RODERICK GERAGHTY - v. JERSEY CITY MUNICIPAL UTILITIES AUTHORITY -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5467-09T2

RODERICK GERAGHTY,

Petitioner-Appellant,

v.

JERSEY CITY MUNICIPAL

UTILITIES AUTHORITY,

Respondent-Respondent.

________________________________

Argued May 4, 2011 Decided May 25, 2011

Before Judges Axelrad and J. N. Harris.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Number 2004-14345.

Alan T. Friedman argued the cause for appellant (Bagolie Friedman, LLC, attorneys; Mr. Friedman, on the brief).

Sean T. Kean argued the cause for respondent (Campbell, Foley, Delano & Adams, LLC, attorneys; Mr. Kean on the brief).

PER CURIAM

Petitioner-appellant, Roderick Geraghty, appeals from a June 10, 2010 judgment of the Division of Workers' Compensation (the Division), dismissing his claim for benefits. The Judge of Compensation (the JOC) found that Geraghty failed to establish that his medical condition was causally related to his employment. We affirm.

I.

Geraghty, now seventy-two years of age, was employed for approximately six and one-half years as a bucket truck operator by the Jersey City Municipal Utilities Authority (JCMUA) from December 1995 through August 2002. As a bucket truck operator, Geraghty's principal task was to remove the debris from catch basins from the street level.1 This was accomplished by way of a large steel bucket attached to a cable that would be lowered from the bucket truck, filled with debris, pulled up, and emptied into the truck. The resultant detritus would then be transported to an incinerator, where Geraghty testified he usually spent approximately thirty to forty minutes each day.

Geraghty also occasionally worked with the so-called dragging crew. His work on the dragging crew was similar to operating the bucket truck, except that it involved two machines stationed at two separate manholes.2 Each machine would lower a bucket underground which was then "dragged along the bottom of the sewer" to collect various forms of silt, sewage, or sludge.3 Geraghty estimated that he worked on the dragging crew approximately twenty-five percent of the time.

Geraghty described operating the bucket truck and working on the dragging crew, as "dirty job[s]." Only "[v]ery rarely, very rarely," however, did Geraghty enter an actual catch basin.

Geraghty claimed that he began experiencing difficulty breathing after "a couple of years" with the JCMUA. Specifically, he complained of becoming short of breath when walking or ascending stairs. At the time of trial, he asserted that he could not climb one flight of steps without becoming short of breath. He also reported that he "cough[ed] all day long." Geraghty admitted to smoking cigarettes for five years, but asserted that he quit the habit at age twenty-five, more than four decades earlier.

Prior to working for the JCMUA, Geraghty worked for nine years at H&M Warehouse (H&M), where he operated a forklift. Petitioner described the workplace at H&M as "pretty clean . . . because they had clothes and everything there, so they kept it pretty clean." Prior to H&M, Geraghty worked as a shipping foreman for eleven years at 4M Corp. (4M), a corrugated product company. Geraghty testified that the air quality at 4M was "fairly clean," but got "dusty at times." Prior to 4M, Geraghty worked for eleven years at Owens Illinois (Owens), another corrugated product company, where he operated a forklift. The air quality at Owens was similarly dusty in places, however Geraghty did not recall having difficulty breathing at these prior employments.

Richard Haytas was Geraghty's supervisor at JCMUA. At the time of trial, he had been employed by JCMUA for approximately thirteen years and currently held the position of Assistant Engineer/Infrastructure Maintenance Supervisor. Between 2000 until Geraghty retired, Haytas specifically oversaw Geraghty's field operations.

With regard to Geraghty's daily work conditions, Haytas testified that the collected debris would be wet, so it was less common that particles would become airborne. He also testified that "normal dumping takes about fifteen minutes," however he was not surprised by Geraghty's testimony that he spent anywhere from thirty to forty minutes at the incinerator site, remarking, "[i]t would all depend how he backs up, lifts the load up . . . I don't know how much he talks over there."

