MARY HALLQUIST v. E.I. DUPONT DE NEMOURS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARY HALLQUIST o/b/o

GERALD HALLQUIST,

Appellant,

v.

E.I. DUPONT DE NEMOURS,

Respondent.

________________________

October 10, 2014

Submitted: October 7, 2014 Decided

Before Judges Koblitz and Haas.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Case Nos. 2009-18218 and 2010-26814.

Shebell & Shebell, LLC, attorneys for appellant (Danielle S. Chandonnet, on the brief).

Capehart & Scatchard, P.A., attorneys for respondent (Stephen T. Fannon and Ashley T. Mollenthiel, on the brief).

PER CURIAM

Petitioner Mary Hallquist appeals from the July 9, 2013 order of the Division of Workers' Compensation, which dismissed her dependency claim against her deceased spouse's former employer, respondent E.I. DuPont de Nemours.1 We affirm.

We discern the following facts from the evidence adduced at trial. Decedent worked as a laboratory technician for respondent from 1968 until he retired in 1998. Between 1977 and 1982, he was assigned to the quality control lab, where he performed duties he referred to as "wet chemistry" in that he worked with liquid chemicals, including benzene. This five-year period of employment formed the basis for decedent's occupational exposure claim.

During this period, decedent testified that respondent required its employees to attend mandatory safety and training meetings. This training was "chemical specific." Decedent testified he followed the company's safety requirements. At all times, decedent wore safety gloves and the uniform provided by respondent, which included "shirts, trousers, and socks and underwear[,]" lab coats, and shoes. When working with certain chemicals, respondent required decedent to wear additional protective clothing, such as an apron, or to use a protective device, like an air mask.

Decedent described the process he used to test chemicals, including benzene. A "runner" would bring an eight-ounce closed jar of the chemical to the laboratory and place it under a "hood." The hood contained fans that would suck any vapors up into it and out of the building. While the jar was under the hood, decedent would open the jar, and extract a test sample from it with a needle and syringe. Using the syringe, decedent would then inject the sample into the "closed" testing machine. The machine would then produce the test results. In addition to the hood fan, the room had ceiling fans that "sucked the air upward and vented it outside[.]" The sample jar remained under the hood until it was removed by the runner at the end of testing, and taken from the lab.

Although decedent testified he tested benzene, he did not state how often that occurred during the five years he worked in the quality control lab. He stated that he knew what benzene smelled like, but never quantified the number of times he might have smelled this chemical while working in the lab. Decedent recalled that he "was present" when chemical spills occurred in the lab, but he did not remember any specific chemical involved in a spill.

Decedent stated that between the ages of nineteen and twenty-one, he smoked one pack of cigarettes per day. Decedent passed away on June 7, 2010 at the age of seventy-six from complications of multiple myeloma, a form of cancer.

Petitioner presented a primary care physician, who the judge found was qualified to testify "as an expert in internal medicine, with an ability to give an opinion on occupational exposure cases." The expert did not treat patients with multiple myeloma, but instead referred them to specialists. The expert was also not a toxicologist.

Plaintiff's expert opined that decedent's multiple myeloma was caused by his "long[-]term exposure" to benzene during the period he worked in the quality control lab. The expert defined "long-term exposure" as exposure lasting for more than one year. At first, the expert stated that the exposure would have to occur on a daily basis during this period for it to have been a causative factor in decedent's illness. He later stated that the exposure needed to occur "[a]t least once or twice a week, three times a week, to smell it at least a few times a week."

On cross-examination, petitioner's expert conceded that he had not reviewed decedent's deposition testimony for over a year and he did not know whether decedent ever specified the number of times he worked with benzene or how many times he may have smelled it. The expert stated that exposure had to occur "[a]t least 100 to 150 times a year" to constitute the "long-term exposure" needed to establish causation. He could not recall decedent testifying to any specific number of incidents during which he smelled benzene while working in the quality control lab.

