ANTHONY DIFABRIZIO v. US AIRWAYS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTHONY DIFABRIZIO,

Petitioner-Respondent,

v.

US AIRWAYS,

Respondent-Appellant.

___________________________________________

November 20, 2013

 

Argued October 21, 2013 - Decided

 

Before Judges Parrillo, Kennedy and Guadagno.

 

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-18185.

 

Andrea M. Graf argued the cause for appellant (Rawle & Henderson, LLP, attorneys; Ms. Graf, on the brief).

 

Ricky E. Bagolie argued the cause for respondent (Bagolie-Friedman, LLC, attorneys; Mr. Bagolie, on the brief).

PER CURIAM

Respondent, US Airways, appeals from the order of the Division of Workers' Compensation (Division), which determined petitioner Anthony DiFabrizio suffered a compensable injury while in respondent's employ. The Division awarded DiFabrizio five percent permanent partial total disability. For the reasons that follow, we reverse.

I.

Anthony DiFabrizio began working for US Airways at Newark Airport as a part-time employee in 1985. In 1987, he was hired to work full-time as a customer service agent, handling bags, freight, and mail. He loaded and unloaded baggage from planes, trucks and belt conveyers, and drove equipment to push back planes from the ramp area.

In 1995, DiFabrizio was transferred to LaGuardia Airport, where he worked until 2008. For his first two years at LaGuardia, he loaded and unloaded planes at the freight facility. He then worked in the "bag room" from 1996 to 1999. DiFabrizio described the freight facility as stuffy due to lack of ventilation, and because the truck engines would be turned on and off inside to load and unload. He described the bag room as "stuffier than the freight house because it was a smaller building." From 1999 to 2008, he worked on the "ramp," driving trucks to push back planes, directing planes, and occasionally de-icing planes with glycol.

DiFabrizio returned to Newark Airport in 2008. We were informed at oral argument that he continues to work there. Although most of his work was on the ramp, he also worked in the bag room. Otherwise, his duties have been loading/unloading mail, freight, and baggage, cleaning planes, air-starting planes, and pushing back planes.

DiFabrizio testified that in around 2001, he began to experience shortness of breath and noticed that he could not play basketball at the speed that he was used to and could not exercise as long on the treadmill. He mentioned the condition to his physician, Dr. Andrew Anisko, but the doctor did not perform any tests. DiFabrizio saw Dr. Anisko approximately three times for upper respiratory conditions and was prescribed medication on one occasion. On another occasion, he was told he was suffering a viral infection.

On cross-examination, DiFabrizio conceded that the condition he described did not affect his ability to work and he continued to volunteer to work overtime and switch with other employees to get extra shifts. Although he claims to have suffered this condition for over ten years, DiFabrizio never reported it to his employer before he filed his claim petition. DiFabrizio did not seek treatment from an allergist or a pulmonologist. Rather, he consulted an attorney who referred him to Dr. Malcolm Hermele.

Dr. Hermele testified on behalf of DiFabrizio and was accepted as an expert in internal medicine. He performed a physical examination, including a chest x-ray and pulmonary function tests. A chest examination by Dr. Hermele did not reveal wheezing, rales, or rhonchi, but Dr. Hermele did note that DiFabrizio had poor chest wall movement on maximum expiratory effort. Dr. Hermele interpreted the chest x-ray as showing "increased interstitial markings," which he found were prominent and indicative of restrictive lung disease. Based on his findings, Dr. Hermele concluded that DiFabrizio suffers from

chronic bronchitis and probable restrictive pulmonary disease . . . [and] his chest condition is causally related to, initiated, or exacerbated by his exposure to various pulmonary noxious agents that he has been exposed to for 15 years at least five days a week while employed by the US Airways Company.

 

Dr. Hermele concluded that DiFabrizio had a permanent disability rating of thirty-five percent of partial total.

In regards to causation, Dr. Hermele testified that he relied on a 2001 article from the Occupational Safety and Health Administration regarding diesel exhaust. The article did not refer to any other substances DiFabrizio claimed to be exposed to, nor to airline employment conditions.

Dr. Benjamin Safirstein examined DiFabrizio on December 2, 2010, on behalf of US Airways. Dr. Safirstein characterized his physical examination of DiFabrizio as "perfectly normal" and noted that DiFabrizio denied shortness of breath while resting or during exertion, coughing, or wheezing, or any history of recurrent infection. Dr. Safirstein described DiFabrizio's x-ray as completely normal with clear lung fields and found that DiFabrizio had a forced vital capacity reading of 72.83%, and after he was given Albuterol, his forced vital capacity reading went up to 76.2%, which was 3.5% off of 80%, a normal forced vital capacity reading.

Dr. Safirstein concluded that DiFabrizio did not suffer from pulmonary dysfunction or any respiratory disease, and he had no permanent disability. Dr. Safirstein is board certified in pulmonary and internal medicine, and the court accepted him as an expert in pulmonology.

Dr. Safirstein tested DiFabrizio by measuring spirometry, lung capacity, and diffusion rates. He noted that Dr. Hermele's testing only measured spirometry, which he asserted is only preliminary in nature, and cannot be used to diagnose restrictive pulmonary disease. Dr. Hermele's diagnosis of restrictive lung disease also failed to take into account lung volume, diffusion, and residual volume. Further, Dr. Safirstein stated that he used the Morris standards in analyzing the test results, while Dr. Hermele used, what he considered, the less reliable Knudson standards. Dr. Safirstein believed that what Dr. Hermele diagnosed as bronchovascular markings on DiFabrizio's x-ray, were actually poor film quality. Dr. Safirstein rejected Dr. Hermele's diagnosis of chronic bronchitis as implausible because DiFabrizio denied chronic coughing. Further, DiFabrizio had a normal alveolar volume and residual volume, which precludes a diagnosis of restrictive lung disease.

