CP# 96-6215 Williams v. North Princeton Development Center
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
NO. C.P. 96-006215
THALMA M. WILLIAMS, Petitioner,
NORTH PRINCETON DEVELOPMENTAL CENTER, Respondent.
HONORABLE PAUL A. KAPALKO
Chief Judge of Compensation
WYSOKER, GLASSNER, WEINGARTNER,
GONZALEZ AND LOCKSPEISER, ESQS.
Attorney for the Petitioner
LEO R. ZAMPARELLI, ESQ.
Attorney for the Respondent
This is an action brought on behalf of Ms. Thalma M. Williams against the North Princeton Development Center (hereinafter referred to as the "State") for what is alleged to be a loss of pulmonary function arising out of her many years of service as an employee. In her pleadings it is alleged that this impairment arose out of an exposure "to pulmonary irritants" from 1959 when she began work as an institutional attendant in a cottage-like facility until her retirement in 1990.
Trial commenced before me on May 19th, 1998 with the taking of the petitioner’s testimony as well as the stipulation of certain facts. It was agreed that at all times relevant hereto petitioner was an employee of the respondent State. Her salary, at the time of retirement, gave rise to an allowable maximum rate of compensation of $350 per week and a minimum compensate rate of $99 for any permanent disability. It was further agreed that no temporary disability benefits were ever sought by the petitioner or paid for by the respondent. At the time of the commencement of the trial the only issue before this court was the nature and extent of permanent disability, if any, and whether same was caused by occupational exposure. However, as a result of petitioner’s testimony, respondent’s counsel caused to be filed a "Notice of Motion to Dismiss Pursuant to N.J.S.A. 34:15-41 and N.J.S.A. 34:15-51" so as to dismiss petitioner’s claim. This is a motion asserting that petitioner’s claim is barred due to late filing. Counsel for the respondent agreed in a letter dated April 20th, 1999 that he was "withdrawing our Motion to Dismiss in the above-captioned matter pending the conclusion of all testimony." The court here views this as a deferral of a ruling on the motion rather than an absolute withdrawal of same. Nevertheless, this characterization is of no moment, as this court concludes in greater detail later in this opinion, the claim is not barred by the statutory two-year time limitation.
Thereafter, following some delay in the presentation of her expert, petitioner produced as a witness on June 22nd, 1999 Dr. Malcolm Hermele and thereafter rested her case in chief. Respondent produced for examination on July 13th, 1999 its sole witness, Dr. Ronald L Warren. Subsequently the parties declined to produce further evidence or testimony and the proceedings were closed. Thus follows this decision.
As was noted above, petitioner began her career with the State as an institutional attendant in 1959. She served in that capacity for nearly all of those years. Initially she worked in a cottage-like setting assisting elderly or infirm women, most wheelchair bound. Job duties included a combination of housekeeping and health aide duties. This would include not only keeping the environment clean but cleaning and bathing the clients as well. Some time in the 1980’s petitioner was reassigned to a facility called the Allen Building where her clients were men. Duties at this facility were not substantially different. Some of the men were capable of certain work activities such as assistance with facility maintenance or serving in the institutional workshop. Others were infirm and required health aide assistance. Also, some of the men were "kind of bad" (T 5/19/98, page 12, line 11). They were kept in a secured area and petitioner would have to dispense medication and assist with cleaning and maintenance there as well. The remaining few years of her State career were spent as a "resident living specialist" in a group home for women. Petitioner was assigned to House 22, one of a number of homes referred to collectively as Driscoll. In this unit petitioner’s primary duty was cleaning clothes and assisting the clients with daily activities such as dressing or moving about the facility. There was much less responsibility to clean and maintain the structure.
Petitioner went on to retire in 1990 after 31 years of service. The retirement was not medical related. She is now 71 years old and suffers from a number of medical problems including bad knees, arthritis, hypertension and morbid obesity. She is 4’ 11" tall and weighs 186 pounds.
Ms. Williams provides little in the way of detail as to what pulmonary irritants she was exposed to during her tenure with the State. She devotes a material portion of her testimony to describing the various ailments her clients suffered from. She explained that "¼ I’m the type of person I catch everything¼" implying that this exposure may have been a contributing factor to her alleged pulmonary condition. However there is no medical or factual evidence which would tie in as a causative factor any disease communicated from client to petitioner.
