CP# 93-861 Johnson v. Griffin Pipe
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
BURLINGTON, BURLINGTON COUNTY DISTRICT
NO. C.P. 93-000861
HONORABLE MATTHEW W. PARKS
Judge of Compensation
GEORGE T. KOTCH, ESQ.
By: LAWRENCE T. MARINARI, ESQ.
1844 Burlington-Mt. Holly Road
Burlington, New Jersey 08060
Attorney for the Petitioner
By: CRAIG SUMMERS, ESQ.
10 Carnegie Center
Princeton, New Jersey 08543-5226
Attorney for the Respondent
Ann Johnson filed Claim Petition 93-000861, a dependency claim petition ,on June 8, 1993 alleging she was the widow of Samuel Johnson, Sr. who died on June 3, 1992. The claim petition alleged that the petitioner stopped work for the respondent in April of 1985 and that he never returned to work. The alleged causes of death were: duties, exposures and exertions of his employment. The actual cause of death was cited as chronic lung disease. Ms. Johnson also alleged wages of approximately $250 per week.
The respondent, Griffin Pipe, filed an answer on March 17, 1993 stating that receipt of the claim petition was its first notice of the claim and put the petitioner to her proofs in all matters. The respondent did admit the date of last employment was December 31, 1985 and the date of death was June 3, 1992.
A full trial was commenced on January 4, 1999 with the taking of the testimony of the petitioner, Mrs. Johnson. It appeared that on the initial date of trial the only testimony taken were stipulations of the parties as set forth above.
Between the taking of the stipulations there were conferences with respect to possible settlement under N.J.S.A. 34:15-20 (“Section 20”) of the Workers’ Compensation Act. The case was again listed on July 12, 1999 and on that date the petitioner apparently was ill and the court authorized the taking of the depositions of the petitioner on July 14, 1999. The case was again listed on October 4, 1999. The petitioner’s pulmonary expert scheduled to testify on February 7, 2000. On that date in spite of the long continuance the doctor was not available on the scheduled date of February 7, 2000.
There were continued conferences between counsel for disposition of the claim under Section 20 and when that failed the testimony of Dr. Sidney E. Friedman was taken on March 12, 2001. The respondent’s attorney was given a specific date for the appearance of his doctor, Dr. Siegal on May 16, 2000 and respondent’s attorney stipulated on the record that when he first contacted the office of Dr. Siegal he was advised that the doctor could only appear on Wednesdays and Fridays which was not the regular day of the respondent to appear before the court. The court then agreed to the special day of May 16, 2001 and again respondent’s attorney stated that he contacted the doctor’s office in the first week of April 2001 to confirm testimony to be given to the court on May 16, 2001 and also sent a letter to the doctor confirming the date, time and location of the court for his appearance and testimony. Once again, respondent’s office contacted Dr. Siegal’s office and was assured that the doctor would be present. Respondent’s attorney has stated that he had called Dr. Siegal’s office at least four times in the morning and all that he got was an answering machine. Respondent’s attorney then called the answering service who was unable to contact the doctor and respondent had no explanation or reason why the doctor failed to appear. He further indicated that he had discussed the matter with petitioner’s counsel who at this point agreed to allow respondent’s attorney to submit into evidence Dr. Siegal’s report in lieu of live testimony.
Petitioner’s attorney then indicated on the record that he would normally ask that the record be closed and the doctor’s report should not be placed in evidence nor should the doctor be afforded the opportunity to testify. It was petitioner’s counsel’s opinion that it would probably be counterproductive to do that and he, therefore, waived his right to cross-examine which both he and the court felt was a significant concession. Petitioner’s attorney also indicated on the record that the only question was causation and asked the court to give whatever credibility or weight it felt proper to said report.
It was the court’s opinion at that time that in the interim the actual testimony of the petitioner, Anna H. Johnson, widow of Samuel Johnson, Jr. was taken on January 29, 2001 at which time the death certificate was marked as P-2 in evidence. The funeral bill was marked as P-3 in evidence. Discharge Summary of Zurhbrugg Hospital covering the petitioner’s confinement of June 2, 1989 through June 9, 1989, was marked as P-4 in evidence. Discharge Summary of Zuhrbrugg Hospital dated April 4, 1999 was P-5 in evidence and Discharge Summary of Zuhrbrugg Hospital dated May 17, 1999 marked as P-5 in evidence.
