BEFORE:

                                    HONORABLE NEALE F. HOOLEY

                                    Judge of Compensation

APPEARANCES: 

                                    SHEBELL & SHEBELL.

                                    By:            RAYMOND P. SHEBELL, ESQ.

                                    Attorney for the Petitioner

                                     JOAN SHERMAN, ESQ.

                                    By:            DAVID EVERETT, ESQ.

                                    Attorney for LIBERTY MUTUAL INS. CO.

                                    JOHN T. LANE, JR., ESQ.

                                    Attorney for the Respondent

 The petitioner in this matter was employed for approximately 12 years (1984-1996) by the County of Monmouth.  Though her duties were changed from time to time, they were essentially clerical in nature and were performed at various locations within two levels of a particular office building located adjacent to Kozloski Road, Freehold, New Jersey (the “Building”).  Petitioner testified that commencing circa 1990 she experienced repeated coughing and breathing problems for which she sought medical treatment.  After treating initially with her regular physician (Dr. Sojka) during 1991 she commenced treating with Dr. Dobken, a respiratory specialist.  In petitioner’s view her breathing/pulmonary problems commenced when, as a result of a reassignment or reorganization, she was assigned to a work location that was within 20 feet of a copy machine.  She promptly advised her supervisor (Ms. Mahon) that she “could not breathe, literally” and within two weeks was moved to a position that was further from the copier and next to a window [which could be “unofficially” opened by the clerical staff notwithstanding a written directive to the contrary (Exhibit P-8)]. 

The record indicates that later administrative changes within petitioner’s office unit placed her within 20 feet of a different copying machine; however, as before she was relocated near or next to a window that could be physically opened.  I note that the petitioner’s testimony centered on her being assigned to one or more work stations that placed her in the proximity to copying machines which allegedly emitted fumes which adversely affected her pulmonary condition.  There has been no testimony that it was petitioner’s use of the copying machines which precipitated her pulmonary problems.[1]

Petitioner alleges that her breathing problems have increased over the last ten years.  As a result she cannot “do the things I used to do.”  She can no longer take long walks, has become somewhat claustrophobic, and is wary of being close to someone who has applied perfume because it can adversely affect her ability to breathe.  Commencing in 1995 petitioner took a leave of absence following which she accepted a disability retirement from respondent’s employment.  He has not worked since leaving Respondent’s employ and currently lives in Florida.

Three lay witnesses testified as to the physical conditions of the Building at the time of petitioner’s employment with respondent, the locations of the copying machines proximate to petitioner’s work areas and the nature of petitioner’s duties.  As a result of their testimony, which was largely unchallenged, and a review of the related exhibits offered by the parties I make the following findings of fact relative to such testimony/ evidence:

(a)  While employed by the respondent the petitioner was well regarded by her superiors, received good work reviews and enjoyed several promotions.  Prior to early 1994 her absentee record was normal and she had accumulated a large amount of unused sick leave.  Her personnel file does not reflect any complaints regarding her work area other than her complaints (commencing circa 1990) of exposure to copier fumes.  See T-6/3/88 at 36.

(b)  The testimony of Mr. Reynolds, and the reports he co-authored regarding the study of the air quality of the Building as of 1995, assessing the temperature, relative humidity, carbon monoxide, and carbon dioxide as well as air flow measurements at the Building.  In summing up the results of such study(ies) Mr. Reynolds stated that while certain locations within the building may have provided data which fell “outside” of recommended ranges, the building as a “whole” offered measurements which fell within the guidelines of the American Society of Heating, Refrigeration and Air Conditioning.  The exception that his team did find and note were (i) a lack of sufficient ventilation in/about  the areas used as “smoking rooms” at the time of the survey, (ii) that the air flow pipes had been blocked or “dead-ended” (closed dampers) in two locations (Rooms 256 & 260) and (iii) the air control valves were found to be deficient in terms of operating capacity.  Recommendations were made to overcome each of these deficiencies. 

