ELLIOTT KOMINSKY - v. KOMINSKY & COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2535-09T2

ELLIOTT KOMINSKY,

Petitioner-Appellant,

v.

KOMINSKY & COMPANY AND

SECOND INJURY FUND OF

THE STATE OF NEW JERSEY,

Respondents-Respondents.

_________________________________________________

May 4, 2011

 

Argued January 19, 2011 - Decided

 

Before Judges Graves and Messano.

 

On appeal from the New Jersey Department of Labor, Division of Worker's Compensation, No. 2003-6924.

 

Larry M. Radomski argued the cause for appellant (Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser, P.A., attorneys; Mr. Radomski, on the brief).

 

Sharon K. Galpern argued the cause for respondent Kominsky & Company (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief).

 

Linda A. Lockard-Phillips, Deputy Attorney General, argued the cause for respondent Commissioner of Labor as Custodian of the Second Injury Fund (Paula T. Dow, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Ms. Lockard-Phillips, on the statement in lieu of brief).

 

PER CURIAM

Petitioner Elliott Kominsky appeals from the final orders of the Department of Labor and Workforce Development, Division of Workers' Compensation (the Division), dismissing his petitions for benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the WCA), and from the Second Injury Fund, N.J.S.A. 34:15-95 (the Fund). Petitioner contends that the Workers' Compensation judge erred in evaluating the testimony adduced at trial and applied the wrong legal standard to his claims. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

The facts adduced at the hearing before the judge revealed the following. In August 1995, after finishing a ten-kilometer race in Red Bank, petitioner "experienced what [he] thought was indigestion." In fact, he had suffered a massive heart attack. At the time, petitioner was forty-five years old, healthy and physically active. He was taken to Jersey Shore Medical Center (Jersey Shore), and placed under the care of John S. Clemente, M.D., a cardiologist. According to Clemente, petitioner was "essentially dying" at the time; Clemente performed a life-saving cardiac catheterization and angioplasty. Clemente determined that petitioner "suffered an anterior wall myocardial infarction in the distribution of the left anterior descending artery," which was 95 to 98% blocked.

The heart attack came as a surprise to petitioner who maintained a healthy diet, did not smoke and abstained from alcohol. Since 1980, he had consistently run "5 miles a day, four, five, six times a week." His prior medical history was unremarkable and revealed no indication of heart disease.

At the time of the heart attack, petitioner was a partner in his father's accounting firm, Kominsky & Company. He "was running the show" at the time, managing an office consisting of three CPAs, three other accountants and additional staff. Petitioner testified that he worked fifty to sixty hours a week during non-tax season and upwards of 100 hours a week during tax season.

After the heart attack, petitioner did not return to work for three weeks, but resumed full supervisory responsibilities for the firm in early 1996. In the interim, Clemente prescribed various medications, monitored petitioner's condition through diagnostic tests and ordered cardiac rehabilitation. Petitioner also underwent psychological counseling to help him relax and slow down because he had a "type triple A personality."

Beginning in 1999, Kominsky & Company were retained by a retinue of new, larger clients. Each presented new demands upon petitioner's time and effort, and he was soon working nearly as many hours as he had before the heart attack.

Clemente continued to regularly evaluate petitioner. Although Clemente believed petitioner was initially "doing well," in 1997 and 1998 he noticed a "[d]rop in cardiac output, increase in left ventricular size, decrease in exercise capacity, and . . . with increased stress load every once in a while[,] [petitioner's] electrical system would not be as stable as [Clemente] would [have] like[d] it to be." Annual cardiac catheterizations were also performed.

In June 2000, after visiting a client in New York City, petitioner "started sweating profusely, dry heaving, [and] having chest pains" on the bus ride back to his office. He arranged to have an ambulance meet him when he exited the bus in Union and was transported to Jersey Shore. Clemente performed another catheterization, which revealed that petitioner had suffered "two blocked arteries," which Clemente treated with angioplasties and the insertion of a stent in one of the arteries.

Petitioner quickly returned to work, and, by December 2000, was working fifty to sixty hours a week, increasing to between eighty and ninety hours a week in January 2001. He attributed this to the need to service his clients. In addition to the technical work, petitioner continued to manage the day-to-day operations of his practice.

