DARRIN L. HAVENS v. VIKING YACHT COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5446-05T35446-05T3

DARRIN L. HAVENS,

Petitioner-Respondent,

v.

VIKING YACHT COMPANY,

Respondent-Appellant.

_________________________________

 

Argued: April 17, 2007 - Decided May 3, 2007

Before Judges Axelrad and R.B. Coleman.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Richard J. Williams, Jr., argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone and Mr. Williams, of counsel; Mr. Williams and Anthony J. Fredella, on the brief).

Howard Popper argued the cause for respondent (Sellitto Law Firm, attorney; Anthony M. Sellitto, Jr., on the brief).

PER CURIAM

The employer, Viking Yacht Company, appeals from an order for judgment of the workers' compensation court dated May 18, 2006, following trial, finding petitioner, Darrin Havens, suffered a compensable injury as a result of his exposure to chemical vapors from April 2 through July 10, 2001, and awarding partial permanent disability benefits and requiring payment of petitioner's medical bills. Petitioner's job duties included painting the engine rooms of boats one day every other week. The court found petitioner's compensable injury to be occupational asthma. We reverse.

I

On March 20, 2002, Havens filed a claim petition with the Division of Workers' Compensation alleging that, as a result of exposure to chemical vapors while performing his job duties at Viking, he developed "pulmonary disease and infection." Viking disputed the claim and the case proceeded to trial. Trial commenced in July 2005 over five days and concluded in May 2006. Havens testified and called as a medical expert Dr. Malcolm Hermele. Dr. Hermele was accepted as an expert in the area of Internal Medicine and Pulmonology, though not Board Certified in either field. Dr. Roy Levinson, who was accepted as an expert in Pulmonology and who was Board Certified in Internal Medicine, Pulmonary Disease and Critical Care, testified for Viking. Both parties also relied on the reports of Dr. Michael Scharf, petitioner's treating physician at Deborah Heart and Lung Center commencing in August 2002.

Havens testified he began working for Viking in April of 2001, when he was almost thirty-seven years old. His job responsibilities included painting the engine room of boats. The process would take two to three hours and would be done every two weeks. It involved sanding between the engines with an electric hand sander, with the sole ventilation from the engine room fans; washing the room; and then shutting the doors and sealing off the ventilation system and mixing and applying Awl-Grip and Imron paints. Even though Havens wore a particle respirator while sanding and painting, he testified he could still smell the vapors coming through the mask when painting.

Havens testified that prior to working at Viking, he did not have any breathing problems even though he had a history of tobacco use. He explained that during the three days following the weeks he painted the engine rooms, he had flu-like symptoms, such as coughing and a light fever, and during the weeks he was not painting, he was fine. While painting an engine room in early July, Havens claimed he "couldn't breathe" so he ceased working and sought medical attention. He was diagnosed with pneumonia, and was out of work until August. After his return, Havens again became sick while painting an engine room and was reassigned within his employment with Viking. Havens was terminated from Viking in November 2001.

Havens further testified that as a result of his exposure to certain chemicals at Viking, he suffered from respiratory problems, including wheezing, trouble sleeping at night, and frequent shortness of breath and coughing, sometimes producing phlegm. Petitioner also claimed he avoided physical activity and could not play with his son as much as he used to, resulting in substantial weight gain subsequent to his employment with Viking. He also noted a sensitivity to various odors and testified that, when necessary, he uses Albuterol, which is used to open up the air passages to the lungs, and a nebulizer.

Dr. Hermele testified he examined petitioner on June 28, 2004. He generated two reports, the first one on July 28, 2004, and the second one on December 29, 2005, which was a supplemental note based on the trial testimony of petitioner. The physician explained the reason for the supplemental report was because petitioner told him, as reflected in the initial report, that he was "a former smoker having quit in 2002 after smoking for 5 to l0 years"; however, the physician subsequently learned that petitioner was smoking at the time he examined him in 2004.