(c) I found the testimony of Ms. Brady to be convincing both to the various locations within the building that petitioner had been employed and as the respective dates/periods of employment at each location.  Armed with both her knowledge of the group or unit to which petitioner was then assigned and a copy of the Building’s layout (Exhibit RM-6), Ms. Brady was able to mark such lay out to indicate the various areas of the Ground and First floors to which petitioner had been assigned.  I note that neither of the closed dampers found by Mr. Reynolds survey were located in areas where the petitioner had worked.  As petitioner testified, there  was a smoking room adjacent to the large room in which petitioner commenced working in 1991.  These rooms shared two common walls.  However, since petitioner’s work station was adjacent to the outside wall of Room 231 she appears to have been located roughly 20 feet from the nearest adjoining wall of the smoking room.  (Exhibit RM-6).

The petitioner was diagnosed as having asthma by Dr. Dobken during April 1991.  In his opinion, and based upon information that he received from the petitioner, the latter’s asthmatic and allergic condition(s) had manifested themselves more than two years prior to the aforesaid date.  Dr. Dobken also found the petitioner to be suffering from chronic obstructive lung disease, obesity, and reactive airways disease, and to be taking medication for one or more of such disorders on the date of his initial examination.  During June 1992 Dr. Dobken wrote to the respondent concerning the petitioner’s condition and labeled her as a “severe asthmatic”.  He also advised respondent that petitioner had been warned to avoid “any form of tobacco exposure”.  Dr. Dobken testified that in the course of the period that he treated her petitioner developed sinus disease, “GI” intestinal symptoms and constant “turbulence” in her chest and stated that by June 1996 “her disease was unremitting and permanent and not expected to improve”.  He characterized her condition as that of a “pulmonary cripple”.  In Dr. Dobkens view by March 1996 the petitioner was “permanently disabled from the standpoint of pulmonary function.”  See Exhibits P-4, P-4.

Three physicians offered medically-based testimony at the trial.  Drs. Goodman and Lewis were presented as expert witnesses by the petitioner and respondent, respectively; Dr. Dobken was presented by the petitioner as the latter’s treating physician.  Dr. Goodman noted that at the time of the examination (11/96) the petitioner was using a pain killer, an inhaler and a pill or medication for asthma.  In the course of the examination Dr. Goodman found evidence of restricted ability to exhale and heard scattered ronchial squeaks and rhonchi; he also had the petitioner submit to a pulmonary function study test.  In Dr. Goodman’s view the above findings supported his diagnosis of chronic obstructive pulmonary disease.  He found the petitioner to be 40% disabled (partial/total) due to such condition.  On the issue of causal relationship, this witness testified that he accepted facts as presented in the petitioner’s hypothetical question, which blame petitioner’s current pulmonary condition on (i) the fumes which were alleged to be emitted from the copying machine(s) that were located in the vicinity of petitioner’s work locations during the last three years of her employment in the Building, and (ii) her exposure to second hand smoke in and about her work station in the Building.

Dr. Lewis testified as respondent’s medical expert.  He found the petitioner to have bronchial asthma and assigned a value of 10% partial/total to her disability in that area.  He accepted petitioner’s statement(s) to the effect that her asthmatic condition began/was manifested circa 1990.  He further accepted the finding, made by both petitioner’s current allergist and Dr. Dobken, that the petitioner was allergic to molds and household dust.  In Dr. Lewis’ view molds are ubiquitous and are found in ambient air, while household dust exists in all households.  Dr. Lewis stated that he had reviewed the air quality study made of the Building (Exhibit RM-3) and was of the opinion that there was no causal relationship between the petitioner’s asthmatic condition and her former employment with the respondent.  In his view her condition should be viewed as a disability which presented itself periodically, i.e., when the petitioner was experiencing an asthma attack, which the petitioner stated occurred on an average of twice a week.

In the course of her treatment and examinations by Drs. Goodman, Lewis and Dobken the petitioner underwent a series of pulmonary function tests.  The comparable results of these studies is set forth below:[2]

I am satisfied, both as a result of  Dr. Dobken’s testimony, the timing of his test(s), the fact that all data regarding the pulmonary function tests he administered was presented for review (Exhibit P-1), as well as the fact that his comments and opinion were that of a treating physician who had examined/treated the petitioner on multiple occasions, that the petitioner was properly diagnosed as suffering from chronic obstructive pulmonary disease as well as reactive airways disease, asthma and allergies at/about the time of the formal termination of her employment with respondent (petitioner had terminated active employment several months prior to May 1996).

