CP# 98-33994 Wheary v. City of Asbury Park
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 1998-33994
MICHAEL J. WHEARY,
CITY OF ASBURY PARK,
For the Petitioner: SHEBELL & SHEBELL, Esquires
by: RAYMOND P. SHEBELL, Esquire
For the Respondent: ROTHSTEIN, MANDELL, STROHM, MUST & GERTNER, Esquires
by: CHARLES H. MANDELL, Esquire
MONCHER, LAWRENCE G., J.W.C.,
Mr. Wheary, was employed by the City of Asbury Park for 11 years, initially as a police officer for 5 years then for 6 years as a paid firefighter and EMT. On September 1, 1998, while on duty in a stand by capacity in the municipal firehouse, he suffered a seizure. He was 33 years of age, a military veteran and up to that point fully capable of performing his duties first as a police officer, then as a firefighter and EMT. This incident was followed by subsequent manifestations of a persistent permanent debilitating illness. He is now retired on an ordinary disability pension from the Police and Fire Retirement system. He claims this seizure disorder was caused or permanently aggravated by stress peculiar to the conditions of his employment. The employer denies liability.
The employer admitted that this medical condition was apparent at the time and place specified in the claim petition, the grand mal seizure occurred during the course of petitioner’s employment. However, it denied the seizure disorder arose from the employment and it denied that the statutory test for a compensable occupational disease, N.J.S.A. 34:15-31(a), or the standards for a compensable accident had been met. N.J.S.A. 34:15-7.
Briefly the facts showed that Mr. Wheary was primarily assigned as an EMT on the City ambulance. On September 1, 1998, he was nearing the end of a very busy 14-hour shift. He was at the firehouse and sleeping when at 3 A.M., he awoke in the midst of a grand mal seizure, but was not cognizant of being awake until he reached the hospital. He was taken by ambulance to Jersey Shore Medical Center emergency department and admitted to the hospital. A CAT scan of his brain was read as suspicious of linear abnormality in the temporal lobe, however a latter MRI showed this to be a calcified chorid plexus, which is a normal, non disabling finding. An EEG was interpreted as normal.. He was given Dilantin and discharged from the hospital. He has never returned to work.
After discharge from the hospital, Mr. Wheary was followed for several months by a neurologist, Peter F. Barcus, M.D. He received an extensive work up at the NYU Medical Center. Over the next several months, he experienced several similar seizures, usually during sleep. It became clear that he could not be stabilized by Dilantin, his medication was changed to Depakote which substantially lessened the frequency of the seizures.
The trial commenced before the Honorable Philip N. Gumbs, Supervising Judge of Compensation. Unfortunately, Judge Gumbs became seriously ill and had to retire before the trial could be concluded. The case was eventually assigned to me for completion. The parties agreed that rather than require the petitioner to return to New Jersey from his new home in Texas and recall the forensic experts the case would be submitted to me on the record as supplemented by such additional proofs as may be submitted. Finally on September 11, 2002, Dr. Peter R. Barcas, the neurologist who had treated petitioner for the seizure disorder submitted to an oral deposition. Upon receipt of the deposition transcript the parties rested. Both parties were represented by capable counsel who elicited every possible favorable inference from the evidence. Petitioner’s counsel extended him self in a search for any facts which would support a favorable verdict.
The record consists of the testimony of Mr. Wheary, Dr. Barcas, and the forensic expert witnesses, both of whom are board certified in neurology and psychiatry and active in the day to practice of that specialty. Lawrence M. Eisenstein, M.D. testified for petitioner, and Leonard S. Eisenberg, M.D. testified for respondent. The documentary exhibits consisted of two detailed hypothetical questions, the CV of each of the physician witnesses, an excerpt on epilepsy from Merritt’s Textbook of Neurology, ninth edition, pages 845 to 855, a 32 page print out on Seizures and Epilepsy from the National Institute of Neurology and Stroke and the reports of the forensic witnesses. I have made a thorough review of the record weighed all of the evidence and for the reasons set forth below, I conclude that Mr. Wheary’s Worker’s Compensation injury was not compensable and must be dismissed.