In Haytas's final assessment, Geraghty "ha[d] one of the cleanest jobs at the [JC]MUA" since his duties did not involve entering catch basins. The dragging job was even cleaner, according to Haytas, since "all the employee has to do is hit a button and the machine does all the work." However, he admitted there was a possibility that an employee could "get splashed" since "[t]he bucket comes within about [eighteen] to [twenty-four] inches of the employee."

Daniel F. Becht, Executive Director of the JCMUA since November 2005, testified that the JCMUA site, which is directly adjacent to the Jersey City Incineration Authority, was subject to remediation for chromium ore processing residue contamination. This followed a federal lawsuit filed by the JCMUA against Honeywell, Inc. alleging chromium contamination by Honeywell's corporate predecessor. According to Becht, the litigation was settled in 2007, with the terms of settlement requiring Honeywell to finance the continued remediation of the property, environmental testing (including monitoring of air quality), and medical testing of JCMUA employees.

Dr. Malcolm H. Hermele, M.D. was offered as an expert in pulmonary medicine on behalf of Geraghty. Dr. Hermele was familiar with Geraghty's medical history and conducted a complete physical examination in addition to testing for pulmonary function. Dr. Hermele concluded that abnormalities in Geraghty's x-rays were "consistent with inhalation" of materials such as "dust, fumes, chemicals, chromium . . . [and] sludge."

Dr. Hermele tested for restrictive pulmonary disease by measuring Geraghty's forced vital capacity (FVC), the total volume of air that can be forcefully exhaled. Dr. Hermele also tested Geraghty's forced expired volume of air in the first second of exhalation (FEV1). Without ruling out the possibility that Geraghty's condition could have been caused by an alternative exposure, he concluded that Geraghty's condition was "causally related to, initiated or exacerbated by exposure to various pulmonary noxious agents" while employed by the JCMUA, including inhalation of "particulate matter and fumes of various toxicities" which were in close proximity to "all the sludge that he dredged up." He also opined that it was not probable that Geraghty's obesity or five years of smoking cigarettes years ago had produced his pulmonary condition.

Dr. Benjamin Safirstein, M.D. was the JCMUA's expert on pulmonary medicine. Dr. Safirstein reviewed Geraghty's medical history and examined him twice, in March 2005 and again in November 2009. He concluded that Geraghty's FEV1/FVC ratio4 was well within the normal range and that Geraghty's FVC suggested restrictive, but not obstructive, pulmonary disease. He diagnosed Geraghty with obstructive sleep apnea and restrictive lung disease, both of which he attributed to Geraghty's chronic morbid obesity as opposed to any occupational exposure. Dr. Safirstein further opined that Geraghty showed no signs of chromium induced lung disease, a condition typically marked by "reduced total lung capacity, pulmonary fibrosis [(scarring of the lungs)] . . . and radiographic evidence."

Following trial, the JOC issued a detailed and comprehensive written opinion. It found that Geraghty failed to show a causal relationship between his pulmonary condition and occupational exposures at the JCMUA. While the JOC found that Geraghty "suffers from restrictive lung disease due to morbid obesity and obstructive sleep apnea" it concluded that Geraghty's condition "is not related to his employment with the [JCMUA]."

The JOC credited the testimony of Haytas, that the "unknown substances and materials with the potential to cause harmful reactions" in the petitioner were wet, as opposed to "dust and 'dry' airborne material," and further noted that the only "specific and identified substance for which exposure was established was chromium." The JOC also credited Dr. Safirstein's opinion over that of Dr. Hermele, concluding that Dr. Hermele lacked support for his conclusion that the petitioner suffered from COPD or that such condition was causally related to his employment. He noted that "while Dr. Hermele was informative when discussing testing procedures and pulmonary function," he "became vague and difficult to follow when attempting to support his conclusions that [Geraghty] suffered from job related obstructive pulmonary disease."

Meanwhile, the JOC found Dr. Safirstein's testimony "extremely credible," "logically consistent," and "fully supported" by the medical evidence. He found especially persuasive Dr. Safirstein's observation that many of the cardiac medications prescribed to Geraghty had a tendency to reduce lung function, and that one in particular produces an increased tendency to cough. Finally, the JOC noted the manner in which Dr. Safirstein ruled out COPD, by listing the relevant indicia, none of which he observed in Geraghty.