The widow testified that she was 77 years of age at the time of her testimony; that she married the decedent July 2, 1949 in Florence, New Jersey and the marriage certificate was marked P-1 in evidence. The petitioner also testified that neither she nor the decedent had ever been married before and that she had not remarried after his death.
Mrs. Johnson testified that Samuel Johnson was employed by Griffin Pipe at the time of their marriage and worked for the respondent, Griffin Pipe, until December 1985 and had never worked for anyone else. She described his duties while employed by the respondent as: “He rolled pipe, built and tore down ladles and at the end did janitorial work.” She further indicated that the majority of his 25-plus years of employment for the respondent was as a laborer. It was her sworn testimony that the decedent wore clean blue work clothes to work each day and that they lived approximately a mile and a half from the Griffin Pipe plant where Mr. Johnson worked. Mrs. Johnson further testified that at the end of each workday, Mr. Johnson would arrive home from work with his clothes covered with white or gray dust. She also indicated that when he came home his face and arms would often also be covered with residuals of white and gray dust particles. As soon as the decedent would come home he showered immediately. In addition, she testified that when he did arrive home, at times the dust particles on his face and arms would fall onto the porch and attach to porch and house as he entered same.
For a number of years prior to his death, Mr. Johnson was under regular medical care of two primary physicians. The first one was Dr. Shaver who retired from medical practice and then the decedent began treating with Dr. Fabian Switnicki from sometime in the mid 1980s until his death in 1992. As stated, prior to petitioner’s retirement from employment, his duties changed to those of general janitorial duties and according to the witness this was brought about primarily because of his inability to perform the physical requirements required of a pipe builder and ladle builder due to the progressive worsening of his pulmonary problems. The decedent took a disability retirement pension from the respondent when he did retire in December of 1985 and never worked again until his demise in June of 1992.
From the time the decedent retired until his death in June of 1992 he progressively became more and more limited from a physical standpoint due to the worsening of his pulmonary problems. This limitation was indicated in his ability to walk and pursue any type of physical activities.
Beginning in the late 1980s, Mr. Johnson was on oxygen a good deal of the time and eventually required a portable oxygen unit when he was away from home. From that time on he became more and more house-bound.
The records of Zuhrbrugg Hospital for petitioner’s admission there in June of 1989 indicate his chief complaint was diarrhea which he had for several months. The records also indicate that a physical examination indicated decreased breath sounds from the chest bilaterally with an increased expiratory phase with occasional rhonchi. Discharge diagnosis included diverticulitis resulting in chronic diarrhea and also indicated and included a diagnosis of Chronic Obstructive Pulmonary Disease.
For the April 1991 admission he was again admitted with complaints of increasing diarrhea. Once again records indicate that Mr. Johnson had decreased breath sounds bilaterally, an increase in expiratory phase and bi-basilar rales. A chest x-ray taken during this admission was interpreted as indicative of Chronic Obstructive Pulmonary Disease.
The records of Zuhrbrugg Hospital for his admission in May and June of 1991 with an acute onset of shortness of breath and an arterial blood gas on room air during this admission showed a PC02 of 6.6, T02 of 30 and a saturation of 49.8%. During this hospitalization oxygen was administered to the petitioner. A chest x-ray performed during this admission showed Chronic Obstructive Pulmonary Disease, bilateral central pulmonary hilar prominence, pulmonary artery hypertension, small calcified granuloma of the left lung base and bilateral interstitial pulmonary fibrosis. The discharge diagnosis was acute respiratory failure with chronic obstructive pulmonary disease and cor pulmonale. Decedent’s final admission to Zuhrbrugg Hospital on June 2, 1991 he was seen by Dr. Switnicki with complaints of breathing and extremely cyanotic condition. He was taken directly from Dr. Switnicki’s office to the hospital on the evening of June 2, 1992 and expired a short time after having being admitted. The death certificate which is in evidence indicated that he died from respiratory failure with chronic lung disease. No autopsy was performed. The decedent was 68 years of age on the date of death.
