Opinion
DOCKET NO. A-5362-12T2
07-29-2014
FRANCESCO MARTORINO, Petitioner-Appellant, v. PHELPS DODGE AND SECOND INJURY FUND, Respondents-Respondents.
Samuel E. Bass argued the cause for appellant (Freeman & Bass, attorneys; Mr. Bass, on the brief). Daniel A. Lynn argued the cause for respondent Phelps Dodge (Braff, Harris & Sukoneck, attorneys; Edward C. Kein, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Second Injury Fund (Linda A. Lockard-Phillips, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2008-34440. Samuel E. Bass argued the cause for appellant (Freeman & Bass, attorneys; Mr. Bass, on the brief). Daniel A. Lynn argued the cause for respondent Phelps Dodge (Braff, Harris & Sukoneck, attorneys; Edward C. Kein, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Second Injury Fund (Linda A. Lockard-Phillips, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Petitioner Francesco Martorino appeals from the May 31, 2013 order of the Department of Labor and Workforce Development, Division of Workers' Compensation, dismissing his petition for benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -127, with prejudice, and dismissing his application to the Second Injury Fund (the Fund), N.J.S.A. 34:15-95. The judge of compensation found that petitioner failed to prove that he sustained an occupational disease as set forth in N.J.S.A. 34:15-31, and that petitioner was not totally and permanently disabled for purposes of his Fund application. For the reasons that follow, we affirm.
I.
We derive the following facts from the evidence presented at trial. At the time of his testimony in 2012, petitioner was a seventy-three-year-old man who had worked as a machine operator for Phelps Dodge from November 11, 1974 through December 13, 2002. Phelps manufactured electric cables that were coated with various molten metals including lead, nickel, and silver. Petitioner testified that part of his job entailed loading heavy spools of cables on and off of the machines with a hand-operated chain mechanism that required a great deal of strength. He also had to manually maneuver the heavy spools, which caused him pain from the repetitive bending and twisting of his body. He testified that throughout his employment at Phelps, he felt pain in his back and arms, which became worse every year.
Petitioner also testified that the molten metals gave off fumes that made him feel unwell. He did not know the chemical nature of the fumes, but he knew that lead was involved because Phelps had his blood tested regularly. He explained that there were hundreds of machines running in the work area, and it was very noisy and stressful. The machines gave off fumes, and the gas-operated forklifts emitted clouds of irritating smoke. At the end of each shift, the machines were cleaned with a liquid spray that produced a very disagreeable chemical smell.
Petitioner recounted that early in his career, he worked twelve hours per day, six days per week, but then switched to eight hours per day five days per week when his health began to deteriorate from the working conditions. He had difficulty breathing and sleeping, and had pain in his arms, joints and legs. When he could not sleep due to the pain, he took aspirin as his doctor would not prescribe pain medication. He was also prescribed blood pressure medication about ten years before he stopped working. Petitioner testified that since the plant closed, he still felt pain in his neck, shoulders and back, still had breathing problems, sleep problems, and very high blood pressure. He also had a concern with the veins in his legs, which caused him pain when walking down stairs.
When the Phelps plant closed in 2002, petitioner was unable to find another job, and he lived on his small pension and social security benefits. He explained that he did not file a claim until six years after he last worked because he was unaware he could.
Petitioner presented the testimony of Dr. Iqbal Ahmad, who was qualified as an expert in orthopedic medicine. Dr. Ahmad testified he examined petitioner on December 9, 2008. The doctor's examination revealed discoloration in the right inguinal area, pain and swelling in his extremities, weakness of grasp, a spastic lumbosacral area, and a flattened lumbar curve. He testified petitioner's active and passive range of movements were restricted, his sacroiliac joints and great sciatic notch were tender, his cervical curve was spastic and straightened, and pain radiated to his arms and shoulders. Petitioner also had trouble turning and twisting and had difficulty standing on his heels and toes.
