Before:

Honorable Elaine B. Goldsmith, Judge of Compensation

Appearances:

Golden, Rothschild, Spagnola, Lundell & Levett, Esquires
By:  Robert Golden, Esquire, Attorney for Petitioner

Howard W. Crusey, Jr., Esquire
By:  Marcia Miller, Esquire, Attorney for Respondent

This matter comes before me as a bifurcated Second Injury Fund trial to determine whether the etiology of the interstitial pulmonary fibrosis from which Petitioner suffers is causally related to his occupational exposure.  Both parties stipulate that the petitioner is permanently and totally disabled as a result of the pulmonary disease.

The evidence in this matter consisted of the lay testimony of the petitioner and medical expert testimony.  Dr. Roland Goodman, Board Certified in Internal Medicine and Dr. Susan M.  Daum, Board Certified in Internal Medicine, Preventative Medicine (Occupational Medicine) and Fellow of the American College of Chest Physicians, testified for the petitioner.  Dr. Joel Duberstein, Board Certified in Internal Medicine and Pulmonary Disease, testified for the Respondent.  The documents consisted of three admission records to Holy Name Hospital dated September 9, 1996, December 8, 1996, and October 31, 2000; treating records and the November 17, 1997 letter report of Dr. Selwyn Levine; admission records to Somerset Medical Center dated January 20, 1999 and February 17, 1999; the hypothetical question; two reports from Dr. Warren M. Klein, opthomologist; and excerpts and articles from various professional journals and medical books.

From 1973 to 1978 petitioner was employed by Ford Motor Company and Packaging Sales and Development of Englewood New Jersey, both places described as having clean environments.  From 1978 to September 9, 1996 petitioner worked for the respondent as a sheet metal mechanic welder.  Specifically, he installed food service conveyers and constructed  parts needed for the custom installations.  Part of the time was spent in the factory building with 18 other employees where everyone was engaged in “grinding, polishing and welding” at the same time.  The  ventilation was poor and the facility was “very dirty,” being characterized as having a gritty smoky atmosphere.  The remainder of his time was spent in the field installing conveyers in hospitals, banks and other buildings.

Most of the on site installations were done during the night or week-ends when none of the employees were around and the ventilators or air conditioners were turned off. Petitioner claimed that the work in the field was dirtier than in the factory because he was dealing with old metal and dirty food encrusted conditions, where he would have to cut and grind in a closed atmosphere.  He tried to wear a paper mask as much as possible but found it inadequate for filtering out the dust.  Petitioner primarily used the Healy arc welder with argon gas and occasionally used oxyacetylene torches.

Petitioner also installed dumbwaiters which are multi storied small shaft vertical elevators used for conveying food to patients in hospitals.  In these very small confined areas he would climb on the individual shelves cutting old metal chains, grinding and installing new metal pieces. Repairing these small units often required removal of the sound deadeners which were made of a heavy tar-like material. When the material was cut, ground or welded, “it did nothing but smoke.”  Petitioner estimated that he worked on forty of these special jobs, each one lasting a week or two to complete.

On one occasion he was assigned to move a large volume of old scrap metal from the factory yard to metal racks against the factory wall.  The metal pieces had been accumulating for many years and were so full of pollen, dust and dirt that he was forced to change the mask he was wearing ten to fifteen times a day because it got so black.  On September 9, 1996, he became very short of breath and was hospitalized at Holy Name Hospital for asthmatic bronchitis, and was treated with corticosteroids.  Five days after he was taken off the corticosteroids he returned to the hospital where a chest x-ray was taken.  The chest x-ray showed “ground glass” interstitial infiltrates.  Further lung tests showed moderate restrictive lung disease and severe reduction of diffusion capacity. 

From November 11^th to the –15th, 1996 Petitioner was hospitalized in Chilton Memorial Hospital where he was treated with increased doses of intravenous steroids.  He was released with a discharge diagnosis of respiratory insufficiency, pulmonary fibrosis, and cardiac arrhythmia.  There is mention in the discharge summary of the possibility of Petitioner requiring a lung transplant. 

