Margaret Vassallo, Petitioner
v.
North Princeton Developmental Center, Respondent

Decision on Motion to Dismiss for Lack of Prosecution and
Motion to Strike Request for Medical Evaluation and Suppress Respondent’s Defenses

Before: Honorable Elaine B. Goldsmith
Judge of Compensation

Appearances: Golden, Rothschild, Spagnola, Lundell & Levitt
By: Robert Golden, Esquire
Attorney for Petitioner

John J. Farmer, Attorney General
By: Jane Lafferty, D.A.G.
Attorney for Respondent

This matter comes before the court on a Motion to Dismiss for Lack of Prosecution for failure to attend a medical examination scheduled by the respondent. In response, petitioner filed a Motion to Strike Respondent’s Defenses and Request for Medical Examination. Respondent contends that in order to properly prepare its case, it is necessary for the petitioner to be evaluated by an allergist. Petitioner asserts that respondent’s demand should be denied based upon its inordinate delay in making that request, and invokes the principles of collateral estoppel and judicial estoppel to suppress respondent’s defenses based upon administrative decisions denying Sick Leave Injury benefits ( hereafter referred to as SLI) affirmed by the Merit System Board and the Appellate Division of the New Jersey Superior Court.

Finding of Facts

Before proceeding further it is necessary to set out a brief history of this matter. Mrs. Vassallo was employed as a sewing worker at the Woodbine Developmental Center from March 1979 through October 1988. In 1989 she filed a workers’ compensation claim petition against her employer for exposure to the pesticide Dursban while at work, claiming that exposure gave rise to the development of various respiratory problems, headaches and fatigue. On September 17, 1991, the matter was resolved by an Order Approving Settlement with Dismissal pursuant to N.J.S.A. 34:15-20. This is a dismissal with prejudice, having the "force and effect of a dismissal of the claim. . . a complete surrender of any right to compensation or other rights arising out of such claim under the statute."

After returning to work in May 1990, petitioner was assigned to the North Princeton Developmental Center performing the same duties as before, continuing until September 19, 1995. On December 11, 1995 she filed another claim petition alleging occupational exposure to other noxious fumes and chemicals, asserting among other complaints, a constant feeling of imbalance and unsteadiness, resulting in falling episodes. Petitioner filed for SLI benefits which were denied on the grounds that her disability was based upon the foreseeable aggravation of a pre-existing condition, N.J.A.C. 4A:6-1.6(c)(2). The SLI decision was affirmed on the same grounds by the Merit System Board and the Superior Court, Appellate Division.

On July 29, 1998, after conducting an evaluation examination on petitioner for this claim petition, Dr. Joel L. Duberstein, respondent’s internal medicine expert, recommended evaluation by an allergist in order to better understand the cause of her disability. Respondent claims that it cannot properly defend the claim petition without this knowledge. Petitioner refused to attend the allergist’s examination, claiming that during the course of this case respondent has been responsible for an inordinate delay by assigning several different deputy attorneys general to represent the State, each one requiring further medical evaluations. Petitioner has submitted to examination by respondent’s doctors before; however, this is the first time respondent has requested evaluation by an allergist and is acting in response to Dr. Duberstein’s recommendation. None of respondent’s other medical experts had recommended or even suggested consultation with an allergist.

Estoppel

Petitioner asserts that respondent is collaterally estopped from litigating the issues of exposure, causal relationship of the exposure to the occupational disease, and liability in this court because of the previous determinations, valid and final judgments rendered by SLI, the Merit System Board and the Appellate Court. In addition, by arguing in these forums, that the petitioner was disabled while she was employed by them, the State had accepted liability for petitioner’s disability. Since collateral estoppel bars relitigation of an issue decided in a prior action, the workers’ compensation court is barred from hearing that issue and the matter must go directly to the question of the value of the disability. Petitioner cites Township of Washington v. Gould, 39 N.J. 527, 533 (1963) and the unreported case of Pastrana v. Caesars Boardwalk Regency and Second Injury Fund, Superior Court, Appellate Division, A-7406-97T3, decided June 21, 1999, as legal precedent for this argument.

