STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
BURLINGTON, BURLINGTON COUNTY DISTRICT
 

    

BEFORE:                     HONORABLE JOSHUA FRIEDMAN

                                    Judge of Compensation

  

APPEARANCES:

                                     LEVINSON, AXELROD, ESQS.

                                    By:       W. SCOTT ARMSTRONG, ESQ.
                                                2 Lincoln Highway
                                                Edison, New Jersey 08818
                                                Attorney for the Petitioner

 

                                     BRESSLER, AMERY & ROSS, ESQS.

                                    By:       RICHARD B. JONES, ESQ.
                                                Box 1980
                                                Morristown, New Jersey 07962
                                                Attorney for the Respondent
 

PROCEDURAL HISTORY

 

On April 29, 1998 Bernice Lemmon, hereinafter known as the “petitioner”, as Executrix of the Estate of James Lemmon (CP-98-014506) and Bernice Lemmon on her own behalf for dependency benefits (CP-98-014498) filed claim petitions alleging entitlement to lifetime as well as dependency benefits arising out of the decedent, James Lemmon’s, occupational exposure to asbestos which arose out of and in the course of his employment with Exxon U.S.A., hereinafter referred to as “respondent.”  Respondent filed answers to both claim petitions denying the allegations contained therein. 

 

Testimony during the course of the trial was taken on behalf the petitioner from Bernice Lemmon, decedent’s widow, as well as Dr. Barry Z. Wolf, expert evaluating physician.  The testimony on behalf of the respondent was taken from Dr. Julian Decter, expert evaluating physician. 

 

Admitted into evidence during the course of the trial were seven exhibits, three on behalf of petitioner, one on behalf of respondent and three joint exhibits.  The documents admitted were:  J-1, J-2, J-3, - three volumes of joint medical reports and treatises relied on by both parties; P-1 - prior Judgment dated 3/21/90; P-2 -hypothetical; P-3 -           Dr. Wolf’s report 5/25/99; R-1 - letter dated 11/13/92 re:  Dr. Hoccron.

STIPULATED FACTS, ISSUES AND TESTIMONY

 

James Lemmon was born on November 10, 1923 and married Bernice Lemmon on August 10, 1946.  They had three sons, all emancipated and over the age of 23.  On    April 18, 1990 Mr. Lemmon’s deposition was obtained (J-1).  The following facts were elicited at the time of the deposition.  Mr. Lemmon began working for the Exxon Corporation in 1942 and continued his employment with Exxon until his retirement in 1982.  He was originally hired as a lab technician where he ran atmospheric and vacuum distillations, tested to for flash point, four point tour, color, water, sediment vicosity, graft of crude oil, bunker fuel and asphalt.  During Mr. Lemmon’s entire period of employment he was stationed at Exxon’s Bayway Refinery in Linden, New Jersey.  He worked in the Main Lab between 1942 and 1946.  The parties stipulated that while working in the Main Lab, he was exposed to asbestos-containing products including asbestos gloves and asbestos tapes.  The asbestos gloves were used when handling hot crucibles.  The gloves had asbestos fibers in them, and the supervisor in the lab told      Mr. Lemmon that the gloves were asbestos gloves.  When the gloves were taken off, he would have residue asbestos on his fingers.  Mr. Lemmon wore the asbestos gloves on an average of 15 minutes per day to wrap pipes.  Both the gloves and tape left a dust residue.  Asbestos tape was used by Mr. Lemmon to wrap hot copper and stainless steel tubing and glass.  The tape would be cut with a knife or a pair of shears, which would create white dust.  The tape was commonly called asbestos tape and was a woven fibrous material used to insulate heat.  At no time, when working with the asbestos tape or the asbestos gloves did Mr. Lemmon wear a mask, respirator or breathing apparatus to protect him from breathing in any asbestos dust.  He wore a mask when working with hydrogen sulfide.  He was drafted into the service in 1943 and served until 1946.  He returned to Standard Oil (Exxon’s predecessor).  Upon his return from the service         Mr. Lemmon was reassigned from the Main Lab to the Paratone Lab.  At the Paratone Lab Mr. Lemmon did analytical and routine testing and experimental work, specifically viscosity testing and testing for various chemicals in the oil and their weight in the oil.  In order to drain impurities from the oils, he made shelters from asbestos, which he described as taking a handful of asbestos fiber, which came to the laboratory in bags, mixing it with water and spreading the mixture in a funnel then pouring the oil through it.  After the process was completed he dumped the filter and impurities into the wastebasket.  During this period he worked with the asbestos gloves, asbestos tape and bags of asbestos.  His asbestos gloves were used the same way in the Paratone Lab as they were used in the Main Lab.  During an average week, the asbestos gloves were worn one hour per day by Mr. Lemmon in the Paratone Lab.  Mr. Lemmon noticed that after wearing the gloves he would have white powder residue on his hands.  To make the filter pads,       Mr. Lemmon would reach in the bag of asbestos and take out a handful which he would mix with water.  On an average day when using filter pads he would make approximately 15 to 20 asbestos filter pads.  Filter pads were made approximately one week per month.  Mr. Lemmon never wore a mask in the Paratone Lab. 

