DIVISION OF WORKERS COMPENSATION
ELIZABETH, UNION COUNTY DISTRICT

                        May 19, 2010

BEFORE:

                        Hon. J. Randall Corman, Judge of Compensation

APPEARANCES:

                       Campbell Ortiz LLC,
                       BY: Omar Lopez, Esq.
                       Attorneys for the Petitioner      

                       Law Offices of Donald F. Burke, Esq.
                       BY:  Christopher Neumann, Esq.
                       Attorneys for the Respondent

            In the matter of Gabriel Melo v. Port Authority of NY & NJ, Claim Petition 2006-25707, Petitioner has alleged pulmonary injury from occupational exposure to dust, dirt, fumes and other irritants.  The parties stipulated to employment by the Respondent and jurisdictional issues and the Court adopts these stipulations.  All other issues regarding causal relationship, exposure, notice, knowledge injuries arising out of and in the course of employment were in dispute.

            Petitioner testified that he began employment with the Port Authority of NY & NJ in 1992.  Prior to that he worked for Tri-County Asphalt where he performed construction duties, and at Continental Airlines, where he worked as a baggage handler.

            Petitioner’s first job with Respondent Port Authority was as a buildings and grounds attendant at Port Newark, which involved picking up garbage and general maintenance.   He worked at this position for six to eight months and his duties included cleaning up accident and oil spills with a substance called Speedy Dry.  He claimed the area was very dusty and his clothes would smell like fumes at the end of the day because there were trucks in his environment.

He then worked as a toll collector for three and a half years, first at the George Washington Bridge, then at the Staten Island bridges.  He stated that while a toll collector he was exposed to carbon monoxide and that his clothes would “stink” from the fumes.  Melo transcript at 15.  Petitioner subsequently became a garage attendant for a year and a half, working at various sites, such as the World Trade Center, Staten Island Bridges, Port Newark and Newark Airport.  His duties in that capacity involved getting cars for managers, putting gas into them and washing them.  He claimed exposure to carbon monoxide, oil and cleaning products while in this position. 

Petitioner has held his current position, that of general maintainer, since 1997 and has worked at the Lincoln Tunnel, Port Newark and Newark Airport.  He worked the midnight shift at the Lincoln Tunnel where his primary duty was degreasing the tunnel and cleaning the gutters.  This involved closing the tunnel to traffic while machines would come through that put a solution on the tile, followed by a machine scrubber and then a truck called a flusher and then a crew of 20 men would clean afterwards.  He did not know what chemical was used in the process, only that it had an “orangey smell.”  Id. at 22. 

While a general maintainer at Port Newark he was responsible for excavating water main breaks, doing concrete work, fixing catch basins, working with asphalt and removing asbestos.  He claimed exposure to asphalt, dust, carbon monoxide and truck fumes.  Petitioner testified that whenever he engaged in asbestos removal he always wore his respirator, protective suit and gloves and had received an asbestos removal certification.

However, Petitioner testified he was exposed to asbestos in his outdoor excavating work.  He informed the Court that “asbestos is a rock” and recounted that he was exposed to rocks during excavations that he thought were asbestos.  However, he could not “say a hundred percent” that these rocks were asbestos.  He indicated he did not learn this in the training he had received in asbestos removal, but had looked up asbestos in the dictionary and came to the conclusion that the little boulders along a pier in Jersey City were asbestos.  He also indicated that “as long as its not touched its not a problem.”  He also stated that he was in old Port Authority buildings that had asbestos insulation but he did not work on any of the pipes.  Id. at 65-70. 

In his seven years as a general maintainer at Newark Airport, Petitioner was engaged in emergency response and clean up for jet fuel spills, aircraft hydraulic leaks, emergency landings and car accidents.  In cleaning up fuel spills, he used a chemical called “Speedy Dry.”  When not cleaning spills, he operated a mechanical street sweeper at the airport.  He testified that his clothes would smell like fumes at the end of the day.  He also claimed that his skin was temporarily discolored by the fumes and that his hair was also affected. 

As to his current complaints, the Petitioner testified began to experience headaches while he was a toll collector, however such headaches have diminished since he has left that position.  He also testified that since his assignment to Newark Airport seven years ago he began to cough up sputum accompanied by a sore throat, however he testified “a nice hot cup of coffee would clear it up.”  Id. at 35.  With regard to complaints of breathing difficulties, he claimed he had trouble breathing when given the spirometry test by the Port Authority medical department.  He also indicated that after continuously working for a while he would get tired and have to take “a breather.”  Id.  at 37-38.  He also claimed that for the past few years he sometimes wakes up in the middle of the night with a dry mouth and has to clear his throat and nose. 