On appeal, US Airways raises the following points:

a. [THE] order and decision [OF THE JUDGE OF COMPENSATION] must be reversed on appeal because it was arbitrary and capricious due to her failure to make any credibility findings whatsoever in relation to the medical evidence presented by both parties.

 

b. [THE JUDGE'S] order and decision must be reversed on appeal as she failed to make any findings with regard to the requisite two-prong test under the established statutory law of N.J.S.A.34:15-31, which demonstrates that plaintiff must have a disease arising out of and in the course of his employment, which was due to a material degree to causes and conditions which are characteristic of or peculiar to a particular occupation.

 

1. plaintiff did not satisfy his burden of proving that he sustained a compensable occupational pulmonary disease or disability.

 

2. plaintiff did not satisfy his burden of proving that his alleged compensable occupational pulmonary disease is due in a material degree to causes and conditions that are specific to his employment.

 

c. [THE] order and decision [OF THE JUDGE OF COMPENSATION] Must be reversed on appeal because she relied therein on inadmissible, irrelevant, and hearsay evidence, specifically the material safety data sheets, despite no witness testifying to the contents of those documents or authenticating those documents.

 

II.

The scope of appellate review of workers' compensation cases 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)). We defer to the judge of compensation's factual findings and legal determinations, "unless they are 'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super.275, 282 (App. Div. 1994) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.474, 484 (1974)) certif. denied, 140 N.J.277 (1995). Such courts are considered experts with respect to weighing the testimony of competing medical experts and appraising the validity of compensation claims, Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998), but "[a] decision without proper factual findings and a reasoned explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process.'" Colon v. Coordinated Transp., Inc., 141 N.J.1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)). "Where our review of the record 'leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made,' we may 'appraise the record as if we were deciding the matter at inception and make our own findings and conclusions.'" Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (quoting Snyder RealtyInc. v. BMW of N. Amer. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J.165 (1989), certif. denied, 122 N.J.372 (1990)). N.J.S.A. 34:15-36 defines "[d]isability permanent in quality and partial in character" as:

a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.

 

To obtain benefits for such a disability under our workers' compensation statute, first, one must make "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984). In Perez, the Court explained that "[t]his determination can no[t] . . . rest upon [a claimant's] subjective complaints" and noted that "objective medical evidence is understood to mean evidence exceeding the subjective statement of the [claimant]." Ibid. (internal quotation marks omitted).

Here, the judge of compensation found that DiFabrizio "was a credible witness who presented his testimony in a truthful and forthright manner." Although the judge discussed the testimony and conclusions of both doctors, she did not make any credibility findings concerning either. Given the fact that the experts' conclusions are diametrically opposed, we have no way of determining which doctor she credited, and more importantly, why.

Dr. Hermele diagnosed DiFabrizio with "chronic bronchitis and probable restrictive pulmonary disease," while Dr. Safirstein concluded that DiFabrizio did not suffer from pulmonary dysfunction or any respiratory disease. Dr. Hermele testified that DiFabrizio's chest x-ray showed increased interstitial markings indicative of chronic bronchitis, while Dr. Safirstein's explained the markings on the x-ray were nothing more than poor film quality.

The judge also failed to address the polar opposite conclusions reached by the doctors as to the lung function testing. While Dr. Hermele performed lung function tests that measured only spirometry, Dr. Safirstein administered additional tests including diffusion analysis, which he termed "the most important test that anyone can have in lung function[.]" While Dr. Hermele concluded that DiFabrizio's lung function test demonstrated "probable restrictive pulmonary disease," Dr. Safirstein concluded DiFabrizio "had normal lung function, normal diffusion, normal volumes, and normal flow rates."

The judge's conclusion that DiFabrizio had a "pulmonary condition" based on his abnormal forced vital capacity reading and abnormal FEV1 reading, seems to indicate that she accepted Dr. Hermele's findings and rejected those of Dr. Safirstein, but she provides no explanation or support for this conclusion.

A workers' compensation judge should "carefully explain[] why [s]he considered certain medical conclusions more persuasive than others." See Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). Workers' compensation judges must furnish clear, complete, and articulate reasons grounded in the evidence. See In re Vey, 124 N.J. 534, 543-44 (1991). That was not done here. "When the absence of particular findings hinders or detracts from effective appellate review, the court may remand the matter to the agency for a clearer statement of findings and later reconsideration." Id. at 544.

The judge based her award on her finding that DiFabrizio had "met his burden of proof in establishing that he has an occupational disease as defined [] by N.J.S.A. 34:15-31." N.J.S.A. 34:15-31 defines "compensable occupational disease" 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." Section 31 was designed to compensate "diseases arising out of the workplace, and not the ordinary diseases of life[.]" Fiore v. Consol. Freightways, 140 N.J. 452, 470 (1995).

On remand, the judge of compensation must make detailed findings and determine on the present record whether DiFabrizio has proven "by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease." Id. at 473.

The order of the Division is reversed and the matter is remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.