 

In 1952 Mr. Lemmon left the Paratone Lab and returned to the Main Lab as a supervisor which position he maintained until 1962.  As a supervisor, Mr. Lemmon would be in the area where asbestos containing products, namely the asbestos gloves and the asbestos tapes were used but he would not work directly with the products.

 

In 1962 and until 1982 Mr. Lemmon was reassigned to a new job classification, namely, oil movement and storage.  He began as an Assistant Shift Superintendent and was promoted to Area Supervisor in 1967, then to Section Supervisor in 1975 and finally senior Section Head in 1979.  In these capacities, he was responsible for supervising men during mechanical work on various types of equipment and supervised the berthing, mooring and unloading of the oil tankers.  He was exposed to asbestos as a bystander to work as insulating and repairing the equipment.  Asbestos exposure was estimated at one to one and one-half hours per day of seven to eight days per month.  The indirect exposure was to a variety of asbestos-containing products, including pipe insulation, block insulation and insulating cements.  These materials were being used in the field by men in his vicinity that were either employees of Exxon or outside contractors working at Exxon.  Cement would come packaged in bags while the pipe covering and blocks were packaged in boxes.  The pipe covering was used to cover steam lines throughout the refinery.  The block insulation was used on vessels and tanks.  When the block insulation was being installed by Exxon co-employees, Mr. Lemmon would be within ten feet of their work.  The block was scored with a knife so that it would be bent and molded to the tank.  When the cement was applied, Mr. Lemmon would be within five feet of the work, approximately one and a half hours per day.  The pipe covering was wrapped around the pipe and banded on with wire.  The pipe covering was cut with a knife and during application, Mr. Lemmon would be within five feet of the process. 

As an area supervisor from 1967 to 1976 there was only indirect exposure by being in the   same area as the insulators and mechanical contractors for approximately ten hours per week.  Through 1979, as Section Supervisor there was no exposure.  Neither was there any exposure as Senior Section Head from 1979 to his retirement in 1982. 

 

Mr. Lemmon smoked cigarettes from the age of 19 until he quit in 1992.  He smoked an average of one and a half packs of cigarettes per day on average during this period. 

 

Exxon performed routine yearly physical examinations for their employees.                 Mr. Lemmon attended these examinations from his starting date in 1942 until his retirement in 1982.  Mr. Lemmon continued to attend these examinations after his retirement. 

 

In 1988 James Lemmon, after having been advised of a positive chest x-ray finding of asbestosis, filed an occupational claim petition alleging permanent residual disability (C.P. 88-282509).  On March 21, 1990 the Honorable Robert Drobner, Judge of Compensation entered a Judgment pursuant to an Order Approving Settlement for an occupational exposure for the period of 1942 to October 1, 1982.  The Order Approving Settlement awarded the petitioner 30% of partial total disability, pulmonary in nature for “chronic bronchitis, peri-bronchial fibrosis, Chronic Obstructive Pulmonary Disease, pleural and pulmonary asbestosis.” The Judgment pursuant to an Order Approving Settlement was not in any way modified or appealed and was paid in full. 