The widow testified that the decedent had a past history of cigarette smoking and that he did smoke at the time there were married in 1949 and continued to smoke until approximately early 1980s when he stopped smoking. The widow was not certain as to how much the petitioner smoked but in her opinion she felt it was less than a carton per week.
The petitioner produced Dr. Sidney E. Friedman who testified he was licensed in the State of New Jersey and is Board-Certified in Internal Medicine. He was admitted as an expert in the pulmonary field. The doctor never had the occasion to examine the decedent and based his opinion on the facts contained in the hypothetical question which included exposure while in the course of his employment and the records of the Zuhrbrugg Hospital. The facts contained in the hypothetical which was marked P-7 in evidence over the objection of respondent’s attorney, in that all hypothetical questions stand or fall based upon the facts contained therein. The doctor not only had the hypothetical question but had the opportunity of reviewing chest x-rays that had been taken of the decedent in the hospital and it was his opinion that the chest x-ray is a diagnosis for advanced pulmonary disease. In his opinion it disclosed that the patient had minimal pleura emphysema; also fibrositis, evidence of pulmonary - - evidence for pulmonary arterial hypertension which is the correct designation in clinical medicine and pulmonary medicine which is called cor pulmonale which notes advanced chronic objective disease. It was the doctor’s opinion that cor pulmonale occurs when a patient or victim of several forms of pulmonary disease have severely injured lung tissue and there is a burden on proper oxygenation of the blood and in the circular system of the lung. The lung has its own circulatory system. It has arteries that deliver the blood to the lungs to become oxygenated. And there are veins that return it back to the heart to be oxygenated. It was his further opinion there is a markedly increased impression of the pulmonary circulation and this - - as a result of this is extreme pulmonary hypertension. There are various after effects. This increases the symptoms of shortness of breath and fatigue and weakness and also causes what is called right-sided heart failure. When there is lung disease and the right ventricle in put under pressure and there is increased hypertension in the pulmonary circulation, this can cause heart failure. It is called right-sided heart failure. It is very significant. It is usually evidenced for an in-stage or advanced stage of pulmonary disease. The doctor also found fibrosis which he defined as scarring of the lung tissue itself. It was his further opinion that there are many causes of pulmonary fibrosis. It means that particular material was inhaled by the individual during his lifetime. It does not happen overnight. Usually chronic. It’s additive. It takes time to develop. And there are examples of this. Coal miners get pulmonary fibrosis. People exposed to asbestos get pulmonary fibrosis. The material reaches not only the bronchial passage, the bronchi, but the materials are of small enough size to reach the air sacs itself and because they are irritating many of these are like sand or metallic products like asbestos and cause scarring of the lung tissue. It was the doctor’s opinion that the widow’s description of the clothes he wore everyday was very important. He also felt that since he worked in a pipe factory there was welding, cutting of pipe and various heating processes and that he worked the parts of the dust was metallic, metallic dust, fine metallic materials. And were so fine that they looked like dust. This was inhaled and reached tiny air passages, tiny air sacs and caused pulmonary fibrosis. And he based this on the occupational history and the description of the wife and the x-rays he read. The doctor stated that the date of the x-ray read was May 18, 1989. The doctor further admitted that he was familiar with the fact that the decedent had a smoking history but he did not feel that smoking cigarettes would cause scar tissue. Because cigarette smoke consists mostly of fumes, there is no large particular substance in cigarette smoke.