Dr. Hermele testified that after reviewing Havens' medical records, taking his history and learning of his medications, he was of the opinion that petitioner had an occupationally-related asthmatic bronchitis, and estimated a permanent disability of thirty-five percent. According to Dr. Hermele's July 28, 2004, report, admitted into evidence, this conclusion was based on: (1) petitioner's complaints; (2) multiple laboratory tests, including a July 15, 2001, chest x-ray "showing no acute pulmonary disease, but hyperaeration was noted"; (3) PFTs of September 20, 2001, and February 6, 2002, showing no abnormalities; (4) a Deborah Heart and Lung Center report of October 15, 2002, including results of a Methacholine Bronchial Provocative Challenge Test "showing no evidence of hyperactivity"; (5) the first report of Dr. Scharf dated August 15, 2002, diagnosing petitioner with occupational asthma coupled with tobacco abuse and gastroesophageal reflux disease ("GERD"); (6) a report of Dr. Paul Friedman suggesting that petitioner had underlying asthma, which was not produced at trial and is thus not contained within the appellate record; and (7) Dr. Lucian Sulica's November 7, 2003, report noting irritation of petitioner's upper airway passages and possible laryngeal spasm, probably resulting from inhalation and irritation relating to his job. Dr. Hermele's report further concluded that petitioner's asthma was caused by his exposure at work to "pulmonary noxious agents," which were not specifically identified.

Dr. Hermele admitted that all the tests he reviewed did not indicate any abnormalities, including the Methacholine Bronchial Provocative Challenge Test referenced by Dr. Scharf in his October 15, 2002, report. The physician attributed the normal reading on the Methacoline test to the likelihood that petitioner was medicated when the test was administered because he was taking Advair and Albuterol at the time of his examination in June 2004. Dr. Hermele conceded, however, that a patient's medications are normally noted on the test result and that there was no notation on petitioner's. The PFTs he performed on the petitioner on June 28, 2004, were also "essentially normal."

There was extensive cross-examination about petitioner's tobacco abuse. Dr. Hermele was unaware of petitioner's history of tobacco use when completing his initial report. His supplemental report references petitioner's trial testimony:

I am now in receipt of documents related to his tobacco abuse. A note in Mr. Havens' handwriting states that he has been a casual smoker starting at around the age of 34. He states that he smokes anywhere from 5 to l0 cigarettes daily. He stopped smoking after 5 years on advice from his doctor on New Years' day 2001/2002. He resumed smoking in early 2003 until mid-2003. He smoked for approximately 6 months before quitting again. Mr. Havens has been an on again off again smoker up to the current time.

The report concludes:

In regard to the smoking history and its contribution to this man's lung disease, I would state within a reasonable degree of medical probability that his tobacco abuse participated to some degree. I cannot define a degree of disability contributed to his [lung disease] by his tobacco abuse vs. his chemical exposures.

There was a discussion about the "different stories" Havens related as to his smoking history, as the history Deborah Heart and Lung Center had was that he smoked one pack of cigarettes a day for twenty years. Dr. Hermele explained that he could not distinguish between the disability from petitioner's tobacco abuse and the chemical exposure that caused his asthmatic bronchitis. He opined, however, the fact that petitioner, who had been smoking "for anywheres on and off for 6 years to 20 years" and who "didn't have any asthma" but developed the condition "in a short period of time with intense exposure," indicated it was related to the chemicals, particularly the isocyanites that are found in paints and solvents and are well-accepted causative factors in asthma. Dr. Hermele was unaware of the amount or frequency of the isocyanite chemical to which petitioner was exposed during the three to four month period that he painted the engine rooms.