 

The basis for the Order Approving Settlement was as a result of positive findings by both petitioner’s and respondent’s evaluating physicians.  Dr. Henry Velez, who examined   Mr. Lemmon on behalf of the petitioner found bilateral pulmonary fibrosis, bilateral pulmonary thickening, increased broncho-vascular markings and flattening of the diaphragm.  He diagnosed chronic bronchitis, peri-bronchial fibrosis, Chronic Obstructive Pulmonary Disease, and pleural and pulmonary asbestosis.  Dr. Velez estimated a disability of 60% partial total.  Dr. Jack York examined on behalf of the respondent, Exxon U.S.A.  He evaluated the petitioner and read the x-rays as showing evidence of early pulmonary fibrosis and bilateral pleural thickening characteristic of asbestosis.  He diagnosed the petitioner as having chronic bronchitis with early pulmonary fibrosis and pleural asbestosis for which he estimated an overall 12 1/2% of partial total disability with a 5% preexisting attributable to smoking. 

 

Subsequent to Mr. Lemmon’s retirement he experienced several medical problems including adenocarcinoma of the colon for which he received a total colonoscopy with sigmoid resection on April 25, 1991.  Subsequent colonoscopies did not show recurrence of a disease.  From October 7 to October 13, 1993 Mr. Lemmon was confined to Burlington Memorial Hospital for atypical chest pain, chronic obstructive pulmonary disease. 

 

James Lemmon died on March 8, 1998.  The death certificate listed his cause of death as cerebrovascular accident, secondary to brain metastases and adenocarcinoma of lung. 

 

The issues to be determined at this time are limited in nature.  The parties stipulated that the decedent, James Lemmon, was totally and permanently disabled from January 13, 1998 through March 8, 1998.  And that if successful the petitioner is entitled to lifetime benefits during that period as well as  dependency benefits as of March 9, 1998 at the maximum rate of $516 per week.  The parties further agreed that the petitioner, James Lemmon, was exposed to asbestos.  They, however, vehemently disagreed  as to whether or not the March 21, 1990 Order Approving Settlement is dispositive of the issue of  residual disability and death causally related to petitioner’s employment. Therefore, the sole major issue for this court to decide is whether Mr. Lemmon’s lung cancer and his resulting death was causally related to his occupational exposure to asbestos while an employee of Exxon. 

 

Dr. Barry Z. Wolf, Board-Certified in Pulmonary and Internal Medicine testified on behalf of the petitioner and Dr. Julian Decter, Board Certified in Oncology and Hematology testified on behalf of the respondent.Both doctors have active full-time practices and only incidentally and rarely testify in this court.

 

 

 Dr. Wolf took the position and testified that within a reasonable degree of medical probability that the asbestos exposure at Exxon was a substantial contributing factor to the development of metastatic carcinoma of the lung which caused his death.

 

Dr. Decter by way of testimony came to the conclusion that Mr. Lemmon’s death was probably not related to his employment at Exxon since there was insufficient evidence of asbestosis damage and that Mr. Lemmon’s death was caused by smoking induced lung cancer. 

 

Both doctors relied on treatises.  Dr. Decter relying on standard textbooks of oncology by DeVita and Dr. Wolf relying on various treatises as submitted into evidence as part of J-1, J-2 and J-3. 

 

Dr. Wolf described the lung as being an organ which is composed of alveoli and bronchi.  The bronchi are the tubes carrying air to the air exchange cells, which are small grape-like clusters called alveoli, where oxygen transfers through membranes into the blood.  Asbestos is inhaled into the lungs and the body’s defense mechanism, macrophages, try to engulf the asbestos fiber and carry it away, but, failing to do so, secrete a variety of enzymes to defend it.  This produces inflammation and scarring or parenchymal asbestosis. 

 

The asbestos fibers can also travel to the periphery of the lung to cause pleural thickening and pleural plaque.  From the time of first exposure it takes approximately 15 to 20 years to develop asbestos disease and since asbestos is also an initiator of lung cancer, approximately 20 to 30 years for lung cancer to develop. 

 

Dr. Wolf reviewed numerous treating records and the hypothetical and thereafter opined that Mr. Lemmon died from lung cancer and that his asbestos inhalation was a significant contributing factor towards the development of cancer, stating “I believe the asbestos significantly contributed or factored toward the development of cancer.  Therefore, it was a significant contributing factor towards his death.”  When asked for the basis for that opinion he stated:

 

A. It’s documenting the causation between                                asbestos exposure, specifically the type of heavy asbestos exposure.  Mr. Lemmon had lung cancer of all histological - there is no histological way or clinical way that we can distinguish cancers that occur from asbestos from other types of cancer.  But the fact that Mr. Lemmon had heavy exposure to asbestos and the fact we know asbestos is an initiator and promoter of carcinosity leads me to those conclusions. 

