CP# 01-29463 Micchelli v. Hoffman-LaRoche
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
Petitioner alleges that he has contracted bronchitis and asbestosis as a result of exposure to various chemicals and asbestos dust while employed by Respondent. Respondent admits the employment, but denies that Petitioner incurred either of these illnesses. Trial of these claims commenced with the testimony of Petitioner on January 14, 2005. Dr. Malcolm H. Hermele, M.D., testified for Petitioner on February 25, followed on April 6, 2005 by the testimony of Dr. Benjamin Safirstein, M.D., FACP, FCCP, the expert for Respondent. Petitioner testified again, this time in rebuttal, on June 10, and the trial concluded on August 12, 2005 when both doctors were permitted to testify by telephone. Petitioner’s attorney filed his brief on or about September 20. The brief of Respondent was filed on or about September 30, 2005.
The Court having listened to and observed the demeanor of the witnesses during trial, and having reviewed the documents admitted into evidence, as well as the briefs or memorandums supplied by the parties, finds that Petitioner has failed to demonstrate impairment due to bronchitis or asbestosis by a fair preponderance of the evidence. Accordingly, both claims are denied.
The pertinent facts are as follows: Petitioner was seventy-four years old at the time of the trial. In 1956, at the age of 24, he began working for Respondent, Hoffman-LaRoche as a pipe fitter. This work, at least for the initial years, required Petitioner to work hands on in and around asbestos covered pipes and heat reactors, thereby directly exposing Petitioner to asbestos laden materials. There were times during this early period of work when Petitioner was literally covered in asbestos dust, without adequate protection from the asbestos particles.
During his entire employment Petitioner also worked amidst various other chemicals. However, neither the concentration of any particular chemical, nor the amount of exposure was ever proven.
Petitioner worked for Respondent for 31 years until 1987, although after the first several years, Petitioner was promoted to a supervisory capacity, and while sometimes working in an asbestos laden or chemical environment, no longer was required to work “hands on”.
There was some prior exposure to asbestos as well. After graduating high school, Petitioner had worked for his father in the plumbing business, had served in the military as an aircraft mechanic, and finally, had worked for the General Motors Electric Corporation until the Hoffman-LaRoche employment. All three jobs involved some exposure to asbestos. Additionally, Petitioner smoked a half to three quarters of a pack of cigarettes per day, off and on, but mostly on, from the age of 16 until approximately age 40, when he quit.
Petitioner retired from Hoffman-LaRoche in 1987 at the age of 55. He worked at several other jobs, none of which involved exposure to asbestos. In 1996, at the age of 65, Petitioner retired fully from active employment.
At trial, Petitioner complained that for the last five years or so, he suffered increasing shortness of breath, and trouble breathing during sleep. He had previously enjoyed hiking, but had begun having trouble keeping up with his companions. He also experienced frequent coughing of clear phlegm. Petitioner took various medications, including heart medication, but was never prescribed any medication nor has had any treatment for alleged pulmonary conditions. Petitioner was somewhat obese, had a heart arrhythmia, and had high blood pressure.
I. CLAIM FOR CHRONIC BRONCHITIS
Dr. Hermele diagnosed Petitioner as having chronic bronchitis. He based this diagnosis upon two factors. Primarily, there was the history provided by Petitioner; “that he suffered a productive cough for at least three months per year for two years”. The doctor also claimed to have observed what he termed were “increased bronchovascular markings which would suggest…an inflammatory condition”. The doctor did note many different types of chemicals that the Petitioner came into contact, either in the form of dust of steam mist. However, as stated earlier, exposure was never particularized as to amount involved and duration of exposure. Nor could the Court attribute too much credence to the doctor’s interpretation of the X-rays for several reasons.
Dr. Hermele was not qualified as either A or B reader of X-rays. Moreover, the Court never found the testimony by Dr. Hermele as to the alleged bronchovascular markings, was either clear or convincing. On the other hand, Dr. Safirstein, who was eminently more qualified both in the pulmonary field, as well as the reading of the X-rays, was more convincing in testifying that the markings on the X-rays pointed out by Dr. Hermele were not indications of bronchitis.
The pulmonary Function Tests showed normal lung functioning. This is inconsistent with the diagnosis of chronic bronchitis. While Dr. Hermele appeared to attempt to minimize the consequences of the PFT results, it is clear that at the very least there is no objective evidence of a breathing impairment. Indeed, Dr. Hermele ultimately admitted as much.
On cross examination the following testimony by Doctor Hermele was elicited:
“Q: Doctor, your estimate of disability, 25% of partial total, is it possible for you to apportion that between Petitioner’s chronic bronchitis versus his asbestosis?