Petitioner also offered into evidence the October 15, 2002, report of Dr. Scharf, which although referencing a Methacholine Bronchial Prevocational Challenge Test that revealed
"[n]o evidence for bronchial hyperactivity," diagnosed petitioner with: (1) occupational asthma; and (2) gastroesophageal reflux disease. Though listed as a "final diagnosis," the conclusion portion of Dr. Scharf's initial report demonstrates the tentative nature of this diagnosis and the need for further testing:

[I]n view of the history provided to me including nocturnal wheezing, dyspnea [shortness of breath] upon exposure to certain activities and the two physical examinations on my part which indicate wheezing, I suspect we are dealing with asthma, not revealed by the Methacholine bronchial provocation challenge test. This may be explained on the basis of such a simple thing as improperly diluted methacholine. Therefore, I will send him for an exercise induced bronchospasm evaluation, which I will suspect will continuously demonstrate the patient has asthma. He has been instructed to avoid [all inhaled prescriptions] until the study has been completed. . . .

Dr. Hermele's reports and testimony only referenced Dr. Scharf's October l5, 2002, report and petitioner made no reference to Dr. Scharf's subsequent testing and reports. Viking, however, offered Dr. Scharf's subsequent test results and reports as evidence. The November l9, 2002, report states that petitioner underwent an evaluation of exercise induced bronchospasm. As a result, Dr. Scharf modified his final diagnosis to: (1) Dyspnea; (2) Musculoskeletal back pain; and (3) Abnormal electrocardiogram with exercise. Dr. Scharf then performed a fiberoptic bronchoscopy, which utilizes a bronchoscope to view the airways and lungs, as a "differential diagnosis" "to exclude airway abnormalities which predispose to wheezing." In his November 22, 2002 report, Dr. Scharf's final diagnosis was: (1) upper airway obstruction due to massive enlargement of the epiglottis and (2) snoring. Dr. Scharf referred petitioner to an ear, nose and throat doctor for "at least partial resection of his epiglottis and possibly the uvula to relieve snoring and upper airway obstruction causing wheezing." Critical to this appeal, there is no mention in either report of occupational asthma.

Dr. Levinson, Viking's expert, testified that ninety percent of his practice involves pulmonary disease, and he sees about thirty patients a day. He examined petitioner on January 6, 2005, and prepared a report on January 21, 2005, which was admitted into evidence. Dr. Levinson found no objective evidence of pulmonary disease or impairment and thus no permanent disability based on the examinations and tests he conducted (directed pulmonary physical examination that showed clear lung fields and chest x-ray and PFTs that were normal) and his review of the medical records and tests previously performed on petitioner. Viking's expert opined that the Methacholine Challenge Test, which he referred to as the "gold standard for the diagnosis of asthma," and exercise provocation study, which were both negative, "absolutely" rule out the diagnosis of asthma. He explained that based on "medical evidence, medical literature [and] medical experimentations, we know that airways that do not react to Methacholine are not asthmatic airways." Dr. Levinson's explanation for Dr. Scharf's comment in his October l5, 2002, report of "I suspect we are dealing with asthma not revealed by the Methacholine provocation test" was that it was a "working diagnosis" and Dr. Scharf "went on to be extraordinarily compulsive in excluding the diagnosis of asthma" by conducting additional tests and then abandoning his diagnosis of asthma.

Regarding the cause of petitioner's respiratory problems, Dr. Levinson disagreed with Dr. Hermele's opinion that smoking does not cause asthma, testifying it brings on asthmatic-type symptomatology. According to Dr. Levinson, it is "well-documented in the medical literature" that "[c]hronic exposure to tobacco smoke is one of the significant airways sensitizers we have[;] [i]t's one of the most common causes of asthma." He also er also HeHHHattributed petitioner's respiratory difficulties to his obesity, as petitioner weighed nearly 300 pounds at the time of the examination.

In an oral decision on May 11, 2006, the judge of compensation entered an order for judgment in favor of petitioner, concluding he developed occupational asthma while employed at Viking. Petitioner was awarded seventeen and a half percent partial permanent disability benefits and Viking was ordered to pay medical bills and other expenses incurred by petitioner. The court explained the basis for its decision as follows:

And [Dr. Scharf] says [in his August l5, 2002 report]: "Based on the patient's history, I suspect occupational asthma." When a doctor uses the term "suspect," he doesn't use it in the same sense that a lawyer uses it. It has a far more definitive impact than if I used the word "suspect." To other people in the medical profession "suspect" means that I have a pretty good idea, I'm pretty well-convinced that this is the source of the problem. And he also states . . . . ["]I will schedule a methacholine challenge test."