The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 410-412 (App. Div. 1992), certif. den. 130 N.J. 6 (1992); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).
Petitioner has the burden to prove . . . [liability and disability] by a preponderance of the evidence. For petitioner to prevail he must establish a link between ... [the] disease and occupational [activity]. 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. ‘The 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).
Once the worker has met his burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employer’s liability shifts to the employer. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995). This allocation of the burden of proof to the respondent is consistent with the purposes of the compensation law to
shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expense. [Citations omitted.] Milos v. Exxon Co., USA, 281 N.J. Super. 194, 200 (App. Div. 1995).
While there are some limitations and balancing of interests in certain provisions of the compensation act, still, 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. The Supreme Court has reiterate frequently that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished, but this liberality does not extend to the requirement that petitioner present facts to justify his claim Fiore v. Consolidated Freightways, supra., 140 N.J. at 465.
The statutory definition of
a. [T]he phrase "compensable occupational disease" . . . includes 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. N.J.S.A. 34:15-31.
This definition of occupational disease was enacted by the 1979 Workers' Compensation Reform Law as 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 (1995). Previously it was only necessary to show the occupation was a contributing cause. Now it must be shown the disease 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). The same standard of causation is required for the award of permanent disability whether for an accident or an occupational disease. Fiore v. Consolidated Freightways, supra.
Resolution of the issue of whether the employment risk was the cause of the disease depends on whether the proofs establish the compensable disease would not have occurred to the extent it did in the absence of the described employment exposure. See Fiore v. Consolidated Freightways, supra., at 473-477. If the occupational exposure was a real causative factor in bringing about the disease or its extent, the injury may be compensable. Fiore, at 477. If the injuries merely lit up a condition and added no new pathology, there would be no liability.
In both accidental injury claims under N.J.S.A. 34:15-7 and occupational disease claims under N.J.S.A. 34:15-31 (a) the risk factor which is claimed to be the cause of the injury must be shown to be employment related rather than something experienced by the general population. In Prettyman v. State 288 N.J. Super. 580, (App. Div. 1997) an accident case, the court had occasions to discuss the how a Judge of Compensation must consider employment risks which have an impact on the employee.
We have recognized that there are "three categories of risk used in determining the connection between employment and injury." Id. at 126 (citing Howard v. Harwood's Restaurant Co., 25 N.J. 72, 83 (1957)). These categories are used to decide whether an injury arose out of the employment as required by N.J.S.A. 34:15-7. Verge, sup ra, 272 N.J. Super. at 126-28. The first category, described as a "`but for' test," questions whether it is more likely than not that the injury would have occurred in the workplace rather than somewhere else. Id. at 126. The second category of risks are classified as "neutral risks" and are those risks that occur due to "`uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment." Id. at 127 (quoting Howard, supra, 25 N.J. at 84). The third category of risks are those which “do not bear a sufficient causative relationship to the employment” and are considered “personal to the claimant” or "`idiopathic.'" Ibid. (citations omitted). He was subsequently awarded an ordinary disability pension by the Police and Fire Retirement System.
Of further consideration is Dietrich v. Toms River Bd. of Education, 294 N.J. Super. 252 (App. Div. 1996) where the court instructed that the compensation law did not allow compensability when an underlying idiopathic cardiomyopathy condition became evident during stressful employment occurrences unless there was a material causal nexus between the employment happenings and the worsening of the underlying heart disease. The happening of acute symptoms while Dietrich was at work was merely an idiopathic occurrence. There was no credible medical evidence that the work conditions caused the heart condition. In Dietrich, the court observed there was a lack of
“suitable medical evidence that the job stress substantially contributed to the condition or disease that developed, and that without the exposure, it would not have developed to the extent that it caused the disability manifested.”