In early 2001, petitioner began "getting angina attacks almost on a daily basis if not multiple angina attacks on a multiple basis"; he visited his physicians thirteen times within three months. In March 2001, Clemente told petitioner that he had "two more years to live if [he] didn't quit working because work was killing [him]." Petitioner sought buyers for his practice. He described this period of time as physically and emotionally difficult because he was concerned about possible death, and he did not wish to relinquish relationships with his clients. Ultimately, a sale of the practice was finalized, and petitioner's last day of work was June 29, 2001.

Clemente continued to treat petitioner, but his symptoms were "getting progressively worse." Plaque formed in plaintiff's arteries, he developed an aneurysm, and "blood clots in his heart put[] him at risk for a stroke." Another angioplasty with the insertion of a stent was performed in April 2004; a pacemaker and defibrillator were implanted in June 2004; a battery was replaced in April 2005; and a biventricular device replaced the pacemaker and defibrillator in May 2007. Clemente placed petitioner on the standby list for a heart transplant.

On March 3, 2003, petitioner filed a claim with the Division seeking benefits under the WCA. On September 2, 2004, he filed a petition seeking benefits from the Fund. The matter was tried on various dates between May 30, 2007 and November 5, 2008.

Petitioner testified about his deteriorating health, the demands of his work and the extensive hours devoted to the profession, as outlined above. On cross-examination, petitioner acknowledged that he had "[b]asically the same job duties" before and after the 1995 heart attack. Petitioner described his emotional attachment to his work:

I loved what I did. I loved my clients. I loved the respect that I had as a professional, and I didn't want to leave it. I absolutely didn't want to leave it, and it just took more tests and aggravation and more pain until [Clemente] finally convinced me, and my wife, that I had to call it a day.

 

. . . .

 

[Work] was my love. I used to get up in the morning, as I told somebody last week, I don't think in the 29 years that I practiced accounting that I ha[d] 5 days that I didn't want to get up and go to work. I loved what I did. I loved the people. I'm still friends with a lot of my clients. I talk to them on a regular basis.

 

Clemente was the first of three experts plaintiff produced who testified regarding a direct relationship between stress and heart disease:

There are different types of occupations that create far more stress and are known to have more cardiovascular complications; for example, pilots, they have heart attacks left and right, the same is true for lawyers, and, you know, doctors and so forth, and the same is true for accountants . . . what I'm saying is based on science, which will worsen your disease and . . . will make your heart muscle weaker. It will make it enlarge. It will accelerate clogging of the arteries. You will die earlier. This is well studied now. This went from theories, to published articles, now in textbooks.

 

. . . .

 

In fact, in congestive heart failure patients, it's now known that when you have increased stress, personal, occupational, or so forth, that you will have increasing episodes of congestive heart failure.

 

On cross-examination, Clemente acknowledged that petitioner's father also suffered from heart disease. As he described the familial history, "all [of petitoner's family] have lesions, there's a particular part of the left anterior descending that seems to develop blockages, so . . . apparently in that family those arteries tend to be a little vulnerable, those main arteries." Clemente also opined that "Type A personalities by definition are higher adrenaline level type[s] of personalities so they're predisposed to have more problems, more medical problems in general whether it be heart, arthritis, ulcers." Clemente concluded, nevertheless, that petitioner was permanently disabled and could never work again as "a direct result of his occupation."

Edward H. Tobe, D.O., a psychiatrist, testified regarding his evaluation of petitioner. Tobe noted that "[s]tressors do affect the biochemistry of our brain. . . . Thus, there's a direct co-relationship between ongoing stressors and the evolution of a disease state." Tobe opined that "[t]he stressors that [petitioner] experienced during the course of his work as an accountant were clear aggravants and accelerants to his cardiovascular disease leading to and furthering his deterioration of cardiovascular health." Tobe diagnosed petitioner with "anxiety disorder, not otherwise specified, which [wa]s directly related to the trauma of his cardiac condition and related to the enormous stresses that he experienced during the course of his employment that compelled him to continuously apply himself and aggravated and accelerated his heart problems." Tobe also conceded that individuals with Type A personalities "do have a much higher incidents [sic] of . . . these coronary events"; but he also acknowledged that petitioner's "reaction to occupational stress . . . aggravated, accelerated, exacerbated or materially contributed to the downward spiral of [his] cardiac status between 1995 when he had the myocardial infarction and 2001 when he stopped working."