 

Q. Do you have a belief to a reasonable degree of medical probability Mr. Lemmon suffered from any underlying asbestosis disease?

 

A. I believe he certainly has pleural plaque.

 

Q.            What do you use to base that opinion that he had pleural plaque?

 

A.            I saw the x-rays of Mr. Lemmon from our office when he was examined in ’92 - yeah, ’92 by Dr. Hoccron, I reviewed those x-rays, those x-rays clearly show very extensive pleural plaque.

 

Q.            Is that significant in your opinion as to his lung cancer?

 

A. I believe so.  I think - I am sure we will get into it later.  There is existing controversy about what level of exposure is needed  for or considered a significant causative factor to develop lung cancer.  Clearly, when one has pleural plaque I believe this is a maker for significant asbestosis for exposure.  There have been a number of studies documented, patients with pleural plaque have increased in - I don’t believe that pleural plaque are causative, I believe they’re a marker for very heavy asbestosis inhalation. 

 

Q. Do people or someone without asbestosis disease who suffer with lung cancer with adequate exposure can be related?

 

A. Yes.

 

Q. Why do you believe that?

 

A. There are studies that document asbestos exposure for all types, even without pleural plaque can cause lung cancer.  Certainly of the type that the heavy exposure is documented in Mr. Lemmon’s case, asbestosis is a carcinogen.  I think that controversy with regard to the level of asbestos exposure causing lung cancer had simply as one going up the chain so to speak increased the fiber burdens from demonstrable radiological disease or pleural plaque to parallel asbestos that is reflected and introduced to fiber burden.  In people by factor, asbestos as a population are going to have more cancer with people who have pleural plaque, especially pleural plaque will have more cancer than the people without it.  I know the pleural plaque is highly carcinogenic.  I believe in this case in the type of fiber load that Mr. Lemmon had that I can see even - he did have pleural plaque even without them, he may have asbestosis.  I think there is some debate about that, especially in fiber burden, it’s enough for me to say the degree of, or the high degree of medical probability it was a significant causative factor. 

 

Q. Doctor, were you aware when you undertook the hypothetical evaluation of   Mr. Lemmon he was a cigarette smoker?

 

A. Yes.

 

Q. Do you have an opinion as to what role that history of cigarette smoking may have in the disease?

 

A. I believe the smoking is a contributor or significant factor toward the development of his lung cancer.

 

Q. Were you aware in the ’90s that Mr. Lemmon suffered from colon cancer?

 

A. Yes.

 

Q. Do you believe that the colon cancer played any role in the development of the lung tumor on his brain, the metastases?

 

A. No.

 

Q. Why do you believe that?

 

A. It had happened several years before.  He had been worked up since that had documented really no spread of the colon cancer and the colon cancer is the type of cancer it tends to spread stepwise.  Usually it would be firstly all extreme or underlying for the type of x-ray finding that Mr. Lemmon had to be spread from colon cancer a single large lesion in the chest.  For that any lesion would be almost impossible.  A colon - this was almost certainly a timely lung cancer.  For colon cancer to metastasize to the brain without evidence several years before of spreading I think would be if not impossible, extremely unlikely. 

 

Q. Doctor, I want to show you what has been marked previously Joint exhibit, J-3.  These are some studies that you provided to me regarding asbestos and lung cancer.  Are you familiar with these documents? 

 

A. Yes.

 

Q. What are they briefly.  Describe them as a whole.

 

A. They’re really a compilation of the whole issue of what fiber burden and what clinical manifestation of asbestosis is necessary before one can say that asbestosis - or one can say asbestosis is a significant contributing causing factor towards to development of lung cancer. 

 

Q. Are those studies that you relied upon that helped you form your opinion today?

 

A. Yes.

 

Q. They are authoritative and supportive pulmonary medicine?

 

A. I believe so.  I would also like to state a recent text for Murphy and Adel came out in ’99 also states, also difference of opinion in textbooks also believes that bronchial asbestosis is not necessarily to fibrosis in order to say that asbestos inhalation was a significant contributing cause of cancer.

 

 

 

Dr. Wolf concurred that there is a difference of opinion with respect to the diagnosis of lung cancer as it relates to asbestos exposure and more particularly whether parenchymal finding are or are not a precursor to asbestos-related cancer. 