Based upon its conclusions, the JOC entered judgment dismissing Geraghty's claim with prejudice. This appeal followed.

II.

Because this matter arises out of a final judgment of the Division, we do not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Rather, consistent with general principles of appellate deference to administrative actions, our review of the JOC's decision is limited to "'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.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

In particular, we must defer to the credibility findings made by a JOC, as well as to the judge's expertise in analyzing medical testimony. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) ("It must be kept in mind that judges of compensation are regarded as experts."). In the presence of sufficient credible evidence, a JOC's findings of fact are binding on appeal, and those findings must be upheld "even if the court believes that it would have reached a different result." Sager, supra, 182 N.J. at 164.

N.J.S.A. 34:15-31(a) defines "compensable occupational disease" as "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." "'[T]he mere assertion of reasonably probable contributory work connection by a medical witness cannot justify an award.'" Laffey v. City of Jersey City, 289 N.J. Super. 292, 306 (App. Div.) (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962)), certif. denied, 146 N.J. 500 (1996). Rather, one seeking benefits must show that his or her occupation carries with it certain hazards that are characteristic of his or her profession and likely to cause injury or disease. Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 238-39 (2003).

Also, a claimant's burden of proof "is probability rather than certainty." Pellegrino v. Monahan McCann Stone Co., 61 N.J. Super. 561, 572 (App. Div. 1959) (quoting Gilligan v. Int'l Paper Co., 24 N.J. 230, 235 (1957)), aff'd, 33 N.J. 73 (1960). A claimant need only prove his case "'by a preponderance of the probabilities.'" Fiore v. Consol. Freightways, 140 N.J. 452, 466 (1995) (quoting Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 138 (1958)).

Geraghty first argues that the Division's decision "could not have been reasonably based on the credible testimony in this record." For support, Geraghty lists a series of undisputed facts that he asserts supplied "more than ample evidence" that his pulmonary condition was caused by occupational exposures encountered during his employment with the JCMUA. In particular, he points to evidence that he suffered from "decreased pulmonary function" and that his job "exposed him to substances which would qualify as pulmonary irritants" including hexavalent chromium.

The JOC summarized and analyzed each expert's findings and conclusions. Dr. Hermele diagnosed the petitioner with COPD and restrictive pulmonary disease. With regard to whether Geraghty's condition was caused, to a material degree, by his exposures at JCMUA, Dr. Hermele concluded, "based upon all the things that we discussed in my reports, the x-rays, the pulmonary functions . . . it's my opinion that his chest condition is causally related to, initiated or exacerbated by exposure to various pulmonary noxious agents . . . while employed by the [JCMUA]." When asked to describe the means behind how Geraghty's exposures caused his particular condition, Dr. Hermele described how the particulate matter inhaled by Geraghty on the job irritated his airways and caused the accumulation of mucous which gave way to a cough. However, Dr. Hermele did not identify with any particularity what substances Geraghty was regularly exposed to, except to state that the hexavalent chromium present in and around the incinerator site "played a role" in causing his condition.

Moreover, although Dr. Hermele testified that Geraghty's lung condition was consistent with exposure to "dust, fumes, chemicals, [and] chromium," he mischaracterized Geraghty's primary job duty at JCMUA stating "[h]e's in a hole, he's digging out sludge with shovels" and "it's over his clothes, it's in his mouth. It's in his nose, he smells [it] all the time, [seventy-five] percent of the day, he is in the muck, both digging it up and bringing over to the yard." This portrayal of Geraghty's job duties was inconsistent with Geraghty's own testimony, that he "[v]ery rarely, very rarely," entered an actual catch basin.