Additionally, petitioner recounts her regular exposure to soap powder, more particularly described as a whitish detergent delivered in a brown paper bag used to clean the laundry. She also refers to an unnamed liquid used to wash the walls and floors. She observed, in general, that these materials had a strong odor and when inhaled would cause her to sneeze. She noted that there was smoking permitted at the institution for many of her years with the State. However petitioner stated that smoking was confined to certain areas and she would avoid them. She acknowledged that she was a light smoker but only for a very brief period of time. She also described exposure to dust, disinfectants and bleach.
Petitioner goes on to testify that she was essentially symptom free, as far as pulmonary problems are concerned, until some time in the late 80’s. She indicates that she was hospitalized for a period at the Hamilton Hospital with pneumonia in either 1988 or 1989. At or around that time she was transferred by her attending physician to a Dr. Jaffe whom continues to serve as petitioner’s physician. It should be noted that Dr. Jaffe serves as petitioner’s family physician and assumedly does not see her for breathing problems alone. She recounts that Dr. Jaffe diagnosed her as suffering from bronchial asthma. She describes difficulty in sleeping and dyspnea upon exertion. She noted that when she is in close proximity to certain substances she gets "choked up" and has to sit down to catch her breath (T 5/19/98, page 31, lines 3-25). At some point in time the breathing became sufficiently problematic that Dr. Jaffe prescribed inhalers which gave some relief. However, petitioner discontinued usage at what she believed to be the doctor’s direction because, as she understood his instruction, they could become addictive. She testified that subsequent to the discontinuation of the inhaler she did "pretty good." In fact, she acknowledges that her breathing has improved somewhat from what it was during her employment. However, petitioner asserts that some breathing problems continue through the present, primarily dyspnea, periodic wheezing and tiredness, which curtails her ability to clean, walk or engage in her usual community work for as long a period as she could in the past. She notes that even with use of over the counter cleaning solutions she experiences allergic reactions, noting "¼ I sneeze and eyes run water, everything." (T 5/18/98, pages 44-45, lines 13-19).
It should be noted that this court finds petitioner to be an honest, credible witness. I had the opportunity to evaluate her demeanor and responsiveness on the witness stand. I found her to be without guile or deceptiveness. She was not prone to exaggeration. The court is satisfied that the petitioner has done her best to explain what she knows or believes. It is my opinion that she has provided sufficient evidence for this court to conclude that petitioner has suffered an exposure to pulmonary irritants in the work place and that petitioner does suffer from occupational asthma as a result.
The burden of proof here, as in all workers’ compensation cases, falls upon the petitioner who must produce evidence sufficient to persuade the trier of fact of the existence of each element of the claim. The level of proof required is persuasion by a preponderance of the credible evidence. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). This principle applied in the context of an occupational disability claim has been explained and restated often:
For petitioner to prevail, he must establish a link between¼ [the] disease and occupational conditions. Petitioner has the burden to prove this causal relationship by a preponderance of the credible evidence. All that is required is that the claimed conclusion from the offered facts must be more probable or a more probable hypothesis. ¼ The test is probability rather than certainty. ¼ However, the evidence must be such as to lead a reasonably cautious mind to a 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.’ [citation omitted] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996)
As this case involves an allegation that the petitioner’s condition is "occupational" in nature, she must first meet the statutory threshold of demonstrating the existence of conditions at the workplace that may give rise to the occupational disease. N.J.S.A. 34:15-31 provides in pertinent part as follows:
"A. [T]he phrase ‘compensable occupation disease’ shall include all diseases arising out of and in the course of employment which are due in material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment."