 

On the other hand, the thrust of Dr. Decter’s testimony focused on other causes, namely, death related lung cancer with metastatic deposits in the brain and other organs related to smoking; that is, that the presence of chronic emphysema or chronic obstructive pulmonary disease with its associated fibrosis resulted from a long history of smoking.  His review of the treating records from the hospitalization closest to the decedent’s death, showed no evidence of damage to the parenchyma of the lung, but substantial evidence of damage caused by cigarette smoking, the needle biopsy, although of a very small section of the tissue, evidenced damage from smoking.  Dr. Decter then relied on a CT Scan which he stated was, although not absolute, as being far more superior to an x-ray.  The CT Scans did not show parenchymal asbestosis. 

 

He acknowledged the early diagnosis of asbestosis especially by Dr. Velez and Dr. York.  But nonetheless, he opined that his reliance on CT Scans is more accurate.  Furthermore, he felt that Drs. York and Velez had an axe to grind further stating: “ …. At least that’s my interpretation of these reports.  Again, I never seen [sic] the films.” 

 

On cross-examination petitioner’s attorney questioned Dr. Decter on a particular textbook “Pulmonary Pathology” by Dail and Hammar.  Dr. Decter indicated that he was not familiar with the book. 

 

Q. I want to review some literature with you, doctor.  And just go over this literature with you.  Are you familiar with a pathology textbook entitled “Pulmonary Pathology” by Dail and Hammar? 

 

A. No.

 

Q. If I told you that that’s probably the textbook used in every medical school in pathology as a basic course, would you know that textbook?

 

A. It wasn’t used when I was in medical school.

 

Q. Let me just show you a portion of that textbook.  In this textbook, they obviously, the writers of the text, review a lot of the studies that have been done.  “Warnock and Eisenberg who concluded that the subjects in their intermediate and high concentration groups may have been at increased risk for cancer, even when they did not have asbestosis and because large burdens of asbestos did not always cause  pulmonary fibrosis, asbestosis may be a poor marker of asbestos fiber caused lung cancer.”  They further say, “Our thoughts concerning the association of asbestos and lung cancer are similar to those of Warnock and Eisenberg.”  Does that pulmonary textbook basically that is used in every medical school in the country, change your opinion?

 

A. It’s certainly an interesting opinion.  And, of course, is in an area of great controversy.  May I read to you from the standard textbook of oncology.  This from DeVita.  Most, if not all, cases of lung cancer attributable to asbestos are associated with parenchymal asbestosis. 

 

Q. Do you know in that report or that textbook if -

 

A. Three references are given. 

 

Q. That textbook that you are referring to, do you know what their standard is for the diagnosis of asbestos?

 

A. No.  They are just referring - I mean, making a conclusion. 

 

Dr. Decter further commented when asked to address his position on an article as follows:

                                                Q.            If I told you that in 1997, 19 gentlemen who studied

this topic got together in Helsinki, Finland to determine this exact issue and they wrote a consensus  report in a Scandinavian journal which they entitled it “Helsinki Criteria.”  They basically found after doing their work, that heavy exposure in the absence of radiographically diagnosed asbestosis is sufficient to increase the risk of lung cancer, would that change your opinion at all?

 

A. Well, again, it’s just one of a number of papers that can be cited.  I think for every paper you can cite, I have another to cite. That’s why I say it’s a controversial subject.  I have a whole raft of articles here that have an opposite point of view also from industrial literature, from scientific literature as well. 

 

Q. Do you have those with you?

 

A. Yes, I do. 

 

Q. Can I take look at those briefly.  I noticed these are from the American Journal of Industrial Medicine?

 

A. Yes. 

 

Q. I thought you don’t take anything in that journal to heart?

 

A. I only threw it out because the gauntlet had been tossed. 

 

Q. Let’s talk about this one study you have given me from the American Journal of Industrial Medicine, year 2000 entitled “Mesothelioma and lung tumors attributable to asbestos among petroleum workers.”  It’s by a number of scientists including Finkelstein and Gennaro.  In their conclusion

 

The Court:  What’s Dr. Finkelstein’s first name?

 

                            Mr. Armstrong:             Maury.

 

The Court: And, doctor, you are indicating, you are relying on Dr. Maury  Finkelstein’s article.