On December 6, 1996 at Holy Name Hospital,  Dr. Levine, petitioner’s treating doctor performed an open lung biopsy.  Dr. Levine summarized the biopsy as revealing advanced interstitial lung disease with pulmonary fibrosis.  This biopsy was also interpreted by the Mayo Clinic.

On December 8, 1996 after the thoracoscopic lung biopsy the Petitioner developed a recurrent pneumothorax on the right side of his chest for which a tube was inserted and suction commenced, requiring him to stay in the hospital until December 12.  He now required the occasional use of oxygen at home.  Petitioner developed cataracts as a side effect of the corticosteroids and in January 1999 had two cataract surgeries performed at Somerset Medical Center. The most recent hospitalization was October 31, 2000 due to shortness of breath. Since December 31, 2000 he has required oxygen on a twenty- four hour- a- day basis. An on and off pack- a- day  cigarette smoker for thirty years, he stopped smoking in 1996.

Petitioner testified that his day consists of getting up and dressing himself, and just “puttsing” around the house, doing what he can, sometimes cooking a little.  IHe stated that if he feels really well, he goes outside and drives for fifteen minutes. Petitioner has great difficulty breathing and is in constant need of  oxygen.  He wheezes and coughs constantly.

Dr. Goodman, petitioner’s internal medicine expert, examined petitioner on December 30, 1997.  Petitioner complained to Dr. Goodman of shortness of breath which worsened on exertion and tightness in his chest.  Petitioner admitted that he smoked cigarettes and was under doctor’s supervision, medicating with Prednisone and Axid.  Petitioner further stated that his employment exposed him to “dust, smoke, dirt, chemicals, noxious fumes, metal dust from the grinding of steel and aluminum.”  After reviewing the medical records, Dr. Goodman observed clubbing of Petitioner’s finger nails and that the fingertips were cyanotic, predictable symptoms of  interstitial pulmonary fibrosis.  Pulmonary Function tests performed in his office showed Forced Vital Capacity (FVC) at 64% of predicted value, One Second Forced Expiratory Volume (FEV1) at 91% and the ratio between the two (FEF 25/75) 117% of predicted value.  The doctor considered these results remarkably normal for a man with as much disease as petitioner had in his lungs, but attributed the surprising results to his taking Prednisone at that time.

In conjunction with his testimony the doctor displayed the x-ray he had taken during the office examination and pointed out the extent of the scarring in both lungs.  Taking into consideration the medical reports, petitioner’s examination, and the medical history, Dr. Goodman diagnosed petitioner as having chronic obstructive pulmonary disease with interstitial pulmonary fibrosis.  In his opinion to a reasonable degree of medical probability, there was a direct causal relationship between the petitioner’s severe pulmonary condition and his eighteen year occupational exposure to industrial pollutants of dust, smoke, dirt, chemicals noxious fumes as well as metal dust.

Dr. Goodman explained that when a person inhales all of these pollutants for a period of time, they enter the lungs though the bronchi and produce chronic inflammatory changes that can be seen on the x-ray.  In turn this inflammation narrows the bronchi making it more difficult for the individual to get air in or out when he is breathing. Because of the diagnosis established from the x-ray, clinical, and physical findings, Dr. Goodman strongly opposed Dr. Duberstein’s conclusion that petitioner’s lung disease was idiopathic because of the absence of metallic fibers in the lung tissue.

Dr. Goodman based his opinion on the fact that petitioner had a long-term industrial exposure to more than just metal fibers, such as dust, smoke and fumes.  He remarked that while it was reported that metallic fibers were not found in the biopsy specimen, the pathology laboratory must be specifically directed to look for metal which requires the use of special stains to analyze the specimen. When questioned about the disability that could be caused by petitioner’s many years of smoking cigarettes, the doctor stated that cigarette smoke does not produce the type of changes he read on the x-ray.  In his opinion, if smoking caused any disability it would be cancer and petitioner has not been diagnosed as suffering from cancer.  Dr. Goodman estimated petitioner’s permanent disability at 100% total due to his pulmonary condition alone.