I am also of the opinion, based upon the records and testimony presented by Dr. Dobken, that petitioner suffered to a lessor degree from each of these conditions prior to April 1991.  The latter finding is significant only to the extent that the worker’s compensation coverage, which had been provided to the respondent by Liberty Mutual Ins. Co., ended on or about February 1, 1992; thereafter the respondent became self-insured for such coverage.  I find, therefore, that the petitioner’s various pulmonary conditions, as diagnosed by Dr. Dobken during April 1991, initially manifested themselves during the period that Liberty Mutual provided workers compensation insurance to the respondent.

I note at this point that Dr. Dobken was the most credible of the medical witnesses who testified.  As a result of this fact that he had treated the petitioner for a five year period he was thoroughly conversant with her condition, and was able to respond to questions posed to him both on direct and cross examination in a manner which enhanced his credibility both as a medical expert and as a physician who was fully knowledgeable concerning the petitioner’s physical condition.  Further, I found his testimony to be objective in nature, while that of Drs. Goodman and/or Lewis was clearly client-based.

Dual causation occupational disease claims often present difficult questions of causal relationship.  Pre-existing diseases can contribute substantially to an occupational disease.  In addition, since employers are generally held (exclusive of their heart disease cases that qualify for treatment under Section 7.02) to take their workers as they find them, employers are usually held responsible for a portion of the accumulated disability even thought he work connected event or incident would not have caused permanent disability/damage were it not for the presence of a pre-existing condition.

In 1979 amendments to the Compensation Statute made many changes in the then existing law.  Included were changes to the text of Section 31 that require a successful petitioner to meet the following requirements:

(i) the occupational disease must be shown to be due in a material degree to causes and conditions arising out of the work place which in turn are found to be characteristic of or peculiar to a particular trade, occupation, or place of employment; and

(ii) the petitioner must prove by objective medical evidence that the occupational exposure in question did indeed cause or materially contribute to the disease/condition claimed.  See Fiore v. Consolidated Freightways, 140 N.J. 452, 473 (1995).

In discussing the above standard of proof the Supreme Court noted, with approval, that the courts have long emphasized “the need for objective evidence demonstrating that the workplace is a material cause of disease”.  Of interest, considering the issues presented in this case, is the Supreme Court’s approving comment regarding Wiggins v. Port Authority, 276 N.J. Super. 636 (App. Div. 1994), in which the Appellate Division had found that the petitioner had failed to meet his burden of proof where he failed to produce any medical evidence or literature supporting is claim of causal relationship between multiple sclerosis and the conditions and/or the toxin to which he was exposed at his workplace.  Id. at 475.

Fiore itself involved a claim by a truck driver that his occupation exposed him to a greater amount of carbon monoxide than that to which he would otherwise have been exposed, and that such exposure was a material cause in producing his angina attack and coronary artery disease.  Neither party submitted any chemical analysis or other survey identifying either the conditions under which Mr. Fiore worked, or to those to which he would otherwise be exposed to in every day life, and the medical experts presented disagreed as to the relative roles of Mr. Fiore’s occupational exposure and personal risk factors as causes of his heart disease.  In reversing both the Appellate Division and the trial judge, and remanding the case for further hearing, the Supreme Court said:

In sum, the parties generally should provide more reliable evidence than the record reflects.  Although we do not want to impose undue evidentiary burden on the parties, the interests of truth and justice require the production of sufficient credible evidence to support the decision of the workers compensation judge.

Fiore, supra at 477.

Another recent case involving appellate review and the reversal of a finding in favor of petitioner for occupational disease disability is Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div. 1996).  In that case a police officer contended that his pulmonary disorder was causally related to the exposure to fumes and other environmental factors to which he was subject by virtue of his employment.  The Appellate Division found that Mr. Laffey had failed to meet his burden of proof on the issue of causal relationship by virtue of his failure to

provide quantitative evidence concerning the level of pollution he was exposed to, the component elements of the pollution, or the duration of exposure in any measurable manner . . . Petitioner’s experts testimony of causal relationship was based solely on the subjective characterizations of the petitioner and not on any existing medical, epidemiological or scientific studies establishing causation.

Id. at 306.