In Busch v. Biggs, 264 N.J. Super. 385, 399 (App. Div. 1993) the criteria used to determine whether collateral estoppel should be imposed was clearly set out:

(1) the issue decided in the prior adjudication was identical with the one presented in the subsequent action;

(2) the prior action was a judgment on the merits;

(i) the matter or fact was directly at issue and necessary to support the judgment rendered in the prior action,

(ii) the matter of fact was actually litigated and determined

(3) the party against whom it was asserted had been a party or in privity with a party to the earlier adjudication.

When the petitioner presented her case for SLI benefits she attributed her illness to the cumulative effect of her symptoms upon her overall health. To be entitled to SLI benefits the disability must be work related and the burden of proof rests with the petitioner. Denial of her request was based upon the provisions of N.J.A.C. 4A:6-1.6(c)2, which provides that pre-existing illness, diseases and conditions aggravated by a work-related accident or condition of employment, are not compensable when the aggravation was reasonably foreseeable. Her condition originated prior to her employment at North Princeton Developmental Center and since it was pre-existing, it was determined that she was not entitled to SLI benefits. This was based upon her records at the Employee Health Services indicating the exposure that occurred prior to May 1990. In addition, N.J.A.C. 4A:6-1.6(c) provides that the disability must be due to an injury or illness resulting from the employment. Illnesses not generally caused by a specific work- related accident or condition of employment must be supported by clear medical documentation that establishes the injury or illness is work related. In the Appellate Division opinion, quoting from the SLI decision, it states that "Vassallo had failed to provide medical documentation that her medical condition was caused by her work at North Princeton".

The Merit System Board affirmed the SLI denial of benefits. They agreed that petitioner’s work at the North Princeton facility had aggravated her pre-existing condition, and that this aggravation of her pre-existing condition was foreseeable. After reviewing her medical records, it was concluded that she had failed to prove causation or that her aggravation of her pre-existing condition was not foreseeable.

Petitioner filed an appeal to the Appellate Division which concluded that the Merit System Board decision was not arbitrary, capricious, or unreasonable and was supported by substantial credible evidence on the record as a whole. In its opinion, this record supported the Merit System Board’s determination that Vassallo was not entitled to SLI benefits because her disability resulted from the aggravation of a pre-existing condition, which was foreseeable. See N.J.A.C. 4A:6-1.6 (c)(2). It was evident to the Appellate Division that petitioner knew that she was extremely sensitive to a variety of chemicals. In the appendix attached to the present motion, petitioner supplied Deputy Attorney General’s Andrea R. Grundfest’s letter to Steven W. Townsend, Clerk of the Supreme Court of New Jersey which was filed in opposition to moving papers prepared and filed by petitioner seeking certification of the appeal of her denial of SLI benefits. In the letter the DAG says, "The Merit System Board concluded that, based on her own medical documentation, Vassallo was not eligible for SLI benefits pursuant to N.J.A.C. 4A;6-1.6(c)(2)." The letter continues " The denial of SLI benefits in this case was predicated not upon any questions concerning her disability status or her exposure to chemicals in the workplace, but upon the determination, based upon Vassallo’s own evidence, that she suffered from a reasonably foreseeable aggravation of a thoroughly documented, pre-existing condition, namely neurotoxicity/Toxic Brain Syndrome." Additionally, in the Appellate Division decision, reviewing the Merit System Board decision, ". . .after reciting Vassallo’s long history of adverse reaction to exposure to toxic fumes, and ordinary household environments, the Board concluded that she failed to prove causation or that the aggravation of her pre-existing condition was not foreseeable". She has failed to satisfy SLI, the Merit System Board or the Appellate Division with her proof of causation. Yet petitioner argues that despite these decisions, the State has relinquished its right to contest exposure or causation. I find that petitioner has failed to satisfy this requirement for granting collateral estoppel. Respondent has not previously litigated the issues of exposure, relationship of that exposure to the alleged occupational disease, and the extent of its liability therefore, if any.