However, Petitioner testified that he has not lost any time at work due to any of his symptoms and does not take any medication or received any medical treatment in connection with these symptoms.  He also testified that he lifts weights and helps to coach football, baseball and soccer for his children’s sports teams.  In addition, under cross examination, Petitioner admitted  that in 2006 when he filled out a health history for a commercial drivers fitness examination he indicated that he had no shortness of breath nor any lung disease, emphysema, asthma or bronchitis.  Petitioner explained that after a doctor indicated that he had a lung capacity deficiency he had refused to go to any further exams with the Port Authority medical department because “It’s like a lie.”  Id. at 61.

He testified that he has never smoked, though his father smoked at home while Petitioner was growing up until he reached the age of fifteen.

Petitioner’s medical expert, Dr. Leonard Joachim was admitted as an expert in pulmonary and internal medicine, though counsel for the Respondent objected to his status as an expert in pulmonary medicine because he had not yet taken the exam to become board certified in that field.  However, Dr. Joachim indicated that he had a significant practice in pulmonary medicine. 

Dr. Joachim examined the Petitioner on August 6, 2007 and noted complaints that were generally consistent with Petitioner’s subsequent testimony.  His examination of the nasal cavity found hyperemic, congested edematous mucosa with scant, thick yellowish secretions and found paranasal tenderness to compression and palpation.  Evidence of postnasal drip was also found. 

With regard to Petitioner’s lungs, Dr. Joachim’s examination found rare, forced end expiratory wheezing that was faintly audible.  Dr. Joachim’s review of Petitioner’s chest x-ray found the lung fields to be emphysematous as well as peribronchial thickening and bronchopulmonary markings.  He also found pleural thickening and an ill-defined calcified, plaque-like linear density in the lungs. 

A pulmonary function test (PFT) conducted by Dr. Joachim’s office found Petitioner was at 75% of FVC, which is vital lung volume capacity, where normal would be 80% or greater.  He was at 89% of FEV1, which is the flow parameter, where normal is 80% or greater.  The ratio of flow over volume (FEV1/FVC) was 115%, where 80% is considered normal.  Joachim transcript at 34-35.

As to causation it appears that Dr. Joachim relied on the job description for Petitioner’s various positions with the Respondent to “extrapolate” exposure to various chemicals and irritants.  Id. at 41-43.  Based on Petitioner’s position as a general maintainer, Dr. Joachim asserted exposure to jet fuel, asphalt, concrete, gasoline, and “chemicals,” though he could not name any specific chemicals other than benzene, which he said was present in gasoline.  Id. at 41-42.  Regarding proof of asbestos exposure, the only evidence Dr. Joachim was able to cite was Petitioner’s certification in asbestos removal, although he did seem aware that the petitioner used protective gear while cleaning asbestos.  He also thought Petitioner “might have been exposed” to asbestos when he first began working for the Port Authority in 1992 but he acknowledged he had no documentation other than the Petitioner’s word.  Id. at 44-45.  Other than “extrapolating” exposure to chemicals from the Petitioner’s job descriptions, Dr. Joachim did not determine the extent and duration of Petitioner’s exposure to any chemical or irritant in the workplace.  However, under cross examination, he did agree such information would be important.  Id. at 43.

As to outdoor pollutants such as dust and fumes, Dr. Joachim asserted that because the Petitioner’s job at the airport required him to work outdoors, he would have a greater exposure to these pollutants that a member of the general public in the New York metropolitan area.  Id. at 50-52.  Dr. Joachim did not bring any studies with him regarding the effect of outdoor pollutants on individuals such as the Petitioner, though he claimed there are “a lot of studies.”  Id. at 54.  He mentioned the existence of studies the aftermath of the September 11, 2001 terrorist attack on the World Trade Center (though Petitioner did not allege exposure from this incident) as well as studies involving exposure to asbestos and jet fuel.  Other than to mention that latency in asbestos exposure can run from ten to twenty years or more, he did not discuss the results of any of these studies, or explain how they pertain to the Petitioner’s specific case.

On cross examination, Dr. Joachim indicated that the intent of his exam of the Petitioner was to determine whether he could perform his duties as a general maintainer.  When asked if the Petitioner could perform his job duties as of the date of the exam, Dr. Joachim responded “I have no opinion.”  Id. at 57.

In his report dated August 6, 2007, Dr. Joachim diagnosed Petitioner as having chronic rhinosinusitis, chronic bronchitis, obstructive lung disease and restrictive lung disease with pleural pulmonary scarring consistent with asbestosis and asbestos related disease.  He estimated the Petitioner to have a permanent pulmonary disability of 40% of partial total. 