. . . .

So what you see here is the conclusion of an examining physician or rather a treating physician; that is, the clinical evaluation, the history, the physical exam, plus the tests that he's done on the Petitioner leads him to the conclusion that asthma is at least part of this problem that he has.

The court also set forth its credibility assessment of petitioner:

I found Mr. Havens to be credible even though he -- you know, perhaps I should say largely credible. He was a little bit evasive about the smoking. However, looking at the testimony in his entirety, he did correct himself. After giving further testimony he states that he smoked for quite a long time. There is no question that may have either caused or exacerbated the problem, but he really didn't have problems with his lungs until he had this intensive exposure at the yacht basin and that's when he began to experience these symptoms. He didn't have any kind of symptoms that brought him to a doctor before that time. He works there and he does have these symptoms.

I was impressed by the way he held up very well on cross-examination. He impressed me as being accurate and honest. I'm satisfied that asthma is a significant part of his problem.

The court found Viking's expert, Dr. Levinson, to be "extremely sure of himself," which it considered to be a negative attribute, commenting that it was "more impressed with the medical witness that this is probably so, rather than this is absolutely so" and "he impressed me as somebody seeing things in terms of black and white rather than all the shades of gray and there is an awful lot of shades of gray in between black and white, particularly in the medical field." As a result, the court was "more persuaded by the conclusions of people like Doctor Scharf and Doctor Hermele than [it was] about Doctor Levinson." The court concluded:

I think there is a problem here. There was an employment from April to July of 2001. He developed acute symptoms during that time. He had to get medical treatment, he never had treatment before. Looking at all the facts in their totality, I'm satisfied that Mr. Havens has a disability which is permanent and partial in nature. He has asthma, occupational asthma, which continues to bother him.

. . . .

I'm satisfied that Mr. Havens had a reaction to the irritants to which he was exposed at Viking Yacht Company and I find that he has a permanent partial disability as a result of that. . . .

Viking appealed.

II

Viking asserts the following arguments on appeal:

POINT I

THE JUDGE OF COMPENSATION'S DECISION SHOULD BE REVERSED AS IT IS UNSUPPORTED BY AND INCONSISTENT WITH THE COMPETENT AND RELEVANT

MEDICAL EVIDENCE OFFERED AT TRIAL.

POINT II

THE JUDGE OF COMPENSATION'S RELIANCE ON DR. HERMELE'S TESTIMONY WAS IMPROPER AS DR. HERMELE'S OPINION WAS A NET OPINION.

POINT III

THE JUDGE OF COMPENSATION ERRED IN TAKING JUDICIAL NOTICE THAT THE WORD "SUSPECT" [IN DR. SCHARF'S REPORT] HAS A DIFFERENT MEANING WHEN USED BY A DOCTOR.

POINT IV

THE JUDGE OF COMPENSATION ERRED IN ORDERING VIKING YACHT TO PAY PETITIONER'S MEDICAL BILLS, AS WELL AS OTHER COSTS AND FEES, WHERE THERE WAS NO TESTIMONY AT TRIAL REGARDING THOSE FEES.

We are persuaded by the arguments made by Viking in Point I and reverse the judgment. Accordingly, we need not address Viking's other arguments.

In a workers' compensation case, an appellate court's review 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 their credibility." Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted)). The compensation judge's factual findings and legal determinations must be given deference unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist, supra, 175 N.J. at 262. The judge's ultimate determination must be based on articulated reasons sustained by proofs in the record. Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981).

If an appellate court finds that the decision is arbitrary, capricious or unreasonable, and "[w]here 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.), certif. denied, 122 N.J. 372 (1990) (citations and internal quotation marks omitted); see also In re Taylor, 158 N.J. 644, 657-58 (1999).

