Claim Petition 2003-000025 is a Dependency Claim Petition filed by Richard Updegrove which alleges that his wife, Helen Updegrove died on November 9, 1994 as a result of an “Occupational exposure to deleterious substances” that she was exposed to while working for the Respondent Peerless Tube Company from 1956 to 1994 as an assembly press worker.

Although the Respondent presented no proofs to rebut the nature and extent of Mrs. Updegrove’s exposure to various noxious pulmonary substances, the Respondent denies that her death from “Chronic Obstructive Pulmonary Disease” arose out of and in the course of her employment, which was characteristic of or peculiar to her employment with the Respondent.    

Petitioner’s husband, Mr. Richard Updegrove was one of two witnesses who testified as to the nature and extent of Mrs. Updegrove’s exposure to noxious pulmonary irritants during her twenty-seven year tenure with Peerless Tube Company.

Mr. Updegrove testified that during Mrs. Updegrove’s entire career with Peerless she wore a blue smock and when she arrived home it was “dirty.”  He further testified that when he picked his wife up he could not “stay too long” because “the air was stagnant and I never stayed very long because I couldn’t take it.” And, “It had a funny smell and I would walk out. I wouldn’t stay with her long. I asked her how could she stand it and she said she got used to it.” Mr. Updegrove also testified that “The only time she wore a mask was when they knew someone was coming in to inspect the building. That’s when they issued the mask.” Finally, Mr. Updegrove testified that although he did not know the exact amount of cigarettes his wife smoked he “assumed” she smoked about one pack of cigarettes a day.

Mr. Alexander Sieyk, an employee of the Respondent from 1965 to 2003 - except for fours years that he spent in Viet Nam from 1966 to 1970, testified not only as to nature and extent of Mrs. Updegrove’s industrial exposure during her tenure with the Respondent, but the nature of the Respondent’s operation during her employment with the Respondent.

Mr. Sieyk testified that Peerless manufactured “aluminum tubes for the medical industry: toothpaste tubes and aerosol cans or home and beauty aids.” Mr. Sieyk described the process of fabricating the various types of tubes. I quote his testimony at length not only because it not only exhibits a thorough understanding of the industrial process, but perhaps more importantly, it describes the nature and the extent of the pulmonary irritants that Mrs. Updegrove was exposed to during her twenty-seven year career with the Respondent.

Mr. Sieyk testified that the whole process started with aluminum slugs, which “We produced them from raw aluminum in the mill, which I believe in the late ‘70s the mill went down to the Freehold location, and they even closed down because of financial situations.”

Mr. Sieyk then described in concise terms and with exquisite detail the entire industrial process, which included a description of Mrs. Updegrove’s job duties and the substances to which Mrs. Updegrove was exposed to. I quote.

The aluminum slugs were already made in whatever diameter of the slugs that the tube or aerosol can, whatever the length of the can or tube would be; the thickness of the slug. That slug would be poured into hoppers. They would vibrate up and down in press, press bank, come down, out and be heated heat form a long shaft, and create a shell tube or aerosol can depending on the thickness of tube and diameter.

Then after that, the tubes were degreased with Trichloroethylene. They were trimmed. They were interior coated. In the early days with wax, then went to Epoxy phenylene. After the interior coat had dried and exterior coat, in whatever color paint it maybe, that was dry, then they were printed. That was baked in an oven to dry and lacquered. That was baked on. Then capped and packaged in a tube or the aerosol can.

Mr. Sieyk then went on to describe, again in a great deal of detail the nature of the various functions that Mrs. Updegrove performed and the substances she was exposed to in each of those functions.

For example, Mr. Sieyk testified that three of Mrs. Updegrove’s jobs were that of a “Press operator,” a “packer, and a “coater.” As a press operator it was her job to make sure that the tubes or aerosol cans that came out of the conveyer on their way to get cleaned and degreased did not get jammed. According to Mr. Sieyk, as packer Mrs. Updegrove was required to pack the finished tubes. As a “coater” Mrs. Updegrove was required to make sure that the tubes were properly on “spindles” and if the assembly line stopped for some reason to “manually feed tubes to keep the part of the line going.”

Mr. Sieyk described the quality of the air of the plant as, “Well, it wasn’t very good. It was dusty from the aluminum dust. It smelled from all the chemicals being sprayed.” To clarify in my mind what Mrs. Updegrove was exposed to I asked Mr. Sieyk if he knew the names of the chemicals she was exposed to and whether she was near the area which these substances were used. He responded, “Trichloroethylene and Epoxy phenylene, vinyl paint, vinyl lacquers.” And as to whether Mrs. Updegrove was exposed to these chemicals Mr. Sieyk testified, “Sure, all of us were. You had to be to do your job. You had to be the pin chains go up through tanks filled with Trichloroethylene and come down you would smell the fumes.”