This court has before it sufficient evidence of exposure to a variety of substances which satisfy the above referenced statutory section. Indeed, this court has no difficulty in concluding that the frequency in usage of cleansers and detergents at the work site far exceeded that which would be expected in the home environment or encountered elsewhere in the course of ordinary daily activity. This is particularly important in the case of an allegation of occupational asthma where a critical component of causation is the increasing sensitivity to the offending substances. Here petitioner’s many years of frequent exposure sensitized her to certain components in the cleansers and detergents sufficient to cause an asthmatic reaction of increasing magnitude as her testimony clearly demonstrates. Consequently petitioner likewise satisfies the other "threshold" requirement of Sec. 31 which demands that the disease to be ‘due in material degree" to the exposure. As instructed by Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996) and Fiore v. Continental Freightways, 140 N.J. Super. 452 (1995), this court should avoid, where possible, anecdotal assertions of environmental exposure. It certainly would have been helpful to the court if petitioner's expert provided sample testing for allergens.
Unfortunately Dr. Hermele fails to offer any evidence of testing samples of the substances to which petitioner alleges exposure. Rather, Dr. Hermele describes in general the nature of the substances petitioner encountered at work and the physical response they evoked during that direct exposure. He goes on to describe how long term exposure of that nature may invariably lead to pulmonary dysfunction. Generally, the court will not rely upon such general information devoid of detail such as chemical make-up and concentration. However there are permissible exceptions. This is one.
In the absence of any submitted authoritative literature, the court was constrained to review on its own initiative The Merck Manual of Diagnosis and Therapy, Seventeenth Edition (1999), hereinafter referred to as "Merck". There the term "occupational asthma" is defined as "[d]iffuse, intermittent, reversible airway obstruction caused by a specific allergen encountered in the workplace" (page 625). Although there are many substances which are well known to lead to occupational asthma, the list is not exclusive and diagnosis should be through clinical evaluation on a case by case basis.
Occupational allergens include ¼proteolytic enzymes used in detergent manufacturing¼ antibiotics ¼ and tea. The list is continually growing. ¼
Diagnosis depends on recognition of exposure to a causative agent in the workplace and in immunologic tests (eg, skin tests) using the suspected antigen. An increase in bronchial hyperresponsiveness after exposure to the suspected antigen is also helpful in making the diagnosis. In difficult cases, a positive, carefully controlled inhalation challenge test performed in the laboratory confirms the cause of airway obstruction. Pulmonary function tests that show decreasing airflow during work are further evidence that occupational exposure is causative. Differentiation from idiopathic asthma is generally based on the pattern of symptoms and the relationship to exposure to allergens. Merck, supra. at 625.
Although petitioner’s expert did not perform the suggested allergen testing, there is such a wealth of additional evidence to demonstrate the existence of the condition and its relationship to the work exposure that the absence of such testing is overcome. First of all there is the treatment by Dr. Jaffe for asthma which is uncontradicted by respondent. Also, we have clear testimony from the petitioner and acknowledgment through P-1 in evidence (Dr. Hermele’s report of January 24th, 1997) that petitioner was taking, for an extended period of time, Azmacort and Maxair, both being well known as strong prescription medication used in treatment of asthma. Moreover we have petitioner’s testimony, which I find to be credible, providing a "pattern of symptoms" which clinically demonstrates an occupationally asthmatic reaction, one clearly distinguishable from idiopathic asthma. For example, as noted in Merck at page 625:
Patients generally complain of shortness of breath, chest tightness, wheezing and cough, often with such upper respiratory symptoms as sneezing, rhinorrhea, and tearing. Symptoms may develop during work hours after specific dust or vapor exposure but are often not apparent until several hours after leaving work, which makes the association with occupational exposure less obvious. Nocturnal wheezing may be the only symptom. Often, the symptoms disappear on weekends or during vacations.
This description is remarkably consistent with petitioner’s testimony recounting her symptoms. She describes the dyspnea, occasional tightness of the chest, wheeze, and cough. She notes the acute sneezing and tearing when exposed to the offending substances. Petitioner notes the coughing, runny nose and difficulty breathing later in the evening. Also consistent with occupational as opposed to idiopathic asthma is petitioner’s testimony that she did not begin to develop her pulmonary complaints until the late 1980’s rather than at the time of her initial exposure at work. This demonstrates the slow and incremental increase of petitioner’s sensitivity to the offending substances. Indeed, this further buttresses the credibility of petitioner. As is pointed out in Merck, supra. at 625:
Many irritants encountered in the workplace may exacerbate idiopathic asthma, but such reactions do not constitute occupational asthma. Occupational asthma begins usually after at least 18 mo to 5 yr of exposure; it does not occur within a month of starting work unless sensitization has already occurred. Once sensitized to a specific allergen, a person invariably responds to much lower concentrations of the allergen than those that normally elicit a response ¼.