 

The Witness: No.  I only brought it show there is a controversy.  Some of these papers support his point of view, some of them are at variance with it. 

 

    The Court: What is your position on that article that Mr. Armstrong is presently referring to?

 

The Witness: Could you refresh my memory.  I’m not aware of the name.

                  Q. This was the study that was done last year where basically they went to look at different petroleum workers around the country to see whether they had an increased risk of lung tumors and/or mesothelioma and they determined that in petroleum workers who were exposed to asbestos which presumably Mr. Lemmon was here, they were twice as likely to get mesothelioma than the average population and l.6 times likely to get lung cancer.  Does that journal article support your position somewhat?

 

                   A. Well, again, there is always this controversial point of view.  But, again, these patients -the criteria were that you needed to see asbestosis on their radiographs. 

 

                   Q. You based that opinion on the one text that you cited earlier, the oncology text?

 

                    A. That’s our Bible in medical oncology.  We view the DeVita textbook as the standard textbook.  But I grant you it’s a controversial subject. 

 

                    Q. You are not aware, again, of what they use as a standard for what they consider asbestosis there on radiograph?

 

                     A. No.

 

         The Court: What do you mean by controversial subject?  Give me a definition of what your prospective of what controversial subject means.

 

      The Witness:  Well, there are people who purport to be experts in the field of asbestosis which I do not hold myself out to be.  I have to be frank about that.  My subject matter is lung cancer.  Also, there is not enough we know about that disease.  We think the etiology is smoking that is the point of view and we don’t see people with lung cancer, for the most part, who are not smokers.  So what role does asbestosis play, if any, in the cause of lung cancer?  It’s a controversial subject.  But most authorities in the field, at least I think the majority of the opinions in the field at least in this country, is that you need to see definitive evidence of exposure to asbestosis on the radiograph or biopsy before you can even - or a ______ carcinogenic role in causing lung cancer.  Of course, all those people are smokers in addition to being exposed.

 

         The Court: Well, from a probability prospective is one employed by a company for 42 years and for 20 of those years he is exposed to asbestos gloves, asbestos tapes, he handles them, inhales it, would you think that’s a substantial exposure to asbestos?

 

     The Witness: Yes, I would certainly agree the patient is at risk, but why don’t we see it - at least why didn’t some of the later films show it?

 

 

 

On redirect by the respondent’s attorney Jones, the following colloquy ensued:

 

Q: Are there any articles other than the DeVita text that say that you have to have asbestosis - parenchymal asbestosis in order to make - in order to form an opinion of causation related to asbestosis?

 

A. Well, DeVita is the standard textbook.  Since he is a mentor for the National Cancer Institute, I rely on that textbook as a definitive - one, as a majority of the medical oncologists do.  However, there are three, four other textbooks, such as Holland, Livingston textbook.  And there is a textbook by Carbon, Paul Carbon, who is also one of my mentors.  He is now at the University of Wisconsin.  They all have the same point of view but I used the

DeVita textbook.  I copied the appropriate paragraphs in the textbook.  I would say among the American medical oncologists there is no controversy. 

 

 

Then by Mr. Armstrong:

 

Q. If I told you, doctor, that among the pulmonary area of medicine, their textbook basically says the opposite thing, do you find that relevant at all?

 

A.  Certainly relevant.  As I say, our pulmonary doctor, who I respect greatly, Dr. Karetzky holds the opposite view.  So again, the controversy continues.

 

 

Dr. Decter further acknowledged that there is a synergistic effect between smoking and asbestos.  Both doctors in essence agreed with the generally held notion that asbestos exposure is recognized as being an initiator or promoter of lung cancer. 

 

N.J.S.A. 34:15-31 defines and establishes what constitute occupational disease.  The statute states:

 

A. 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.  [emphasis added]

 

 

 

Material degree has been defined in N.J.S.A. 34:15-7.2 as meaning:  “An appreciable degree or a degree substantially greater than de minimis.  This definition has been adopted to claims within N.J.S.A. 34:15-31.  Matthew v. City of Jersey City, 289 N.J. Super. 292 (App. Div. 1996). 

 

For petitioner to prevail, he must establish a link between his disease and occupational conditions . . . .  Petitioner has the burden to prove his causal link by a preponderance of the evidence.  All that is required is that the claimed conclusions from the offered facts, must be probable or a more probable hypothesis . . . .”  The test is probability rather than certainty.

