Respondent presented 2 physician witnesses and records of petitioner’s treatment prior to the compensable incident.  The first witness was Richard D. Stewart, M.D., a retired professor at the Medical College of Wisconsin who is still actively teaching in adjunct capacity.  He testified that he puts in more time at the Medical School than when he was a full time faculty member.  He is board certified in internal medicine and medical toxicology.  Though retired, he does carry a full class load at the medical school and does practice his specialty.  Dr. Stewart has had extensive experience as a practicing physician concerned with employee health in industrial chemical facilities.   He has held numerous medical school faculty and research positions, hospital, government, and industrial fellowships appointments, and grants for many assignments in industrial and chemical toxicology.  He has been the principle investigator on more than 100 research projects and delivered papers on subjects which show his competence and experience to research and analyze claims of toxic poisoning.  For the past 46 years he has engaged in the practice of medicine by treating patients while holding down medical school faculty appointments.  He also had the time to invent and patent medical devices.  Dr. Stewart reviewed the entire medical and factual record and then offered the opinion that petitioner’s ailments were not the consequence of his industrial exposure and gave his reasons.

Respondent’s other expert witness, Paul E. Barkhaus, M.D. is board certified in adult  neurology and electro diagnostic medicine.  He practices these specialties and is presently an Associate Professor of Medicine at Medical College of Wisconsin and Director of Neuromuscular Disease at the Milwaukee Veterans Administration Center.  He has authored more than 20 research papers in his specialty.  He reviewed the medical records and then on February 1, 2001, he interviewed Mr. Webb and performed a physical examination.  He presented an extensive critique of the diagnosis presented by Dr. Masci and the EMG interpretations of Dr. Rassouli, who had tested Mr. Webb at the request of Dr. Masci.  He explained in detail his opinion why Mr. Webb did not suffer from a “motor axonal polyneuropathy” as suggested by Dr. Masci and Dr. Rassouli.

Respondent presented medical records from physicians who had treated Mr. Webb before the alleged incident.  These records did present complaints similar to some of the symptoms which Mr. Webb claimed were caused by his industrial exposure.  The emergency room and admission records of Paul Kimball Hospital for petitioner’s treatment on March 20, 2000 were presented as a joint exhibit.  Both parties submitted impressive detailed, documented post hearing briefs supporting the position of their respective client.  No argument or potential factual conclusion was ignored.  I have read the briefs, the transcripts and evidence several times.

 I have applied the following legal precepts to resolution of this dispute.  The burden of proof here, as in all Workers Compensation contested cases, rests on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the believable credible evidence on each and every element of his  claim.  Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984); Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 521 ( App. Div. 1998), certif. denied 154 N.J. 609 (1998).  A petitioner is entitled to compensation for “reasonable and necessary “ medical treatment Hanrahan v. Township of Sparta, 284 N.J. Super. 327, 333 (App. Div. 1995), certif. denied 143 N.J. 326 (1996) construing N.J.S.A. 34:15-15.  He must carry his burden by presenting sufficient credible evidence to persuade this tribunal that his hypothesis is the correct one.

Petitioner has the burden to prove . . . causal relation [and disability] by a preponderance of the evidence.  All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . .  However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion.  ‘Th standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth.  It need not have the attribute  of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.’    [Citations omitted.]   Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).  Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994); Lister v. J.B. Eurell Co., 234 N.J. Super.  64, 72 (App. Div. 1989); Harbatuk v. S & S Furniture Systems Insulation,  211 N.J. Super. 614, 620 (App. Div. 1986).

Once the worker has met this burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employers liability shifts to the employer.  Cf.  Gulick v. H.M. Enoch, Inc., 280 N.J. Super.  96, 109 (App. Div. 1995) and N.J.S.A. 34:15-12(d). 

The Workers’ Compensation Act “is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.”  Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955).  Judges are directed to “liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . .”  Ibid.   This directive for liberal construction of the Act continues.  Fiore v. Consolidated Freightways, 140 N.J. 452, 465 (1995).  On the other hand, this does not extend to ignoring his obligation to sustain the burden of proof.  He must produce the evidence to make out his claim.  He must persuade the trier of fact that his factual contentions are valid.

The injury, if causally related is alleged to be a direct consequence of a single accidental incident.  As such it should be guided by the principles which govern workers’ compensation accidents.  See N.J.S.A. 34:15-7 & 34:15-36.  However the nature of the injuries claimed in this aspect of the case are more in the nature of a disease process and probably could be covered by the occupational disease statute. N.J.S.A.  34:15-31.   Cf. Bird v. Somerset Hills Country Club, supra.; Brunell v. Wildwood Crest Police Department, 2002 N.J.Super. Lexis 93, (App. Div. 2002).  That statutory definition for occupational disease states   

a.. [T]he phrase "compensable occupational disease" shall include all diseases arising out 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.

b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.