Q: Can you classify Petitioner’s chronic bronchitis in any way, mild, moderate, heavy?
A: I think it’s more on the mild side. I was mainly looking at this man’s asbestosis and his complaints.”
Dr. Safirstein disputes the existence of chronic bronchitis altogether. He suggested several other reasonable explanations for Petitioner’s alleged shortness of breath, including age obesity, heart condition, and lack of conditioning, none of which were ever addressed by Petitioner. He also pointed out that the physical examination showed no rhonchi, rales or wheezing existed. As explained by Dr. Safirstein, a finding of rhonchi in the physical examination would be an indication of bronchitis. Dr. Hermele could not point out any aspect of his physical examination that would confirm the existence of chronic bronchitis.
The Court is therefore convinced that Petitioner has failed to demonstrate by a fair preponderance of the evidence that he suffered from chronic bronchitis of any more than a mild nature. N.J.S.A. 34:15-36 expressly excludes “mild bronchitis” as a compensable impairment. Therefore the claim as to chronic bronchitis is dismissed.
II. CLAIM FOR ASBESTOSIS
The Court similarly determines that Petitioner failed to sustain his burden of proof regarding asbestosis by a fair preponderance of the evidence. Both doctors followed essentially the same procedure for evaluating Petitioner. Their evaluations consisted of four separate segments: 
1. The personal history as provided by Petitioner;
2. The physical examination performed by the Doctor;
3. The Pulmonary Function Test; and
4. The X-ray results.
It should be stated at the outset that the personal history presented a compelling set of facts. It was undisputed that in the early years at Hoffman-LaRoche, Petitioner endured intense exposure to asbestos particles, with what appears to this Court as inadequate protection from its effects. During those early years, Petitioner worked hands on scraping asbestos laden material from pipes and heat reactors. There can be little doubt that there were occasions when asbestos particles were floating all around and on Petitioner. After several years, however, Petitioner was promoted. He no longer had to work in such close proximity to asbestos material. Therefore, it would appear that by the early 1960’s the intensity of the exposure diminished considerably. Dr. Hermele placed great weight upon the degree of exposure.
Notwithstanding what might be called intense exposure, the physical examination conducted by both parties could be summarized in the words of Dr. Hermele as showing “no positives”. Neither doctor found wheezing, rhonchi or rales. As was explained by Dr. Safirstein, rales would be an indication of asbestosis. Dr. Hermele admitted on cross examination that the existence of rales would confirm the diagnosis of asbestosis, but downplayed the significance of the absence of such finding.
As part of the physical examination for both doctors pulmonary function tests were performed. These tests are important. Their significance in demonstrating objective evidence of breathing impairment was emphasized in the 1985 Appellate Court decision in Rybski v. Johns-Mansville Prods. Corp., 185 N. J. Super. 433. The pulmonary Function Tests are arguably the most objective measure or whether there exists any lung restriction, such as would necessarily occur in an asbestosis case. There is no dispute that both evaluating physicians obtained substantially similar results. These results demonstrated normal readings.
Dr. Hermele undermined the results of the normal PFT reading. He argued that the results of a PFT can vary depending upon when it is taken as well as other factors. In this Court’s experience, while a Petitioner may attempt to lower results by failing to utilize maximum effort, unless Petitioner takes an inhalant of some type to clear the lungs first, (or in the case of fraud which is not alleged here), the test cannot be altered to show a higher outcome. Asbestosis is a permanent condition. If asbestosis existed, the Petitioner could never obtain such high results of breathing capacity as were demonstrated by the tests. Despite Doctor Hermele’s attempt to depreciate the value of the PFT, the Court finds that the positive results of this test dislodges one of the main underpinnings of the claim of impairment due to asbestosis.
In addition to the personal history, Dr. Hermele placed great weight upon his interpretation of the X-rays. Dr. Hermele is neither an A nor B reader. Dr. Safirstein, on the other hand is. Dr. Safirstein’s credentials in this field are impeccable. As importantly, the comportment and way in which Dr. Safirstein testified impressed the Court. Dr. Safirstein displayed an easy manner about him, almost professional in style. He answered questions directly, and to the point, rarely referring to notes except when directed to by the Court or counsel. He was able to explain his position in clear, confident tones and in layman’s terms that were easily understood by the Court. This approach demonstrated a comprehensive understanding of the subject and of the subject matter.
