CURTIS J. CHIUMENTO v. CAMDEN COUNTY SHERIFF'S DEPARTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0613-04T50613-04T5

CURTIS J. CHIUMENTO,

Petitioner-Respondent/Cross-Appellant,

v.

CAMDEN COUNTY SHERIFF'S DEPARTMENT,

Respondent-Appellant/Cross-Respondent.

____________________________________________

 

Argued April 3, 2006 - Decided July 31, 2006

Before Judges Lintner, Holston, Jr., and

Gilroy.

On appeal from a Final Decision of the Division of Workers' Compensation.

Christopher J. Saracino argued the cause for appellant/cross-respondent (Pietras Saracino, attorneys; Jody L. Meeks, on the brief).

Herbert J. Stayton, Jr., argued the cause for respondent/cross-appellant (Ridgway & Stayton, attorneys; Mr. Stayton, Jr., on the brief).

PER CURIAM

This is a workers' compensation action. Respondent, Camden County Sheriff's Department, appeals from the order of judgment entered in the Division of Workers' Compensation, Department of Labor, on August 25, 2004, requiring it to pay compensation benefits for a temporary aggravation of "injury to bilateral hands and arms and shoulders, as well as occupational exposure." Petitioner, Curtis J. Chiumento, cross-appeals from the determination that he did not suffer any "permanent disability." We reverse.

Petitioner, a Camden County Sheriff's Officer, assigned to transport prisoners, filed three claim petitions on April 20, 2000. Claim Petition Nos. 2000-12233 and 2000-12230 alleged accidental injuries to "both hands, arms, and shoulders" on the dates of September 23, 1999, and December 17, 1999, respectively. Claim Petition No. 2000-11174 alleged an occupational exposure injury caused by repetitive actions in opening and closing motor vehicle doors "from September, 1999, to the present."

The combined procedural history and statement of facts is as follows. Petitioner was employed by respondent as a sheriff's officer, from 1980 until his retirement on October 1, 2001. For his last six years, he transported inmates to and from the county jail in a motor vehicle van. In 1983, petitioner suffered a partial tear of the right rotator cuff while lifting weights. In 1999, petitioner's weekly wages were approximately $1,091.00.

Prior to commencing his shift on September 23, 1999, petitioner inspected the transportation van, and noticed that the "insert handle sticks." While stopped to pick up an inmate, petitioner attempted to open the interior "metal grated doors," but failed. "I tried to apply more pressure to the handle [and] my wrist (right) and arm [were] overcome with extreme pain, which shot upward" "from my wrist, to basically the top of my bicep, a little bit of my shoulder."

On October 1, 1999, petitioner saw Dr. Decker, his family doctor, and obtained a referral to Dr. Wexler, an orthopedist. The referral stated "Needs X-rays ordered for orthopedic surgeon to analyze shoulder pain . . . in []his left arm when [he] grabs and lifts things." (emphasis added). Dr. Decker's notes were devoid of any indication that the injury was caused by "a work accident." On October 14, 1999, petitioner saw Dr. Wexler who performed several tests, and ordered an electromyogram (EMG) study. Dr. Wexler's history indicates that petitioner had complained of pain for "several years." Dr. Wexler informed petitioner on October 25, 1999, that his symptoms could be as a result of "a trapped nerve along with carpal tunnel syndrome." Petitioner commenced physical therapy, and was referred to Dr. Taras, a hand surgeon. On November 21, 1999, an EMG revealed "bilateral carpal tunnel syndrome, otherwise normal."

On November 2, 1999, petitioner filed a report concerning the September 23, 1999 accident indicating that while attempting to open the insert door, he had experienced "extreme pain in both arms from middle of forearm to middle of bicep[] and right wrist [and] left wrist." (emphasis added). The report indicated that petitioner had not visited a doctor, and that he had the same problem with the door "7-8 months prior to this incident" causing injury to his left wrist and arm. Petitioner had not initially filed a report because "I did [not] want to do anything," and the pain had subsided "during the night" and for "a while" thereafter. However, later when the pain began to worsen, petitioner decided to fill out a report after consulting with his supervisor, Captain Schillig.