The above conclusion is also consistent with the testimony of the petitioner’s expert, Dr. Hermele. Counsel for the respondent stipulated to the qualifications of the doctor as an expert in the area of pulmonary medicine. While he acknowledged that conducting immunologic tests would be important, he recites essentially the same analysis as above in reaching a diagnosis of asthma, occupationally induced. Dr. Warren, respondent’s expert, on the other hand, does not rule out the petitioner’s affliction with asthma. Rather, he finds, based principally upon only one element of the pulmonary function studies conducted at The Helene Fuld Medical Center, that petitioner suffers from no material disability of a pulmonary nature. This is particularly problematic since Dr. Warren offers no satisfactory explanation for certain anomalies in the studies which demonstrate the existence of asthma. Based upon these facts, I am satisfied that a finding of occupationally induces asthma is, within a reasonable medical probability, the more probable conclusion and I find Dr. Hermele the more persuasive of the experts, relative to the issue of asthma.
Having found that petitioner has an occupationally induced condition the court must now resolve the question of whether the condition is a compensable one under the New Jersey Workers’ Compensation Act. Indeed, not every medical condition, or for that matter, every disability is compensable.
The Workers’ Compensation Act defines "permanent disability" as follows:
‘Disability permanent in quality and partial in character’ means a permanent impairment caused by a compensable ¼ occupational disease, based upon demonstrable medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability ¼[A]nd occupational disease of a minor nature such as ¼ minor bronchitis shall not constitute permanent disability within the meaning of this definition. N.J.S.A. 34: 15-36
This provision is the cornerstone of the 1979 Workers’ Compensation Reform Act. Through it the legislature sought to introduce a sweeping change in philosophy. In essence, the legislature sought to dramatically increase maximum compensation benefit rates in an economically responsible fashion. This would be achieved, in part, by placing a more exacting standard of proof upon claimants seeking permanent disability benefits.
In the seminal case of Perez v. Pantasote, Inc., 95 N.J. 105 (1984) the Court held that a two-step test was mandated by the legislature. There must first be a
Satisfactory showing of demonstrable medical evidence of a functional restriction of the body ¼. Once a permanent disability is proven by such objective evidence, the next issue is whether the injury is minor or serious enough to merit compensation ¼. Perez, supra. at 110.
In the present case petitioner’s expert, Dr. Hermele, concludes that she has chronic bronchitis, restrictive pulmonary disease, and disabling asthma causally related to exposures occurring in the work place during employment with the State. He further concludes that these conditions are disabling to a substantial degree. He supports these conclusions upon what he contends are the following objective medical findings: an abnormal x-ray; abnormal spirometry test results; prolonged expiratory phase during clinical examination; the history of complaints given by petitioner during the January 13th, 1997 examination; and the hypothetical at trial.
Respondent relies upon the testimony and report of Dr. Ronald L. Warren who disagrees with the conclusions of Dr. Hermele and opines that neither chronic bronchitis nor restrictive pulmonary disease was present in Ms. Williams. Further Dr. Warren finds that no objective evidence of permanent pulmonary disability exists. He concludes that neither petitioner’s history nor examination was remarkable for pulmonary disease and that both the x-rays and the pulmonary function studies he had conducted were essentially normal.
For the following reasons I am persuaded more by the respondent’s expert as it relates to the findings of chronic bronchitis and restrictive airways disease. However, as previously stated, I do conclude that petitioner has established, by a preponderance of the credible medical evidence, that Ms. Williams suffers from a compensable pulmonary disability, namely occupational asthma.
The diagnosis of chronic bronchitis is not substantiated by any x-ray evidence. As is noted in Merck, supra. at 575 as well as in its earlier edition (Sixteenth Edition at page 662) use of x-rays is identifying obstructive pulmonary disease, which bronchitis is, is of little value. It does not have a characteristic appearance on an ordinary x-ray. A bronchogram might be diagnostic of bronchitis but no such test was administered in this case. Only when an obstructive process in the lungs has reached a much more severe level than is alleged to be present here by Dr. Hermele or Dr. Warren can it be expected that the disease process would increase the appearance of vascular and other related markings so as to be visible on the x-ray.