Respondent’s medical expert, Dr. Ilia Segal was admitted as an expert in pulmonary and internal medicine and is board certified in both of those fields.  Dr. Segal examined Petitioner on March 1, 2007 and noted he complained of an occasional cough and sinus congestion and that he had lost no time from work nor received any medical treatment for pulmonary pathology.  His physical examination of the Petitioner found no abnormalities related to any pulmonary condition.

In sharp contrast to Dr. Joachim, Dr. Segal found Petitioner’s chest x-ray to be normal except for possible hyperinflation of the upper lobes of the lungs.  He indicated this could be caused by mild bronchitis or by a congenital condition of the ribs.  He found the bronchovascular markings to be normal with no evidence of emphysema and no pleural plaques.  He also found no interstitial scarring nor any thickening of bronchial tubes.  He specifically disagreed with Dr. Joachim as to the presence of pleural thickening.  Dr. Segal indicated the x-ray was of high quality and that pleural thickening or calcifications consistent with asbestosis were clearly not present.  Segal transcript at 19-20.  In addition, Dr. Segal testified that he had never seen a patient who had worn protective gear develop asbestosis.  Id. at 57.

The pulmonary function test performed by Dr. Segal’s office showed slightly more deficiency that that performed by Dr. Joachim; i.e., lung volume capacity (FCV) of 70%, flow rating (FEV1) of 77%, and ratio of flow over volume (FEV1/FVC) of 110%.  Dr. Segal found the PFT test results to suggest mild chronic obstructive pulmonary disease.  The most likely forms of chronic obstructive pulmonary disease are bronchitis and asthma, which would both be consistent with hyperinflation of the upper lobes, however Dr. Segal thought asthma was unlikely because he found no evidence of wheezing in the Petitioner.  In addition, Dr. Segal ruled out emphysema, since such a diagnosis would only be indicated if there was a total lung capacity far in excess of 100% and the Petitioner’s total lung capacity was 81%.

In addition to ruling out asbestosis and emphysema, Dr. Segal also testified that there was no evidence Petitioner had chronic rhinosinusitis, since such a diagnosis requires an MRI and a CT scan, which was not performed in this case.  He indicated that complaints of a stuffy or running nose are not sufficient for such a diagnosis.  Id. at 59.

Dr. Segal found that Petitioner was clearly capable of performing his job. While Dr. Segal thought he had mild bronchitis he believed the cause was unclear and difficult to say whether it was chronic.  In his report dated March 8, 2007 he estimated the Petitioner to have a permanent pulmonary disability of 3% of partial total regardless of cause.  However, he testified that after reviewing the PFT test performed for Dr. Joachim in which the results were much closer to normal he questioned his 3% rating and now thought the actual disability rating would be closer to zero than to 3%.  

It is interesting to note that both medical experts agreed that secondhand cigarette smoke may have possibly played a role in Petitioner’s condition.  Dr. Joachim stated that secondhand smoke can cause obstructive lung disease and chronic bronchitis and can indirectly cause sinusitis by denuding the ciliary mechanism thereby increasing the patient’s susceptibility.  Joachim transcript at 66-67.  Dr. Segal also indicated that exposure to secondhand cigarette smoke can cause chronic bronchitis.  Segal transcript at 60.  Given the fact that the Petitioner grew up in a home where his father was a medium smoker, this raises the question of whether this may be a possible source of his complaints.

Following the conclusion of expert testimony, Respondent’s counsel made a motion to strike Dr. Joachim’s testimony, claiming that Dr. Joachim had been untruthful when he denied his license to practice medicine had ever been suspended in the State of New Jersey.  Upon consideration of submissions by the parties and arguments made on the record, the Court concluded that the fact that the Appellate Division vacated a suspension of Dr. Joachim’s license by the State Board of Medical Examiners gave him sufficient basis to believe he had been vindicated.  Thus, while Dr. Joachim’s statements before this Court may have involved “spinning’ the facts in a manner in which he wishes them to be viewed, they did not rise to the level of deliberate falsehoods.  Accordingly, the Respondent’s motion was denied and Dr. Joachim’s testimony will be considered on its merits.

In reviewing the testimony of the medical experts of the parties, I found Dr. Joachim to be unimpressive.  At times his reasoning appeared superficial and conclusory and at other times just plain faulty.  In particular, Dr. Joachim’s assertion that the Petitioner’s work in removing asbestos must have resulted in exposure to asbestos completely ignores the fact that the Petitioner has testified that he always wore the required protective gear when removing asbestos.  The fact that the Petitioner always wore protective gear would logically be evidence that he was not exposed to asbestos in the workplace, but Dr. Joachim somehow draws the opposite conclusion without any evidence the protective gear was defective or improperly used.