A December 6, 1999 U.S. Healthworks report indicated a diagnosis of "R/L lat[eral] epicondylitis," and suggested "lubricat[ing] and repair[ing] [the] inner gate door of [the] transport vehicle." On December 8, 1999, petitioner saw Dr. Taras complaining of "left arm pain." (emphasis added). Dr. Taras diagnosed petitioner with "bilateral carpal tunnel syndrome, possible radial tunnel syndrome or cubital tunnel syndrome."

During his shift on December 17, 1999, while unlocking and opening the insert doors of the same transportation van, petitioner turned "the handle with [his] right wrist outward" and felt "extreme pain from [his] right wrist to bicep." He filed an accident report that day and reported his injury to his supervisor. A U.S. Healthworks report dated December 17, 1999, referencing the injury of that date stated that petitioner could continue to work with the restriction that he not use his right arm to open the van's door. The report also recommended physical therapy. A follow-up report from the healthcare provider dated January 4, 2000, continued physical therapy and retained the restriction concerning use of petitioner's right arm. Petitioner was subsequently restricted to light duty pursuant to Dr. Taras' recommendation. During the course of treatment, petitioner received two wrist splints and injections in his right elbow, right shoulder, and right wrist.

On April 27, 2000, petitioner underwent a left radial tunnel release, with neurolysis of the posterior interosseous nerve and the superficiary radial sensory nerves. On August 11, 2000, he underwent a right radial tunnel release, with neurolysis of the superficial radial nerve and the posterior interosseus nerve. Petitioner was absent from work from April 27, 2000, the date of the first surgery, to February 20, 2001, a period of 42 6/7 weeks. Stating in a report dated February 20, 2001, that petitioner's "arms have been okay," Dr. Taras authorized petitioner to return to work.

In his responses to interrogatories, petitioner stated that: 1) his occupational exposure claim involved a continuous "twisting/turning and pushing/pulling motion" which was aggravated by the doors jamming and sticking; and 2) his duties required that the problematic doors be opened up to ten times per hour, and typing, and opening and closing other heavy metal doors were contributing factors. Petitioner also stated that he first became aware of the occupational injury in March 1999; the left side pain was on and off; and the right side pain was continuous until he underwent the right radial tunnel release.

At trial, petitioner described the transportation van as having two exterior doors, and two interior metal doors which require that "[y]ou . . . insert your hand in, twist it and then pull out," to open. Petitioner stated that he had pain on both sides, but the "right side . . . is much more severe than [the] left." He admitted to injuring his right shoulder lifting weights in the "[19]90s," that he had pain in both shoulders dating back to "the early [19]90s," and that he had sustained injuries similar to those in the claim petitions "several other times," which included a February or March 1999 injury to the left wrist and arm. Petitioner conceded that the September 23, 1999 injury involved his right arm and shoulder and that his mention of the left extremities in the claim petition was "a mistake." He also conceded that any complaints before December 1999 regarding his left wrist and arm were attributable to an injury which occurred prior to September 1999, and that in December 1999, he did not injure his left wrist or arm.

Between April 27, 2000, and February 20, 2001, petitioner used his accumulated sick time, and received disability insurance payments. After retiring from his position with respondent, petitioner worked for Boeing, the Casino Control Commission, and at the time of trial, he was working for the Department of Homeland Security, involved in airport security. Petitioner has not seen any doctors since October 2002; he has not been absent from work due to his injuries; and he takes over-the-counter pain medications. He continues to perform normal chores and activities, e.g., raking leaves, mowing the lawn, vacuuming, driving his manual transmission automobile, and manually opening the garage door.

Petitioner was suspended from work during the period of his medical absence. Respondent presented a letter from Human Resources (HR) stating that petitioner was cleared to return to light duty on November 15, 2000; his suspension began the next day; and he physically returned to work on May 2, 2001. Petitioner testified, however, that he did not receive medical clearance to return to work until February 2001, and that his suspension started then.

Dr. Ralph Cataldo, a doctor of osteopathic medicine, testified on behalf of petitioner. Dr. Cataldo examined petitioner on November 21, 2000, at which time petitioner had "complaints of pain in both shoulders, . . . in both arms[,] and . . . in both hands." He noted sensitivity "to palpation of the entire shoulder girdle" in both shoulders, and "tenderness at the insertion of the supraspinatus tendon in both shoulders." Dr. Cataldo observed "healed surgical scar[s]" on both the left and right forearms and "tenderness over the radial tunnel" region. There was also "tenderness to palpation over the volar aspect of both wrists." The doctor reevaluated petitioner on October 15, 2002. Petitioner's complaints and the physical examination "were unchanged from the first evaluation."

Dr. Cataldo opined, to a reasonable degree of medical probability, that petitioner had sustained the following permanent disabilities "as a result of the occupational stress and strain of his job duties and work-related [accidents]:" "20 percent permanent partial total disability based on the residuals of the sprain and strain of the right shoulder;" "20 percent permanent partial total disability based on the residuals of the sprain and strain of the left shoulder;" "35 percent of the right arm based on the residuals of the radial tunnel syndrome of the right elbow status post-radial tunnel release;" "35 percent of left arm based on the residuals of the radial tunnel syndrome of the left arm having undergone a radial tunnel release of the left arm;" "30 percent of right hand based on the residuals of carpal tunnel syndrome of the right wrist;" and "40 percent [disability] of left hand based on the residuals of carpal tunnel syndrome of the left wrist." Dr. Cataldo stated that he relied on the written hypothetical question submitted to him, which indicated that the "twisting, turning, pulling motion . . . was repetitively stressful on both arms and both hands." He also stated that petitioner was "temporarily totally disabled" between April 27, 2000, and February 20, 2001, which disability was causally related to the "two work-related injuries . . . [and] to the occupational stress and strain."

Dr. Cataldo stated that he would not change his opinion concerning the percentage of disability to the right shoulder even if petitioner had only injured his right hand in September and December, "because he still had occupational stress and strain of his shoulder," and if petitioner had not injured his right shoulder on either occasion, then the percentage disability would be attributable solely to the occupational claim. However, he conceded that his opinion would be different if petitioner had previously injured his right shoulder, because then he would conclude the right shoulder injury was "not related" to the work.

Dr. Cataldo's opinion concerning disability to the right hand was based on his diagnosis of an occupational injury; and his opinion concerning disability to the right arm was based on the two accidents and the occupational injury, the accidents alone not being enough to cause the present injury to the right arm. Dr. Cataldo testified that his estimates on disability of the left shoulder, left arm, and left hand were related solely to the occupational injury.

Concerning the occupational injury, Dr. Cataldo testified that he defined "repetitive" as being as much as ten times per hour, as little as two or three times per hour over an extended period of time, or five times per hour, per shift. While his opinion was based on his "medical knowledge and expertise," Dr. Cataldo noted that there were unspecified studies that discussed the repetitive nature of acts which may lead to carpal tunnel syndrome, conceding, however, that he was unaware of any specific studies which related opening a door ten times per hour to carpal or radial tunnel syndrome.

Dr. Kenneth Peacock, an orthopedic hand surgeon, testified on behalf of respondent. Dr. Peacock stated that he was aware of petitioner's prior injury in spring 1999, which petitioner never reported or treated. He testified that his associate examined petitioner, as indicated in a report of March 3, 2000, and he personally examined petitioner on January 16, 2003. The earlier examination reported normal muscle testing, normal shoulder flexibility, no tenderness in either elbow, although there was "some tenderness over the proximal forearm extensor muscles, more on the right than the left," as well as a lack of "some extension in both elbows." The doctor diagnosed petitioner with bilateral post-operative radial tunnel syndrome, and carpal tunnel syndrome. While he opined that petitioner had five percent permanent disability in each hand, he did not determine the injuries were caused by the work.

[T]he two accident injuries were merely times where there was production of symptoms. Typically traumatic radial tunnel syndrome would be due to a direct blow to the forearm, fracture or dislocation about the forearm or possible the elbow[,] a burn, a crush, something like that[.] [T]hat did not occur in this case. He was trying to merely open a van door that was stuck[.] [T]hat would not be the typical traumatic cause of the problem.

In addition, the records show that he had preexisting symptoms consistent with radial tunnel syndrome before the two episodes.

Dr. Peacock did not find any disability to either shoulder, as his examinations revealed "excellent flexibility." He agreed with Dr. Cataldo that the two accidents were "not in and of themselves" sufficient to cause radial tunnel syndrome. He also stated that if petitioner had not injured his left side in September or December 1999, then those incidents could not have affected the left side component of his current bilateral condition.

Lastly, Dr. Peacock testified that there was nothing in the medical literature to support "five times per hour" being repetitive, and information concerning petitioner's past weightlifting was relevant to causation. However, he also conceded that while there were studies on radial tunnel syndrome, which he did not accept, "[i]n terms of the occupational over-use claim, there [are] simply no well-done peer-reviewed published research that would support [or disprove] an opinion on that, on finding this as causally related." Because of the absence of "well-done stud[ies]," and the lack of a proper standard upon which to base an opinion, Dr. Peacock concluded that he could not offer an opinion as to causal relationship between petitioner's present disability and occupational exposure.

On July 19, 2004, the Compensation Judge rendered her oral decision in the case, determining that petitioner had given timely notice of the September 23, 1999 accident. The Compensation Judge found that both doctors were qualified to opine on permanency in the area of orthopedics, and while the doctors agreed on the injuries, they differed on extent and causation. The Compensation Judge determined that respondent's expert was more credible on the issue of causation, and petitioner had failed to demonstrate a permanent injury causally related to his work. The judge concluded that while petitioner did suffer bilateral shoulder, arm, and hand injuries, those injuries were pre-existing and not caused by petitioner's employment. However, the judge determined that petitioner suffered a temporary aggravation of the pre-existing injuries that were work related. "Petitioner may have sustained injury while working for the respondent o[f] an aggravated and limited in duration . . . nature, but that compensable injury did not increase any pre-existing disability that the petitioner had as a result of work-related accidents or occupational exposure."

As the parties had stipulated to petitioner's rate of pay at the time of the accidents, the judge found that the compensable rate of compensation was $539.00/$144.00, temporary and permanent, respectively. The Compensation Judge ordered respondent to pay $23,100 to petitioner for the time of absence attributable to the disability, 42 6/7 weeks from April 27, 2000, to February 21, 2001, at the rate of $539 per week. A confirming judgment of disability for temporary aggravation of "injury to bilateral hands and arms and shoulders as well as occupational exposure" was entered on August 25, 2004. Respondent filed its notice of appeal to this court on October 7, 2004, along with a notice of motion for a stay pending appeal to the decision. The stay was granted. Petitioner filed his notice of cross-appeal on October 21, 2004. On October 22, 2004, after receipt of notice of the cross-appeal, the Compensation Judge filed an amplification of her decision pursuant to Rule 2:5-1(b), addressing the issues raised by both respondent and petitioner in their notices of appeal. Concerning her determination denying petitioner's claim for permanency benefits while awarding benefits for "the temporary aggravation as a result of the work accident and/or occupational exposure of [or] to the petitioner's [p]re-existing injuries," the judge stated:

I thoroughly disagree with the Respondent's allegation of this [c]ourt's error as to a finding of temporary aggravation of pre-existing disability[,] and contend that this decision falls well within the purview and comprehension of Petitioner's [workplace] injury. Petitioner testified[,] along with the medical experts[,] as to the injuries from which he suffers. Based on the testimony, I failed to find causation of those injuries themselves to the [workplace,] but did find that, although the Petitioner's injuries were pre-existing, due to the nature and extent of the temporary injuries which were caused by Respondent, Petitioner's underlying injuries, [i.e.] pre-existing injuries, were only temporarily aggravated by these workers['] compensation injuries. Petitioner then returned back to his pre-injury state which was not caused by the Respondent. Therefore, Petitioner did not have any permanent injury as result of his employ[,] but did, in fact, suffer from it temporarily due to work for Respondent.

This decision was based on the kind of injury from which Petitioner suffers. Specifically, he has bi-lateral injuries in his shoulders, arms[,] and hands which, when coupled with his testimony, the experts['] testimony and the assessment and credibility of that testimony, lead this court to conclude that the pathology of these injuries was not related to the workplace. Petitioner's problems[,] however, tended to cease when Petitioner was no longer handling the type of duties that the job under this Respondent required.

. . . .

However, because of his job, its description[,] and the incidents which occurred to Petitioner, those pre-existing injuries were temporarily aggravated[,] causing Petitioner to incur medical bills and lose time from work. Both the medical bills and the lost time are compensable for the temporary aggravation due to work. Anyone with pre-existing injuries, whether the injury is minor, such as a sprained wrist, or major, such as paralysis, is entitled to temporary disability benefits and medical benefits for aggravation of that injury while working[,] albeit on a temporary basis. Once that Petitioner is removed from the work environment and their condition remains the same or returns to the pre-employment condition, then there is no entitlement to permanency benefits because the condition was, in essence, not permanent. Aside from all of the testimony which was assessed and evaluated by this court, substantial records were placed in evidence along with multiple items which were marked for identification.

Concerning her finding of disability from April 27, 2000, to February 20, 2001, the judge based her determination on petitioner's testimony, concluding the HR documentation to be only an estimate of when petitioner's medical leave would have terminated.

On appeal, respondent argues that the Compensation Judge erred: 1) in awarding temporary disability benefits because petitioner failed to prove a compensable work accident on either September 23, 1999, or December 17, 1999; 2) in awarding petitioner benefits as a result of an occupational exposure because petitioner failed to prove a compensable occupational exposure as defined in N.J.S.A. 34:15-31; and 3) in calculating temporary disability benefits based upon the evidence offered at the time of trial. On cross-appeal, petitioner argues that the Compensation Judge erred: 1) in failing to find permanent disability attributable to the accidents and occupational exposure, and 2) in finding that the injuries were pre-existing.

We give substantial deference to administrative determinations. R & R Marketing, L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). In workers' compensation cases, the scope of appellate review is limited to determining whether the findings of fact made by the judge of compensation could reasonably have been reached on "'sufficient credible evidence present in the record,'" giving due regard to the judge's expertise and opportunity to hear and evaluate witnesses. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); De Angelo v. Alsan Masons Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). The trial judge's findings of fact are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will only intervene if there has been "a mistaken application of the law to the facts." Shaudys v. IMO Indus., Inc., 285 N.J. Super. 407, 415 (App. Div. 1995); Williams v. W. Electric Co., 178 N.J. Super. 571, 588 (App. Div.), certif. denied, 87 N.J 380 (1981).

I.

We first address respondent's arguments concerning the award of benefits for temporary disability, attributable to the accidents; petitioner's arguments regarding the non-award of benefits for permanent disability attributable to the accidents; and the determination that petitioner suffered from pre-existing injuries.

The Compensation Judge determined that petitioner had suffered bilateral injuries to the shoulders, arms, and hands, but determined that those injuries pre-existed the two accidents complained of. The judge found petitioner only suffered from a temporary aggravation of those pre-existing injuries.

Whether an accident arises out of and occurs in the course of employment is a two-part inquiry. Stroka v. United Airlines, 364 N.J. Super. 333, 339 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004). First, "a petitioner must demonstrate a causal connection between the employment and the accident." Ibid. Second, "a petitioner must show a time and place connection between the employment and the accident." Ibid. The burden of demonstrating the existence of a compensable injury rests with the petitioner. See Ibid.; Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 263 (2003). Conversely, in the case where pre-existing injury is alleged to have been aggravated by an accident arising in the course of employment, it is not petitioner's burden to demonstrate that the injuries were personal to him, instead respondent must "prove by a preponderance of the evidence that petitioner's injury was caused by a pre-existing condition." Shaudys, supra, 285 N.J. Super. at 416. The previous loss of function must be demonstrated by "competent evidence." N.J.S.A. 34:15-12d. Also, in the case where there are two or more contributing causes, the employer may obtain a credit for pre-existing loss or condition, and the employer carries the burden of demonstrating the percentage loss directly attributable to the work. Lindquist, supra, 175 N.J. at 265. Where a compensable injury is found, "[t]emporary disability benefits are payable until the employee is 'able to resume work,'" Outland v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 539 (1998) (quoting N.J.S.A. 34:15-38), and permanent disability benefits are payable for a loss of function.

The question is whether petitioner was injured, or his pre-existing injuries, if demonstrated by competent evidence, were aggravated, on September 23, 1999, and December 17, 1999, as a result of accidents arising out of and in the course of his employment.

Contrary to petitioner's argument, we conclude that there is sufficient basis in the record to sustain the determination that petitioner suffered from pre-existing injuries. Petitioner's medical history included a prior serious injury to his right shoulder, due to weightlifting; admitted prior strains on his hands and arms; and a notation of prior complaints of pain. The Compensation Judge found that Dr. Peacock was the more credible expert concerning causation of the injuries. Dr. Peacock opined that petitioner's bilateral injuries were not caused by the type of strain described, because "traumatic radial tunnel syndrome would be due to a direct blow to the forearm, fracture or dislocation." Based on the record, the judge found petitioner's injuries to be pre-existing, and not caused by the two accidents complained of.

Dr. Cataldo's opinion on causation was in response to a written hypothetical question that had been prepared in advance of his trial testimony. However, the evidence presented at trial did not conform to all the facts contained in the hypothetical question. The evidence adduced at trial included the 1993 MRI showing a partial tear to the right rotator cuff; petitioner's twenty-year history of weightlifting, and history of other sports activities; Dr. Wexler's notes indicating complaints of pain over the course of several years; and petitioner's prior injury in February or March 1999 (not made part of the claim petitions). Petitioner's assertion that he had no complaints of injury until September 1999, is not supported by the record.

The Compensation Judge was not required to find permanency solely because the experts opined that petitioner's injuries were permanent in nature. Only Dr. Cataldo opined that the injuries were causally related to his employment. The judge had discretion to accept as much or as little of each expert's testimony as she found reasonable on the issue of whether the injuries "resulted from an aggravation or acceleration of the pre-existing [condition]." Paul v. Baltimore Upholstering Co., 66 N.J. 111, 121 (1974). "The 'choice of accepting or rejecting testimony of witnesses rests with the [judge] and where such choice is reasonably made, it is conclusive on appeal.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 284 (App. Div. 1994) (quoting Renan Realty Corp. v. State, Dep't of Cmty. Affairs, 182 N.J. Super. 415, 421 (App. Div. 1981)), certif. denied, 140 N.J. 277 (1995). Further, a Compensation Judge has special expertise "with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claim," Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998), and has the unique opportunity to hear witnesses' testimony and evaluate their credibility. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 166 (2004). The Compensation Judge's determination that petitioner's injuries were pre-existing is adequately supported by the evidence.

We next address the Compensation Judge's determination that petitioner suffered a temporary aggravation of his pre-existing injuries to both extremities as a result of the two accidents. The judge found petitioner credible as to the occurrence of the accidents on September 23, 1999, and December 17, 1999. We conclude, however, that the record does not support the judge's determination that petitioner suffered a temporary aggravation of his pre-existing injuries. The record reflects that only the right upper extremity was injured on September 23, 1999, and December 17, 1999. Petitioner conceded that he did not injure any part of his left side in either incident. Accordingly, there is no support for the Compensation Judge's determination that petitioner suffered a temporary aggravation to his pre-existing injury of his upper left extremity. Concerning the right shoulder, while petitioner claimed that he injured it in both accidents, the claim is not medically supported. Dr. Cataldo conceded that if petitioner had previously injured his right shoulder, he would not have determined the right shoulder injury to be related to the work. The record reflects, and the judge determined that petitioner had sustained prior injuries to the right shoulder. As such, the determination of a temporary aggravation of an injury to the right shoulder is not supported by competent medical evidence. Dr. Cataldo's opinion concerning disability to the right hand was based on his diagnosis of an occupational injury; and his opinion concerning disability to the right arm was based on the two accidents and the occupational injury, the accidents alone not being enough to cause the injury to the right arm. Because we determine infra that petitioner's occupational exposure claim is unsupported by the record, his claim for temporary aggravation of injuries to the right hand and arm also lacks medical support.

II.

Respondent argues that the judge erred in awarding benefits based on occupational exposure, and petitioner argues that the judge erred in failing to award permanency benefits based on occupational exposure. We conclude that the determination finding petitioner suffered occupational exposure is not supported by the record, and therefore, any part of the award attributable thereto was in error.

Petitioner's occupational exposure claim petition stated that the exposure commenced in September 1999, and continued through the date of the petition, until his retirement at the end of September 2001. However, petitioner was absent from work for approximately thirteen months during this time period (his medical leave combined with his suspension). Therefore, the length of exposure was approximately twelve months.

N.J.S.A. 34:15-30 provides for compensation for occupational diseases which arise out of and in the course of employment. A compensable occupational disease is defined as including "all diseases arising out of 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. 34:15-31a. "Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable." N.J.S.A. 34:15-31b. Therefore, all compensable injuries, accidental or occupational, must arise out of the employment. Williams, supra, 178 N.J. Super. at 578.

An employee must demonstrate both legal and medical causation to succeed on an occupational exposure workers' compensation claim. Lindquist, supra, 175 N.J. at 259. "It is the petitioner's burden to establish a causal link between the employment and the disease." Kiczula v. Am. Nat'l Can Co., 310 N.J. Super. 293, 303 (App. Div. 1998) (citing Laffey v. Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996)). "The link must be proven by a preponderance of the evidence," ibid., and the focus is on "'the proof of a causal connection between working conditions and the harm.'" Williams, supra, 178 N.J. Super. at 578 (quoting Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 111-12 (App. Div. 1954)).

Not only must there be a link, but the workplace conditions must be "characteristic to the . . . place of employment," Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 13 (App. Div.), certif. denied, 162 N.J. 485 (1999), or to the "particular trade or occupation," Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994); see N.J.S.A. 34:15-31a, and must contribute to a material degree to "the aggravation or exacerbation" of the injury in order to be compensable. Kiczula, supra, 310 N.J. Super. at 300 (citing Wiggins v. Port Authority, 276 N.J. Super. 636, 639-40 (App. Div. 1994)). The "material degree" requirement mandates that petitioner "show the nexus by an 'appreciable degree or a degree substantially greater than de minimis.'" Magaw, supra, 323 N.J. Super. at 11 (quoting Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995)); see Laffey, supra, 289 N.J. Super. at 304; Viera v. Level Line, Inc., 276 N.J. Super. 646, 655 (App. Div. 1994); Peterson, supra, 267 N.J. Super. at 504. See also Lindquist, supra, 175 N.J. at 256.

Medical causation is proof that the "injury is a physical or emotional consequence of work exposure[;] . . . that the disability was actually caused by the work-related event." Id. at 259. However, an employee need only demonstrate that "the work[-]related activities probably caused or contributed to the . . . disabling injury as a matter of medical fact." Ibid. While an employee's "subjective reaction is not to be disregarded," there must be "objective medical evidence" which demonstrates that the "work exposure was to a material degree a contributing factor." Williams, supra, 178 N.J. Super. at 585; see Perez, supra, 278 N.J. Super. at 283. Also, an employee who seeks to recover based on occupational exposure to a condition to which the public is generally exposed must demonstrate "sufficient, credible, objective evidence that will raise the compensation court's determination from one of conjecture to one of cautious reasoned probability." Laffey, supra, 289 N.J. Super. at 308.

"The record as a whole "'must demonstrate causality by the greater weight of credible evidence.'" Magaw, supra, 323 N.J. Super. at 11 (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962)). Moreover, a judgment of compensation cannot be based on a medical expert's mere assertion of a "reasonably probable contributory work connection" without supportive medical sources. Laffey, supra, 289 N.J. Super. at 306. The absence of any objective medical or scientific evidence establishing a causal link between petitioner's place of employment and a claimed occupational disease will usually be fatal to the petitioner's workers' compensation case. Wiggins, supra, 276 N.J. Super. at 644-45.

We determine, unlike Magaw, where this court found the expert's opinion was not a "sweeping generalization[] based on virtually no documented medical authority," Magaw, supra, 323 N.J. Super. at 13-14, that Dr. Cataldo's opinion on causal relationship was lacking authoritative support. Petitioner argues that Lindquist and Rubanick are controlling. We disagree.

Both experts conceded that there were no studies which squared with this case, i.e., addressed whether opening a transportation van door in a twisting fashion several times per hour may cause carpal or radial tunnel syndrome. Because of the lack of medical authority, Dr. Peacock declined to opine on causation. To the contrary, Dr. Cataldo, believing that there were studies which supported his position, opined on the issue of causation. However, he did not reference or specify any such studies in either his report or his trial testimony.

The standard in weighing credibility of expert opinion evidence when reliability is in issue is as follows.

"[A] scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training, and experience in the specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached."

[Lindquist, supra, 175 N.J. at 262 (quoting Rubanick, supra, 125 N.J. at 449).]

This case is distinguishable from Lindquist where a full-time City-employed firefighter sought workers' compensation alleging his pulmonary emphysema was an occupational disease. Unlike the present matter, the firefighter was cloaked "with a rebuttable presumption that the disease was an occupational one." Id. at 265-67. Also, in Lindquist, the parties' experts relied on specific, although partially unidentified, studies concerning "lung scarring and lung restriction from firefighting," and firefighters' "higher risk" of restricted airflow in rendering their opinions concerning whether non-smoking firefighters had an increased risk of emphysema. Id. at 272-73. With the Court being satisfied that many studies existed in the field, the Court took "judicial notice of the studies uncovered" in its research. Id. at 273. It was based on that data that the Court determined that there was sufficient scientific evidence presented to support the petitioner's claim of causation. Id. at 281.

Petitioner's exposure to wrist strain may or may not be related to his position as a sheriff's officer. As conceded by both experts, there are a multitude of means by which one may develop radial tunnel syndrome. Concerning whether the repetitiveness of petitioner's actions in opening the doors were a contributing cause of the injury, Dr. Cataldo did not offer any basis other than petitioner's subjective complaints, and their timing, to link the injuries to the work. He did not attempt to support his opinion on causation with any "'adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.'" Id. at 262 (quoting Rubanick, supra, 125 N.J. at 449). Dr. Cataldo testified only that he compared petitioner's complaints and diagnoses to other patients, and he knew that some studies existed. There was no application of methodology, or explanation of the basis for the opinion, aside from the net conclusion that petitioner worked for respondent. Such testimony does not satisfy the Lindquist-Rubanick test for reliability. As Dr. Cataldo made no reference to specific studies which supported his position, no studies could be analyzed for their reliability. Contrary to petitioner's argument, "neither the judiciary nor fact-finding bodies are bound by conclusional opinions of expert witnesses." Wright v. Purepac Corp., 82 N.J. Super. 100, 111 (Law Div. 1963) (citing Lightner v. Cohn, 76 N.J. Super. 461, 465-66 (App. Div. 1962), certif. denied, 38 N.J. 611 (1962)).

Dr. Peacock, on the other hand, did reference scientific research on causation, but determined that there were no "well-done studies" which he accepted. Respondent, however, does not carry the burden of demonstrating causation. Petitioner had to show that the alleged occupational injuries were medically and legally caused by the work; the burden was not on respondent to show that they were not.

The Compensation Judge found Dr. Peacock to be credible on causation, determining that the injuries themselves were not caused by the work. She also determined that the injuries were not of the kind to be typically associated with the work. This finding supports respondent's argument that petitioner had not demonstrated a compensable occupational exposure, because he failed to establish that the work conditions are "characteristic or peculiar" to the occupation. While the judge's oral decision and written amplification discuss the accidents and causation, both are devoid of reasons why given the findings on lack of characteristic association with the work and causation on permanency, petitioner was entitled to benefits from occupational exposure.

While an employee is not required to "prove that the nexus between the disease and the place of employment is certain," Magaw, supra, 323 N.J. Super. at 11, the petitioner bears the burden of demonstrating by a preponderance of the evidence that his exposure to the difficult to open doors while working for respondent was a substantial contributing cause or aggravation of his radial and carpal tunnel syndromes. Lindquist, supra, 175 N.J. at 263-64. We conclude that petitioner did not sustain his burden in demonstrating a compensable occupational disease.

Accordingly, we reverse the award of compensation benefits for a temporary aggravation of bilateral injuries to the hands, arms, and shoulders, as well as the award for an occupational exposure. We also reverse the award for any medical expenses relating to the aforesaid injuries. The matter is remanded to the Division of Workers' Compensation for entry of an amended judgment in accordance with this opinion.

 

Inflammation of the epicondyle or of the tissues adjoining the epicondyle of the humerous. Dorland's Illustrated Medical Dictionary 625 (30th ed. 2003).

The "release of a nerve sheath by cutting it longitudinally;" "destruction or dissolution of nerve tissue; sometimes done as a temporary or permanent measure for relief of pain or spasticity." Dorland's Illustrated Medical Dictionary 1255-56 (30th ed. 2003).

Between bones. Dorland's Illustrated Medical Dictionary 943 (30th ed. 2003).

Hence the term "insert doors."

Petitioner testified at an administrative hearing for another coworker, which testimony was determined by a "departmental hearing" to be false. The ALJ recommended a 120 day suspension. The suspension was later reduced to 90 days.

Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991).

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A-0613-04T5

July 31, 2006