Insofar as petitioner’s claim of occupational disease is based upon alleged exposure to copier fumes/odors I find that petitioner has failed to meet her burden of proof that such fumes/odors contributed to any material degree in aggravating her pulmonary condition.  The issue of causal relationship in such area was not specifically addressed by Dr. Goodman, petitioner’s pulmonary expert, beyond the fact that he clearly and fully accepted petitioner’s claims that she was adversely affected by such fumes.  Further, notwithstanding petitioner’s view in the matter, her treating physician, Dr. Dobken, did not either support or quantify in any manner her claim that she had been adversely affected by copier fumes. 

The issue of second hand smoke must be considered separately, however, on the basis of Dr. Dobken’s unequivocal testimony that the petitioner’s exposure to any tobacco smoke would have a direct and immediate affect on her pulmonary condition.  See T-8/9/01, at 9, 42.  While Dr. Goodman also found a causal relationship between the petitioner’s current pulmonary condition (which he, unlike Dr. Dobken, estimated to represent a 40% partial total permanent disability) and her exposure to second hand smoke in/at the Building , the validity of his testimony in this area is seriously flawed by his misunderstanding of the degree of exposure to such smoke that petitioner actually suffered.[3]  In fact the petitioner’s exposure to second hand smoke was limited to (i) the time spent entering and exiting the Building, where smoking was permitted, and (ii) such smoke that escaped from the designated smoking room that shared two common walls with the room petitioner worked from 1991 to 1995.  Though such “smoking room” had a door, the physical survey of the Building’s air quality system, performed by the PMK Group and documented in their report dated August 1995 found that the existing ventilation system was inadequate insofar as providing a proper exhaust system for the amount of smoke that was generated by the use of tobacco products within the confines of such designated smoking area.  See Exhibit RM-3 at 7.  Note in this regard that such report, authored by Mr. Reynolds and accepted by both parties as objectively representing the air control system of the Building as of mid-1995 cites the OSHA rule which stipulates that when and where smoking is permitted in the workplace, the designated work areas must be “enclosed and exhausted directly to the outside and that such areas must be maintained under a negative pressure sufficient to contain the tobacco smoke within the designated area.”  That the building did not meet this standard is clear from the comment within the aforesaid report that in the event that the respondent wished to continue the use of such designated smoking areas within the building “substantial improvement” in the ventilation serving the smoking areas would be required.

Although the petitioner’s testimony did not focus on second hand smoke as contributing to the her pulmonary condition, Dr. Dobken testified that she had complained to him of her exposure to the same in the course of her treatment with him.  T-9/9/01 at 9-10.  In the course of treating petitioner’s pulmonary and respiratory problems Dr. Dobken tested her for allergic reactions to various substances and found that she was allergic to molds, household dust, and weed pollen.  In Dr. Dobken’s view (i) the latter category includes tobacco and tobacco smoke, and (ii) any exposure to tobacco smoke would have and has had an immediate and adverse effect on the petitioner’s pulmonary condition.  Id. at 42.

Based upon the testimony and comparative diagnoses presented by Dr. Dobken I find that the petitioner’s pulmonary and respiratory condition materially worsened during her employment with respondent, which was coincident with her employment in the Building.  I am also satisfied that her exposure to second hand smoke during such period, particularly after 1991 when she commenced working in Room 251, which shared two common walls with a designated smoking room, was such in quantity and effect, as to meet the requirements of Section 31, which, as noted earlier, requires that a successful occupational disease claim must be shown to be due “in a material degree” to causes and conditions arising out of the work place which are shown to be characteristic of or peculiar to the place of employment.  Further, the petitioner must prove by objective medical evidence that the occupational exposure in issue did indeed cause or materially contribute to the disease or injury claimed.  See Fiore, supra, and Laffey, supra. 

I find that the petitioner has met these standards insofar as proving a causal relationship between the worsening of her pulmonary and respiratory conditions during the period she was employed in the Building.  In reaching this conclusion I take note of the fact that respondent has failed to introduce any evidence relating to petitioner’s exposure to second hand other than at her place of work in the Building.  Further, I find that petitioner’s exposure to second hand smoke in the volume and under the circumstances present at/in the Building during her time of employment by the respondent was peculiar to her place of employment.  I also find, based on Dr. Dobken’s testimony, that the petitioner was a “pack-a-day” cigarette smoker for at least ten of the eighteen years she smoked cigarettes and that she stopped smoking sometime prior to April 1991. While her use of cigarettes appears to have ended prior to the manifestation of her pulmonary condition(s), I nonetheless find that it was a contributing cause to the pulmonary condition that she now suffers.