Mr. Sieyk indicated that the process and the odors that emanated from that process went on twenty four hours a day. Mr. Sieyk gave an example of the effects of the smell from just one chemical – Trichloroethylene, which according to Mr. Sieyk was not keep in an enclosed container until the 1990’s when the State required Trichloroethylene to be kept in an enclosed tank, “We have had people who were working with the material on the third floor, check the tanks, actually pass out.”

Mr. Sieyk also testified that the vinyl substances also produced an odor until the mid 1990’s when the Respondent switched to water based paint and lacquers. According to Mr. Sieyk the Respondent switched to water based chemicals because, “In the mid ‘90s. The Environmental Protection Agency came in and made us do a lot of things.”

According to Mr. Sieyk, Mrs. Updegrove was also exposed to aluminum dust from the tubes and cans that had to be cut and trimmed. According to Mr. Sieyk, “The aluminum tubes had to have threads formed on them. The tubes would spin and spin a thread, and you would get dust through that.” Mr. Sieyk testified that Mrs. Updegrove would be exposed to the aluminum dust when “The press went down, whatever, then she would have to take the cans out and put them on the conveyer and keep feeding the machine manually.”

Mr. Sieyk testified that Mrs. Updegrove was exposed to Trichloroethylene, which was a degreaser used on aerosol cans. Once again I quote. “There is a spray gun. It has a long nozzle on it and it would spray, swish, swish, swish, and they would do two at a time. Two guns. The first gun would dot [t]he bottom half of the can, the other gun would do the second half of the can on the way out.”

Finally, Mr. Sieyk testified that notwithstanding the fact that “Peerless was one of the top ten violators [for the amount of Trichloroethylene released in the air] in New Jersey” Mrs. Updegrove was not provided with any form of protection from these substances. I quote.

THE JUDGE:   Was petitioner given any sort of protection for respiratory?

THE WITNESS:          No.

THE WITNESS:          No. The state came in, like, I’d say the last eight, nine years and made them put ear plugs and safety glasses.

THE JUDGE:               What about masks?

THE WITNESS:          No. They didn’t make anyone wear masks. The only time is when they had a big company come in to see their tubes run and the girls would put on the hair nets and gloves. Once they went out, they didn’t have to wear anything.

THE JUDGE:               Really?

THE WITNESS:          Yes.

Continuing…

Q.                Did this plant have trouble with the EPA, if you know?

A.                 Yes

Q.                What kind of trouble?

A.                 The Trichloroethylene, you put so many pounds of it in the air, you receive so much in tankers of Trichloroethylene in and you have too much Trichloroethylene in the plants and they use that to see how much goes into the air, and it goes by pounds, and I believe Peerless was one of the top ten violators in New Jersey and there is a web site somewhere that shows that.

From the credible and unchallenged testimony of Messrs. Updegrove and Sieyk I find that Mrs. Helen Updegrove was exposed to noxious pulmonary irritants during her twenty-seven year tenure with the Respondent. However, the finding that Mrs. Updegrove was exposed to noxious pulmonary irritants does not end our inquiry, indeed it merely begins it.

N. J. S. A. 34:15-31 defines compensable occupational disease as, “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.” 

Of course, a petitioner must prove both legal and medical causation when those issues are contested. Lindquist v. City of Jersey City, 175 N.J. 244 (2003). According to the Lindquist Court, “Medical causation means the injury is a physical or emotional consequence of work exposure. Stated anther way, proof of medical causation means proof that the disability was actually caused by the work-related event.” And “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact.” “Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”

Of course, as stated by the Lindquist Court, “Although the Rules of Evidence do not control the admission of evidence in workers’ compensation proceedings, it is well-settled that a judge of compensation’s determination must be based on competent evidence.” Further the Lindquist Court held the workers’ compensation court should follow Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991), which adopted a “less-restrictive standard” in toxic-tort litigation. Namely, when “a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training and experience in the specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached.”

Thus, paraphrasing Lindquist v. City of Jersey City, 175 N.J. 244 (2003), the controlling test to be applied in this case is whether the work exposure substantially contributed to the development of Mrs. Updegrove’s Chronic Obstructive Pulmonary Disease, which all parties agree caused her death. This is so, because as the Lindquist Court indicated when the facts present dual causes of pulmonary disability or death from pulmonary conditions that the “standard articulated in Fiore for deciding occupational heart-attack cases” does not apply. I quote. “We agree with petitioner that the discussion in Fiore with respect to dual cases of cardiovascular injuries requiring a petitioner to prove that his or her work exposure exceeded the exposure caused by personal factors such as cigarette smoking does not apply to non-heart cases such as this pulmonary case.”