This statute is a part of a legislative plan to contain compensation costs as a balance for increased disability benefits for serious injuries.  Fiore v. Consolidated Freightways,  supra.,140 N.J. at 468.  Previously it was only necessary to show the occupation was a contributing cause. Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103 (App. Div. 1954).  Now it must be shown the disease or the acceleration of the occupational condition was “due in a material degree” to the exposure.  Peterson  v. Hermann Forwarding Co., 267 N.J. Super. 493, 503-508 (App. Div. 1993), certif. den. 135  N.J. 304   (1994) and Kozinsky  v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988).   Further the employee must also show the exposure or condition was characteristic of or peculiar to the occupation, process or place of employment and the material cause of the occupational disease.   Fiore v. Consolidated Freightways, supra. 140 N.J.  @ 468-470.  

 In this case, the detailed description of event presented by Mr. Webb and explained by Dr. Masci would satisfy the requirements of both the accidental injury requirements and the occupational disease statute description of exposure and causal relation have been satisfied by petitioner’s direct case.  Even though the material causal relation provision clause of the occupational disease statute is most likely higher hurdle than accident statute, if it is compensable he has shown on his direct case, at least with the testimony of his expert, that exposure could be the material cause of his alleged injuries.  But the ultimate issue is whether there is a causal connection between the proven exposure and his symptoms.   There is also the issue of just what is his current situation.  On both issues, petitioner must persuade this tribunal of the accuracy of his position. 

First I must decide whether exposure to carbamate can cause the injuries alleged and then whether the causal link exists in this case.  See Fiore v. Consolidated Freightways, supra., at 473-477.   If the occupational incident was a real causative factor in bringing about the disease or its extent, the injury is compensable.  Fiore, at 477.   The absence of any reliable medical literature supporting his position on both the diagnosis and causal relation is troubling.  Cf. Fiore v. Consolidated Freightways, supra.

Dr. Masci has been petitioner’s treating physician for more than a year.   Other physicians have treated Mr. Webb for conditions which have a nexus to the issues of this case.  They did not testify, but their records have been introduced. Our courts have consistently held that a treating physician in a Workers' Compensation case is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony. Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972).    Still the factual basis of the treating physician must be presented and explained.  The treating physician’s conclusions must be shown to be justified by the facts of the case.   If the opinion of the treating physician were accepted without question, then there would be no need for the common practice of obtaining a second opinion or consultation with specialists.

Manifestly, these opposing medical opinions cannot be considered apart from the factual framework of the entire case. Their probative force must be evaluated by a number of factors. In the process of evaluation, a criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand, and decide upon the producing cause of the patient’s condition. Fusco v. Cambridge Piece Dyeing Corp., 135 N.J.L. 160, 162, 167 (E. & A. 1947).

One additional factor must be considered in weighing the proofs is that while Dr. Masci has been the treating physician since a few months after the compensable occurrence, he testified in a dual capacity.  On one hand he is the treating physician and on the other hand he is petitioner’s forensic expert witness and he relied to a degree on the opinions of others.   His opinions are based on more than observations of the patient.  Here he points to specific test interpretations and technical information to support his conclusions.  His conclusions on the test interpretations and their significance have been challenged by respondent with impressive reliable testimony.  In a like fashion the toxicological premises for his conclusions have been seriously put in issue by an eminently qualified expert.   Dr. Masci accuses early treating physicians of malpractice in not conducting tests which he suggests should have been ordered.  Yet he ignores or had no knowledge of clinical findings which do not necessarily support his theory of the case.

The respondent’s experts, Dr. Stewart and Dr. Barkhaus have educational, experience, and specialty certifications which far out weigh those possessed by Dr. Masci.  But then again that is not an uncommon occurrence in Workers’ Compensation cases.  The petitioner is hemmed in by the financial limits imposed by N.J.S.A. 34:15-64 which limits the compensation one can spend to $250 for testimony of a forensic expert and $250 per hour with a cap of $1,500 for a treating physician.  The insurance company has no such limitation.  That does have an impact on the credentials of forensic evidence available to this and all other petitioners.   There are two possible equalizers.  One is the use of learned medical treatises.  That did not occur here.  The other is world class cross-examination as was practiced by petitioner’s attorney in this case.  However that could not fill all of the gaps which occur in petitioner’s proofs.  

