STATE OF NEW JERSEY

NEW JERSEY DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT

DIVISION OF WORKER’S COMPENSATION

OCEAN COUNTY C.P. 2003-35725

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Edward McQuade,

Petitioner,                                                                                          

                                                                                                          DECISION

v.        

Port Authority of NY & NJ,

Respondent.

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B E F O R E :               HONORABLE BRADLEY W. HENSON, SR.

                                    JUDGE OF COMPENSATION

A P P E A R A N C E S :

Thomas G. Lynch

Campbell Lynch & Ortiz, LLC

4808 Bergenline Ave.

Suite 304

Union City, N.J. 07087

Attorney for the Petitioner

            Howard Conkling

            Attorney for Respondent

Edward McQuade began his employment with the Port Authority of New York and New Jersey in April 1980.  Following training at the Port Authority Police Academy, he was assigned to work at the Holland Tunnel.  After working at the Holland Tunnel for approximately one year, he was assigned to the police pool for two years.  During this two-year period the petitioner worked at LaGuardia Airport, Lincoln Tunnel, the Port Authority Bus Terminal, The World Trade Center and the PATH.  In 1983, the petitioner was transferred to the PATH permanently and worked there until March 3, 2004.  On September 11, 2001, Mr. McQuade reported to the World Trade Center to aid in the rescue and recovery efforts.  The petitioner testified that he worked at the World Trade Center disaster site for a period of approximately six to eight weeks, twelve hours a day and intermittently thereafter.  He subsequently received a promotion to police sergeant and was assigned to the police academy where his duties were to train police emergency services officers and stayed in that position until his retirement on August 28, 2005.

Petitioner filed a claim for occupational pulmonary disease with the New Jersey Division of Workers’ Compensation on November 7, 2003.  The petitioner alleges that as a police officer, he frequently worked outdoors, and had environmental exposure to dust, fumes, smoke, exhaust fumes and a variety of known and unknown respiratory irritants.   As a result of this alleged exposure during the course of his employment the petitioner claims to have developed pulmonary symptoms such as shortness of breath, chronic cough, exertional chest tightness, easy fatigability and at times wheezing.  The petitioner however has never received any treatment for his pulmonary symptoms and he did not miss any time from work as a result of any of the conditions alleged.  He has a history of cardiac problems of which he became aware in 2004 prior to his retirement and has subsequently undergone triple cardiac bypass surgery.  

An employee can only be awarded benefits for partial permanent disability if the permanent consequences of the alleged occupational disease or injury meet the conditions of compensability set forth in N.J.S.A. 34: 15-31 et. seq..  The statute defines a “compensable occupational disease” as follows:

1. 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.
2. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.  [Emphasis added].

The question of proof required to demonstrate the existence of a compensable occupational disease is given by:

Demonstrable objective medical evidence [that the] disability restricts the function of his body or its members or organs and must establish either that he has suffered lessening to a material degree of his working ability or that his overall disability otherwise is significant and not simply a minor injury. Perez v. Pantasote, Inc., 95 N.J. 105, 106 (1984) [Emphasis added].

Thus, for the petitioner to prevail on an occupational disease claim, he must establish the causal relationship between his disease and occupational conditions.  Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div. 1996), certif. den. 146 N.J. 500 (1996); Wiggins v. Port Authority, 276 N.J. Super. 636 (App. Div. 1994) (quoting Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 203 (Sup. Ct. 1934), aff’d 114 N.J.L. 254 (E & A 1935)).  In Laffey v. City of Jersey City, the petitioner claimed chronic bronchitis and chronic obstructive pulmonary disease as a result of constant exposure to dusts, fumes, chemicals, and other irritants while employed as a police officer for Jersey City.  The Appellate Division reversed a 37 ½ % award for permanent partial disability for pulmonary disease.  The court viewed the petitioner’s subjective characterizations of his work environment and expert testimony based solely on these subjective complaints as “insufficient to justify an award on an occupational disease basis” stating that:

Where an employee seeks to recover on occupational disease because of exposure to the general environment to which the rest of the public is exposed, the employee must present sufficient credible evidence that will raise the compensation court’s determination from one of conjecture to one of cautious reasoned probability.  Id. at 308. [Emphasis added].

Similarly in Wiggins v. Port Authority, supra, the compensation court’s award was reversed due to the petitioner’s failure to “provide any objective medical or scientific evidence establishing a causal link between chemical exposure and temperature variations and the exacerbation of his multiple sclerosis”.  Id. at 644.

In the instant matter the petitioner has failed to meet the standards of N.J.S.A. 34: 15-31 et. seq..  It is clear from expert testimony that the petitioner has not provided sufficient objective medical evidence that 1) there exists an underlying detectable medical condition, and 2) that the medical condition has resulted in a disability which restricts the functional capacity of the body or specific organ.  Rybski v. Johns-Manville Prods. Corp., 185 N.J. Super. 433, 436 (App. Div. 1982).  Dr. Monroe Karetsky testified on behalf of the respondent that the pulmonary function tests undergone by petitioner showed “normal spirometry values, normal vital capacity, normal flow rates, no obstruction” and that the petitioner has “normal lung volumes and he has normal diffusing capacity, normal passage of oxygen into his blood stream from the air”. (Dr. Karetzky, May 9, 2008, 36:19-24).  The petitioner’s own expert, Dr. Leonard Joachim, when questioned by the court admitted that despite his determination of 50% disability the pulmonary function tests which he performed also elicited normal results:

The Court:  I have a few.  Doctor, I want you to go to – just to save time if you could go to your test results.  Let’s go down the line to FVC and you got 84.  Is that normal?