As to the issue of medical causation, Dr. Hermele testified for the petitioner and Dr. Rowen testified for the respondent. For the reasons I will go into at length in this opinion I accept the opinion of Dr. Hermele that Mrs. Updegrove’s twenty-seven year exposure to deleterious substances while working for the respondent was a substantial contributing cause, or aggravated or accelerated  Mrs. Updegrove’s Chronic Obstructive Pulmonary Disease, which all parties agree caused her death. I accept Dr. Hermele’s opinion because it is consistent with the facts produced at this trial and “it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.”

Not only was Dr. Hermele’s opinion based upon sound medical reasoning, I found Dr. Hermele to be a credible and honest witness who did not cross the line from a medical witness to an advocate. I give just two examples of the many I could to exemplify Dr. Hermele’s objective judgment. 

When I asked the doctor how much Mrs. Updegrove smoked, instead of quoting the portions of the records that stated Mrs. Updegrove smoked one pack of cigarettes a day Dr Hermele testified, “She smoked one pack a day and some in places it says she smoked two packs a day, dependent on who is giving me the history through the hospital.”

Another example of Dr. Hermele’s objectivity was when Dr. Hermele was asked whether the fact that she stopped smoking eight years prior to her death would diminish the deleterious effect of her history of smoking. Dr. Hermele’s answer once again indicated not only an understanding of the deleterious effects of smoking, but medical objectivity. I quote. “She has a long history of tobacco abuse. She did damage to her lungs. I don’t know how much. Does it reverse itself? It does to a degree. So eight years she stopped probably her, but on the whole, a lot of damage was done.”

Not only was Dr. Hermele’s opinion objective and based upon sound medical reasoning, he admitted his error when confronted with evidence that his opinion was incorrect. For example, when he was asked whether tobacco and industrial exposure together had a synergistic effect he testified that the combination of tobacco use and industrial exposure was additive. However, on rebuttal when confronted with a study from the American Thoracic Society and a European study entitled Cohort Studies of Chronic Bronchitis, Scandinavian Journal of Work Environmental and Health he indicated,

 “I had originally stated in my original statement on October 25^th that the occupational exposures and the cigarette exposures, they were additives. Well, it appears to be some synergy between occupational exposures and tobacco exposures, and I’d like to refer you to the European article, Occupational Burden of COPD, page 467, and it says, 468, it says that if you just take people who have neither exposure, neither occupational or tobacco exposure -  and in this case the occupational exposure is TCE, to a varnish of some sort, general dust, its to aluminum, it’s to various pulmonary irritants that you expect in a factory – so if you take neither exposure the chances of you having COPD was .08, if you just take the occupational exposure alone it was .1 percent chance of getting COPD, if you take smoking alone it was point .19 and if you take both it was .32.

So if you take the occupational exposure and the tobacco exposure they seem to be synergistic no matter what it was, and that study was done basically with general dust, general fumes, general factory materials.

So that was a superise (sic) to me where I thought it was additive, it was actually synergistic. So you could get synergistic activity in a production of COPD just from the general environment in the factory itself. That was a surprise to me.

Of course, a medical witness’s rationale for his/her conclusion is what is of paramount importance. And as I have said, I have accepted Dr. Hermele’s opinion that Mrs. Updegrove’s COPD, which eventually caused her death was aggravated and accelerated by her twenty-seven year exposure to noxious pulmonary substances because it is based on the facts adduced during trial and “is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.” I quote.

[COPD] It’s a chronic pulmonary disease. It’s an obstructive condition of the lung in which the inhaled air will become less and less and the exhaled air takes longer and longer to exhale. It’s a disease that eventually oxygen deprives the heart and all of the other internal organs until death ensures.

Continuing…

Eventually the air exchange is so bare the alveolar are so few the fibroids are scarred over, destroyed by whatever industrial exposure, tobacco. The oxygen, carbon dioxide, exchanging can’t go on. So what happens is you become oxygen deprived. The carbon dioxide goes up in the body. Heart has to work harder to pump oxygenated air. You get liver failure from lack of oxygen. You get heart failure [Indeed, the autopsy report listed heart failure as a secondary cause of Mrs. Updegrove’s death.] due to hypertrophy; right side heart failure due to poor functionality. In these cases, you get hypoxia, brain disease.”