Malcolm H. Hermele, M.D., an internist, examined petitioner on January 15, 2008. Hermele opined that petitioner was permanently disabled "on a cardiac basis alone." He also believed that "the emotional stress and strain of [petitioner's] job participated to a material degree to the deterioration of his cardiac status."

William S. Kritzberg, M.D., an internist, was called as an expert by respondent. He examined petitioner on two separate occasions. Kritzberg concluded that petitioner exhibited three independent risk factors for heart disease: (1) being a male; (2) high cholesterol; and (3) genetic implications of his father's coronary artery disease. He did not believe that petitioner's heart disease could be scientifically attributed to his occupation. Citing conflicting medical studies, Kritzberg noted that "the issue of stress and strain is a subject of tremendous debate in the medical community, and has been for many [decades]." Kritzberg opined, "[t]he bottom line is they tend to cancel each other out . . . so there's certainly no consensus in this area." Kritzberg also concluded that a stressful situation might impact one person differently from another.

Kritzberg explained the significance of the continued worsening of petitioner's cardiac condition after leaving work in 2001:

In other words, if stress was playing a major role in . . . the progression of the disease, you would expect that his disease would worsen in the period 1995, '96 through approximately 2000, 2001, and then once he stopped working that his condition would perhaps stabilize.

 

. . . .

 

You would expect that he would reach a point in 2001 where . . ., the disease would dramatically improve if the stress was the cause of his deterioration, but according to his testimony, that's not the case . . . it seems to me is such that it's a progressive disease, coronary artery disease, and even with the best treatment and the best circumstances . . . his disease over time would worsen.

 

Kritzberg concluded that petitioner's condition deteriorated "not because he continued to undergo stress from work, but because, unfortunately, his condition has progressed as is the nature of coronary artery disease."

Lastly, William B. Head, Jr., M.D., a psychiatrist, testified for respondent. Head examined petitioner on March 7, 2005 and opined, "I don't think [petitioner's heart] condition within a reasonable degree of medical probability or even medical certainty was exacerbated by the ordinary performance of his duties as an accountant." He explained further:

In view of the fact that he loved his work, did not find it onerous, really enjoyed his job and actually felt depressed when he left the job, it was hard to make a case in my opinion, and I . . . failed to find any clinical or historical evidence of any work-related stress that could have contributed to his cardiac problems. . . . [H]is work was basically ego-syntonic. It was consistent with his personality; and therefore, I really couldn't find a relationship between what he was claiming and what in fact happened . . . .

 

. . . .

 

Ego-syntonic means that you enjoy what you're doing. You do not feel stress from something that you enjoy, generally speaking. You might feel stress from the hours you might keep, but you don't feel stress from the work itself because you find it enjoyable. In fact, it's just the opposite of stress. . . . [S]tress is something that is ego-dystonic. It's something you don't enjoy doing. It's something that causes you to feel anxiety. It causes you to feel depression. It causes you know, a physical oppressive presence on your body, and that didn't happen. From what he told me, he really enjoyed everything and didn't really feel that, I mean, that while he was doing it that this was causing him a problem.

 

Head concluded that petitioner's health was "heavily driven by his underlying genetic areas."

On December 23, 2009, more than one year after the testimony was completed, the judge issued her written decision. As a threshold matter, she denied petitioner's application for benefits from the Fund because "he [wa]s totally disabled from his heart condition alone." The judge concluded that "[t]he real issue . . . [wa]s whether [petitioner's] cardiac condition [wa]s causally related to his employment." The judge made the following factual findings:

Although . . . Clemente, petitioner's treating doctor, asserted that accountants have a higher risk of heart problems, he produced no studies to support his claim. There is nothing peculiar to the profession of accountant that is objectively stressful. Nor did petitioner describe his particular work environment in a negative way, like, for example, harassment in a hostile workplace. . . . However, [Clemente] seemed to believe that petitioner felt constant stress because he, the doctor, considered the situation stressful. Petitioner's psychiatric expert, . . . Tobe, emphasized the increase in business and long hours in 2001. He, too, considered these to be "overwhelming." I disagree. This was not a war zone. The doctors ignore the attitude of the person involved. A situation that one person finds oppressive, another may find exhilarating.

