Fiore v. Consolidated Freightways, Inc.

Citations: 270 N.J. Super. 520; 637 A.2d 578; 1994 N.J. Super. LEXIS 60

Court: New Jersey Superior Court Appellate Division; February 22, 1994; New Jersey; State Appellate Court

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The court's opinion addresses an employer's appeal regarding a Workers’ Compensation award for an employee's cardiovascular disease attributed to occupational exposure. The primary legal question is whether New Jersey’s Workers’ Compensation Act allows benefits for cardiovascular disease without an acute incident of work-related strain. Additionally, it examines the applicability of N.J.S.A. 34:15-7.2, which mandates that claimants prove their work-related strain exceeds normal daily wear and tear for cardiovascular or cerebral vascular injury claims. 

The case involves John Fiore, who filed Claim Petition 87-13929 on May 4, 1987, claiming that exposure to harmful substances while working as a truck driver for Consolidated Freightways, Inc., led to neurological, neuropsychiatric, and pulmonary-heart injuries. Fiore had previously filed a separate claim alleging a heart attack at work on August 8, 1986, which was dismissed for lack of proof. 

A lengthy trial over more than two years concluded with the judge awarding Fiore thirty-three and one-third percent of partial-total permanent disability for angina and coronary artery disease caused by carbon monoxide exposure, amounting to $26,000 in compensation. In addition, the employer was ordered to cover various liens and medical expenses. Testimony revealed Fiore's employment began in 1967, with poor working conditions characterized by dust and fumes at the Paterson terminal, where he worked night shifts.

Petitioner worked as a truck driver for respondent since January 1969 and had not returned to dock work. Following the business's relocation to Wayne, he reported there for twenty years prior to trial. At trial on September 18, 1989, petitioner outlined his responsibilities, which included starting twenty-five trucks each morning and making deliveries throughout the day. He had to sweep out his truck but did so infrequently since his hospitalization in August 1986. Petitioner primarily drove diesel tractor-trailers, except for a three-year period (1980-1983) with propane engines. He described the air quality at delivery sites as poor, though he avoided the worst conditions. He estimated spending three hours of a twelve-hour workday driving, noting the air quality in his current truck was acceptable, while older trucks had significant fume issues, particularly in winter.

On August 8, 1986, petitioner experienced discomfort during a delivery at A.F.I. in Roseland, where he spent about two to three hours unloading and segregating food products. The temperature was very high, and he felt pain in his upper chest while working, which caused him to rest frequently. After finishing his route, he reported feeling fatigued and unwell to his supervisor and later consulted a doctor, who recommended hospitalization due to stress and chest pressure. He was subsequently admitted for eight days, including three in intensive care.

Petitioner underwent heart catheterization and was diagnosed with occlusive coronary artery disease and mild left ventricular function impairment upon discharge. He remained home for four to five months before returning to work, continuing regular check-ups with a heart specialist and taking prescribed medications, including aspirin and Lopressor. At trial, his main complaint was shortness of breath, significantly limiting his walking ability from six or seven blocks to just one. Activities he previously engaged in, such as racquetball and yard work, were no longer feasible for him post-hospitalization. 

In February 1988, he was hospitalized again due to chest spasms and took two weeks of vacation afterward. The judge emphasized the need to compare his work efforts at home versus at work, prompting his attorney to resume questioning. Petitioner stated his work was likely more strenuous than his home activities. On cross-examination, he acknowledged a significant smoking history and family health issues, revealing he was overweight during that time. 

Dr. Henry Velez, a board-certified physician, evaluated petitioner in June 1987, finding his pulmonary function normal but noting peribronchial fibrosis on chest X-rays. He assessed the pulmonary disability at 17.5% (mild) and the cardiac disability at 35%, attributing it to chronic carbon monoxide exposure at his workplace rather than a specific incident.