It was the doctor’s further opinion that the records of the Zuhrbrugg Hospital, the Discharge Summary dated June 2, 1989, showed abnormal findings on auscultation of the chest listened to with a stethoscope. It was the doctor’s further opinion that the medication that the petitioner was on for the June 1989 hospitalization Theo-Dur and Ventolin are medicines used in individuals who have obstructive airway disease characteristic for COPD. Other medications that he was on were for heart disease, more specifically Quinidine and Digoxin. With respect to the hospitalization in April of 1991 it was his opinion that the report showed COPD with marked dilation of the pulmonary arteries suggesting some pulmonary arterial hypertension. Inflammatory infiltrate was suspected at the right base. It was his opinion that the person interpreting the x-ray in his report was not entirely correct but did concur that the decedent had chronic pulmonary failure and cor pulmonale. It is his further opinion that the rales found by the doctor denoted a pulmonary disease. With respect to the diagnosis in the hospital records of atrial fibrillation it was the doctor’s opinion that atrial fibrillation is very common in individuals who had the type of lung disease that the decedent had, Chronic Obstructive Pulmonary Disease, especially advanced pulmonary disease. It was his opinion that a person does not necessarily have to have a heart disease to have atrial fibrillation; that advanced pulmonary disease such as suffered by the decedent could also; it was not unusual for a person with advanced pulmonary disease to have episodes of atrial fibrillation.
With respect to the records of the hospital from May 17, 1991 through June 24, 1991 the doctor felt that it was a pulmonary admission but the mention was made that the patient was cyanotic which he described as a bluish discoloration to the skin. A very disturbing appearance. It is due to arterial saturation. The red cells are de-saturated and are not carrying the normal amount of oxygen and caused the bluish color. It was his further opinion that the most common cause it was respiratory failure. Physiologically he described it as the inability of the lungs to oxygenate blood normally to saturate the amount of oxygen that is needed for all the tissues. Dr. Friedman also felt that the petitioner had very poor blood gas results including an elevated CO2. He described as being given off by the lungs as a product of the metabolism. The decedent had a high reading because he did not have the mechanics of the lung to expire the CO2. He felt that is how bad the petitioner’s breathing apparatus was. Discharge diagnosis was acute respiratory failure with Chronic Obstructive Pulmonary Disease and cor pulmonale. It was the doctor’s opinion that the death certificate indicated that the immediate cause of death was respiratory failure due to chronic lung disease.
The doctor further testified that over the years he has examined at least two dozen people employed by the respondent, Griffin Pipe. It was his further opinion that with a reasonable degree of medical probability that the same diagnoses that were given in the hospitalization were present at the time of his death. And it was his further opinion that work exposure for the respondent from 1946 through 1985 caused or contributed to his pulmonary diagnosis either way by direct causation or aggravation and he based that upon the facts contained in the hypothetical question, his review of the medical records. It was his opinion that before the death the petitioner was a respiratory cripple and needed oxygen in the last two years to keep him alive. He directly related the exposure as a major contributing cause to the development of the pulmonary condition which caused the death.
On cross-examination doctor admitted he was aware of the decedent’s history of smoking since before the marriage until sometime in the 1980s. It was his opinion that the inhalation of particles would cause scarring on the alveoli and therefore scarring on the lung tissue itself. The doctor also admitted that once the particle lands on the air sac it causes scarring. And once that scarring takes effect that area of the air sac no longer has the ability to exchange oxygen to CO2. When asked if this caused obstructive or restrictive disease and the doctor answered restrictive. His exact answer was: “The number of breathing units that the lung has will be decreased, destroyed. That usually - - in a case like this, that is the cause for the element of emphysema that might be present.” And the doctor also felt that the Chronic Obstructive Pulmonary Disease was a part of the description of obstructive disease. He felt that it was obstructive because this was airways disease. Inflammation in the air passages and because of that there was a narrowing of the air passages and that abnormal ventilation for fusion defects. It was also his opinion that ingestion of cigarette smoke would be obstructive as opposed to restrictive. It was his opinion that the blood gas test the PCO2 was twice abnormal. Normal CO2 is half of the amount shown. It is his opinion that normal would be almost 90 and that blood saturation of 49.8 half of what is anticipated. The doctor also admitted on cross-examination that there are many restrictive pulmonary disease processes consistent with the number one discharge diagnosis of respiratory failure and cor pulmonale. He stated “Oh, well, most of this is attributable to his airways disease due to obstructive disease. That’s the major element here. He referred to the air