Petitioner's expert did not recall that decedent smoked cigarettes. The expert stated that benzene was "in tobacco exhaust." When informed that petitioner smoked one pack of cigarettes a day for a three-year period in the 1950s, the expert stated that once an individual is removed from benzene exposure for twenty-five to thirty years, the causal link between the chemical and multiple myeloma dissipates. Decedent was not diagnosed with multiple myeloma until 2008, more than thirty years after he stopped smoking.

Respondent presented the testimony of a toxicologist, who was found qualified as an expert in that field. Respondent's expert testified that, although benzene is a carcinogen, there is no conclusive research showing that benzene exposure causes multiple myeloma. Instead, it typically causes leukemia, which is "a different disease." The expert stated that, on a causal relationship scale of one to ten, with one being the weakest and ten being the strongest, benzene as a causal factor in multiple myeloma would be a one or a two, while for leukemia it would be a ten. Thus, the expert concluded that "the epidemiological evidence is inadequate to conclude a causal association between chemical exposure and multiple myeloma, particularly when combined with lack of exposure."

With regard to "lack of exposure," respondent's expert testified that she reviewed decedent's deposition and "did not see anywhere in the testimony where [decedent] had plausible exposure to benzene[.]" The expert stated decedent wore gloves and protective clothing. The samples were placed by another individual under a hood and decedent took "one drop, one c.c. in a syringe into a closed system while he's testing it." Decedent presented no testimony indicating the number of benzene samples he tested "or percent of his day or any kind of estimate to know how often he" worked with benzene. He never testified "that he had contact or worked with or used benzene 100 to 150 times a year." Under those circumstances, the expert opined that "[t]he evidence for specific causation in [decedent's] case is insufficient to conclude that any workplace chemical exposure caused [decedent's] cancer."

Respondent's expert also reviewed decedent's medical records. Decedent had annual medical exams during his time in the quality control lab. The expert stated that decedent's medical records from this period did not reveal "the type of biomarkers you would expect to see be altered" if he had been exposed to benzene during this period.

Respondent's expert commented upon petitioner's expert's testimony that exposure to benzene is not "'associated with causing multiple myeloma 25 years down the road.'" Thus, the expert opined that any exposure to benzene between 1977 and 1982 would not have caused decedent's multiple myeloma in 2008.

In a thorough oral opinion, Judge of Compensation Arthur Marchand found that respondent's expert was more persuasive and credible than petitioner's expert. The judge found that petitioner failed to demonstrate that decedent was exposed to benzene on a long-term basis as defined by petitioner's expert. The judge noted that decedent's testimony demonstrated that he followed all required safety precautions. When decedent tested chemicals, they were kept under a hood equipped with a fan to remove any vapors. Decedent "used a closed instrument, a syringe, injecting the test material into a closed machine . . . in a room that in addition to the fans in the hood, had ceiling fans throughout the rest of the room that sucked vapors out of the room."

The judge noted that decedent did not testify how many times he worked with benzene, whether he ever spilled this chemical, or the number of times he may have smelled it. Decedent never testified he was exposed to benzene the 100 to 150 times a year necessary, according to petitioner's expert, to become a causal factor for his multiple myeloma. Decedent's "blood tests[,] taken after his alleged exposure from 1977 to 1982, . . . [showed] no evidence of benzene exposure presenting itself." Under these circumstances, the judge concluded that decedent did not prove "sufficient exposure to benzene" to have caused his multiple myeloma.2 This appeal followed.

On appeal, petitioner contends she "set forth sufficient evidence of a work exposure which caused [decedent's] medical condition to a material degree." She also contends the judge erred in prohibiting her from testifying concerning decedent's job duties and by not ensuring that she received all of the discovery she requested. We disagree.

Our 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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.

[Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted).]

We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to 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 as to offend the interests of justice.'" Lindquist v. Jersey City Fire Dept., 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

While the judge of compensation has "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim[,]" Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998), the judge must "carefully explain[] why he considered certain medical conclusions more persuasive than others." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). We will "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions" only if the judge of compensation "went so wide of the mark that a mistake must have been made." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (internal quotations omitted), certif. denied, 122 N.J. 372 (1990).