Dr. Velez concluded that long-term exposure to carbon monoxide (CO) contributes significantly to coronary artery disease due to its effects on arterial permeability and atherogenesis, leading to cholesterol plaque formation. He noted that critical stenosis in the coronary arteries can result in angina or myocardial infarction, potentially causing sudden death. This process begins early in life and is exacerbated by strenuous work in CO-rich environments, as higher inhalation increases the risk of arterial narrowing. Dr. Velez acknowledged that carbon monoxide is a known toxin in cigarette smoke, complicating the ability to differentiate the effects of occupational CO exposure from those of smoking. Although he recognized that the petitioner’s smoking history (two packs per day for twenty years) contributed to his overall disability, he maintained that the coronary disease was materially related to CO exposure at work. He admitted the difficulty in quantifying the respective contributions of each source. 

On cross-examination, Dr. Velez confirmed that blood tests could measure CO levels but noted he had not conducted such tests for the petitioner. He acknowledged that not all trucking industry workers develop coronary artery disease. He provided evidence that smokers often have elevated carboxyhemoglobin levels similar to those exposed to CO in tunnels. Without specific workplace documentation, he suggested that CO exposure from truck operations could be greater than that from cigarette smoke, although he conceded that no air quality studies had been conducted in the petitioner’s work environment. The risk factors for the petitioner’s coronary artery disease included being male, a long history of smoking, a familial history of cardiac disease, and being significantly overweight.

Dr. Velez testified that individuals with certain risk factors are more likely to develop coronary artery disease, particularly when exposed to carbon monoxide. Respondent's expert, Dr. Sanford Lewis, conducted examinations of the petitioner in 1987 and 1988, finding normal heart and lung function, but with an accentuated aorta. He performed EKGs that showed no signs of a previous heart attack and assessed the petitioner as being 15% disabled due to coronary artery disease, attributing it to non-work-related factors. Dr. Lewis referenced a study comparing firefighters to non-firefighters, concluding that firefighters do not have an increased risk of coronary heart disease. He also cited an editorial indicating that carbon monoxide was not a recognized risk factor for heart disease, emphasizing the role of smoking.

On cross-examination, Dr. Lewis acknowledged some literature suggesting a link between carbon monoxide and arteriosclerotic heart disease, but deemed the connection uncertain. In rebuttal, Dr. Velez critiqued Dr. Lewis's references as weak and argued that there is a clear causal relationship between carbon monoxide exposure and heart disease, particularly for those at risk, such as firefighters. He presented two articles: one discussing the effects of carbon monoxide on cardiovascular disease, and another indicating that firefighters have higher illness and mortality rates from coronary artery disease due to greater carbon monoxide exposure. Despite this, Dr. Velez conceded there were no specific studies on coronary disease related to the trucking industry, but maintained that truck drivers exposed to exhaust also face increased carbon monoxide levels.

The judgment favored the petitioner for permanent disability due to work-related coronary artery disease. The judge determined that Dr. Velez had greater expertise than Dr. Lewis regarding the relevant scientific aspects of the case. Citing *Hellwig v. J.F. Rast Company*, the judge concluded that carbon monoxide exposure significantly contributes to coronary artery conditions. The petitioner successfully demonstrated that the angina incident on August 8, 1986, was a consequence of work-related strain, resulting in coronary artery disease. The judge referenced *Perez vs. Pantasote, Inc.* to assert that objective medical evidence linked the petitioner’s condition to his employment, affecting his daily life.

The respondent contested the judgment, arguing that the New Jersey Workers’ Compensation Act does not recognize coronary artery disease as an occupational disease and claimed the petitioner failed to meet the burden of proof under N.J.S.A. 34:15-7.2. Additionally, the respondent alleged that the judge acted beyond judicial limits by advocating for the petitioner.

Benefits for occupational diseases are governed by N.J.S.A. 34:15-30, defining compensable diseases as those arising from employment conditions. However, conditions stemming from natural aging are not compensable. The historical context of New Jersey’s occupational disease compensation laws was outlined, noting significant legislative changes and additions to the list of compensable diseases from 1924 through 1950, ultimately leading to the inclusion of all occupational diseases, excluding specific conditions like asbestosis and silicosis.