I have carefully scrutinized the evidence of the  physicians, considered their respective interest in the outcome and the nature of their retention by the party who produced their evidence and looked to the evidence not prepared for litigation, the treatment record, imaging reports, hospital records, and treatment records completed before litigation.   Dr. Masci could not point to any medical or toxicological literature which supported his treatises.  Dr. Stewart explained that by the statement that there is no such documentation.  Considering the wide use of carbamate as a pesticide ingredient, I must give heavy weight to that fact.  The absence of any reliable medical or scientific treatises which might support petitioner’s contention on the toxicity of the exposure to carbamate so as to cause latent development of cardiac illness and symptoms other than mild dermatological irritation has convinced me to deny the claim for medical and temporary disability benefits.

Mr. Webb seeks medical treatment and temporary disability benefits.  For all practical purposes his conditions is most probably fixed at this time.  If his condition and cause as described by Dr. Masci is correct then he might be entitled to an award of total disability with supportive care for the rest of his life.  See N.J.S.A. 34:15-12(b).  If not his claim, with the possible exception of consideration of dermatological considerations will be dismissed with prejudice.  With these legal precepts in mind I have reached the following additional findings and conclusions. 

Mr. Webb who is obese, he is 5 feet tall and weighs 291 pounds.  He had a prior medical history of treatment for hypertension, anxiety and for Lyme Disease.  He has had isolated incidents high blood sugar which when considered with his family history is suggestive of early stages of diabetes.  These conditions had to be considered in the medical work up of this case.  Dr. Masci opined that these conditions were not material.  

After reviewing the pre-2000 medical records and the immediate hospital treatment in March 2000, I conclude he definitely had longstanding hypertension controlled with medication as well as pre-existing anxiety.  I can not conclude he had diabetes, but the evidence does not allow exclusion of that condition.  But the proofs permit an inference that diabetes is not presently causing symptoms.  The office records of Parevez Mahmood, M.D., a board certified urologist, show that petitioner consulted him in September 1999, approximately 6 months before the compensable incident.  Petitioner gave a history that he smoked 2 packs per day and that he was currently taking two medications.  Buspar which is an anti-anxiety medication and Accupril which is an ACE inhibitor used primarily for treatment of hypertension. Mr. Webb gave a history that he suffered from fatigue, headache, dizziness, high blood pressure, a cough, abdominal pain, frequent urination, back pain, confusion and diabetes.   Dr. Mahmood conducted a physical examination and obtained several lab tests and imaging studies which led him to conclude that Mr. Webb did not have a kidney stone or other obstruction, it appears that Mr. Webb was discharged from his care on October 1, 1999. 

The records of Ocean County Family Care, Mr. Webb’s family physician, show that in November 1997, he consulted them for acute gastroenteritis with diarrhea after eating sea food.  Blood tests conducted in 1997 reported elevated cholesterol and triglyceride levels which when correlated with other personal factors gave an increased risk of potential coronary disease.  The fasting blood glucose level was 133, suggestive of diabetes.   An MRI taken in May 1997 reflect extensive pathology in Petitioner’s cervical spine at C5-6 level including stenosis, posterior ridging, and slight thecal sac indentation.  A June 1998 record includes a history of arthritis with a prescription for Cataflam and hypertension controlled by Accupril.  The record contains indications of allergic reactions to some medication.   Surprisingly, I saw no mention of a diagnosis or treatment for Lyme disease although Mr. Webb testified that he had been treated for it during this period.

Turning to the incident in question, as noted above, I have no reason to doubt Mr. Webb’s testimony of his exposure on Friday, March 17, 2000 during power washing of a fork lift truck  covered with residuals of carbamate crystals.  I accept his testimony that his hands and clothing were soaked.  The weekend was uneventful.  When he returned to work on Monday, he felt stiff and his hands were beginning to swell.  He was uncomfortable but worked his shift.  When he returned home, he was fatigued and  sore.  While showering he observed that his groin and under arms were “inflamed” as if they had been burned.  He did report for work on March 20, but could not perform.  Mr. Webb, 47 years of age at that time, has never returned to work for respondent or any where else.

On Monday afternoon, March 20, 2000, Mr. Webb sought medical assistance at the Paul Kimball Hospital Emergency Room in Lakewood.   On examination he was noted to have a reddened rash in groin, inguinal and under arm areas and complained of joint pains.  The rash was described by a physician as macular and warm to the touch.  This physician also reported that the patient had muscle aches over the shoulder muscles.  All reflexes of the upper extremities were normal as were the lower body.   He was given Benadryl and Decadron via IV.  He was released to home from the emergency department.   However, he felt quite weak and quickly returned to the emergency department.  He was admitted to the hospital for observation for persistent reaction to chemical exposure   Cardiac, blood tests, and blood pressure were all normal. The next day, March 21,  Mr. Webb was discharged with a diagnosis of persistent allergic reaction with instructions to return if his symptoms deteriorated.  The hospital record does contain a history of hypertension and Lyme Disease but does not state whether he was currently being medicated for these conditions.