"The petitioner has the burden to demonstrate by a preponderance of the evidence that his or her environmental exposure . . . was a substantial contributing cause of his or her occupational disease." Lindquist, supra, 175 N.J. at 263. "Such a petitioner is not required to 'prove that the nexus between the disease and place of employment is certain.'" Ibid. (quoting Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11 (App. Div.), certif. denied, 162 N.J. 485 (1999); see also Laffey v. Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996).

The New Jersey Workers' Compensation Act is "humane social legislation designed to place the cost of work-connected injury upon the employer who may readily provide for it as an operating expense." Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586 (1959). The Act must be liberally construed "in order that its beneficent purposes may be accomplished." Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974). This canon of liberal construction of the Act, however, "does not 'extend to the evaluation of credibility, or of the weight or sufficiency of evidence.'" Lindquist, supra, 175 N.J. at 258. Further, it is within the judge's discretion to accept the opinion of one party's expert and to reject the opinion of an opposing expert. Paul v. Baltimore Upholstering Co., 66 N.J. 111, 121 (1974).

Applying these standards, we discern no reason to disturb the judge's decision. We affirm substantially for the reasons Judge Marchand expressed in his well-reasoned and comprehensive written opinion. We add the following brief comments.

We agree with the judge that petitioner failed to establish by a preponderance of the evidence that decedent had been exposed to benzene to a sufficient degree to have caused his multiple myeloma. According to petitioner's own expert, an individual would have to be exposed to benzene "at least" 100 to 150 times over the course a year for the exposure to cause this disease. Although decedent worked with a number of chemicals during his time in the quality control lab, and knew what all the chemicals smelled like, including benzene, he never quantified the number of times he tested or smelled benzene. Decedent also did not testify that he ever spilled benzene. Decedent participated in annual medical exams and his test results never indicated any exposure to benzene. Thus, there is ample evidence in the record to support the judge's conclusion that petitioner failed to meet her burden of proving decedent was exposed to this chemical.

We also reject petitioner's argument that the judge erred in not permitting her to testify concerning decedent's job duties. Petitioner testified in order to establish that she qualified as decedent's dependent for purposes of filing a dependency claim. During her testimony, petitioner stated that she knew decedent "worked in the chemical department. That's the only thing I know." She was not sure what labs he worked in during his employment with respondent. Respondent objected to this testimony and the judge ruled that petitioner's testimony should be limited to whether she was dependent upon decedent for purposes of pursuing her claim.

We review a judge's evidentiary decisions under an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). At the time of respondent's objection, petitioner did not argue that she had any specific knowledge of decedent's job duties. In addition, decedent had already given his de bene esse deposition in which he discussed his duties. Any testimony petitioner would have been able to provide would have been second-hand, hearsay information obtained from decedent. Under these circumstances, we perceive no abuse of discretion in the judge's ruling.

Finally, petitioner argues respondent failed to answer certain interrogatories. However, N.J.A.C. 12:235-3.7(b) requires that discovery be completed within 180 days from the filing of the respondent's answer. Respondent filed its answer on July 31, 2009, but petitioner did not file her motion seeking to suppress respondent's defenses until February 23, 2011, well after the expiration of the discovery period. Moreover, in opposition to plaintiff's motion, respondent certified that it provided petitioner with all of the documentation in its possession concerning decedent, including his personnel file. We therefore conclude that this argument lacks merit.

Affirmed.

1 Prior to his death, decedent filed a claim petition alleging occupational exposure to chemicals during his employment. The judge granted his motion to give a de bene esse deposition and the transcript of decedent's testimony was introduced at the trial on petitioner's subsequent dependency claim.

2 The judge also found that decedent failed to demonstrate that, even if he had been exposed to benzene while working in the lab, his illness was caused by that exposure as opposed to other factors.