The special silicosis and asbestosis act was repealed, aligning these diseases with other compensable occupational diseases under the 1940 law, which mandates employer compensation for personal injuries or deaths from occupational diseases, irrespective of employer negligence. The definition of compensable occupational diseases includes those resulting from conditions specific to a trade or due to exposure during employment. The 1924 supplement established that general compensation laws apply to occupational disease claims unless inconsistent. The 1949 amendment broadened the scope to include diseases not typically recognized in a specific employment or those arising from individual employee susceptibility, as long as they result from occupational exposure. However, the 1979 amendments limited the definition of compensable diseases to those characteristic of the employment. For instance, an employee contracting pneumonia from working conditions would be compensable, while one contracting it from incidental exposure to a coworker might not be, due to the requirement that the disease must be peculiar to the employment. Despite these changes, the current statute supports claims for cardiovascular disabilities linked to occupational exposure if they arise from employment conditions that are characteristic of that employment. The statute no longer specifies the causes or diseases eligible for compensation.

Occupational injuries or diseases from carbon monoxide exposure are recognized in several jurisdictions, including states that have incorporated carbon monoxide poisoning into their Workers’ Compensation Acts. Under the occupational disease statute, carbon monoxide can be considered a causative agent for cardiovascular disease, which may qualify for benefits. However, N.J.S.A. 34:15-7.2 limits claims involving heart-related injuries or deaths by requiring that the claimant demonstrate, through credible evidence, that the injury was caused by work-related effort significantly exceeding normal daily activities. This statute aims to protect employers from claims where heart attacks could have been triggered by non-work-related strains. In the case at hand, the petitioner claims his coronary artery disease was caused by carbon monoxide exposure at work. However, the provisions of N.J.S.A. 34:15-7.2 do not apply effectively to such claims, as they do not account for the nature of occupational exposure to toxins. The Workers’ Compensation judge attempted to apply this statute but struggled to do so adequately, as the work effort required for application is irrelevant to the petitioner’s assertion of disease caused by toxic exposure. The petitioner’s physical activities outside of work are likewise not connected to the claim of carbon monoxide exposure leading to heart disease. N.J.S.A. 34:15-7.2 was part of the 1979 amendments to the Workers’ Compensation Act, establishing specific requirements for cardiovascular-related claims.

In Hellwig v. J.F. Rast Co. Inc., the New Jersey Supreme Court addressed the definition of compensable occupational diseases under N.J.S.A. 34:15-31a, emphasizing that such diseases must be “due in a material degree” to employment conditions, though “material degree” is not explicitly defined in this statute. The Court referenced the importance of applying the definition from N.J.S.A. 34:15-7.2, especially in heart-related claims. The ruling affirmed dependency benefits for an employee’s death from a heart attack linked to work effort, clarifying that proving the effort exceeded typical workplace demands was unnecessary. 

The Court analyzed precedents, particularly a trilogy of cases involving coronary disease, and noted that the 1979 amendments to the Act aimed to modify the standard set by Dwyer v. Ford, requiring proof of significant effort or strain beyond daily living rigors to establish job-related causation. The Court highlighted the need for compensation judges to understand contemporary medical standards when evaluating conflicting medical testimonies in heart cases. It stressed the importance of expert conclusions being contextually assessed against statutory criteria and prevailing medical standards, considering the worker’s medical history, the nature of the work effort, and the timing of heart dysfunction evidence.

Furthermore, the Court cautioned judges to critically evaluate expert testimony that may not align with established medical standards. In reviewing Workers’ Compensation decisions, the Court stated it would only assess whether findings were supported by sufficient evidence in the record. The ruling pointed out deficiencies in the record regarding the absence of expert testimony on the effects of carbon monoxide from diesel exhaust, highlighting a gap in the necessary scientific evidence for informed decision-making.

Subjective reactions indicate that diesel fumes are perceived as more harmful than gasoline exhaust, but the petitioner’s working environment was not scientifically tested for such fumes. The medical expert's evaluation relied solely on the petitioner’s subjective descriptions of exposure at various locations. Scientific evidence presented did not specifically address diesel fumes, which is critical since general exposure from vehicle traffic does not support the petitioner’s claim linking diesel fumes to his cardiovascular disease. The petitioner’s history of smoking two packs of cigarettes daily for twenty years provided a significant source of carbon monoxide and toxins, potentially explaining his heart condition. The medical expert could not distinguish the contribution of smoking from that of diesel exposure due to their commonality as carbon monoxide sources. Additionally, the mild nature of the petitioner’s pulmonary disability undermines the argument for a significant link between diesel fumes and his heart disease, as studies suggest that substantial diesel exposure leads to severe respiratory issues. 