 

 

 

The Supreme Court established the elements of proofs required in occupational claims.  In Fiore v. Consolidated Freightways, 140 N.J. 452 (1995) they stated:

 

 

1. The occupational disease is due in a material degree to causes arising out of the workplace which are or were characteristic of or peculiar to a particular occupation. 

 

2. The exposure exceeds the exposure caused by the petitioner’s personal risk factor;

 

3. The employment substantially contributed to the development of the disease.

 

 

The first prong of the Fiore proofs requires a showing that the disease is due in a material  degree to causes arising out of the workplace which are or were characteristic of or peculiar to a particular occupation.  The parties agree and I so find that the petitioner was exposed to asbestos during the course of his employment.  The uncontroverted testimony (by way of deposition) reflects years of exposure to asbestos and its inhalation by the petitioner.  Asbestos was also indeed present throughout his specific employment whether directly or indirectly.  Respondent concedes exposure to asbestos but questions whether the asbestos exposure contributed in a material degree to lung cancer as well as the fact that his own personal risk, namely, smoking exceeded the positive effect of asbestos exposure.  Where the respondent submits an alternate factual position, namely smoking, the burden of proof on that issue rests on the respondent. 

 

On March 21, 1990 an Order Approving Settlement was entered in favor of the petitioner for “30% of partial total disability, pulmonary in nature for chronic bronchitis, peri-bronchial fibrosis, Chronic Obstructive Pulmonary Disease, pleural and pulmonary asbestosis.”  The parties to that litigation under Claim Petition 98-014506 were the same parties under the present claim petition and controversy.  That order established a finding that the petitioner was found to have had an occupational disease due to a material degree to causes arising out of the workplace which were characteristic of or peculiar to his employment and occupation.  Further, at the time of the entry of the Order the respondent  knew of petitioner’s personal risk exposures, namely smoking, but either did not raise that defense or agreed that it did not exceed the asbestos exposure risk.

 

Respondent now claims that they are not bound by that result.  I find to the contrary. 

 

A Judgment or Order Approving Settlement is conclusive and is Res Judicata on the parties on all issues involved unless changed on appeal.  Schiffres v. Kittatinny Inc., 39 N.J. 139 (1963).  Here the parties are the same, the issues as to exposure to an occupational disease are the same.  The doctors in the initial case both from respondent’s and petitioner’s point of view found that the petitioner suffered from asbestosis as a result of a substantial exposure during the course of his employment with the respondent. 

 

Nonetheless, the issue at hand is whether the lung cancer which caused the petitioner’s death developed because of the asbestosis exposure or whether it emanated from other root causes.  As it relates to that issue  both experts offer divergent opinions which have heretofore been referred to.  Both evaluating physicians testified at great length.  I found both physicians to be credible.  Neither of the experts testifying in this case are the usual physicians who perform evaluations on behalf of the Workers’ Compensation bar.  Both physicians are respected physicians in their  field who maintain active practices and rarely testify.  Both doctors, Dr. Decter and Dr. Wolf, agreed that there are divergent and respected opinions regarding the cause of lung cancer.  Dr. Wolf opined that the petitioner died from lung cancer with metastases and that asbestosis inhalation was a significant contributing factor towards the development of the cancer, further stating that pleural plaque represents exposure and is a marker and that studies show that people with pleural plaque will develop cancer more so than people without it.

 

Prior to the March 21, 1990 Order Approving Settlement the petitioner was examined by Dr. York who examined on behalf of the present respondent - employer.  Dr. York found asbestos relating to petitioner’s employment with the respondent.  Dr. Decter took issue with the conclusions arrived at by Dr. York, this, notwithstanding the fact that Dr. York personally examined the petitioner on behalf of the respondent prior to issuing an expert opinion report regarding permanency and causal relationship.  which ultimately did indeed confirm the exposure and subsequent permanent residual asbestosis award.  Dr. Decter took issue with Dr. York’s finding based upon a personal critique as opposed to a medical critique.  Dr. Decter, in essence criticized Dr. York’s methods and findings based upon the superficiality of his exams.  This still notwithstanding the fact that Dr. Becter never examined the petitioner as opposed to Dr. York’s opportunity to indeed examine the petitioner.  Notwithstanding that critique, Dr. Becter affirmed the fact that there is indeed a divergence of opinion as to cause and effect regarding asbestosis and lung cancer. 