In the claim petition before the Worker’s Compensation Division, the basic issues that must ultimately be decided are different from the other forums. The first is whether the conditions from which petitioner presently suffers are simply an extrapolation of her original disability that developed at the Woodbine Developmental Center. If that is so, then her present disability can not be compensable as she entered into an Order Approving Settlement with Dismissal, pursuant to Section 20. The Settlement Order, which petitioner voluntarily agreed to sign, clearly stated that there was an issue of whether there was a causal connection between her disability and her employment. The second issue to be considered by this court is whether her alleged occupational disease is causally related to exposure at North Princeton Developmental Center for which there must be proof that there was an exposure to deleterious substances subsequent to the period of employment covered by the prior dismissed claim against Woodbine Developmental Center. I find that the issues decided by the previous administrative agencies and affirmed by the Appellate Division, are sufficiently different from those of the Workers’ Compensation court as they required consideration and application of standards set forth in the statutes specifically for that agency. The Workers’ Compensation criteria and standards on which the petitioner’s cases will be considered are different from the criteria and standards applied by SLI and the Merit System Board.

The second test for applying collateral estoppel is whether the prior action was a judgment on the merits, and whether the issue was actually litigated and determined. Neither party has supplied this court with a transcript of the proceedings before the SLI , Merit System Board, or the Appellate Division. Only the written decisions entered by the reviewing agency and the Appellate Court have been made available. It is not readily apparent which issues were litigated or the manner in which they were litigated. In the Board decision it is noted that at the SLI level, petitioner " failed to provide any medical documentation which supports any specific accident or condition of employment while employed at this facility". This suggests that medical testimony was not taken, and that reliance was placed upon the petitioner’s explanation or testimony of her problems and description of the workplace. Denial of her benefits is based upon her inability to prove certain facts; thus, it does not appear that at this level, the merits of the matter were heard or considered. Before the Merit System Board, the petitioner presented the medical report of Allan D. Lieberman, MD, detailing her medical history almost since childhood as well as a short one page letter from Dr. John DiGregorio, who states that on the basis of his review of her previous medical records and his interview with petitioner, her disabilities are "definitely related to her job and exposure". In the Workers’ Compensation Court, the doctors would have been subject to cross examination on these reports. Before the Merit System Board, the decision was made based upon N.J.A.C. 4A:6-1.6(c)2 that petitioner suffered from a pre-existing condition and that the aggravation of that condition was reasonably foreseeable. At no proceeding before SLI or the Merit Review Board has the respondent been able or required to present its position or evidence relating to the condition of the facility or refute petitioner’s allegations of exposure causing her occupational disease. The decisions were based upon petitioner’s evidence and her inability to show the causal relationship between her alleged occupational disease and exposure at North Princeton Developmental Center. Thus, I find this matter has previously been decided on a tender of limited evidence applied to a restrictive set of statutory provisions, and that the merits of the Workers’ Compensation case and the issues raised by the respondent have not been presented before, reviewed, nor considered by any previous forum. I find petitioner has failed to satisfy the requirements necessary for application of the principle of collateral estoppel to this case, and I deny her motion to strike respondent’s defenses.

Petitioner also contends that respondent is judicially estopped from arguing a position inconsistent with the one previously asserted, relying on N.M. v. J.G.,225 N.J. Super. 423, 429 (App. Div. 1992) and Vogel v. Red Star Express Lines, 73 N.J. Super. 534 (App. Div. 1962), aff’d, 40 N.J. 44 (1963). I refer once again to Deputy Attorney General’s Andrea R. Grundfest’s letter to Steven W. Townsend, Clerk of the Supreme Court. In the letter the Deputy says, " The denial of SLI benefits in this case was predicated not upon any questions concerning her disability status or her exposure to chemicals in the workplace, but upon the determination, based upon Vassallo’s own evidence, that she suffered from a reasonably foreseeable aggravation of a thoroughly documented, pre-existing condition, namely neurotoxicity/Toxic Brain Syndrome". The decision appears to be based upon petitioner’s own documentation of her health condition spanning many years. Additionally, in the Appellate Division decision, ". . . after reciting Vassallo’s long history of adverse reaction to exposure to toxic fumes and ordinary household environments, the Board concluded that she failed to prove causation or that the aggravation of her pre-existing condition was not foreseeable". Despite my request to respondent’s counsel, I have not been supplied with copies of the materials submitted to SLI or the Merit System Board nor do I have transcripts of such proceedings. In Deputy Attorney General Todd A. Wigder’s brief submitted to the Appellate Division, he argues respondent’s position that even if the petitioner’s disability resulted from aggravation of her chemical sensitivity, Dr. Lieberman, her own doctor agreed that it was to be expected based on her past medical history. In the doctor’s report, her disability was "attributed to a variety of causes, including exposures that were unrelated to petitioners’ work at Princeton Developmental Center." Her condition was attributable to exposure over the years to toxic chemicals present in several of her mobile homes. There was evidence that her sensitivity was caused by a variety of common products present at her home and in public places. Wigder concludes that the Merit System Board, ". . . could reasonably conclude based on the evidence before it that Vassallo had not met her burden of proof that her disability was caused by the specific conditions at North Princeton."