By contrast, Dr. Safirstein, who the JOC found to be "extremely credible," explained in detail why he was unable to diagnose Geraghty with COPD based on his FEV1/FVC ratio and why he was unable to relate the restrictive lung disease to his employment. Instead, Dr. Safirstein offered alternative probable causes for Geraghty's restrictive condition, including his morbid obesity and regimen of various medications prescribed for cardiac disease that are also known to reduce lung function.

"Due weight must be given to the expertise of a compensation court judge." Laffey, supra, 289 N.J. Super. at 303. Not only were the JOC's reasons for crediting Dr. Safirstein's opinions over those of Dr. Hermele's articulated in his written decision, they were also supported by competent evidence in the record. See Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981). In light of this, the JOC's decision not to credit Dr. Hermele's opinion to the extent that he credited that of Dr. Safirstein was not only acceptable, but unremarkable. Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 368 (App. Div. 1996) (finding no error in JOC's decision to credit one expert over another). Because the JOC's factual findings and credibility assessments were placed on the record and supported by competent evidence therein, there is no warrant to disturb them.

Petitioner next argues that he presented a "dual causation case," and as such, the JOC should have applied a more "relaxed standard" of evidence that would have merely required Dr. Hermele's opinion to have a "good scientific basis." That standard originated in the case of Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991), wherein the Court held that "in toxic-tort litigation, 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." Id. at 449.

In Lindquist, the Court first applied the Rubanick standard to a workers' compensation case, on the theory that "courts must not penalize workers suffering from diseases for which science has not yet clearly established causation." Lindquist, supra, 175 N.J. at 278. In that case, although there had not been conclusive studies establishing a causal link between occupational smoke and emphysema, as opposed to cigarette smoke, id. at 279, the Court found "enough scientific data" to support the JOC's initial decision in petitioner's favor. Id. at 281. It explained:

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 while fighting fires 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 to "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.]

We note initially, that Lindquist is distinguishable from the case at bar in that the firefighter in Lindquist was entitled to a "rebuttable presumption" that injuries sustained in the performance of his duties were compensable by statute. Id. at 266; N.J.S.A. 34:15-43.2. Second, in arriving at its conclusion that occupational exposures likely played a role in the petitioner's diagnosis, the Lindquist court acknowledged that "it is unusual for someone of petitioner's age and smoking history to contract emphysema." Id. at 280. By contrast, Dr. Safirstein was not perplexed by Geraghty's condition, which he believed was entirely explained by obesity and the effect of various cardiac medications. Finally, unlike the petitioner in Lindquist, Geraghty was not advancing a "'scientific theory of causation that has not yet reached general acceptance.'" Id. at 262 (quoting Rubanick, supra, 125 N.J. at 449). In fact, neither expert suggested a lack of scientific basis for the impact of pulmonary irritants on lung disease.

Geraghty was required to prove that his claimed occupational exposures contributed to the development or aggravation of his lung condition; he was not asked to establish that his work exposure was a greater contributing factor than his obesity. Although Dr. Hermele opined that Geraghty's lung condition was "causally related to, initiated or exacerbated" by his work exposure, the JOC determined that he lacked support for that conclusion. Accordingly, as the JOC's findings were amply explained and supported by credible evidence in the record, we find no basis for reversal.

Affirmed.

1 A catch basin crudely filters storm water run-off and acts as a trap for unwanted solids, preventing them from entering the sewer proper. Geraghty described examples: "If it was [nearby] a liquor store, it would be filled with boxes, bottles, liquor smells, everything. Some people dropped oil in catch basins, everything; dead dogs. You name it, we took it out."

2 A catch basin is distinguished from a manhole, which Geraghty described as a "sanitary sewer[]" as opposed to a "storm sewer."

3 Geraghty's examples included: "[W]here the slaughterhouse was for the chickens, that would be blocked up with chicken guts . . . . There would be . . . feces, whatever, and needles, whatever was in there to block it. I don't know how people did it, but people sometimes they got chairs in there."

4 Dr. Safirstein explained that the primary measurement used for diagnosing chronic obstructive pulmonary disease (COPD) is the percentage of total airflow that is expired during the first second of forced exhalation) measured by the ratio of FEV1 over FVC.