On March 23, 2000, at 2:45 PM , Mr. Webb, once more, returned to the hospital emergency department.  At 10 PM he was readmitted.  He expressed complaints that the previously noted rash was worse.  He gave a history of generalized weakness with achiness in the legs, and  slight chills.  The admitting diagnosis was dehydration, rule out sepsis.   He offered no complaints of pain.  Dr. Kleinfeld conducted a dermatological consult and examination.  He reported that Mr. Webb displayed a generalized erythema in the groin and inguinal areas spreading out to the hips and buttocks and a warm red rash at both underarms which had flaking of skin at the edges of the rash.  A work up for infection and other potential medical issues was conducted. All of which were negative.  Benadryl was continued and he was given Prednisone, a steroid,  Rocephin, an antibiotic usually given for staph infections, Mycelex granuals, an anti-fungal medication, and Motrin for pain.  He was stabilized and discharged on March 27 to be followed by his family physician. 

Follow up care by his New Jersey physician, Angelo Scotti, M.D. included investigation of complaints of chest pressure similar to a cardiac symptoms.  On April 15, Mr. Webb saw Mark O’Connell, M.D., a cardiologist.  The history to the doctor included a recitation that Mr. Webb had recently discontinued his hypertension medication.  A nuclear cardiac stress test performed at Jersey Shore Medical Center on April 24, 2000 was negative, doctor O”Connell reported that the search for “non cardiac causes” for his chest pain should be continued.  He did observe a mild left ventricular systolic finding which should be checked via an EKG.  EKG studies performed at a latter date were negative except for some PVC’s.   Lab blood tests were negative for diabetes or Lyme disease or for any other pathology.  On May 3, 2000, Dr. Scotti’s office faxed a note to respondent that Mr. Webb can not work until further notice due to toxic exposure.  The note does not contain a diagnosis and appears to have a stamped signature.  Dr. Scotti’s record contain no medical examination or diagnosis which would provide a basis for that statement.  Petitioner next saw a Dr. Geffner, a dermatologist, on May 17, 2000.  That doctor’s report and records were not submitted by either party.  I have no hint of what he observed or his diagnosis.  But something had to be there because of what I saw the next day.

When petitioner testified before me on May 18, 2000, I observed the red peeling, sunburn like rash on his arms and throat.  Several months latter, he told respondent’s neurological expert, Dr. Barkhaus , that the rash had resolved in his underarm and groin had cleared by May 2000, he testified here that now his skin feels dry.  At an earlier date, Dr. Masci confirmed that the rash had resolved.  On February 1, 2001, Mr. Webb told Dr. Barkhaus that the rash had cleared but that he continued to have pressure on his chest.  At the February 2001 hearing, Petitioner’s testimony  traced a progressive deterioration of his physical capability and cognitive capacity.  He complains of aches and joint problems, he claims to have lost energy to the extent that he can not even remove lug nuts when his wife had a flat tire.  This gentleman had been a mechanic for more than 30 years but states he is now totally unable to perform even the very basic of tasks.  His other continuing complaints including sleeping all day, constipation, a crushing pain in his hands and feet, sexual dysfunction, and inability to concentrate.  When I compared his weight of 243 pounds as reported in the Spring of 2000 to his weight of 291 in February 2001, the weight gain has been tremendous for such a short period of time.  He is very distressed over his inability to support his family of five children.  His current medications include a beta-blocker, a diuretic, a laxative and an anti-anxiety medication.   Since May 2000, Mr. Webb has resided in Milwaukee, with his medical care being directed by Dr. Masci. Clearly something is going on to cause his lethargy and huge weight gain in such a short period of time.  The issue presented is whether any consequence of his exposure is responsible for this.  For the reasons discussed below, I found the testimony and explanations presented by Dr. Masci unconvincing.