Dr. Ahmad diagnosed petitioner with cervical and lumbar sprain, arthritis and myositis. The doctor opined that petitioner was totally disabled. He testified that petitioner's disability was related to his work at Phelps, explaining:
[h]e was employed as a machine operator. He was required to bend, turn and twist. He was required to lift weights. In order to perform these activities the spine has to provide a rigid column against which to bend, turn, twist and lift. The muscles which are along the side of the spine they do undergo contractions in order to widen the restricted column. This increases stress and strains which are going across the joints. And when these stresses and strains exceed a person's ability to withstand them they are stretching and tearing the cartilage which overlies the joints. They gradually deteriorate and degenerate and that makes the basis of the arthritic process.
On cross-examination, Dr. Ahmad acknowledged that he was unaware whether petitioner ever sought treatment for his orthopedic pain while employed or if he ever missed work as a result. The doctor also acknowledged that petitioner's arthritis could be age related, and he did not know "whether it [was] age-related or whether it [was] due to work."
Petitioner also presented the testimony of Dr. Malcolm Hermele, who was qualified as an expert in both internal medicine and pulmonary disease. Dr. Hermele testified he examined petitioner on June 11, 2012. Petitioner gave a detailed history of the work environment at Phelps, including reported exposures of extreme noise, extreme temperature, and physical stress. The doctor stated that initial tests of petitioner's heart function were normal, but x-rays revealed that his heart was enlarged in the left ventricle, the dorsal aorta was uncoiled, and the aortic knob was prominent, which indicated he had hypertensive cardiovascular disease and cardiomegaly.
The doctor explained that under the high physical and emotional stress of the work environment at Phelps over a long period of time, stress hormones were released in his body which raised his blood pressure and hardened his aeterial walls. The doctor opined that petitioner's hypertension was causally related to his work at Phelps, and determined that petitioner's estimated disability due to cardiovascular conditions was twenty-five percent of total.
Dr. Hermele further testified that petitioner's disabling varicose veins were caused by his work at Phelps and estimated the resulting permanent disability as twenty-five percent of total. The doctor explained that when a person stands for prolonged periods of time, or does physical work that allows stress on the lower extremities, the valves in the blood vessels of the legs become distended which prevents the blood from returning to the heart, and the veins stretch to accommodate the increased blood volume. The doctor testified that petitioner's continual standing, bending, stooping, and lifting heavy objects for twenty-four years at Phelps was the cause of the disability. On cross examination, the doctor acknowledged that he was not aware of any treatment petitioner sought for the varicose veins and acknowledged that they could be due to aging.
Dr. Hermele also reported that an examination of petitioner's head, eyes, nose and throat were unremarkable, and an examination of his chest did not reveal any wheezing, rhonchi, or rales. The doctor noted petitioner had a cough at the end of his respiration, which was indicative of irritation in the bronchi. Petitioner's chest x-ray revealed that his bronchovascular markings, which were common to everyone, were abnormally prominent, which suggested either an acute or an intermittent chronic "moderate bronchitis."
Dr. Hermele testified that the chronic bronchitis was a result of the work environment at Phelps because petitioner was inhaling chemicals and metallic fumes, which impact the cellular structure inside the bronchi causing loss of ciliation, increased mucus, and bronchial dysfunction. The doctor estimated a permanent pulmonary disability of twenty-five percent of total.
On cross-examination, Dr. Hermele conceded that he did not know the specific doses or duration of petitioner's exposure to any chemicals or metal dusts or fumes. The doctor also acknowledged that petitioner wore a mask while employed at Phelps, the mask worked, and it was checked for proper function. The doctor recognized that he did not know if petitioner sought any treatment for bronchitis while working at Phelps, or whether he missed any work as a result. The doctor also acknowledged that he did not do an arterial oxygen saturation test, and that the test would have been helpful for a diagnosis.
Phelps presented the testimony of Dr. Arthur Canario, who was qualified as an expert in orthopedic medicine. He testified he examined petitioner on February 11, 2011. Regarding petitioner's orthopedic claim, the doctor explained:
[petitioner] was 5 foot 4, 180 pounds and for 71 years old quite muscular. He showed full motion in his spine from the cervical to lumbar area in all planes. He had no complaints of pain at maximum of motion. He did have some tenderness over the trapezius and the mid lumbar area, no spasm. He complained of back pain with straight leg rising and double thigh flexion with 90 and 110 degrees respectively. His Bragard's sign was negative. His reflexes were normal. Motor and sensory examinations, Spurling's test also normal.
. . . .