Finally, Dr. Hermele opined…

It was my further opinion that her long-term tobacco abuse and long-term occupational exposures while employed by Peerless Tube from 1967 through March 2^nd, 1994 both participated in causation of the severe lung disease, and that basically was the cause of her death.

Juxtaposing Dr. Hermele’s well-reasoned opinion against Dr. Rowen’s opinion that Mrs. Updegrove’s long-term admitted exposure to noxious pulmonary irritants did not contribute to her COPD it becomes clear that Mr. Updegrove has sustained his burden of proof to show that within a reasonable degree of medical probability Mrs. Updegrove’s twenty-seven year exposure to all of the named noxious pulmonary agents aggravated and accelerated the development and progression of her COPD, which eventually caused her demise.

Indeed, for me to accept Dr. Rowen’s opinion that the many noxious agents that Mrs. Updegrove was exposed to either acting alone or in combination with each other did not contribute to the development of her COPD would require me to disregard all of the medical studies introduced into evidence in this matter. This of course I will not do.

Having found that Mr. Updegrove has sustained his burden of proof to prove causal relationship between Mrs. Updegrove’s death and her long-term exposure to pulmonary irritants the remaining question is whether R.S. 34:15-13 as amended by Chapter 253 of the Laws of 2003, with an effective date of January 14, 2004 should be applied retroactively.

Notwithstanding the fact that our Appellate Courts owe no deference to the legal analysis of statutes by workers’ compensation judges I offer these thoughts. 

Considering the legislative history of Chapter 253 of the Laws of 2003, the workers’ compensation cases decided by our Appellate Courts concerning retroactivity, and the purpose of our Workers’ Compensation statute as expressed by our statutes and, once again, by our Appellate Courts, I believe that Chapter 253 should be applied retroactively. My reasons follow.

As to legislative intent it can be inferred that the Legislature intended to make this legislation retroactive. I say this because Senate Bill # 886, introduced 7, 2000, and Senate Bill # 1416, introduced March 26, 2002 provided that dependency rates pursuant to N.J.S.A. 34:15-13 would be “For one or more dependents, 100% of wages.” The Senate bills also provided that the Act would be applied prospectively. “This Act shall take effect immediately and apply to all claims accruing on or after the effective date.”

However, the final bill which was approved January 14, 2004, reduced dependency benefits from 100% to 70% and deleted the words “and apply to all claims accruing or after the effective date.”

Thus if we consider the fact of the deletion of the above phrase and the reduction in dependency benefits from 100% to 70% it may be inferred that our Legislature intended the Act to be retroactive.

And the case of Panzino v. Continental Can Co., 71 N.J. 298 91978) rather than cutting off a petitioner’s right to file an occupational claim because it violated the statute of limitations our Supreme Court decided that the legislation was intended to be retrospective.

Thus, if we consider our Legislature’s deletion of the phrase which made the legislation prospective  and our Appellate Courts holdings supporting the “remedial” and “social” philosophy to bring as many workers under the panoply of our Workers’ Compensation Act I will apply Chapter 253 retroactively.

Thus, Mr. Updegrove is entitled to receive dependency benefits of $105,840.00. This equates to 450 weeks of compensation at $235.20 per week, which is 70% of Mrs. Updegrove’s stipulated wages of $336.00.

I award Dr. Hermele $850.00 for his multiple reports and two court appearances, payable each party one-half.

Counsel fee $21,168.00. Payable $12,700.00 by respondent and $8468.00 by petitioner.

For multiple appearances O’Brien Reporting Service $800.00

Petitioner’s attorney is to advise me of his out of pocket trial expenses including transcript fees and medical reports.

Petitioner’s attorney is to prepare an Order which conforms to this written Decision and serve it upon his adversary under the Five-Day Rule.

dated:  June 26, 2006

Supplemental Decision

Pursuant to the Rules Governing the Courts of New Jersey, Ledezma v. A & L Drywall, 254 N.J. Super. 613 (App. Div. 1992) and a rereading of the cases concerning retroactivity of a statue in workers' compensation cases, especially Judge Shebell's cogent, convincing , and well-reasoned opinion in Harris v. Branin Transport, Inc., 312 N.J. Super. 38 (App. Div. 1998) and Judge Giovinazzi's insightful opinion dated July 23, 2004 in the matters of Stark v. XFL, LLC d.b.a. NY/NJ HITMAN and Drumheller v. XFL, LLC d.b.a. NY/NJ HITMAN, I write to amend and correct my written decision dated July 26, 2006.

First, in my opinion I stated that Mrs. Updegrove died on November 9, 1994. That is an error. Mrs. Updegrove died on November 9, 2002. 1994 was the year Mrs. Updegrove ended a twenty-seven year career with the respondent.

In my decision, I applied Chapter 253 passed by our Legislature and enacted into law on January 14, 2004 retroactively. I found that Mr. Updegrove was entitled to dependency benefits equal to 70% of Mrs. Updegrove's wages from the date of her death, which I incorrectly stated as November 9, 1994. I now believe that also was an error.

For the reasons which I will go into at length, I now conclude that based upon legislative intent, which I have gone into in my original decision and the case law concerning retroactivity of a statute in workers' compensation cases, that Mr. Updegrove should be paid dependency benefits at 50% of Mrs. Updegrove's wages, the statutory rate [N.J.S.A. 34:15-13] in effect when she died until January 14, 2004, the effective date of Chapter 253. From January 14, 2004 the effective date of Chapter 253, which amended N.J.S.A. 34:15-13, for the reasons expressed in Harris and Stark, Mr. Updegrove should be paid dependency benefits at 70% of Mrs. Updegrove's wages.

As I have said, for the reasons which I have gone into at length in my original decision, I agree with petitioner's position that the legislative history of Chapter 253 and the purpose of our Workers' Compensation Act, supports his position that it should be applied retroactively. However, based on the analysis of Harris I find that "the amendment only applies to the future receipt of benefits as a result of [an increase of the rate of dependency from 50% to 70%], and is therefore, "secondarily retroactive."

Although the facts of Harris are different - Harris decided that a respondent is not entitled to a credit for wages that a dependent spouse earns after 450 weeks - the reasons given by Judge Shebell are equally compelling in this matter. I quote from Judge Shebell's opinion because I believe that as in Harris it quells respondent's position that applying Chapter 253 retroactively would be unconstitutional because it "upsets a party's expectations" and "would constitute manifest injustice, because it would negate the insurance carrier's risk assessment."

Judge Shebell writing for the Appellate Division stated, "The application of an amendment cannot be said to result in manifest injustice, just because it upsets a party's expectations." Harris concerned a respondent's right to receive a credit for the earnings of a spouse after the 450 weeks of dependency benefits. And in this matter, respondent's right to expect that the rate of dependency will continue to remain constant.

Judge Shebell also puts to rest respondent's argument that applying the statute retroactively would be a manifest injustice because it deprives the respondent of its ability to adequately access its risk exposure. I quote, "We recognize that the amendment intrudes upon the employer's expectations, [in this matter, paying Mr. Updegrove the statutory rate of 50% of his wife's salary according to N.J.S.A 34:15-13 at the time of her death] however, the Legislature has made the judgment that the public interest promoted by the amendment outweighs the importance of the employer's interest that is impaired. [Citing cases.] However, "A state "may, in the exercise of the police power, enact a statute to promote the public health, safety, morals, or general welfare." Continuing, "So, long as the public interest outweighs the private right, an Act can apply retroactively and diminish or destroy that right." "retroactive civil legislation ... generally does not violate due process unless it result...in "particularly harsh and oppressive" consequences."

Furthermore, in this matter, as in Harris, considering the fiscal note attached to the Senate Bill #886 and Assembly Bill #1416 it becomes clear that increasing the dependency rate from 50% to 70% of a dependent's wages does not create a "harsh and oppressive" consequence. Stark. Finally, as Judge Shebell stated, the "obligation of an insurance carrier under the Workers' Compensation Act are set by statute, those obligations can change in the event of amendment." Harris.

Thus, considering the laudable purpose of the amendment and the fact that the amendment passes constitutional muster it is clear that the Legislature's enactment of Chapter 532 increasing dependency benefits from 50% to 70% was not arbitrary, unreasonable or irrational.

For all of the foregoing reasons, I find that Mr. Updegrove is entitled to receive 450 weeks of dependency benefits. The rate will be at 50% of Mrs. Updegrove's wages from November 9, 2002, the date of her death, until January 13, 2004. From January 14, 2004, the balance of the 450 weeks will be paid at 70% of Mrs. Updegrove's wages.

Petitioner's attorney is to prepare an Amended Order that conforms to this amended decision and serve it upon respondent's attorney under the Five-Day Rule. He is also to send a copy of this supplemental letter opinion and the Amended Order to the Appellate Division.

                                                                                                        Respectfully,

                                                                                                        Stephen Tuber

                                                                                                        Judge of Compensation