Petitioner also presented Dr. Susan Daum as his specialist in internal, epidemiology,  environmental, and occupational medicine.  During her description of his medical history she stated that “he had a lung biopsy, and the lung biopsy was interpreted at the Mayo Clinic and at the local New Jersey hospitals as having this relatively rare disease.” The doctor explained that diffuse capacity is a measure of the surface of the lung area available to exchange oxygen from the alveolar side to the capillary side.  One can lose two thirds of the lung area before symptoms are recognized. In this typical case of pulmonary fibrosis, the symptoms appeared when the disease was very advanced. The disease does not have to be started by an incident but can be cumulative.

Examination of the Petitioner revealed clubbing, cyanosis, rapid  respiratory rate, diffuse scattered rales throughout the lungs but “normal resonance and normal intensity of breath sounds”.  Reviewing the Forced Vital Capacity (FVC) test results of 64% of predicted value and finding no flow abnormality and no restriction of peak flow, Dr. Daum concluded that the Petitioner had a pure restrictive pulmonary disease.

In the courtroom Dr. Daum displayed two x-rays taken in her office, to which she applied  her expertise as a B Reader and based her findings on the classifications of the International Labor Organization.  The doctor explained that a B Reader is a person trained to interpret and grade x-rays containing pneumoconiosis diseases, such as silicosis, foundry or mixed dust pneumoconiosis, berylliosis and coal workers’ lung.  To illustrate her  findings, she first displayed an x-ray that belonged to a normal, healthy person with a 0/0 grade x-ray reading.  Dr. Daum then showed Mr. Navarro’s x-ray and pointed out the differences.  Previously, after reviewing petitioner’s x-ray films from 1996 and the ones she had taken during his examination, she had concluded that the petitioner was in the 3/4 grade, the highest possible. 

Mr. Navarro’s lungs were filled with white speckles some more than a millimeter and a half in thickness.  “They’re very big,” and found in the upper and lower lobes.  In various reports Petitioner’s disease was alternatively referred to as interstitial pneumonia, chronic pulmonary fibrosis of unknown cause or idiopathic chronic pulmonary fibrosis, and cryptogenic fibrosing alveolitis.  In the doctor’s opinion, to a reasonable degree of medical probability her diagnosis was interstitial pulmonary fibrosis, proven by the biopsy.  “It was probably due to some of the metal dusts he inhaled including tungsten carbide, non specific dusts that accumulated on the metal materials that he was handling, fungi, molds, bacteria, biological material of unknown origin and silica which is present in emery. This is probably “a mixed dust pneumoconiosis.”

Discussing the causal relationship between the diagnosis and the work exposure, Dr. Daum opined that although the disease is rare, it is a “disease process in which an auto-immune response creates a condition of chronic pulmonary inflammation that leads to scar tissue formation in the lung.”  In this case the biological, inorganic and organic chemicals (fumes and smoke), and metal materials to which petitioner was exposed and the unprotected conditions under which he worked acted as a trigger  to cause the lung to react immunologically to itself.  The doctor specifically mentioned the organic dust particles and molds raised while cutting away the old equipment on the conveyer belts and the other areas connected with food preparation and disposal.

