty years, during which time decedent had been exposed to various inhalation substances, predominantly silica, as well as silica derived irritant substances and polyscilic aromatic hydrocarbons.   Dr. Joachim opined   that the cause of decedent’s adenacarcinoma was his exposure to these various respiratory toxins and carcinogens. Dr. Joachim testified that  according to the medical literature, exposure to such products can cause lung cancer, specifically adenacarcinoma. He  concluded  that since the adenacarcinoma manifested in  both the upper and lower parts of decedent’s lung,  the period of decedent’s exposure to the  toxins and carcinogens was for approximately thirty to forty years and  the interval between the exposure and the development of the adenacarcinoma  was from 10 to 20 years. He further testified that cigarette smokers usually develop non-adenacarcinoma, such as squamous cell carcinoma or small cell carcinoma and that adenacarcinoma is predominately found in non-smokers or someone who had smoked, but who had subsequently  quit smoking.

            After reviewing two hypothetical questions prepared by petitioner’s counsel. (P-5 Evid.), Dr. Joachim testified that based upon a reasonable degree of medical probability,   the exposure to various  chemicals at the workplace substantially contributed to the death of decedent and that  cigarette smoking was not  a substantial factor in the cause of decedent’s death.

            Dr. Alan J. Lippman testified on behalf of respondent. He is board certified in oncology and is licensed to practice medicine by the State of New Jersey. He reviewed decedent’s medical records from St. Baranabas Hospital, interrogatory answers and a Material Data  Safety Sheet ( P-7 Evid.)  Dr. Lippman testified that adenacarcinoma  can be caused by  occupational exposure to asbestos, silica, uranium, chromium, nickel and cigarette smoking. Dr. Lippman testified further  that silica dust can cause a condition  called silicosis, which is a progressive scarring of the lung, which can be associated with lung cancer. Usually someone exposed to silica  would have silicosis if they have lung cancer, but if lung cancer was due to smoking, silicosis would not be present.  According to the medical records he reviewed, decedent did not have silicosis, therefore, Dr. Lippman opined that the likely cause of  decedent’s adenacarcinoma was smoking.

             However, on cross-examination,  Dr. Lippman admitted that in his report he stated  that  he estimated that there was a 25% chance that silica was a contributing  cause of decedent’s lung cancer and  when asked if  this estimate is substantial, he testified  no and changed his estimate to 5% to 25%. He further testified on cross-examination he had no information as to when decedent may have started smoking, the kind of cigarettes he smoked or how many times decedent may have started or stopped smoking.  Upon questioning by the court, Dr. Lippman testified that exposure to silica alone can cause adenacarcinoma,

Legal Analysis

              It is  undisputed that in a Worker’s Compensation case, the burden of proof  rests upon the petitioner, who must persuade the trier of fact by a preponderance of the credible evidence on each and every element of his or her claim. Perez v. Pantasote, Inc., 95 N.J. 105 (1984). It is also undisputed that respondent is subject to the same evidentiary standard on those elements of the case where it bears the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452 (1995).  

            According to N.J.S.A. 34:15-13, a dependent of a worker is entitled to workers’  compensation benefits if the death of  the worker results from an accident or occupational disease arising out of and in the course of  the worker’s employment.

            N.J.S.A. 34:15-31(a) defines a compensable occupational disease to 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.  “Material degree” is defined as an appreciable degree or a degree substantially greater than de minimis.  N.J.S.A. 34:15-7.2 ;  Lindquist v. City of Jersey City Fire Dep’t, 175 N.J. 244 (2003) 

            In order to prove causation in an occupational disease claim, a petitioner must produce evidence to establish both legal causation and medical causation. Lindquist, supra, 175 N.J. at 259. Legal causation means that “the injury is work connected.” Ibid.

Medical causation means that “the injury is a physical or emotional consequence of work exposure.” Ibid.