The only abnormal marking I observed relative to petitioner’s pulmonary condition was the plate-like atelectasis in the left lung field. Both experts confirmed its presence and both accord it of mild or no significance in contributing to petitioner’s pulmonary condition. Both agree it is likely the residuum of an earlier pulmonary infection since resolved. The result is a small, localized fibrotic mass in the lung which, if a cause of pulmonary disability, would be restrictive in nature. Any such disability would have to be correlated with the results of pulmonary function testing. As discussed further on in this opinion, those results fail to demonstrate a restrictive component.
Dr. Hermele, in his report of February 12th, 1996, diagnoses that petitioner is suffering, in part, from "chronic bronchitis". This is an obstructive pulmonary condition. Both experts agree that the textbook definition of chronic bronchitis requires that petitioner suffer from a chronic productive cough for at least three months in each of two successive years. Petitioner does describe having a persistent cough. But when pressed for details, she acknowledged that this was a dry cough rather than a productive one. She further notes that the cough comes in spells, primarily in the winter or at night. It was also noted that petitioner was taking certain blood pressure medication, Zestoretic, which Dr. Warren notes causes coughing in a material number of patients who subscribe to it.
As noted above, the pulmonary function test is most helpful in establishing the existence of obstructive pulmonary disease or lack thereof. In the most recent edition of the Merck Manual at page 575 (The Merck Manual of Diagnosis and Therapy, 17th Ed., 1999) great emphasis is placed on the results of the forced expiratory volume in one second ("FEV 1") and the ratio of the FVC 1 to the forced vital capacity ("FVC") of the patient tested.
"Pulmonary function tests are helpful in diagnosing COPD, in assessing its severity, and in following its progress. Forced expiratory spirometry quantifies airway obstruction ¼ The FEV 1 and the FEV1/FVC fall progressively as the severity of COPD increases. The FEV1 is less variable than other measurements of airway dynamics and can be predicted more accurately from age, sex and height"
In the instant case Dr. Hermele finds only a mildly diminished FEV1 (63% of predicted where 80%-120% of predicted is considered by the American Thoracic Society to fall within a "normal" range). More importantly, the ratio of it to the forced volume is 113% of the predicted (80-120% is considered by the ATS to be within "normal"). Giving full credibility to Dr. Hermele’s results classification of the FEV 1 as a mild abnormality renders the condition as non-compensable. Correction by calculation of its ratio to forced vital capacity defeats its classification as an abnormality.
Also, the results obtained on the FEV 1 and FEV1/FVC portions of the tests ordered by Dr. Warren were sufficient to demonstrate the absence of bronchitis. On tests administered on November 17th, 1997 the petitioner performed within what the ATS defines as normal range. This is not to suggest that Ms. Williams' lower readings in the tests performed for Dr. Hermele reflected any attempt at deception. Only that a spirometry test requires a degree of interaction between the technician and the patient and relies to a great extent on the technician eliciting a substantial effort from the patient. In the final analysis, the more recent results demonstrate the absence of any demonstrable and objective proof of obstructive lung disease as required by Perez, supra. at 118.