 To bolster her position Dr. Daum referred to an article written by Baumgartner, Samet, Coultas, Stiddley, Hunt, Colby, Waldron, and Collaborating Centers, Occupational and Environmental Risk Factors for Idiopathic Pulmonary Fibrosis: A Multi Center Case-Control Study, 152 American Journal of Epidemiology 4, at 307-315 (2000), in which occupational exposures were investigated in a study of “clinically and histologically diagnosed idiopathic pulmonary fibrosis, a chronic diffuse interstitial lung disease of unknown etiology.”  The study compared various occupations with findings of idiopathic pulmonary fibrosis and showed that there was a statistically marked relationship between certain specific occupations, environmental dusts and fumes, and an increased risk of developing the disease.  Other reports documented the association between hard metals and pulmonary fibrosis.  The article concluded that reasonable evidence suggests that idiopathic pulmonary fibrosis is a heterogeneous disorder linked to a variety of exposures including occupation, cigarette smoking, and viral infections 

Another article, Hertzberg, Inorganic Particulates Associated With Desquamative Interstitial Pneumonia, Chest, July 1981, at 67-70, concluded that it was almost impossible to detect certain “particulate” in the lungs with light microscopy.  When questioned about seeing metal particulate on an x-ray, Dr. Daum explained the only way to see metal particulate would be to use electron microscopic pathology which is not a standard technique.  Her expectation was that if petitioner’s lung biopsy had been submitted for electron microscopic examination “it would be loaded with metal.” When asked whether petitioner’s smoking was a factor in his disability, the doctor stated that his lungs did not show any evidence of obstructive airways disease and so she could not tell whether smoking aggravated the pulmonary fibrosis or not.  In this regard Dr. Daum disagreed with Dr. Goodman who diagnosed chronic obstructive pulmonary disease. 

In a third article, Mori, Yamada, Yamaguchi, Hosoda, Idiopathic Pulmonary Fibrosis: Epidemiologic Approaches to Occupational Exposure, 150 Am. J Respir. Cirt. Care Med. 670-675 (1994), lung biopsy slides from persons having fume or dust exposure were scanned using electron microcopy (SEM) and energy dispersive x-ray analysis (EDXA).  In conclusion, 93 cases of desquamative interstitial pneumonia (DIP) previously considered idiopathic were found to contain specific types of particulate formerly unseen, suggesting relationships needing further investigation.

Respondent’s expert for internal medicine and pulmonary diseases, Dr. Joel Duberstein agreed that although he had examined petitioner in 1998 and found him only 50 % partially disabled, even without re-examination, petitioner was now totally disabled.  After the doctor’s review of the medical records, the examination, review of the x-ray, and after ruling out other probable causes from the laboratory results, Dr. Duberstein reached a diagnosis of idiopathic interstitial pulmonary fibrosis, interstitial alveolitis, and a progressive scarring of the lungs.  He described it as a well known entity that is not unusual or rare, stating that it “was more likely than 50% chance that is what the man has.” 

Dr. Duberstein was sure that all of the other doctors were aware of petitioner’s occupational history and had not concluded that the patient had “tungsten carbide pulmonary fibrosis.”  He thought it was possible but not probable that petitioner had this disease because it was so rare.  He agreed that the only way to really know was to subject a lung biopsy slide to electronic microscopy techniques and noted that he thought Dr. Daum had submitted the records to the Mayo Clinic where there had been a concurrence with her diagnosis.  He continued that while he had no way of actually knowing, it was possible that the Mayo Clinic had conducted such a test.  Dr. Duberstein admitted that he did not know what caused petitioner’s problem but the doctor’s working hypothesis was that it was caused by some antigenic antibody, that “petitioner was reacting to his own lung.” He was aware that the treating doctor, Selwyn Levine, in a  letter dated November 17, 1997 stated “It is my opinion that the patient’s occupational exposure may well be a direct causal link to the current pulmonary status.”  Dr. Duberstein agreed with Dr. Daum as to the physical findings, x-ray findings, and disability but disagreed with her on the causal relationship of the disease to the occupational exposure. 