The foregoing legal principles guide the resolution of this case. There is a lack of persuasive credible definitive proofs here showing that anything peculiar to the employment which caused Mr. Wheary’s seizure disorder or made it any worse. The most that was presented here was that he had put in several long days. His shift required two14 hour days followed by three days off, then two 10 hour days followed by 48 hours off duty and then the tour started again. On the day of the seizures he had been at work for approximately 9 hours and had been out on many ambulance calls. He was asleep in the fire house, on stand by, awaiting another call to take out the ambulance. His next conscious event was awaking in the emergency department of Jersey Shore Medical Center, Neptune, New Jersey. He had experienced a seizure, which subsequently has been diagnosed as epilepsy.
From that point, despite excellent medical treatment, his condition went down hill to the point he had to retire from his career as a public safety officer. He relocated his family to Texas, where the cost of living is substantially less than New Jersey. His permanent disability is substantial, he continues to experience seizures. He can never return to his former type of employment. The record discloses that he has yet to find acceptable employment. Unless he can get control over his seizures, it is doubtful that employment is likely. His physician currently prescribes Depakote, 1500 milligrams per day and 18 milligrams of Neurotin. Nevertheless, periodic seizures continue.
Mr. Wheary was born on April 3, 1965, he was only 33 years of age when his career came to an end. He did have a history of sustaining a head injury as a child which was followed by minor seizures. He also had another head injury as a police officer, but this was not shown to have caused any brain injury. Despite this he successfully served 4 years in the Marine Corp, successfully completed the police academy and then the fire academy, served a few years as a street police officer and then as a fire fighter and EMT. He functioned quite well until the seizure of September 1, 1998.
Dr. Eisenstein did testify that sleep disturbance could cause metabolic disturbance to change the brain clock and bring about the seizures from which petitioner suffered. Respondent’s counsel using learned treatises effectively cross-examined the doctor depriving his thesis of credibility. The treatises were the section on epilepsy and seizure disorders of the standard text book used to train physicians in neurology and the current state of medical knowledge published by the NIH. None of these supported the doctor’s thesis. The doctor conceded that trauma to the head is a frequent cause of epilepsy and petitioner did begin to have mild seizures much earlier than the employment events.
The NIH publication as well as the textbook stated that half off all seizures have no known cause. The electrical abnormalities in the brain can be linked to head trauma, infection, poisoning and genetic factors. Compensation judges have been instructed to consider scientific literature and medical literature on issues of medical causation. Fiore v. Consolidated Freightways, supra. 140 N.J. at 475, 476; Wiggins v. Port Authority of New York and New Jersey, 276 N.J. Super. 636, 644 (1994). Failure to consider these medical publications in this case would have been error. Reliable medical publications have been used by courts for fact finding on critical litigation issues for many years. See Calabrese v. Trenton State College, 82 N.J. 321 (1980). 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).
Review of current medical literature in peer review journals presents current thinking and prevailing medical standards while avoiding undue reliance hired witnesses. There is no reason for not using treatises as evidence to meet part of the burden of proof.
Respondent’s expert, Dr. Eisenberg, testified and gave his reasons why petitioner’s
seizure disorder was a consequence of partial seizures which originated in childhood and progressed untreated. He explained that this first grand mal seizure was a marker of a change in the underlying seizure disorder, the fact that it followed his work effort did not make that event the cause of the seizure disorder. In other words, I infer he would have be in the same situation whether he worked or not.
The final witness, Dr. Barcas, the treating physician, stated quite clearly that there was nothing in the history which would lead him to conclude petitioner’s work had any causal connection to his seizure disorder. Our courts have consistently held that a treating physician in a Workers' Compensation case is frequently 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).
All of the foregoing lead me to conclude that petitioner’s seizure disorder was not caused or aggravated by his employment activities.
Dated: November 4, 2002 Lawrence G. Moncher
Lawrence G. Moncher, J.W.C.