One of the reasons for the greater degree of confidence in the respondent's pulmonary function studies is the fact that they are comprehensive and include, in addition to the basic spirometry testing, a lung volume series. This additional information demonstrates, in a completely objective fashion, that not only is petitioner not suffering from a compensable restrictive airways disease, but that she is suffering from occupational asthma. Dealing with the former first, it should be noted that the spirometry test measures only flows, it does not measure volume in an absolute sense. The element of the spirometry test used to gauge restrictive airways dysfunction is referred to as the FVC (Forced Vital Capacity). It measures a volume of air expelled and can be of some assistance in identifying a possible restrictive component to pulmonary function. However, it is effort dependent. Dr. Warren’s study placed the FVC in a range of only mild abnormality under American Thoracic Society (ATS) guidelines. An abnormality may or may not be due to disease. In this case, for example, petitioner is morbidly obese. Morbid obesity can be a cause of restrictive pulmonary dysfunction, resulting in dyspnea upon exertion and similar breathing difficulties. This is consistent with the FVC reading in Ms. Williams’ case and I find it to be so because of the information contained in the lung volume study. The lung volume study is the "gold standard" for diagnosing restrictive airways disease because it is not effected by petitioner’s effort, her knowledge of technique or any non-disease related factors such as obesity. In this case volume was measured by a plethysmograph. It demonstrated that petitioner’s TLC (Total Lung Capacity), that is the total volume of air within the chest after maximum inspiration, was 4.03 liters or 114% of predicted. Consequently, this is not a situation where petitioner’s ability to take in air, the defining characteristic of a restrictive airways problem, is disease related. This is further supported by the absence of any x-ray findings showing pleural thickening or fibrotic changes of substance with the exception of a small atelectasis which was addressed earlier in this opinion. Even if the atelectasis was a contributing factor to the restrictive process brought about by petitioner’s obesity, there is no evidence to sustain it as a work-related component warranting compensation.
Turning now to the objective evidence of occupational asthma, we must again examine the lung volume studies. Portions of that study measure petitioner’s reserve volume (RV) and expiratory reserve volume (ERV). In these elements of the test petitioner was measured as having 165% and 147% of predicted respectively. These figures are at the extreme range of mild to the mid-range of moderate abnormality. Moderate abnormality for the RV is between 150-175% of predicted (See Merck, supra. at 529). This is indicative of air trapping, a sign of obstructive, small airways disease and is characteristic of asthmatics. As is noted in Merck, supra. at 523:
¼ RV decreases less than do the FRC and TLC ¼ and in small airways disease, premature closing during expiration leads to air trapping, so that the RV is elevated while the FRC and the FEV 1 remain close to normal. In COPD and asthma, the RV increases more than the TLC does, resulting in some decrease in the VC (see Fig. 64-3).
The description accompanying the above cited figure 64-3 correlates precisely with the results depicted in respondents pulmonary function study in relation to the lung volumes. It notes "RV and FRC are increased. TLC is also increased but to a lesser degree, so that VC is increased. ¼." Indeed in this case, as was noted earlier, the TLC is increased to 114% of predicted.
Dr. Hermele did not address this issue as he did not conduct lung volume studies, nor did he comment upon those of Dr. Warren. However Dr. Warren, during cross-examination, was compelled to acknowledging this anomaly. He was at a loss to explain it but stressed that without a functional loss of performance as measured by the spirometry portion of the pulmonary function study, there is no loss of pulmonary function. Under the circumstances of this case I would disagree. Asthma is not a static condition in terms of symptomology. As is noted in Merck, supra at 560, "[b]ecause the course of asthma is variable, a patient may move from one category to another. Any patient, regardless of category, may have mild, moderate or severe exacerbations. ¼" The RV and ERV portions of the lung volume study are demonstrable, objective medical proof of permanent disability. They present measurable organic changes to function of the pulmonary system that are classified by authoritative sources as moderate in nature. The fact that the FEV 1 did not, on November 17th, 1997 demonstrate a substantial deviation from predicted performance is of little consequence. First of all, it was reduced somewhat (85% of predicted) to a level of low normal. Secondly, it is no indication as to how petitioner is affected when exposed, even mildly, to a reactive agent. In Merck, supra, at 524, it is noted that alternative testing methodologies may be more productive. For example, "[i]n bronchoprovocation testing, a significant decrease in flow rates after inhaling methacholine (a cholinergic drug) may indicate asthma." This was not performed. Finally, we have the results of Dr. Hermele’s spirometry testing. While I have discounted the value of same in presenting persuasive proof of chronic bronchitis as it is difficult to reconcile such a static condition with the results of the later testing performed for Dr. Warren, it may be useful in presenting a picture of petitioner when experiencing difficulties as a result of a variable condition such as asthma. On January 13th, 1997 petitioner performed the FEV 1 at only 63% of predicted, or near the level of moderate dysfunction after having taken her pulmonary medications. Moreover, these changes are mirrored by physical complaints and reactions that have materially impacted upon Ms. Williams’ life activities for the worse. She must be careful to avoid or limit contact with substances we use and rely upon in our daily lives. Even with maximum effort such control is unavoidable for and problematic to the petitioner. She is, because of the progressive nature of her sensitivity, prone to far more serious episodes of asthmatic reaction which can incapacitate her. Indeed, she was required to take prescription medication for an extended period of time simply to enjoy the comforts of sleeping, walking and performing rudimentary daily chores in her retirement, and continues to experience these problems in varying degrees. Perez, supra. at 110.
The remaining issue to be addressed is the matter of petitioner’s knowledge of her asthma for more than two years in advance of the commencement of this action. I have concluded that the knowledge she possessed does not rise to the level necessary to impose a time bar to her claim for benefits here. I find that the facts of this case are virtually "on all fours" with those addressed by our Supreme Court in Earl v. Johnson & Johnson, 158 N.J. 155 (1999). In Earl the petitioner was diagnosed as suffering with asthma and COPD (chronic obstructive pulmonary disease). She was treated with medication and seen by her physician once every three months. Although Ms. Earl knew this in 1989, she did not file a claim until 1993, even though she also knew that her asthma and COPD were work related. The judge of compensation ruled the action was not time-barred on two bases: first, because petitioner continued to work and to suffer continued exposure, the two year limit would not commence running until she had left her employ in 1993; second, petitioner was only aware of her affliction and its relationship to work-exposure, not the nature and extent of any permanent disability arising from that affliction. The former issue is not applicable here since petitioner did not file her claim until nearly six years after her retirement and separation from exposure. The second issue is applicable since no evidence has been submitted to suggest that petitioner either knew or could reasonably have known that her condition had become fixed and permanent or the extent to which she had become disabled, at least until January 13th, 1997 when Dr. Hermele caused testing to be performed which provided some objective validation of the permanency of her condition and the extent of its impact. Petitioner took a regular retirement, not one based upon disability. The medication helped to stabilize her and there was some improvement in her condition. Since the condition is occupational asthma, less exposure meant less disabling reactions which most probably was interpreted by Ms. Williams as a sign that her pulmonary problems were transitory in nature. The Supreme Court found it unnecessary to reach the issue of continued exposure extending the statutory period and concluded where petitioner is unaware of the extent of her permanent loss of respiratory function, the two year time limit for filing a claim does not commence running. In particular the Court noted the following:
As acknowledged by the Legislature in N.J.S.A. 34:15-36, minor respiratory conditions are not compensable. This is because many workers suffer from occasional bronchitis or mild asthma, with no significant effect on their ability to work or their quality of life. Such ailments do not necessarily degenerate into the serious and chronic problems now experienced by the petitioner. ¼ Although Earl’s respiratory problems began in 1989, she did not undergo PFTs at that time. The compensation judge found that petitioner did not know that her condition had deteriorated into that of permanent disability until the 1993 PFTs and accompanying medical diagnosis. ¼Earl, supra at 163-164.
It is unreasonable to expect that a person of petitioner’s limited formal education would be able to sufficiently distinguish between transient or mildly disabling conditions (by legal standards) and ones which have significant and permanently disabling consequences without specific advice from a medical professional. It is worth adding that respondent’s expert, after testing, concluded that petitioner’s condition was not disabling. Petitioner should not be held to a greater standard than respondent's medical expert.
For all of the foregoing reasons and based upon my observations of the petitioner and giving due weight to description of her difficulties arising from the work related occupational asthma, I conclude that petitioner is disabled to the extent of 12 1/2% of the partial total. This gives rise to 75 weeks of compensation at a rate of $99 per week for a total of $7,425. I will allow a counsel fee of 20% or $1,485 allocated $890 from the respondent and $595 from the petitioner. I will allow Dr. Hermele a report fee of $200 and an appearance fee of $250, payable one-half by each party and I will allow a stenographic service fee for John F. Trainor, Inc. of $450 payable by the respondent. I direct counsel for the petitioner to prepare a short form order and submit same under the 10-day rule, with a copy to the reporting service as well.
Hon. Paul A. Kapalko, Dir. & Chief Judge, DWC
October , 1999