In concurring that the Petitioner’s occuptional exposure caused his current conditions, Dr. Duberstein quoted from a textbook by W. P, OCCUPATIONAL LUNG DISORDERS (3^rd ed. 1994) to illustrate the fact that an electron microscope is needed to reveal and identify the type of crystals identifiable as tungsten carbide.  He referred to an excerpt from FRAZER and PARE, DIAGNOSIS OF DISEASES OF THE CHEST 2463 ( 4^th ed. Volume IV 1999), to illustrate how rare tungsten carbide lung disease is.  Lastly he referred to an excerpt from ROSENSTOCK, CULLEN, TEXTBOOK OF CLINICAL OCCUPATIONAL AND ENVIRONMENTAL MEDICINE at 251-253(1994), which illustrated the rareness of  the occurrence of interstitial pulmonary fibrosis due to hard metal dust. 

On redirect, using that same textbook, counsel brought to the doctor’s attention the fact that petitioner suffered from all of the medical symptoms enumerated.  A passage in the book also suggested that in “ view of the very mixed dust exposure to which hard metal grinders are subjected. . . the disease should be referred to as a mixed dust pneumoconiosis rather than as hard metal disease.”  The doctor agreed that some experts feel the trigger to the underlying auto-immune process is cobalt and not tungsten while others say that it is dust.  The doctor explained that in his opinion, the causal relationship between idiopathic pulmonary fibrosis and exposure to tungsten or cobalt dust was very rare, that in this case it is more probable that petitioner suffers from a common disease. 

In the present case, respondent has not presented any witnesses to refute petitioner’s description of his working conditions either in the factory or out in the field. I found completely credible petitioner’s testimony about his having to work in the hot, dusty, poorly ventilated factory  with heavy grinding and polishing dust in the air mixed with the odors from the gases used to power the welding tools.  I also find credible his stories about working out of the factory where the dust resulted from the grinding down of the old conveyer belts, smoke coming from the removal of the sound deadening cushions in the dumbwaiters, and the dreadful dust, dirt and molds surrounding him in 1996 when he moved the old metal pieces in the factory yard. 

Petitioner worked for many years in the same capacity and did not appear to be ill.  Both Dr. Daum and Dr. Duberstein agreed that a person can lose two thirds of the lung area before the symptoms are recognized.  That appears to be exactly what happened in the instant case.  There was no proof that petitioner suffered from any pulmonary or other medical problems prior to his 1996 hospitalization.  Once the onset of the disease had been documented in the hospital and the diagnosis of pulmonary fibrosis established, the petitioner, treated with steroids, appeared to improve, although he suffered from side effects. 

In one of the articles presented in evidence, it mentions that persons suffering from this type of pulmonary disease that are treated with the steroids may improve but only for a short period of time.  All of this confirms that the diagnosis was correct.  That leaves only the issue of whether the pulmonary fibrosis was idiopathic or occupationally caused. 

It is respondent’s burden of proof to establish that the pulmonary fibrosis was idiopathically caused.  For proof, Respondent presented Dr. Duberstein who testified  that  the studies he has read indicate that it is rare for a person in that occupational environment to develop pulmonary fibrosis caused by the metal particulates generated from grinding and polishing.  To bar recovery, the record must substantiate a finding that the event was caused solely by disease or infirmity peculiar to the individual and not a condition of the employment.  See  Spindler v. Universal Chain Corp.,11 N.J. 34, 39 (1952).

The term “idiopathic” is used when the etiology is not known, when the condition arises spontaneously or arises from an obscure or unknown cause.  To be characterized as idiopathic, it must be found to be one caused by a “purely personal condition having no work connection whatever.”  See George v. Great Eastern Food Products, Inc., 44 N.J. 44, 45 (1965).  Dr. Duberstein has not ordered any pathological studies nor subjected petitioner’s lung biopsy to analysis by electron microscopy to definitively state whether or not there are metal particulate in petitioner’s lungs.  The doctor states that it is possible that petitioner’s disability was caused by the occupational environment but this pathology was not probable.  Dr. Duberstein’s stated opinion is that causal connection is “possible” but not “probable.” This opinion was rendered by Dr. Duberstein even though the articles he relied on indicated that there has been little conclusive research done examining this type of lung disease and occupational causes such as metal grinding.  His opinion seems based upon conjecture and not on solid positive medical studies or research. 