In addition, Dr. Joachim’s attempt to “extrapolate” exposure to various chemicals and irritants based on Petitioner’s job title of “general maintainer” was also unconvincing.  In his testimony, Dr. Joachim only mentions gasoline and benzene (which he claims is present in gasoline) as two particular chemicals to which the Petitioner may have been exposed.  Yet he does not articulate exactly how Petitioner was exposed to gasoline or benzene (presumably it was while he was a garage attendant) nor does he cite any studies or scientific data that would establish what illnesses are caused by these substances or whether the Petitioner’s complaints are related to such exposure.  In fact, the Petitioner mentioned three other substances he worked with (spilled jet fuel, “Speedy Dry,” and degreasing solution with “an orangey smell”), yet Dr. Joachim apparently made no effort to identify their chemical composition or associate them with any specific health risks.  In addition, Dr. Joachim made no attempt to determine the extent and duration of Petitioner’s exposure to any chemical or irritant in the workplace even though he acknowledged that such information would be important.

Dr. Joachim’s testimony calls to mind Laffey v. City of Jersey City, 289 NJ Super. 292 (App. Div. 1996) where a petitioner seeking to prove a pulmonary disability in a workers compensation claim had

…failed 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.  There was no evidence of any articles, treatises or medical studies that link exposure to fumes from vehicles, furnaces, landfills, or fires to petitioner’s ailments.  Petitioner’s expert testimony of a 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.

Similarly, Dr. Joachim provided no evidence of the level or duration of exposure to any pollutant and did not discuss the component elements of pollutants (other than to mention that gasoline contains benzene).  He claimed there were “lots of studies” to justify his conclusions, though he did not provide any of these studies in connection with his testimony nor did he discuss any of them in any meaningful way.  Like the petitioner’s medical expert in Laffey, Dr. Joachim’s opinion is based on a “subjective characterization” from which he “has asserted a causal relationship without credible foundation.”  See Laffey at 306-307. 

In contrast, I found Dr. Segal to be a credible witness.  He candidly discussed evidence which pointed to the Petitioner having a below average lung volume capacity and hyperinflation of the upper lobes.  Dr. Segal discussed in a clear and concise manner the evidence required to diagnose various respiratory ailments so as to substantiate why he thought the Petitioner had mild chronic bronchitis and why he was able to rule out emphysema, asthma, asbestosis and chronic rhinosinusitis.  Furthermore, Dr. Segal’s courtroom review of the chest x-ray to establish that it was normal except for hyperinflation of the upper lobes was lucid and convincing.  Given the problems that seemed to pervade other aspects of Dr. Joachim’s testimony, I will therefore give credence to Dr. Segal’s opinion on the chest x-ray over that of Dr. Joachim.

However, the greatest problem for the Petitioner’s case is found in his own testimony.  The Petitioner gave the appearance of being alert, fit and healthy.  He spoke in an animated manner without any incidents of coughing or the need to clear his throat.  He freely admitted that he had lost no time from work or had any difficulties doing his job due to his complaints nor did he have to curtail his weightlifting or his role as a coach for his children’s sports teams.  His complaint of having to stop and “take a breather” after working continuously for a while is something nearly everyone does after a long period of uninterrupted work.  He admitted he had received no medical treatment for his complaints and he did not even testify to taking over-the-counter medications.  In fact, he indicated that when he experienced congestion “a nice hot cup of coffee would clear it up.”  The Petitioner’s insistence that he was exposed to rocks made of asbestos based on his looking up pictures of asbestos in a dictionary creates the impression that he is a man with minimal physical complaints who, after learning his lung volume capacity is slightly below normal, now imagines himself to be gravely ill. 

The State Supreme Court has established that “a condition that does not impair an employee’s working ability will be compensable only if it is serious enough to interfere substantially with other aspects of the employee’s life.”  Perez v. Pantasote, 95 NJ 105 (1984) at 117.  By his own admission, Petitioner’s working ability has not been impaired nor has he identified any aspect of his personal life with which his complaints have substantially interfered.  Consequently, notwithstanding a 3% partial total disability rating from the Respondent’s medical expert, the Petitioner’s condition is not compensable under the Perez standard.

Therefore, based on the testimony and exhibits placed in evidence, I find that the Petitioner failed to meet the burden of proof as to whether he suffered from any compensable injury in the course of his employment.  Accordingly, the claim petition is dismissed with prejudice.   I will assess stenographic fees of $750.00 to William C. O’Brien Associates and $50 to John F. Trainor, Inc. against the Respondent for testimony taken and various appearances made on the record.

                                                                        ______________________________

                                                                        J. Randall Corman, J.W.C.