            Petitioner is not required to prove that the nexus between the disease and the place of employment is certain.  Magaw v. Middletown Bd. Of Educ., 323 N.J. Super. 1, (App. Div. ), certif.  denied, 162 N.J. 485 (1999). All that is required is that the claimed conclusion from the offered fact  must be more probable or a more probable hypothesis. Wiggins v. Port Auth. of N.Y. and N.J., 276 N.J. Super. 636 (App. Div. 1994).

           Applying the above principles to the present case , I conclude that petitioner has proven by a preponderance of the credible evidence that decedent’s death  was due to   adenacarcinoma of the lung  and did arise out of and in the course of his employment with respondent as a result  of  his exposure to  various inhalation substances, predominantly silica, as well as silica derived irritant substances and polyscilic aromatic hydrocarbons present at  respondent’s foundry.  I accept  the findings and opinions of Dr. Joachim.  He credibly explained  how  the cause of  decedent’s adenacarcinoma was his exposure to various respiratory toxins and carcinogens, predominantly silica, at his workplace. He testified that  based upon the  medical literature  exposure to such products can cause lung cancer, specifically adenacarcinoma.  He  concluded  that since the adenacarcinoma manifested in  both the upper and lower parts of decedent’s lung,  the period of decedent’s exposure to the  toxins and carcinogens was for approximately thirty to forty years and  the interval between the exposure and the development of the adenacarcinoma  was from 10 to 20 years. He further testified that cigarette smokers usually develop non-adenacarcinoma, such as squamous cell carcinoma or small cell carcinoma and that adenacarcinoma is predominately found in non-smokers or someone who had smoked, but who had subsequently  quit smoking. Dr. Joachim offered a substantial scientific link between  decedent’s occupational exposure and  his  lung cancer, which ultimately resulted in his death, as was necessary to prove causation.

            In contrast,   I reject Dr. Lippman’s  opinion that that the likely cause of  decedent’s adenacarcinoma was smoking, which he based upon the fact that exposure to silica usually would result in silicosis being present in the lungs and according to the medical records he reviewed, decedent did not have silicosis. However, on cross-examination,  Dr. Lippman estimated that  there was up to a 25% chance that silica was a contributing  cause of decedent’s lung cancer, an estimate which this court finds to be substantially more than de minimis. He further testified that  he had no information as to when decedent may have started smoking, the kind of cigarettes he smoked or how many times decedent may have started or stopped smoking. Furthermore, upon questioning by the court, Dr. Lippman testified that exposure to silica alone, without the presence of silicosis, can cause adenacarcinoma.

Conclusion

           Based upon all of the foregoing and the stipulation of decedent’s  wages as $1,000.00 per week,  petitioner is entitled to dependency benefits in the amount  70% of wages or $700.00 per week, payable in accordance with N.J.S.A. 34:15-13. No proofs were presented with respect to medical or funeral expenses incurred.

            Decedent  at the time of his death was Medicare entitled. The Centers for Medicare and  Medicaid services has been contacted for an itemization of monies paid for the compensable condition(s). (P-8 Evid.) As of this date, the Centers for Medicare and Medicaid Services review is pending.

             Should the parties not be able to amicably resolve the responsibility for reimbursement to the Centers for Medicare and Medicaid Services, this court retains jurisdiction to determine the extent to which respondent is liable for reimbursement to Medicare.

           This court has no jurisdiction to determine the total amount due the Centers for Medicare and Medicaid Services.

            I will allow a  fee to Dr. Joachim of  $800.00 for one report and  one court appearance,  payable $400.00 by petitioner and $400.00 by respondent.

            I will allow a legal  fee to petitioner’s attorney of  $40,000.00,  $16,000.00 payable by petitioner and $24,000.00 payable by respondent.

           Petitioner shall reimburse her attorney for reasonable and necessary trial costs, if any,  and such costs shall be identified in the Order for Judgment

          I will allow  stenographic fees to  William C. O’Brien Associates of $150.00 and to Global Court Reporting Services, Inc. of $ 300.00, both  payable by respondent 

           Petitioner’s attorney shall  submit to the court an order which conforms with this decision.

                                                                               ______________________________

                                                                              Philip A. Tornetta

                                                                              Judge of Compensation

Dated: February 23, 2011