 

Petitioner testified that he loved his job and enjoyed its challenges. No job is free from difficulties, but he took pride in his work and was doing exceptionally well. Certainly he worked hard; but with him this was the rule, not the exception. He seems to have two passions in life; his work and his running. He pursued both for as long as he could. As . . . Head explained, petitioner's pleasure and satisfaction in performing well in his profession insulated him from the deleterious effects of situations where the activity is not enjoyable. If he had not enjoyed it, he would have declined the extra work or hired additional people. This was not forced on him. As the managing partner, he had control. I find . . . Head's opinion more persuasive. The natural progression of petitioner's deteriorating heart condition forced him to stop working.

 

Stopping work did not halt the progress. As . . . Kritzberg, respondent's expert, stated, coronary artery disease progresses even with a stress level of zero. Fortunately, the biventricular defibrillator seems to have stabilized petitioner.

 

In sum, I find respondent's experts more persuasive: the natural progression of petitioner's deteriorating heart condition forced him to stop working.

 

The judge entered orders of dismissal the same day, and this appeal followed.

The scope of our review "is the same as that on an appeal in any nonjury case, [i.e.,] '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 of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The factual findings of a judge of compensation are entitled to substantial deference. Ramos v. M&F Fashions, 154 N.J. 583, 595 (1998). "We may not substitute our own factfinding for that of the Judge of Compensation even if we were inclined to do so." Lombardo v. Revlon Inc., 328 N.J. Super. 484, 488 (App. Div. 2000).

Additionally, it is settled that a judge of compensation "'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete Specialists, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). The judge is considered to have "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Ramos, supra, 154 N.J. at 598. "That [the judge] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse th[e] judgment." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).

Petitioner contends that the judge's decision was unsupported by the credible evidence in the record and that she "erred in undervaluing the credible testimony and opinions of" petitioner's treating doctor, Clemente. At oral argument before us, petitioner's counsel characterized the judge's opinion as a "bench-clearing decision," rendered without a thorough review of the evidence or any thoughtful analysis. Petitioner further argues that the judge failed to analyze the "causal relationship and burden of proof within the context" of the Court's decision in Fiore v. Consol. Freightways, 140 N.J. 452 (1995). Petitioner also contends that the judge implicitly relied upon our decision in Goyden v. State, 256 N.J. Super. 438 (App. Div. 1991), aff'd o.b., 128 N.J. 54 (1992), to conclude that "personality or attitude towards one work is the basis of granting or denying workers compensation benefits."

Occupational heart-disease claims are governed by N.J.S.A. 34:15-31. Fiore, supra, 140 N.J. at 465. Specifically, N.J.S.A. 34:15-31(a) provides:

For the purpose of this article, the phrase "compensable occupational disease" shall include 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.

 

In Fiore, the Court outlined three requirements "a petitioner claiming occupational heart disease must fulfill." Fiore, supra, 140 N.J. at 472. First, 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." Id. at 472-73 (quotations omitted). The definition of "material degree" is the same as used in N.J.S.A. 34:15-7.2, which provides: "'an appreciable degree or a degree substantially greater than de minimis.'" Fiore, supra, 140 N.J. at 474; see also Laffey v. City of Jersey City, 289 N.J. Super. 292, 304 (App. Div.) ("We have previously applied the definition of 'material degree' in N.J.S.A. 34:15-7.2 to claims arising under N.J.S.A. 34:15-31."), certif. denied, 146 N.J. 500 (1996). "Material degree" must be demonstrated by objective evidence of causation and the court "should be particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing medical standards." Fiore, supra, 140 N.J. at 474-75 (citation and quotations omitted).