 

It is not necessary for the petitioner to prove absolutes.  It is only necessary for the petitioner to produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of the claim. 

 

For the petitioner to prevail, he must establish a link between . . . . the disease and occupational conditions.  The petitioner has the burden to prove his causal relationship by a preponderance of the evidence.  All that is required is that the claimed conclusions from the offered facts must be probable or a more probable hypothesis . . . .”  Fiore v.Consolidated,140 N.J.452

 

 

 

.  The respondent asserts that based upon the proofs and evidence proffered by respondent’s experts that the petitioner did not show evidence of asbestosis.  Indeed, respondent asserts that their expert’s opinion mandates a finding that petitioner did not have asbestosis.  Respondent argues that a finding of asbestosis will eliminate any disagreements between the testifying experts as to causal relationship between asbestos exposure and his death from lung cancer.  Each doctor presented some congruent and some conflicting opinions.  Conflicting opinions between experts are, of course, not unusual.  The conclusions by each are simply presented from different prospectives and no inference positive or negative is assigned to each opinion.  I previously indicated that both experts were knowledgeable and credible and that each had great respect in their respective fields.  I, however, find and assign greater weight on the testimony of Dr. Wolf as opposed to Dr. Decter and I rely and accept his testimony to a greater extent.  That in no way deprecates Dr. Decter’s testimony.I do so because  I found Dr. Wolf’s testimony to be more reliable and more consistent with the facts at hand.  I, therefore, adopt Dr. Wolf’s finding that petitioner’s death from lung cancer related to and arose out of his occupational exposure to asbestos during   the course of his employment with the respondent. 

 

In adopting Dr. Wolf’s testimony I considered various intangibles such as expertise, knowledge of facts, reliance on accepted and reliable studies, consistency and an overall review of “the entirety of the claim.” The respondent attempted to disprove the validity of the prior award. I reject that proposition.The respondent went as far as  attempting  to but failing to impeach its own experts involved in the prior award.The respondent proffered a new proposition as to petitioner’s condition and cause of death, namely, smoking.The burden of proof  to sustain that position shifted to the respondent.I find and determine that they failed to do so.Dr. Decter conceded an on going controversy relating to issues of causal relationship between asbestosis and lung cancer.I previously set forth my reliance on Dr. wolf’s testimony and expertise and do so again.

 

I found Dr. Wolf to be well-versed with the subject matter both factually and medically.  His presentation was thoughtful and not based upon suppositions, but rather on well-researched studies both professionally and anecdotally.  His presentation made sense.  It presented a complete and consistent flow of facts and medical findings.  In relying on   Dr. Wolf’s opinion based upon reasonable medical probabilities, I therefore, find that  the petitioner has, indeed, proven by a preponderance of the credible evidence that the petitioner, James Lemmon,  suffered an occupational exposure to asbestos which exposure arose out of and in the course of Mr. Lemmon’s employment with the respondent which subsequently led to his death. 

 

Therefore, based on the findings and the stipulations of the parties with respect to dates of disability during Mr. Lemmon’s lifetime, the petitioner is entitled to lifetime benefits for the period of January 13, 1998 to March 8, 1998 or nine and two-sevenths weeks at $217 per week for a total of $2,015.  I further find that thereafter payments shall continue from March 9, 1998 pursuant to the statute at a rate of $516 per week during the lifetime of Bernice Lemmon. 

 

I further assess attorney’s fees at $22,000 payable $8,800 by the petitioner and $13,200 by the respondent.  I further allow medical fees to Dr. Wolf for his report and testimony in the amount of $450, payable $225 by the petitioner and $225 by the respondent.  Petitioner’s attorney obtained transcripts at a cost of $211.50 for which he paid and, therefore, the petitioner shall reimburse her attorney $211.50.  There is an outstanding transcript fee of $112.50 payable to State Shorthand Reporting which is to be paid by the petitioner out of the award.  There is a stenographic fee for the trial dates which I set at $550 and that is to be paid by the respondent.

 

Petitioner shall prepare a Judgment within 14 days to reflect the findings of this opinion.

 

                                                      ______________________________

Joshua Friedman

Judge of Compensation

 

 

April 22 , 2002