sacs disease. It was the doctor’s opinion that the decedent’s air disease caused the major part of his symptoms, his cough, shortness of breath. This evolved early in his career, then became severe and was also the cause of cyanosis, oxygen de-saturation with an overlapping of condition. He had to have an element of restrictive disease. He stated the majority of the airway disease was obstructive in nature caused by the inhalation of materials, the dust that was described in the hypothetical. Pathophysiologically, he developed an inflammatory reaction of his bronchi. The decedent developed an inflammatory reaction of the bronchi, the air passages early on in his career. Then as time went on this got so severe there was much inflammation in his air passages the inflammatory response from foreign material. The inflammatory reaction, redness of mucus, extraction of fluids mucus demands. They secrete mucus which is part of the protective mechanism of the lung because of all the material, inflammatory material that causes the patient to cough. And then many of the tiny air passages become extricated material. Inhalation profusion is abnormal. This causes the individual to develop shortness of breath, cough, exertional fatigue, tiredness. The doctor did agree, however, that cigarette smoking can also cause an inflammation of the airway lining. It contributes to it. He also agreed that he had been able to perform a pulmonary function study it would have been a better test. But that the first time he had any knowledge of this case was in 1997 after death of Mr. Johnson. The doctor admitted that there was information contained in the hypothetical which he did not know about in 1997 but that additional information did not, in any way, alter or change his opinion which he expressed in 1997.
As stated above, the only witness in rebuttal never appeared on behalf of the respondent and his report of October 21, 1997 he gained after the death of the petitioner. However, Dr. Siegal did not have the contents of the hypothetical question when he rendered his report.
Where he got a medical history which he calls complex and which includes all possible complications of heavy smoking and alcohol abuse was never presented to the court. There was no testimony as to any alcohol abuse and the heavy smoking testified to by the decedent’s widow was less than a carton a week. The doctor had a history of exposure or working for the respondent from 1946 to 1985 and he admitted that the job environment included exposure to dust and fumes but he states that the patient was admitted to the hospital and several times for exacerbation of Chronic Obstructive Pulmonary Disease, emphysema, cor pulmonale, recurrent bronchitis and pneumonia. He also ascertained from records apparently that the petitioner suffered from cardiac problems including paroxysmal atrial fibrillation, atrial flutter and aortic aneurysm and other medical problems included psychiatric admission for an acute delusional state and depression. None of this was presented by either the petitioner or the respondent so that this doctor had available to him records that were not made available to the court. It was Dr. Siegal’s opinion that the other medical problems included psychiatric admission for an acute delusional state and depression which was thought to be the result of alcohol abuse. The widow of the decedent was not questioned with respect to alcohol abuse. Dr. Siegal also indicated while never having seen the petitioner that he suffered from diverticular disease, gall stones and arthritis. He did admit that the major disability that led to his eventual death was Chronic Obstructive Pulmonary Disease secondary to smoking. He also admitted that he has records of 1991 in which the decedent’s pulmonary status was quoted as guarded and his arterial blood gasses at that time showed signs of respiratory insufficiency, reduced level of oxygen and increased level of carbon dioxide. The doctor’s report further states that the cause of death in this case is Chronic Obstructive Pulmonary Disease and respiratory failure and that since he did not have available records from the last admission he could not evaluate the contribution of the cardiac problems to his immediate demise. But he did feel, according to his report where he states: “It appears that his respiratory failure was caused by progression of chronic obstructive pulmonary disease due to smoking.” I have read those records and I do not see anywhere in the records where cause of death was secondary to smoking. He makes no mention of the fact that the petitioner had stopped smoking approximately 10 years before he ultimately expired and had worked an additional five years for the respondent from the time he stopped smoking in the early 1980s until December 1985.
The death certificate which was marked as P-2 in evidence does not mention smoking in any way, shape or form. The doctor felt that this was a typical course of progression of Chronic Obstructive Pulmonary Disease and his employment at Griffin Pipe, in his opinion, had nothing to do with the course of his illness which is well-documented in smokers who are not exposed to dust and fumes. It is his opinion that alcohol abuse caused signs of cardiomyopathy which was manifested by paroxysms of atrial fibrillation, atrial flutter and undoubtedly contributed to a faster deterioration, his cardiopulmonary status and eventual demise and he, therefore, found no causal relationship between his employment and death from respiratory failure and the Chronic Obstructive Pulmonary Disease.