During cross examination, Doctor Safirstein would promptly admit certain facts which at first blush would appear to damage the foundation of the Doctor’s position. The admissions were made without the verbal “sparring” with the interrogating attorney that often accompanies admissions made by experts. This demonstrated self assurance by the Doctor as to his own conclusions. The Court believes Dr. Safirstein was more credible in his interpretation of the X-
rays. By way of example, the Court believes that what Dr. Hermele described as pleural thickening was more likely residual scarring from prior rib fractures showing up on the X-ray. However, without regard to that issue, it seems that more than mere pleural thickening must be shown to demonstrate asbestosis, especially in the case at bar where so many years have expired since the more extreme exposure. Dr. Hermele testified that his X-ray showed what he termed “nodular densities and fibrosis”. The doctor indicated with certainty that these existed, and his ultimate conclusions depended in large part upon these findings. Dr. Safirstein denied any such showing, and in fact flatly stated that the X-rays submitted by Dr. Hermele were defective. The doctors concurred, however, that a high density CT-Scan provided the clearest view, and represented the state of the art in diagnosis. Doctor Hermele referred to a high intensity CT-Scan as the “sine que non”, and therefore was the best evidence to illustrate his findings. Doctor Hermele was certain that a high density CT-Scan would validate his own findings.
It turned out that there had been two sets of CT-Scans performed. These scans were performed in 2001 and 2002 respectively. It was therefore arranged that both doctors could obtain and review the two sets of scans. The Court is satisfied that both sets of CT-Scans were essentially similar. They established at most, some pleural thickening, and possible effusion. Neither indicated any evidence of “infiltrates”, or pulmonary nodules in either lung”. There was certainly no evidence of any “pulmonary fibrosis” or of “calcific pleural plaques” which Dr. Hermele relied upon from the report issued by Dr. Daum. (See page 44, line 14 of the transcript of Dr. Hermele’s testimony taken February 25, 2005.)
In conclusion, although the history of Petitioner demonstrates intense exposure to asbestos particles and dust, Petitioner never obtained medical treatment for the alleged asbestosis condition, nor was any medication ever prescribed. Neither the physical examinations, nor the pulmonary function tests performed by both doctors confirmed any demonstrable medical evidence of impairment. Neither the X-rays, nor the CT-Scans, in this Court’s opinion, reveal the existence of calcific pleural plaques or fiber nodular densities which could corroborate the existence of asbestosis.
Dr. Hermele placed an estimate of 25% permanent partial total primarily upon the alleged asbestosis impairment. This Court’s experience with Dr. Hermele, which is not insubstantial, has been that this evaluation indicates in itself a relatively mild rating. Moreover, assuming Petitioner’s complaints of increasing shortness of breath were true, and the Court had little reason to disbelieve the Petitioner, there were many other logical reasons, such as age, obesity, lack of conditioning and even a heart condition as suggested by Dr. Safirstein, that may have accounted for the shortness of breath. The Petitioner never rebutted, nor even addressed these other possible causes. Indeed, the Court finds that based upon the results of the PFT’s the other issues are the more likely cause of the Petitioner’s condition. In summary, Petitioner has failed to demonstrate by a fair preponderance of the evidence that he has contracted asbestosis let alone that he is impaired as a result. The Court is therefore constrained to determine that Petitioner has failed to prove his claim. Accordingly, the claim petition is dismissed.
Respondent shall be responsible to pay the sum of $750.00 to Jersey Shore Stenographic Services representing five days of trial. The Court thanks both counsel for their professionalism and courtesies both to the Court as well as toward each other. Mr. Frederic Pepe, Esquire is requested to prepare a short form Order in the usual form, dismissing the claim, and incorporating this decision by reference.
November 1, 2005 Arnold B. Goldman, Judge of Compensation
 Both doctors would ordinarily review a medical history relating to the claim as well. In this claim the Petitioner never obtained any medical treatment for the alleged conditions. Therefore, there were no such medical records. There was an attempt by Petitioner to label an evaluation performed by Dr. Susan Daum as medical treatment. The report issued by Dr. Daum included an interpretation of a CT-Scan which had been initially relied upon by Dr. Hermele in preparing his evaluations. The Court found that Dr. Daum’s report was made for the sole purpose of civil litigation in other courts. Therefore, this Court does not find the interpretation to be reliable, and places little weight upon it. The Court has, however, considered the reports of both the 2001 and 2002 CT-Scans that are referred to in Dr. Daum’s report, and of course, heard testimony from both Dr. Hermele and Dr. Safirstein regarding the CT-Scans.
 One cannot help but note that there did not appear to be any medical record of this rib fracture, certainly none that was brought to the attention of the Court, but the existence of the prior fracture was never denied. It could be that Doctor Safirstein obtained this information from the personal interview or records which had not been supplied to him, or that he simply reached his conclusion from reading the X-ray.