In order to make a claim of permanent partial disability, under New Jersey's Workmen's Compensation Act, the petitioner must prove he suffers from:

a permanent impairment caused by a compensable accident or compensable occupational disease, based on demonstrable objective medical evidence, which restricts the function of the body or members or organs . . . . [O]ccupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.

[N.J.S.A. 34:15-36 (emphasis added).]

The burden is on the petitioner to prove his case by a preponderance of the evidence. Rivers v. Am. Radiator Standard Sanitary Corp., 24 N.J. Misc. 223, 227 (1946).

A subjective complaint of pain or discomfort by the petitioner is not enough to satisfy the burden of proving the existence of a partial permanent disability. Colon v. Coordinated Transp., 141 N.J. 1, 9-10 (1995). A doctor may consider a petitioner's subjective complaints but "must also present either clinical or laboratory findings of observable, measurable, physical manifestations of injury to satisfy the demonstrable objective medical evidence standard." Id. at 10 (internal quotation marks omitted). Once it is established that the expert's opinion is admissible (and not a "net opinion"), the data and the facts relied upon by the expert must be disclosed to the factfinder to "evaluate the validity of the opinion and conclude what weight, if any, is to be given to that opinion." Bowen v. Bowen, 96 N.J. 36, 50 (1984) (quoting Glen Wall Assoc. v. Wall Twp., 6 N.J. Tax 24, 30 (Tax 1983)). "The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated." Johnson v. Salem Corp., 97 N.J. 78, 91 (1984).

Moreover, the compensation judge may not merely conclude the presence of "objective signs of substantial injury." Allen v. Ebon Servs. Int'l, 237 N.J. Super. 132, 135 (App. Div. 1989). The judge must explain what evidence of the disability existed and make specific findings supporting his or her conclusion. Ibid.

We cannot defer to the court's credibility assessment of petitioner as we do not find it to be supported by the record. We cannot imagine how the court could characterize petitioner as "a little bit evasive" about his smoking. Viking clearly established that petitioner misrepresented his smoking history. Petitioner told different stories to each of the doctors about when he began smoking and how many cigarettes he smoked. His testimony was also inconsistent in that regard. Moreover, petitioner represented through interrogatory answers that he had stopped smoking the end of 200l, and provided the same smoking history to his examining and treating physicians. Petitioner undisputedly lied to Dr. Hermele, his own expert, when he told him in June 2004, that he was a "former smoker." In addition, petitioner testified on direct examination that he quit smoking on New Years' Day of 2002. Petitioner only admitted he resumed smoking in the beginning of 2003 when he was confronted with the testimony of his co-worker that he continued to smoke even up to the time of trial and the DVD showing him smoking. How can this possibly be viewed as petitioner "correct[ing] himself" or being "accurate and honest" on cross-examination?

There must have been a reason that petitioner sought to minimize his smoking history to his doctors, as well as to the court, and we can only assume it was because he believed it would detract from his claim that his symptoms were caused by chemical exposure every other week during his brief employment with Viking. We believe the court erred in ignoring petitioner's smoking history and failing to consider the impact it may have had on his symptoms and complaints, particularly in view of the compelling testimony of Dr. Levinson in this regard and the lack of objective medical tests disclosing the existence of a pulmonary disability.

Although normally we would defer to the trier of fact's credibility assessments and determination as to the weight afforded to the respective experts, here the court did not make credibility assessments in the context of the credentials of the experts, the objective evidence and underlying facts on which they relied. Nor did the court evaluate the experts' testimony and medical evidence contained within the records or the testimony and make specific findings concerning the evidence that supported petitioner's disability. See Allen, supra, 237 N.J. Super. at 135.