The 1979 amendment to N.J.S.A. 34:15-31 tightened the criteria for occupational disease claims, aligning New Jersey's standards with those of other states, emphasizing that diseases must not arise from hazards equally present outside of work. For heart disease claims related to occupational exposure, the law demands proof of exposure exceeding typical levels in daily life, directly arising from employment, and attributable to factors unique to that employment. This amendment reflects the legislative intent to make the compensability for occupational diseases more rigorous compared to work-related accidents or injuries.

The legal excerpt addresses the complexities of proving occupational disease claims under New Jersey Statute N.J.S.A. 34:15-31a. It emphasizes the necessity for claimants to demonstrate that their exposure to hazards, such as carbon monoxide from vehicle exhaust, is significantly greater than that experienced by the general public. While typical exposure to pollutants is widespread, the ability to establish a direct link between specific employment conditions and the disease is crucial for recovery under occupational disease statutes.

In instances where a worker's exposure results from general commuter traffic, recovery may be denied if it cannot be shown that the disease is materially linked to employment-specific conditions. Conversely, if a claimant can prove that their work-related vehicle directly contributed to their exposure, they could be eligible for benefits related to the disease.

The excerpt further clarifies that pre-existing health risks, such as smoking, are not considered the employer's responsibility under the 1979 amendments to the statute. It delineates the requirement that a disease must arise from conditions peculiar to the employment, referencing N.J.S.A. 34:15-12(d), which establishes that if a previous loss of function is proven, the employer is not liable for subsequent injuries or diseases affecting that area. This section shifts the burden of proof to the employer regarding past functional losses, indicating a significant change in liability from previous statutes, as noted in the Field v. Johns-Manville Sales Corp. case.

The employer is entitled to a credit for functional loss related to cigarette smoking when such loss can be quantified. The 1979 amendments changed the previous rule that made employers liable for the entire resultant disability from the aggravation of a pre-existing condition. Now, compensation can only be awarded to the extent that occupational conditions contribute to the disease and disability, as clarified in N.J.S.A. 34:15-12(d). In this case, multiple factors, including heavy smoking, obesity, and family history, contributed to the petitioner’s heart disease, indicating that any occupational exposure to diesel fumes was not the sole cause. Even if the occupational exposure could be quantified, the award must reflect only the percentage of the disease attributable to that exposure. The decision from Bolger v. Chris Anderson Roofing Co. regarding employer responsibility for aggravation of pre-existing conditions may be questioned, but it is not addressed here due to lack of evidence of aggravation. The judge of compensation erred in concluding that occupational exposure to carbon monoxide caused the petitioner’s heart disease and did not assess the contribution of occupational exposure to the overall disability percentage. As a result, the claim petition is dismissed due to insufficient evidence linking the disease to occupational exposure. The compensation judge acknowledged the criticism regarding trial delays but aimed to expedite the case. The petitioner’s medical experts incorrectly noted the start of alleged exposure as January 1988, which is irrelevant since the disabilities were claimed to have manifested in 1986.

The individual in question did not have a duty related to his condition prior to an episode in August 1986, as established in Hellwig v. J.F. Rast Co. Inc. The judge previously dismissed Claim Petition 86-31585, which concerned a specific incident on August 8, 1986. The assessment of particulate matter and solid emissions is accurate; however, it does not apply to gaseous emissions like nitrous oxide, carbon monoxide, and polycyclic aromatic hydrocarbons. OSHA has set threshold limits for occupational exposure to carbon monoxide from diesel exhaust since 1973. Studies indicate these exposure levels correlate with cancer risks associated with respirable particulate matter. Relevant literature includes findings on the impacts of diesel exhaust on coronary heart disease and the effects of carbon monoxide on cardiovascular disease, highlighting concerns about mortality rates in New Jersey firefighters and police officers.