My examination of him, I thought he was in very good physical condition for 71 years old, and I didn't see any orthopedic pathology.
Regarding defendant's varicose veins, Dr. Canario testified that they were hereditary, and if physical stress were a secondary factor, one would expect to see varicosities in both legs. He noted that petitioner had varicosities primarily on his right leg, which was likely the reason his right leg appeared larger than the left.
Phelps also presented the testimony of Dr. Samuel H. Kahnowitz, who was qualified as an expert in both internal medicine and pulmonary disease. The doctor testified that when he examined petitioner on February 17, 2011, petitioner had no complaints of chest pain and reported no history of any cardiac disease or treatment other than high blood pressure, for which he was taking medication. He reported that petitioner's vital signs were unremarkable, and his cardiovascular examination did not appear to have any abnormalities. His chest x-ray and electrocardiogram were all within normal limits, although the x-ray revealed that petitioner's heart size was probably at the "top limits of normal." He reported that petitioner had some calcification in the aorta, which could usually be seen in people who are either older or with a genetic propensity to calcify, but it was non-pathological.
Regarding petitioner's pulmonary condition, Dr. Kahnowitz testified that petitioner denied the presence of cough or sputum production, dysphagia, dysphonia, or dyspepsia. Petitioner reported no history of pulmonary disease, sinus problems, childhood respiratory illnesses, or allergies during his life. Dr. Kahnowitz further testified that his examinations of petitioner's head, eyes, ears, nose and pharynx were unremarkable, and his chest contained no extra sounds of wheezing, rhonchi, or rales. The doctor performed a resting oxygen saturation test, which was normal.
The doctor described his readings from the chest x-ray and found the condition of petitioner's lungs normal, including no evidence of masses, infiltrate, or nodularity. Regarding whether petitioner's bronchovascular markings were indicative of a disabling condition, he testified that "[t]he only way to really know this, if there were any clinical suspicions, would be by doing a CT scan, to find what is a bronchial marking or . . . what . . . are increases in the size of the pulmonary arteries." However, the doctor found that petitioner's chest x-ray showed "minimal vascularity, probably within normal limits." The doctor performed spirometry tests, which measure breath and lung function, and the results were normal. The doctor testified that he did not see any evidence presented of any pulmonary disease of any kind.
In his May 31, 2013 oral decision, the judge of compensation determined that petitioner failed to sustain his burden of proof as to all of his disability claims. The judge further concluded that since petitioner was not totally and permanently disabled, he was not entitled to any payment through the Fund.
The judge reviewed petitioner's testimony, finding he
testified responsibly and appeared to be in no acute distress. He was 73 years old and appeared healthy and strong. His testimonial demeanor was forthright. However, there was very little in his testimony to support the clinical findings of [his] experts as they testified.
Regarding petitioner's claim of a compensable hypertensive condition, the judge stated:
Dr. Hermele's testimony amounted to a series of assertions without any medical support and should be disregarded. At the time of his exam [petitioner's] blood pressure was 140/80 for which the doctor concluded that petitioner was suffering from cardiovascular disease. These were based on pure assumptions and there was an additional assumption that physical stress or emotional stress caused the hypertension. There is no explanation as to the etiology of the hypertension, why this would be considered a high reading or an explanation as to whether or not this would be a normal reading in a 73-year old individual who had a long history of taking hypertensive medications.
. . . the Court must be mindful that a mere assertion of an opinion that the workplace exposure was the probable cause of the disability, without any medical support thereof cannot prevail.
The judge also determined petitioner failed to prove compensable varicose veins finding:
there was simply no demonstrable objective medical evidence submitted to demonstrate the relationship between petitioner's varicose veins and the work effort. Moreover, Dr. Hermele's suggestion of 25 percent of partial total [disability] without a concise explanation of how he arrived at this figure renders it less than credible. Dr. Canario on the other hand explained that varicosities are actually hereditary. They are incompetent valves within veins and if it was secondary to stress one would expect to see them on both legs rather than one. I find Dr. Canario's explanation to be more cogent, more sensible and credible.
With regard to petitioner's claim of compensable orthopedic pain and disability, the judge stated:
I have had the opportunity now to observe the petitioner as he testified and to observe the medical experts as they've testified. I find petitioner's orthopedic expert, Dr. Ahmad was less than persuasive. Dr. Ahmad's evaluation was from 2008 and did not establish anything more than minor sprains and strains which would not be compensable . . . .