Instead, the court gave less weight to the testimony of Viking's expert, Dr. Levinson, solely because he was too sure of himself. Dr. Levinson is a Board Certified pulmolologist and internist, who has the clinical experience of seeing thirty patients a day in a practice consisting almost exclusively of pulmonology disease. The judge improperly mistook Dr. Levinson's confidence as over-confidence, and therefore, as damaging to his credibility rather than supportive and demonstrative of his expertise in the practice area. Dr. Levinson thoroughly explained the significance of PFTs, methacholine provocation studies and bronchospasm tests to diagnose asthma. As he noted, all of these objective tests, as well as chest x-rays and physical examinations, were all normal and failed to disclose the existence of asthma or a pulmonary disability of any kind. Dr. Levinson also considered all of Dr. Scharf's reports, explaining the reasoning behind Dr. Scharf's initial diagnosis of occupational asthma and final diagnosis, after additional testing, which abandoned that diagnosis in favor of one of "upper airway obstruction due to massive enlargement of the epiglottis" and "snoring." Based on the objective test results, Dr. Scharf's final diagnosis, and his own experience, Dr. Levinson concluded that petitioner did not have occupational asthma. If Dr. Levinson's opinion seemed absolute, it is because the test results on which the opinion was based were equally conclusive. Viking's expert's testimony was clearly the one entitled to be given more weight.

The court's reliance on Dr. Hermele's opinion that petitioner suffered from a partial permanent disability of occupational asthma was misplaced. Dr. Hermele's report and testimony failed to identify any clinical or laboratory findings of observable, measurable, physical manifestations of occupational asthma. As objective medical evidence, petitioner cites to Dr. Hermele's findings on the chest x-ray, which indicated "increased bronchovascular markings; increased hilar vascular markings; increased interstitial markings; and thickened minor fissures and fibronodular densities in both lung fields." However, such statements are not helpful to the trier of fact because Dr. Hermele did not testify regarding the significance of the markings to the diagnosis of occupational asthma as a result of exposure to chemicals. In addition, all of the objective tests Dr. Hermele performed and reviewed were negative as to pulmonary disease or disability.

Nor do other physician's reports support Dr. Hermele's conclusion. Dr. Sulica's report merely concludes that petitioner's airways were irritated, not that petitioner was suffering from occupationally-related asthma. In fact, Dr. Sulica opined that petitioner suffered from severe "laryngopharyngeal reflux" and probable obstructive sleep apnea. Most damaging to petitioner's case, however, is Dr. Hermele's and the court's sole reliance on Dr. Scharf's earlier diagnosis of occupational asthma contained in his August and October 2002 reports and failure to reference Dr. Scharf's November l9 and 22, 2002, reports and changed diagnosis after the completion of all testing. We can only assume that Dr. Hermele was unaware of Dr. Scharf's additional testing and subsequent reports and that the court overlooked this crucial evidence in which the treating physician, the most impartial of all, abandoned the diagnosis of occupational asthma after reviewing the results of both the exercise induced bronchospasm and bronchoscopy procedures. Since Dr. Hermele's testimony was not based on objective medical evidence supporting his diagnosis, the court improperly relied on his opinion in holding that petitioner satisfied his burden of proving a partial, permanent disability under N.J.S.A. 34:15-36.

Dr. Hermele's conclusion that petitioner's respiratory problems were causally related to his use of Awl-Grip is also unsupported by factual evidence. Although Dr. Hermele references isocyanites as a primary cause of industrial asthma, the statement is a bare conclusion. Stigliano v. Connaught Labs. Inc., 140 N.J. 305, 317 (1995). He offered no proof that, in these particular circumstances, petitioner's exposure to such chemicals caused his alleged disability as Dr. Hermele was unaware of how much or how often petitioner was exposed to isocyanites. On the other hand, there is substantial credible evidence in the record indicating other potential causes of petitioner's respiratory problems. This includes petitioner's history of tobacco abuse, his obesity, pneumonia, an upper airway obstruction due to an enlarged epiglottis, and reflux disease. Specifically, Dr. Levinson testified that tobacco use and obesity were likely the result of petitioner's respiratory problems. Dr. Hermele acknowledged that petitioner's "tobacco abuse participated to some degree" to his lung disease. Furthermore, both Dr. Scharf and Dr. Sulica suggested that petitioner's symptoms may also be attributed to stomach acids repeatedly backing up into petitioner's esophagus, triggering breathing difficulties. Dr. Scharf also conducted a fiberoptic bronchoscopy test, which revealed a "massive enlargement of the epiglottis," drastically narrowing petitioner's airway and causing wheezing.