I have carefully reviewed my notes of Dr. Masci’s testimony and the transcript.  His office records contain multiple referrals to other physicians for testing or consultation.   Dr. Masci’s diagnosis and investigative work up of this case is interesting.  His initial examination was negative for cardiac pathology.   He quickly reached a working diagnosis of cardiac palpitations secondary to chemical exposure.   There is no basis other than speculation for such a diagnosis. Dr. Masci’s otherwise detailed initial examination record does not contain any evidence of a loss of sensation in Mr. Webb’s hands and feet at his initial examination but yet he testified that finding existed at that time.  I can not believe, considering the nature of his retention, that he would omit a finding of peripheral neurological symptoms in the part of his anatomy which was in contact with the chemicals.  His ultimate conclusion was that all of this man’s medical problems were rooted in his short one time exposure to wet carbamate.  His diagnosis is based on some strong leaps in suppositions in his diagnostic conclusions.  He appears to have had no information of the negative cardiac stress test with nuclear imaging using contrast administered by doctor O’Connell.

For instance Dr. Masci opines that Mr. Webb experienced nausea and stomach cramping despite the complete lack of such history in the hospital records or for that matter even in his office records.  Furthermore the hospital records do include evidence of thorough system reviews, findings of a normal abdomen and normal bowel sounds. There is no record of stomach upset or loose bowel movements.  No abdominal symptoms are stated and there are no such complaints.  Interestingly, the records of prior medical treatment show that Mr. Webb did present somewhat similar symptoms and complaints on earlier occasions when he was seen by other physicians. 

At the time of Dr. Masci’s initial examination of Mr. Webb, the doctor reported only one positive clinical finding, heart palpitations.  The doctor’s  June 12, 2000 record states that Mr. Webb’s skin rash had apparently disappeared, the record reads it was a

“common nonspecific infection unrelated to any chemical exposure.  Basically the skin findings that were probably present when he was injured in March had completely disappeared.”

The records for Dr. Masci’s  June 12 examination do report a normal EKG, a normal sinus rhythm, a normal neurological examination of his eyes, reflexes were equal and symmetrical,  lungs were clear, a soft wheeze was heard but this man has an obese abdomen.  Dr. Masci’s records following that date depict Mr. Webb to be in declining health.  He offered the opinion that Mr. Webb had a cardiac impairment secondary to an over exposure to carbamate.  While he has seen a few patients who were exposed to carbamate, he has never treated a patient with a cardiac impairment related to carbamate exposure.  He testified that his hospital librarian’s research was negative.  Dr. Stewart, an expert toxicologist, testified there is no such report in the literature.              Dr. Masci points to an evaluation he had obtained from  Dr. Glassman, a  nuero-psychologist who conducted an interview and testing of Mr. Webb as supporting his conclusion of a decline in cognitive function.  That report as I read it does not establish such a conclusion.  Rather Dr. Glassman reports normal fine motor speed and dexterity in both hands plus no evidence of memory loss.  He did opine that Mr. Webb’s complaints of fatigue were due to physical problems and stress.  The stress seems to be connected to Mr. Webb’s financial, litigation, and family issues.  Dr. Glassman reported that he has

“a tendency to develop somatic problems under stress.  In addition he is likely to magnify minor physical dysfunctions, which make him anxious.  The patient is also likely indecisive and overly dependent in relationships. . .”

He offered a possible diagnosis of post traumatic stress disorder due to reaction to the exposure.  But he also left what I find was a strong suggestion that the psychological component was in fact a somatoform disorder.  He suggested evaluation by psychiatrist for consideration of medication for a stress disorder.  This does not appear to have been done.   He does not appear to have given any consideration to the history of preexisting diagnosis of anxiety and treatment with Buspar in the recent past. 

Carbamate is a pesticide ingredient, a crystalline chemical, which has been in use for many years.  The only reliable information describing the toxic consequences from contact carbamate  was the MSDS obtained from the company which owned the fork lift truck.  No other literature was placed in evidence.  The MSDS stated that direct contact might cause moderate skin irritation or irritation of the eyes.  Inhalation may cause respiratory irritation, but no such claim was made here.  Ingestion can cause nausea and diarrhea, but there is no history here that Mr. Webb ingested the chemical nor did he present such symptoms in the two months following the exposure. 

Dr. Masci testified in general terms to finding that Mr. Webb had peripheral neuropathy consequences to the hands and feet, cardiac injury developing into Parkinson type syndromes and altered cognitive status all as consequences of exposure.  He did not cite treatises or give provide any source in medical or toxicological literature.   This absence is critical in this case.  Workers’ Compensation judges have been instructed to consider scientific literature and medical literature on issues of medical causation.  Fiore v. Consolidated Freightways,  140 N.J. 452, 475, 476 (1995); Wiggins v. Port Authority of New York and New Jersey, 276 N.J. Super. 636, 644 (1994).    The Supreme Court has cautioned 

Compensation judges should be particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing standards.  Hellwig v. J.F. Rast & Co., Inc., 110 N.J. 37, 54 (1988).