Opinion
DOCKET NO. A-3578-13T4
10-23-2015
RICHARD WESTON, individually and as executor for REBECCA WESTON, Petitioner-Appellant, v. UNION COUNTY PROSECUTOR'S OFFICE, Respondent-Respondent.
D. Gayle Loftis, attorney for appellant. James Jude Plaia, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Case Nos. 2001-37811 and 2011-34213. D. Gayle Loftis, attorney for appellant. James Jude Plaia, attorney for respondent. PER CURIAM
Petitioner Richard Weston, in his individual capacity and as administrator of the estate of his late wife Rebecca Weston, appeals from a February 28, 2014 decision of the Division of Workers' Compensation. Because the decision was supported by sufficient credible evidence, we affirm. See Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262-63 (2003).
To avoid confusion, and intending no disrespect, we will refer to decedent as "Rebecca" since she and her husband share the same last name. We will refer to her husband as "petitioner."
Rebecca, a detective investigator for the Union County Prosecutor's Office, retired from that position in 2000. In her initial compensation petition, she claimed that while employed by the Prosecutor's Office she spent several months reviewing documents in a moldy, cockroach-infested basement and was also exposed to toxic chemicals at work. She alleged that, as a result, she developed chronic pulmonary obstructive disease (COPD). The petition was settled in 2007, with a finding that Rebecca suffered fifty-five percent of permanent partial total disability, thirty-one percent of which was due to smoking. In 2010, Rebecca filed an application for review and modification (re-opener petition), claiming that her COPD had gotten worse due to the original workplace exposure to pollutants. See N.J.S.A. 34:15-27. However, she died in 2011, and her husband continued the compensation litigation, which was heard before Administrative Supervisory Judge of Compensation Lenore Kramer Mohr in 2013.
Petitioner continued the original re-opener petition on behalf of Rebecca's estate, and filed his own dependency claim. The compensation judge addressed both applications in her February 28, 2014 decision.
In the 2013 hearing, the issue was whether the increase in Rebecca's disability was caused, in material part, by exposure to toxic substances at work, or whether it was entirely due to smoking. See N.J.S.A. 34:15-27. The compensation judge found that the extent of Rebecca's COPD due to exposure to substances at work was unchanged from the initial award in 2007, and that the increase in her pulmonary disability was due to her continued smoking. The judge specifically found that Rebecca "never gave up smoking for any significant period of time and continued to smoke regularly until the time of her death." The judge found that the exposure Rebecca suffered at work did not "materially contribute to the progression of her COPD."
Consistent with the hearing record, the judge found that at the time of her death, Rebecca also suffered from laryngeal cancer, insulin-dependent diabetes, and heart disease. Both experts who testified confirmed that the cancer was most likely caused by smoking. --------
We conclude that the judge's analysis was consistent with the applicable law. When she filed her original petition, Rebecca was required to establish that her employment was a material cause of her COPD, meaning that it contributed in "'a degree [substantially] greater than de miminis'" to her developing the condition. Lindquist, supra, 175 N.J. at 256 (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 493-94 (1962)); see N.J.S.A. 34:15-31(a). The same standard applied to her claim that the workplace exposure caused her COPD to become worse. "The controlling test to be applied . . . is whether the work exposure substantially contributed to the development or aggravation of [petitioner's medical condition]." Id. at 264.
As previously noted, when Rebecca received her initial award, the compensation judge found that she was fifty-five percent disabled but that her smoking was thirty-one percent responsible for that disability. However, after hearing the evidence on the re-opener petition, Compensation Judge Mohr determined that the subsequent debilitating progression of the COPD was entirely attributable to Rebecca's smoking. The judge found that Rebecca's earlier exposure to environmental pollutants at work, which ended in 2000, "did not materially contribute to the progression of the COPD." The judge further found that "[t]o the extent that her death is attributed to an increase in COPD, it was . . . materially caused by her cigarette smoking."
We conclude that the judge employed the correct legal standard in evaluating the evidence, and the factual findings on which she based her legal conclusions were supported by sufficient credible evidence. In particular, for reasons she explained in detail, the judge did not believe petitioner's testimony that Rebecca stopped smoking after she developed COPD. To the contrary, the judge found that Rebecca continued smoking up until the time of her death.
The judge also credited the testimony of the employer's medical expert that Rebecca's COPD became worse due to her continued smoking. The judge did not credit the testimony of petitioner's medical expert, because he based his opinion on the factual assumption that Rebecca stopped smoking in 2006, and he overlooked what the judge found was clear evidence in Rebecca's medical records that she had continued to smoke. The judge found petitioner's expert's "conclusions based on [his] faulty assumptions [were] therefore flawed and unreliable."
We owe considerable deference to the trial judge's evaluation of witness credibility. See Magaw v. Middletown Bd. of Educ., 232 N.J. Super. 1, 15 (App. Div.), certif. denied, 162 N.J. 485 (1999). We find no basis in this record to second guess the judge's credibility findings here. In light of her credibility determinations and factual findings, the judge's legal conclusions are unassailable. Petitioner's appellate arguments are without sufficient merit to require further discussion in a written opinion. 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