Second, "petitioner must prove by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease." Id. at 473 (quotations omitted). Third, the petitioner must:

[S]how that the employment exposure substantially contributed to the development of the disease. An occupational exposure substantially contributes to the development of coronary-artery 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.

 

The determination that occupational conditions have substantially caused coronary-artery disease generally will require, in addition to medical testimony, proof of other relevant circumstances, such as: (1) the extent of the worker's exposure to the alleged occupational condition; (2) the extent of other non-work-related exposures and conditions; and (3) the manner in which the disease developed with reference to the claimant's medical and work history.

 

[Ibid. (internal citations omitted).]

 

"[P]etitioner ha[s] the burden to prove this causal link by a preponderance of the evidence." Wiggins v. Port Auth., 276 N.J. Super. 636, 639 (App. Div. 1994).

Initially, we do not condone the significant delay between the last day of the hearing and the issuance of the judge's decision. However, we review orders, not decisions. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005). And, while the judge did not cite Fiore in her written opinion, we conclude that she implicitly applied the standards of that case to the evidence adduced at trial.

In large part, petitioner's argument essentially reduces to a dispute over the credibility determinations made by the judge regarding the competing expert testimony. The judge found respondent's experts "more persuasive." See Lindquist v. City of Jersey City, 175 N.J. 244, 277 (2003) (quotations omitted) (noting our review requires that we give "due regard to the compensation judge's expertise and ability to evaluate witness credibility"). Accepting Kritzberg's opinion, she determined that petitioner's disability was the result of his progressively worsening cardiac condition. We note that Clemente and Hermele did not dispute the progressive nature of petitioner's condition. Clemente, for example, testified that "in the human heart, once you cross a threshold, it's going to get bad over time no matter what." Hermele acknowledged that once petitioner's heart issues surfaced, they worsened on their own regardless of "the stress of the CPA firm." The judge's conclusion was supported by sufficient credible evidence in the record, and we will not disturb it.

We also note that the judge did not dismiss out of hand the conclusions of petitioner's experts that stress has been scientifically linked to the onset or aggravation of cardiac disease. In her opinion, she noted that Clemente "produced no studies to support his claim," while Kritzberg did produce specific studies supporting his opinion. Faced with competing scientific claims, the judge of compensation must assess them as part of her overall responsibility to weigh the credibility of the experts. As the Lindquist Court noted in this context: "'In such circumstances judges must do the best they can, with the hope their decisions square with the truth, and with a willingness to consider in succeeding cases whatever contribution scientific advances may offer.'" Lindquist, supra, 175 N.J. at 278-79 (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 516 (1962) (Weintraub, C.J., concurring)).

Petitioner also argues that the judge implicitly accepted the reasoning we employed in Goyden, supra, a psychiatric disability case, and erroneously applied it to his occupational cardiac claim. In denying the petitioner's claim in that case, we noted that "[t]he question is whether objectively verified stressful work conditions . . . were established which were peculiar to the work place and which justified the medical opinion that they were the material causes of [petitioner's] disability." Goyden, supra, 256 N.J. Super. at 458 (emphasis added) (quotations omitted).

We acknowledge that Goyden has little applicability to this case. Nevertheless, for the reasons already stated, we are convinced that the judge's ultimate conclusion was supported by other credible evidence in the record.

Lastly, although not raised in a separate point heading in his brief, petitioner contends that his claim against the Fund was erroneously dismissed. We disagree.

A petitioner can only recover from the Fund if he was "totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause." N.J.S.A. 34:15-95. "It is settled that in order for liability of the Fund to attach (1) the ultimate condition of the workman must be one of permanent and total disability; (2) the prior disability must have been partial and permanent; and inter alia, (3) the prior condition and the subsequent employment-connected accident must in conjunction result in permanent total disability." Katz v. Howell Twp., 68 N.J. 125, 128-129 (1975) (quotation omitted).

Petitioner argues that despite granting his request to amend the petition at the start of the proceedings, the judge failed to consider his 1995 heart attack as a preexisting condition. However, the judge concluded that petitioner's total disability was not the result of a pre-existing condition in conjunction with "subsequent employment-connected" events. The petition seeking benefits from the Fund was properly dismissed on this ground.

Affirmed.