Even if I accept petitioner’s argument that she is correct, that her disability is based upon the exacerbation of her prior exposure at Woodbine Developmental Center, the 1991 dismissal with prejudice of that claim, would render her present claim against North Princeton Developmental Center non-compensable.

In its decision, the appellate court viewed the State’s position as having denied the ". . . claim on the grounds that the conditions of her employment with North Princeton aggravated a preexisting condition and that it was foreseeable that her sensitivity to toxic chemicals would be aggravated by her job. . ."; nevertheless, the Appellate Division affirmed the Merit System Board decision. In the previous forums, respondent has not denied that petitioner is disabled, it has put her to her proofs of the causation of the disability by medical documentation. Before the Workers’ Compensation court, it is the burden of the petitioner to prove that her medical condition was caused by her work for the respondent, that she was exposed to deleterious substances at North Princeton Developmental Center and she must prove that this exposure caused her occupational disease and that the occupational disease has caused her disability. I find that the position taken by respondent in the previous forums was not inconsistent with its present position before this court.

Medical Examination

In her claim petition, petitioner alleges that her disability arises not from an accident but from an occupational disease related to exposure at her workplace. N.J.S.A. 34:15-31 (a) defines "compensable occupational disease" as follows:

". . .shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment."

In order to properly prepare its case, respondent is entitled to know what substances, if any, petitioner is reacting to. This requires an examination by an allergist. Furthermore, N.J.S.A. 34:15-19 requires that when requested to submit to an examination on behalf of the employer, the injured worker must submit to such an examination "at some reasonable time and place "within the State of New Jersey and must do so "as often as may be reasonably requested. If the injured worker refuses to submit to such an examination, this refusal shall deprive him or her of the right to workers’ compensation benefits during the continuance of such refusal". In the case before this court, the petitioner refuses to attend the allergist’s examination because of her allegation of the inordinate delay in making the request. Respondent’s request for examination was based upon the recommendation by Dr. Duberstein and conveyed to petitioner within a reasonable time after it had obtained the doctor’s report. The statute gives the respondent the right to request an examination by an allergist. The respondent needs this medical information in order to prepare its defense and evaluate its case for ultimate resolution. I find petitioner has not shown sufficient prejudice to deny respondent this right. I also note that petitioner has indicated that she has certain fears that such an examination may result in her suffering discomforting reactions from substances that may be used by the allergist during the examination. I therefore Order petitioner to submit to an examination by the allergist chosen by the respondent, but I direct that the allergist chosen by the respondent shall provide the court within 45 days of the date of this decision, a report detailing a full and complete description of the examination. This report should contain a statement of the potential consequences , if any, of the examination. Upon review of that report, I will consider authorizing the use of that expert. The petitioner will then have 60 days from the date of authorization to make and attend an appointment with the chosen doctor or the matter will be dismissed.

The Motion to Dismiss for Lack of Prosecution is hereby temporarily denied pending petitioner’s submission to examination by respondent’s allergist. The Motion to Strike Respondent’s Defenses and Request for Medical Examination is hereby denied.

Respondent will be responsible for payment of $450 to J.F. Trainor for stenographic services.

Date: 7/31/00 -------------------------------------------

Elaine B. Goldsmith, J.W.C.