There's been no evidence that petitioner [was] ever treated for any orthopedic condition or disability. There's been no evidence that petitioner ever missed any work as a result of an orthopedic condition or disability. There were no diagnostic tests performed by petitioner's doctors. The testimony of Dr. Canario was extremely persuasive in that this is a 71-year old individual who was in very good shape and did not display any loss of function to his neck or back that would impact his working ability or have any effect in life's pursuits.
The judge also reviewed the testimony of the pulmonary experts noting that both experts found normal lung function, and therefore, petitioner also failed to prove a compensable pulmonary disability. This appeal followed.
II.
Before us, appellant raises the following contentions for our consideration.
POINT I: FRANCESCO MARTORINO PROVED COMPENSABLE HYPERTENSION.
POINT II: FRANCESCO MARTORINO HAD COMPENSABLE VARICOSE VEINS.
POINT III: FRANCESCO MARTORINO PROVED COMPENSABLE ORTHOPEDIC PAIN AND DISABILITY.
POINT IV: FRANCESCO MARTORINO PROVED COMPENSABLE PULMONARY DISABILITY.
POINT V: APPLICATION OF SECOND INJURY FUND.
We begin with a review of well-established legal principles that guide our analysis. In workers' compensation cases, our scope of review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (internal quotation marks and citations omitted). Judges of compensation are regarded as having "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). We accord deference to the judge's factual findings and legal determinations unless they are "'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist, supra, 175 N.J. at 262-63 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).
"The petitioner has the burden to demonstrate by a preponderance of the evidence that his or her environmental exposure while [engaged in a particular employment] was a substantial contributing cause of his or her occupational disease." Id. at 263; see also Fiore v. Consol. Freightways, 140 N.J. 452, 472-73 (1995). To satisfy the standard, a petitioner claiming an occupational disease must fulfill three requirements:
First, as [N.J.S.A. 34:15-31] provides, the petitioner must show that the disease is due in a material degree to causes arising out of the workplace and that are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.Accordingly, N.J.S.A. 34:15-31 was designed to compensate "diseases arising out of the workplace, and not the ordinary diseases of life[.]" Id. at 470 (internal quotation marks and citation omitted).
Second, the petitioner must prove by suitable medical evidence that the
employment exposure did indeed cause or contribute to the disease[.]
Third, the petitioner must show that the employment exposure substantially contributed to the development of the disease. An occupational exposure substantially contributes to the development of . . . [the] disease when the exposure is so significant that, without the exposure, the disease would not have developed to the extent that it caused the disability resulting in the claimant's incapacity to work.
[Fiore, supra, 140 N.J. at 472-73 (internal quotation marks and citations omitted).]
The record reveals that the judge of compensation applied these well-settled principles to the facts he found credible, and properly found no objective medical evidence of occupational disease. We reject defendant's arguments that the judge failed to make sufficient findings of fact and that his decision was contrary to the evidence. Rather, the judge carefully considered the medical opinions of all four doctors and explained why he found some more persuasive than others. The judge's conclusion that petitioner's experts only made mere assertions that "the workplace exposure was the probable cause of the disability, without any medical support," is consistent with the record. We conclude that the judge adequately explained why he considered the medical opinions of Drs. Canario and Kahnowitz more persuasive than Drs. Hermele and Ahmad. See Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000) (noting that the judge of compensation must "carefully explain[] why he considered certain medical conclusions more persuasive than others"). Moreover, the fact that a judge gives "more weight to the opinion of one physician as opposed to others provides no reason to reverse the judgment." Ibid.
Accordingly, we decline to interfere with the judge's conclusion that petitioner failed to sustain his burden of proof that he suffered disability through an occupational exposure. We also agree with the judge that petitioner was not entitled to any payment through the Fund as he failed to prove a total and permanent disability. See Walsh v. RCA/General Elec. Corp., 334 N.J. Super. 1, 9 (App. Div. 2000) (noting that for Fund liability to attach, a "prior disability and later occupational condition must have acted together to cause [a] total and permanent disability").
We have considered petitioners remaining arguments and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION