BERNARD KRUPPA v. EXXONMOBIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3280-03T1

BERNARD KRUPPA,

Petitioner-Respondent,

v.

EXXONMOBIL,

Respondent-Appellant.

____________________________

 

Argued October 18, 2005 - Decided March 24, 2006

Before Judges Collester and Lisa.

On appeal from the New Jersey Department of

Labor, Division of Workers' Compensation, C.P.

2000-19545.

Lora V. Northen argued the cause for appellant

(Capehart & Scatchard, attorneys; Ms. Northen,

of counsel and on the brief).

William Grabler argued the cause for respondent

(Garces & Grabler, attorneys; Mr. Grabler, of

counsel and on the brief; Eric S. Lentz, on the

brief).

PER CURIAM

Respondent ExxonMobil appeals from the January 7, 2004, order entered after a seven-day trial in which the judge of workers' compensation awarded petitioner Bernard Kruppa forty percent of partial total disability for the conditions of chronic bronchitis, chronic obstructive pulmonary disease, probable restrictive pulmonary disease and small airways disease. We affirm in part and remand in part.

Petitioner was a maintenance mechanic at the respondent's chemical plant in Edison for almost nineteen years. He began in 1980 when he was thirty-five-years old and had been smoking cigarettes for twenty years. He remained a cigarette smoker throughout his employment and beyond. In his pre-employment medical examination petitioner related his cigarette smoking history as well as prior employment where he was exposed to glass fibers and welding materials. A pre-employment chest radiograph disclosed pre-existing bullous lung disease, although minimal.

Petitioner's job function at respondent's chemical plant involved maintaining and repairing all types of equipment, "from the roof to the basement." He worked eight hours per day and considerable overtime. He testified that his daily exposure to chemical odors and mists began when he parked his car in the company parking lot. He came to recognize leaking chemicals in the plant by their distinctive smells, and it was his responsibility to repair the leaks, some of which involved exposure to toxic substances. He said that ventilation in some areas was supplied by fans, which only blew the air around. Although he used a mask in hazardous areas, the odors were so strong that he could taste the chemicals. He suffered eye irritation and burning of his respiratory system as well. The clothing he wore became so contaminated that it could not be cleaned.

At trial, a report of the New Jersey Department of Health was produced which listed hazardous chemicals. Petitioner identified thirty-three toxic substances on the list to which he was exposed during his employment at ExxonMobil. The report also indicated that exposure to many of these substances had a synergistic impact on pulmonary function when combined with cigarette smoking.

Plaintiff ended his employment with ExxonMobil in late 1998 after receiving notification that his routine employee physical disclosed a serious lung problem. Respondent's physician certified that as a result of the respiratory condition petitioner could not work in certain areas of the plant, and it was recommended that he seek medical attention. Petitioner was fifty-five years old. He has not worked since leaving ExxonMobil and is receiving Social Security disability payments.

In February 1999, plaintiff was referred to a pulmonary specialist after repeated episodes of bronchitis and an inability to breathe effectively when exerting energy. A pulmonary chest x-ray and spirometry were performed, and inhalers were prescribed. At that time petitioner and his doctors attributed cigarette smoking as a cause of his respiratory problems. Petitioner testified that respondent's medical department said smoking was to blame rather than exposure to substances in the plaint.

However, after he consulted an attorney, petitioner was examined by Dr. Malcolm Hermele in March 2000, and was advised that his lung condition was in fact work-related. He filed his claim petition with the Division of Workers' Compensation on June 8, 2000.

Petitioner called witnesses to corroborate his testimony of conditions in the Edison plant. John Kopko, also a former mechanic with a pending workers' compensation claim, testified that dust and chemical fumes existed throughout the plant and that the mechanics worked with asbestos in certain areas until the 1990s. He said the respirator first issued by respondent was worthless and it only improved later when a full-face mask was added. William Hennesey, a maintenance mechanic from 1976 to 1999, described the plant environment as "terrible," with noxious fumes and chemical powder in the air, and corroborated the testimony of toxic chemicals and the presence of asbestos into the 1990s. He said that the use of respirators was optional at first and that they were ineffective.

Kent Mickel testified for respondent that he was a maintenance supervisor who began working at the plant in either 1993 or 1994, over ten years after petitioner's employment. Mickel testified that outside agencies were brought in to remove asbestos. He also said that when there were chemical spills, the lines would be blown out and the chemicals department would clean up spills before the mechanics repaired leaks. He added that respirators were mandatory and that ventilation was effected by processed air throughout the plant.

Each side presented an expert witness. Testifying for petitioner, Dr. Hermele said that the results of a pulmonary function test disclosed objective evidence of abnormalities. He diagnosed petitioner with chronic bronchitis, chronic obstructive pulmonary disease with probable restrictive pulmonary disease, and small airways disease. His estimate of permanent disability was fifty-five percent of partial total. He opined that petitioner's pulmonary condition was either causally related or exacerbated by exposure to noxious pulmonary agents during his nineteen years at ExxonMobil. He also attributed petitioner's condition in part to his long history of cigarette smoking and said he could not distinguish the degree of disability attributable to cigarette smoking from that due to occupational exposure.

Respondent's expert was Dr. Monroe Karetzky. He also performed a pulmonary function test on petitioner and found pulmonary abnormalities. His diagnosis was obstructive lung disease combined with emphysema and bronchitis and he estimated permanent disability at twenty-five percent of partial total. However, Dr. Karetzky attributed the entire permanent disability to cigarette smoking, opining that petitioner's work exposure played no part in his disability.

The workers' compensation judge made the following findings:

In this case, as both medical experts' diagnoses of Mr. Kruppa's pulmonary condition were almost identical, the only real issue was causation.

On the issue of causation, I reject Dr. Karetzky's opinion that the sole cause of Mr. Kruppa's pulmonary problems was tobacco abuse.

I find more plausible Dr. Hermele's view that Mr. Kruppa's pulmonary condition was caused by a combination of tobacco abuse and workplace exposure.

Mr. Kruppa worked for almost two decades in a facility where he was exposed to numerous substances which are known pulmonary irritants as a repairman. He was in contact with these substances on a daily basis.

I, therefore, find that Mr. Kruppa has met his burden of proof and that his workplace exposure was a substantial factor and contributed in a material way in his development of pulmonary disease.

As defined in the Workers' Compensation Act, a compensable occupational disease arises out of the course of employment and is "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. 34:15-31(a). The statute further defines "material degree" as "an appreciable degree or a degree substantially greater than de minimus." N.J.S.A. 34:15-7.2.

Since the purpose of the Workers' Compensation Act is to implement public policy by affording coverage to as many workers as possible, the burden of proof on claimants under workers' compensation law is easier than under contemporary tort law. Lindquist v. City of Jersey City Fire Department., 175 N.J. 244, 258 (2003). In Lindquist, the Supreme Court delineated the burden of proof for a claim of occupational disease case as follows:

It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the worker related activities probably caused or contributed to the employee's disabling injury as a matter of medical fact. Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290-91 (1986). Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.

[Id. at 259.]

The facts of Lindquist are similar in significant respect to the instant case. The petitioner claimed his employment as a firefighter and his exposure to fire, smoke and hazardous waste for over twenty years caused or contributed to his pulmonary emphysema. He also was a heavy cigarette smoker for over twenty years. His medical expert attributed the condition primarily to occupational exposure and secondarily to cigarette smoking but was unable to allocate an exact percentage. The employer's expert reached the contrary result, attributing the emphysema entirely to cigarette smoking. The Supreme Court applied a material factor test in instances of toxic exposure in employment combined with cigarette smoking.

The controlling test to be applied in this case is whether the work exposure substantially contributed to the development or aggravation of emphysema. Petitioner had the burden to demonstrate by a preponderance of the evidence that his environmental exposure ... was a substantial contributing cause or aggravation of his emphysema. To satisfy that obligation, he was not required to prove that his work exposure exceeded the exposure caused by smoking cigarettes. Nor was he required or prove that the nexus between the disease and the place of employment is certain, because that would violate the preponderance of the evidence standard.

[Id. at 264 (citations omitted).]

Our scope of review is limited to consideration of whether the findings made by the workers' compensation judge could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, and giving due regard to the opportunity of the judge who heard the witnesses to assess credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will not upset the factual findings and legal determinations made by the judge of compensation unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence to offend the interest of justice." Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (quoting Rova Farms Resort v. Investors Insurance Co., 65 N.J. 474, 484 (1974)). In applying this standard of appellate review we conclude that there was sufficient credible evidence to support the determination that petitioner established by a preponderance of evidence that he was exposed to chemical substances at the workplace which materially caused or substantially contributed to the development or aggravation of pulmonary disease and resultant disability. See Lindquist, supra, 175 N.J. at 277; Wiggins v. Port Auth., 276 N.J. Super. 636, 638-39 (App. Div. 1994).

However, respondent correctly argues that the workers' compensation judge erred by failing to give a credit for pre-existing disability under N.J.S.A. 34:15-12(d), which provides that when there are dual causes of an injury or disease, including a non-compensable cause such as cigarette smoking, the employer is to receive a credit for loss of function prior to employment when it can be quantified. Here Dr. Hermele found petitioner had a pre-existing disability, which he estimated at two to three percent. Since the judge of compensation made no finding of a pre-existing disability and no credit was given to the employer, we remand for an appropriate modification of the compensation award based upon the compensation judge's evaluation of the evidence in light of his special expertise and factual findings.

 
Affirmed in part. Remanded in part.

Petitioner identified the following: acetic acid, acetone, acetylene, adipic acid, allyl alcohol, allyl amine, argon, asbestos, boron trifluoride, carbon black, benzene diethylaminoethanol, 2,6-DI-tert-BUTYL-p-CRESOL, ethyl benezene, ethylendiamine, ethyl hexaldehyde, maleic acid, maleic anhydride, morpholine, naphtahene, oil mist-mineral, phenol, phtalic anhydride, potassium hydroxide, probane, sodium hydroxide, terephtahlic acid, tetraethylene-pentamine, toluene, valeric acid, xylenes, zinc oxide and sulfur.

(continued)

(continued)

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A-3280-03T1

March 24, 2006