When medical knowledge is scarce on a subject, the causes of the disease may be termed idiopathic until such time as the researchers are able to establish a cause and effect relationship. From reviewing the medical articles and excerpts in evidence it is apparent that medical  research in this area is at the initial stage of development partially due to the need for sophisticated technology to detect and explain the pathologies.  Throughout these articles and excerpts there is a constant thread stating that more studies are needed in this area. 

Dr. Duberstein admitted that there are people that believe that dust may be the trigger setting off the disease.  I further note that Dr. Duberstein concentrates on the lack of finding of metal particulate and has been silent on whether the dusts, dirt, gases and molds which were also a large part of petitioner’s environment could be causally related to the pulmonary fibrosis.  Indeed, a passage from the very ROSENSTOCK, CULLEN textbook from which he chose an excerpt suggests that the disease be referred to as “mixed dust pneumoconiosis” because of the mixed dust environment in which metal grinders work.  For these reasons I find that respondent has failed to establish that there is no causal relationship between petitioner’s pulmonary fibrosis and his employment.

I find Dr. Daum’s opinion to be reasonable.  Her diagnosis agrees with the diagnosis from the Mayo Clinic, that petitioner suffers from a rare disease.  Although it was never specifically  proved, I thought it was highly possible that an electronic microscopy test was performed by the Mayo Clinic.  In addition, Dr. Daum has emphasized that petitioner’s occupation brought him into contact with not just metal but organic and inorganic particulates, gases from the welding tools, and molds released during his removal of old equipment.  Any one or all of these factors may have been the trigger or cause of petitioner’s lung disease.  It is obvious considering the articles submitted by both sides that there is a true need for more research to determine the relationship between lung diseases and certain occupations. 

Dr. Daum has suggested in the alternative that even if the occupational environment did not in and of itself cause the beginning of the disease,  it is indisputable that his constant immersion in such a filthy environment may have exacerbated his lungs to the extent of hypersensitivity and caused lung disease from the fungus and molds he was exposed to on his outdoor jobs.  Moreover, there has been evidence about the timing of petitioner’s illness, which comports with the symptoms expected in persons having the disease, that after  working in the same occupation for a number of years the disease develops cumulatively.  By the time the individual begins to suffer from  the symptoms, the disease has progressed too far to reverse the problems. 

I am also satisfied with the explanation of Dr. Daum that there is no connection between petitioner’s smoking and his lung disease, that petitioner has a pure restrictive pulmonary disease based upon the Pulmonary Function Tests she administered.  Respondent has failed to contradict this opinion with any witness or testimony. 

I find that petitioner has shown that his interstitial pulmonary fibrosis is not idiopathic and the conditions of dusts, metal fibers, and “biologic material of unknown origin” under which he continued to work were  irritating and contributed to his condition and that he is probably suffering from a mixed dust pneumoniosis.   I find that there is a direct causality between his disability and his occupational environment.

This matter having come before me as a bifurcated trial, I must determine whether the Second Injury Fund was liable for any portion of the worker’s compensation award.  N.J.S.A. 34:15-95 (a) states that a person is not eligible to receive payment s from the Second Injury Fund “If the disability resulting from the injury caused by the person’s last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of this Title.”  The parties have stipulated that petitioner is permanently and totally disabled.  In addition, the medical experts for both sides agree that petitioner is totally and permanently disabled.  There was no evidence presented to prove that petitioner was physically disabled in any manner prior to his employment with respondent and so I find that he is permanently and totally disabled as a result of the last compensable accident.  I hereby dismiss the Second Injury Fund application.

As counsel have not provided all of the information for me to calculate the amount of the award, fees, and allowances,  I will set this matter down for one cycle during which time petitioner’s counsel is to submit an order setting forth the required information.     

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Date                                                                 Elaine B. Goldsmith, J.W.C.