State of New Jersey
DEPARTMENT OF LABOR

June 9, 2000

re: Travisco/Westcott v. Middlesex County Dept. of Human Serv. - C.P. 96-047075 & 047106

Counsel:

This Claim Petition seeks the payment of burial expenses (Travisano) and dependency benefits (Westcott) under the Compensation Statute. Commencing in 1988 the decedent, David Westcott was employed as a transportation employee with the respondent. In order to obtain such position Mr. Westcott submitted to a physical examination conducted at Roosevelt Hospital, Middlesex, N. J. His widow, Mrs. Westcott, testified that neither she nor her husband ever received notice of an abnormal finding presented on a chest x-ray taken during the course of such examination. She testified further that it was not until March 1992 that her husband or she learned, through questioning from the physician administering a later physical examination, that the 1988 x-ray had revealed a "spot" on his left lung. Upon learning of this abnormality the decedent underwent additional testing which included a chest x-ray which revealed a mass greater than 7 centimeters in the left upper lobe. Further testing and treatment followed; in June 1992 Mr. Westcott was diagnosed as having Stage III squamous cell carcinoma. Mr. Westcott died in October 1995 as a result of lung cancer.

Petitioners, the administrator of decedent's estate and his surviving spouse, respectively, were unsuccessful in their civil suit filed in the Superior Court due to the impact of Hawksby v. Depietro, 319 N.J. Super. 89 (App. Div. 1999) on their claim(s). Such decision, following the rationale adopted in the majority of states when presented with similar fact patterns, teaches that a claim arising from the alleged misdiagnosis or nondiagnosis of a medical condition made during the course of an employment-related medical treatment or examination (I) has its sole remedy, if any, within the provisions of the applicable workers compensation law, and (ii) that such misdiagnosis or nondiagnosis, so long as it can be shown to adversely have effected the medical condition of the

subject employee, constitutes an "accidental injury" for which the employee should be compensated under the workers compensation statute. Id., p. 99.

Petitioners' claims rest squarely on the finding(s) of Hawksby, supra. They make the further argument that if relief is not provided in this forum, their respective rights for redress in the matter will be fully barred since the Superior Court has already dismissed the related civil action on jurisdictional grounds.

Respondent, for its part, argues that no recovery can be awarded under the Workers Compensation Statute without proof that its employment of David Westcott was a contributing cause of his death.

In addition the respondent introduced evidence and credible testimony to the effect that:

1. From prior to 1988 through April 2000 the staff of Roosevelt Hospital, the site of

the chest x-rays in question, has followed the practice of notifying by mail all persons who record abnormal readings or results in the course of physical examinations.

2. Mr. Westcott's file was marked in an appropriate manner to reflect the fact that there were abnormal markings on his 1988 chest x-ray and that notice thereof had been sent to him by regular mail.

3. That if an "abnormal" notice/letter were to be sent back to the Hospital because it could

not be delivered it would be put in the patient/employee's file. No such "non-delivered" notice regarding David Westcott's 1988 chest x-rays were found in his file.

Notwithstanding the above facts, as presented by respondent, petitioner testified that (I) throughout their marriage she and her husband discussed their various health problems with each other as witnessed by their discussion of his lung condition on the day that he learned of the same during March 1992, (ii) she had never received or seen any written "abnormal result notice" regarding her husband's 1988 chest x-ray, and (iii) that prior to his learning of such "abnormal" x-ray finding during March 1992 her husband had never discussed it with her.

I find that the respondent's initial argument, which challenges whether the delay in learning of his condition of lung cancer was a contributing cause of the decedent's death, fails to acknowledge the various findings set forth in the existing case law in this state. Not only must Hawksby, supra., be considered as applying to the case at hand to the extent of immunizing Roosevelt Hospital personnel from tort liability to the petitioners, but the full thrust of such decision, with attention to the various cases and fact patterns recited with approval in Hawksby, must be applied to the case at hand. I note in this regard the findings of two (2) New York cases [i.e. Lesavoy v. Harnes, 127  Misc.2d 9 (Sup. Ct. 1984) and Liantonio v. Baum, 91 Misc.2d 111 (Sup.Ct. 1977)] each of which holds that the failure to diagnose an existing non-work related cancerous disease in the course of an employment related medical examination was in fact an "injury" suffered under the terms and coverage afforded by the workers compensation law of that state.

I also take notice of the Appellate Division rationale and ruling in Ricciardi v. Marcalus Manuf. Co., 47 N.J. Super. 90 (App. Div. 1957). In the latter case the court found that where an accident/trauma in the workplace caused a non-work related pre-existing cancerous growth to grow at a faster rate than it would have otherwise "there must be a recovery for all of the disability incidents of the disease" caused by such faster growth, notwithstanding the fact that the only impact on future treatment/surgery is the acceleration of the date for same. Id., p. 94.

Respondent next argues that the protocol that it utilized to notify examinees of abnormal test results (a staff member was instructed to mail a copy of the report in question to the examinee; see Exh. R-2; see also Exh. C attached to respondent's closing brief) fulfilled any duty it had to notify the decedent of his 1988 abnormal x-ray finding.

I must reject the above argument for a variety of reasons. First, it has long been the accepted law of this state that the provisions of the workers compensation statute are to be construed liberally in order to bring as many cases as possible within its coverage. Smith v. E.T.L. Enterprises, 155 N.J. Super.

343, 349 (App. Div. 1978); citations omitted. Secondly, I found Mrs. Westcott to be a credible witness and do not doubt her testimony to the effect that she never saw or received the notice of abnormal test result that the Roosevelt Hospital staff alleges it mailed to her husband; further, prior to March 1992 her husband never discussed such abnormal x-ray result with her. Under the teaching of Ciuba v. Irvington Varnish & Insul. Co., 27 N.J. 127 (1958) I am led to the conclusion that Mr. Westcott never received such notice for the very reason that he never discussed it with his wife. Note that (I) Ciuba does not require "certainty" but accepts a presumption well-founded in reason and logic, and (ii) the very day that Mr. Westcott was told of his cancer growth (March 1992) he discussed it with his wife.

I feel it necessary to add at this point that I also question the adequacy of the protocol followed by Roosevelt Hospital as it relates to advising persons that their medical tests have disclosed abnormal findings indicative of the existence of cancerous disease or other maladies which are known to grow and/or be less treatable after the passage of time. It appears clear that a physician in private practice is held to a higher standard of practice than that presented by Roosevelt Hospital's "mail it and forget it" practice. Indeed, the notice itself is not instructive, nor does it suggest that the recipient appear for retesting, or make an appointment with his own physician. While it states that a copy of the test result is attached it is evident that a copy of the x-ray itself was not sent to Mr. Westcott. (see Exh. B to respondent's brief.) Further, though respondent's brief claims that it "clearly" provided notice of an abnormal test result to Mr. Westcott, such notice (I) does not indicate the address to which it was mailed, the date on which it was mailed or the party performing such task.

For the above reasons I find that the petitioners each have a potentially compensable case against the respondent under N.J.S.A. 34:15-1 et. seq. This matter will be next listed June 29, 2000. I would suggest a conference with counsel on that date. In addition, petitioner's counsel may want to proceed on that date with a presentation of the burial expenses by Mr. Travisano since separate claim petitions have been filed by the administrator and the surviving spouse.

Neale F. Hooley
Judge of Compensation