In the case at hand the respondent has not challenged the fact that the petitioner was exposed to second hand smoke when she entered and exited the Building, as well as being exposed to such fumes as may have escaped the smoking room that was adjacent to her work room.  Respondent’s only counter argument(s) in this area are (I) that the amount of second hand smoke to which petitioner was exposed while employed in/at the Building was insufficient to adversely affect her pulmonary and respiratory conditions, and (ii) that the petitioner’s pulmonary problems preceded her employment with the respondent.  While the respondent may be correct on the latter point, it has no effect on the determination of whether a claim is compensable, though such pre-existing condition may reduce the respondent’s liability in terms of dollars due where permanent disability is found.

In reaching my decision insofar as causal relationship and overall compensability are concerned I have relied in large measure on the testimony of Dr. Dobken, a treating physician, whose testimony in several critical areas I found to be logical, unrefuted, factually accurate, and medically persuasive, and on the teachings of both Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1 (App. Div. 1999), and Ciuba v. Irvington Varnish & Insul. Co., 27 N.J. 127 (1958).  Each of these cases affirms the legal principle that in compensation cases the evidence/testimony presented by the successful petitioner need not have the attribute of “certainty” but rather must support or produce a presumption well-founded in reason and logic.  As stated in Ciuba, “The evidence must be such in quality as to lead a reasonably cautious mind to the given conclusion.”  Id. at 140.

I find Magaw to have an even closer relationship to the case at hand since it too centered around the issue of whether second hand smoke was causally related to petitioner’s occupational disease (tonsil cancer).  The Compensation Judge’s finding of causal relationship was due in large measure to his acceptance of medical testimony that tobacco smoke contained all the carcinogenic and toxic agents that have been identified with inhaled smoke; such testimony of course parallels that offered in the subject case by Dr. Dobken as to the affect of second hand smoke on the petitioner.  In reviewing the testimony/evidence on which Judge Boyle relied in reaching his decision the Appellate Division followed the rule, established in Ciuba, supra, and accepted the fact that the trial court determination that a nexus existed between the claimant’s disease and his place of employment which was “well founded in reason and logic” and not a mere guess or conjecture and affirmed the trial level decision.  Magaw, supra, at 8.

The toxic effect or “sidestream” or second hand smoke was also acknowledged by Judge Gruccio in Shimp v. New Jersey Bell Tele. Co., 145 N.J. Super. 516 (Chan. Div. 1976).  In the course of issuing an injunction against smoking in New Jersey Bell’s offices, other than in a specific designated area, the court made/accepted the following findings:

a)  smoke from burning cigarettes is toxic and deleterious to the health of non-smokers who are exposed to second hand smoke; cigarette smoke pollutes the air, creating a health hazard for all parties who rely on the same air supply.

b)  The presence of smoke in the air increases the level of carbon monoxide and adds tar, nicotine, and the oxides of nitrogen to the available air supply; and

c)  exposure to second hand smoke may lead to “increased respiratory tract infections and precipitate respiratory and other symptoms” even in non-allergic persons sensitive to tobacco.

Id. at 523, 528-30.

Based upon the record before me in this matter and the above findings of fact and law, and drawing on my experience as a Judge of Compensation, I find that the petitioner has incurred a permanent partial/total pulmonary disability of 25%, of which 15% shall be allocated to her pre-existing pulmonary condition at the time of her employment by respondent.  I further find that (i) her permanent partial/total disability increased to 20% during the time that Liberty Mutual Insurance Company provided workers compensation coverage to the respondent, and (ii) such disability increased an additional 5% during her remaining employment period ( i.e. 1992-1996).[4]

The benefits due under the foregoing award are calculated as follows: 

a) 15 weeks x $145.68 (iii) = $21, 852 less $11,250 (*) = $10,110**

(Abdullah calculation 71 weeks at $142.40 = $10,110)

*credit for the pre-existing condition

** Liberty Mutual to pay $4,854 [34.09 weeks] and Respondent, as self-insured, to pay $5,256 [36.1 weeks].

The following fees and expenses are also approved:

(* To be shared/paid equally by Liberty Mutual Insurance Company and the respondent).

I will enter an order incorporating the above awards, fees, and expenses

BY: NEALE F. HOOLEY, Judge of Compensation

Date: August 20, 2001