The Witness:  Yes.

The Court: FEV1 normal?

The Witness: Yes.

The Court: How about the FEV1/FEV, that’s normal?

The Witness:  Yes.

The Court:  FEF .2-1.2 normal?

The Witness:  Yes.

The Court:  It looks to me like all the testing is probably giving an opinion of normalacy from you; is that correct?

The Witness:  Yes.

[Dr. Joachim, May 9, 2008, 22: 5-21].

            Dr. Joachim’s pulmonary test results were given to Dr. Karetzky at trial to review and he confirmed for the Court that, based solely on these results, the petitioner “has no disability attributable to lung disease”.  (Dr. Karetzky, May 9, 2008, 38: 12-13).

Though the petitioner’s two objective pulmonary function test results proved normal, Dr. Joachim was adamant that the petitioner had between 35 – 50% disability. (Dr. Joachim, May 9, 2008, 23-24).  He based his opinion on inspiratory crackles at the base of the lungs, discordant movement of the diaphragm observed during the most recent physical examination of the petitioner as well as previous tests done in 2003.  (Dr. Joachim, May 9, 2008, 26-27).  However Dr. Karetzky did not note any of those symptoms in his examination that took place on May 5, 2008, approximately three months after Dr. Joachim’s exam.  Dr. Karetzky stated that, “There were no abnormal sounds on auscultation of his chest at all, and movement of his diaphragm which is not a true indication of the presence of lung disease was essentially normal”.  (Dr. Karetzky, May 9, 2008, 39: 12-16). 

Furthermore, the testimony makes it clear that the petitioner’s subjective complaints of shortness of breath and fatigue upon physical exertion can be attributed to his pre-existing coronary disease.  The petitioner first developed what he described as “stamina issues” and “difficulty breathing”, (Edward McQuade, August 31, 2007, 18:9-12), during a training exercise on the George Washington Bridge, at the conclusion of his work at ground zero which was approximately at the time of his initial examination with Dr. Karetsky in 2004.  He attributed this change in his ability to engage in physical activities without difficulty to exposure that he suffered while working as a police officer. (Edward McQuade, August 31, 2007, 17-18).  This training exercise however, also gave the petitioner concern that he might have been experiencing cardiac problems.    In April 2007, similar respiratory symptoms repeated themselves and shortly thereafter it was revealed, by cardiac catheretization, that these were manifestations of heart disease. One of his arteries was 90 percent blocked and the other two were 80 percent blocked.  (Edward McQuade, August 31, 2007, 26:1-3).  The petitioner underwent triple cardiac bypass surgery on April 30, 2007.  Dr. Joachim testified that the triple bypass surgery would affect his pulmonary function studies.  (Dr. Joachim, May 9, 2008, 28:24-25, 29:1).  When asked by the court Dr. Karetzky stated that the normal test pulmonary test results that Dr. Joachim obtained in 2008 when compared with alleged abnormal results of petitioner’s initial examination in 2003 was attributed to the heart surgery:

The Court: Do you have an opinion as to what happened assuming those ’03 exams were true, that he had some problems back then?  As the doctor said and he was very honest this testing shows normal.  Do you have an opinion on that one way or the other?

The Witness:  Yes, I do.

The Court:  What is it?

The Witness:  That is the consequence of having your sternum split and sewn together again.

The Court:  And why is that?

The Witness:  For cardiac bypass surgery.

[Dr. Karetzky, May 9, 2008, 40: 17-25, 41: 1-6].

It was determined by Dr. Joachim that the lung disease that the petitioner allegedly suffered was in part pulmonary and in part cardiovascular, yet he testified that it would be difficult to separate his diagnosis of 50% of total disability in an exclusive manner.  (Dr. Joachim, May 9, 2008, 28: 1-10). .

               During the course of his employment the petitioner has not received any treatment for his pulmonary problems with the exception of sinus infections. (Edward McQuade, August 31, 2007, 20-21).  “He takes no medications for alleviation of pulmonary symptoms, in particular no bronchodilator or corticosteroid by inhalation”.  (Dr. Karetzky, May 9, 2008, 32:20-22).  Aside from the George Washington Bridge incident, the petitioner has not proven “an appreciable impairment in [his] ability to work.”  Perez v. Pantasote, Inc. at 117.  If there has not been “an appreciable impairment of the employee’s ability to work” then the court must consider “whether there has been a disability in the broader sense of impairment incurring on the “ordinary pursuits of life”.  Id.  Here the petitioner, though retired, “regularly goes to the gym with aerobic exercise performances that are not limited by shortness of breath”.  (Dr. Karetzky, May 9, 2008, 32:11-14).  Dr. Katzkey testified that as a result of his bypass the petitioner has had no exertional limitation and was “pretty pleased with the results of the surgery”.  (Dr. Karetzky, May 9, 2008, 32:20-22).  These observations contradict the petitioner’s subjective complaints of pulmonary distress and the proofs provided are insufficient to allow a conclusion that the petitioner has suffered a compensable injury. 

Therefore, for the reasons set forth herein, I find insufficient objective medical evidence to support petitioner’s subjective complaints of pulmonary impairment and that the petitioner has not demonstrated any material lessoning of his ability to work as a result of alleged respiratory symptoms and not due to coronary artery disease.

Therefore Claim Petition 2003-35725 is hereby dismissed for failure to sustain the burden of proof. Respondent shall submit the appropriate form of Order.

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Bradley W. Henson, Sr.                                                         Date:_________________