Quite frankly, I would have liked the opportunity of asking the doctor a few questions had he ever had the courtesy to appear. I can give absolutely no weight to the contents of Dr. Siegal’s report since he gives absolutely no weight to the fact that this decedent worked from 1948 through December of 1985 and on every day that he returned to work after his marriage to the petitioner, herein, went to work with a clean blue uniform and came home with that uniform covered with a dirty gray or white dust that tracked on the porch and throughout the house.
Dr. Friedman explained that while cigarette smoking did cause both obstructive and restrictive disease, it was his opinion that the ultimate demise was caused by exposure at the plant.
In respondent’s brief they accept as true and accurate to facts as set forth in the hypothetical question which was marked P-7 in evidence and since those facts contained in the hypothetical are not rebutted and as I stated above, I just cannot give any weight to a doctor who did not have all of the facts contained in the hypothetical or at least if he did he did not put them in his report and never appeared to testify on a day that was set aside for his testimony, nor did he have the courtesy of contacting his own attorney to tell him that he would not be present. I am aware of the fact that Dr. Friedman did state that the scarring was due to inhalation of particles which would fall in the lung lining causing scarring. He also admitted that the decedent’s cigarette smoking could cause inflammation of the airway lining. However, Dr. Friedman, in his overall testimony did describe in detail why he felt that the diagnosis of Chronic Obstructive Pulmonary Disease was related to the employment and laid a foundation for same which is something that the report of Dr. Siegal did not do. He related it to alcohol abuse, which is not before the court. As I review the testimony, it is my opinion and I so find that the decedent succumbed to his death as a result of both chronic obstructive disease and restrictive disease and respiratory failure as set forth in the death certificate. It is the court’s further opinion that the chronic obstructive disease and restrictive disease caused the petitioner to suffer from a condition called cor pulmonale. Since the respondent accepted the facts contained in the hypothetical as true it is the court’s opinion that the inhalation of the substance which was evident by his clothing when he returned home each night were material in the cause and the petitioner’s overall diagnosis of advanced pulmonary disease. Dr. Friedman’s testimony did not isolate Chronic Obstructive Pulmonary Disease as the only cause because he clearly indicated that while he had that he also suffered from cor pulmonale, chronic pulmonary hypertension, respiratory failure, synonymous with interstitial pulmonary fibrosis and an element of emphysema.
As I review the case law the work environment does not have to be the only cause of petitioner’s demise but must, in fact, be a material cause. And based on the fact that the petitioner had stopped work, smoking some ten years before he died, and had worked five years subject to the exposure at the plant, I find and determine that the combination of everything, work exposure and smoking, were related to a degree but that the exposure at the plant resulting in the petitioner having to wear clean clothes everyday and coming home every night after exposure covered with dust. The material aspect of the cause of death. I base this on the fact that the respondent’s own doctor failed to appear and while his report was admitted into evidence without objection upon stipulation that cross-examination would be waived, I find that the doctor’s opinion that the cigarette smoking was a secondary cause of death, to be completely unacceptable since he relied on materials that were not before the court.
Having determined that the petitioner’s decedent’s death was related I find and determine, based upon the stipulations of wages at $250 per week, that the widow is entitled to 50% of that or $125 per week from the date of death for a period of 450 weeks for a total $56,250. There is no issue of temporary disability benefits and no proofs with respect to medical expenses incurred, I will approve a counsel fee to the petitioner’s attorney of $11,250 payable $4,500 by the petitioner; $6,750 by the respondent.
I will also allow the maximum funeral allowance of $3,500 payable by the respondent to the petitioner.
I will allow Dr. Friedman for his review of medical records and report $200 plus $250 for his appearance and testimony for a total $450, payable one-half by each party.
For the four dates of hearing I will allow a $1,000 stenographic fee payable by the respondent. Please prepare a long-form Judgment for my signature.
Matthew W. Parks
Judge of Compensation
September 17, 2001