Petitioner failed to offer demonstrable objective medical evidence that he suffered from occupational asthma due to chemical exposure at Viking. As the court's decision was not supported by substantial credible evidence in the record, it must be reversed. See Taylor, supra, 158 N.J. at 657.

Reversed.

 

Petitioner was less than forthcoming about his smoking history as will be discussed infra.

Petitioner testified that while working at Viking, he weighed approximately 230-240 pounds, and gradually gained weight after he was terminated from Viking in November 2001. However, Dr. Maroldo's July 18, 2001, examination report notes that petitioner weighed 257 pounds. By September 20, 2001, which was prior to his termination from Viking, petitioner's weight had increased to 274 pounds.

Petitioner testified on direct examination that he started smoking when he was about "35, 34" and stopped smoking on New Years Eve/Day 2001/2002. After confronted with testimony of William Tizol that he had smoked with petitioner at his new job immediately preceding trial and a DVD surveillance tape, which was admitted into evidence, petitioner admitted he had resumed smoking in 2003.

A PFT is a "pulmonary function test" conducted to determine whether a patient has asthma. According to Dr. Levinson, a PFT requires the patient to inhale a deep breath and forcibly exhale until no more gas can be blown from the lungs. Several measurements are taken: (1) the speed in which the gas is blown from the lungs (FEF25-75); (2) the amount of gas held and exerted from the lungs (FEV1); (3) the amount of gas still contained within the lungs after the patient exhales; and (4) the ability of the lungs "to transfer gases back and forth across the membrane" (diffusion).

Dr. Hermele defined asthma as a "hyperactivity of the bronchial airways." Dr. Levinson also explained that asthma is "a disease that causes air flow limitation . . . . [where] gas cannot be exhaled as quickly . . . . [due to the] narrowing of the breathing tubes," resulting in it taking longer to exhale gas from the lungs.

A Methacholine test is conducted to detect whether an individual has asthma. The chemical methacholine is inhaled into the individual's airway beginning at a low dose to provoke the asthma and thereafter increased to a maximum level. An individual with asthma responds to methacholine at much lower doses than an individual without a pulmonary disability. All About Asthma, Glossary (2007), http://asthma.bsd.uchicago.edu/

AboutAsthma/AAGlossary.html.

According to Dr. Hermele's 2004 report, petitioner was a "former smoker having quit in 2002 after smoking for 5 to 10 years," [i.e. beginning between the ages of twenty-seven and thirty-two]. In his December 2005 report, Dr. Hermele noted that petitioner smoked five to ten cigarettes daily prior to quitting in 2002.

According to Dr. Scharf, petitioner smoked one pack a day for twenty years until he quit on New Years' Day of 2001/2002.

According to Dr. Levinson's January 2005 report, petitioner was a smoker from age twenty-five until after his employ at Viking Yacht. Dr. Levinson testified that petitioner told him he quit smoking after he had worked at Viking but did not indicate he resumed smoking.

Another treating physician, Dr. Sulica, reported in November 2003 that "Mr. Havens stopped smoking immediately after his diagnosis of pneumonia" in July 2001. Petitioner did not tell Dr. Sulica he had resumed smoking.

Petitioner testified he started smoking at age thirty-four or thirty-five and smoked a maximum of ten cigarettes a day, but later admitted his daily smoking habit varied to sometimes a pack a day. He quit smoking on New Years' Day of 2001/2002, resumed smoking in the beginning of 2003 for about six months, during which time he smoked about a quarter to a half a pack a day, and then quit in the end of 2003, but then resumed in April 2004. From then, he smoked until November 2004, and resumed in March 2005. He testified he had again quit in early October 2005 prior to trial.

According to Dr. Levinson, the epiglottis is a piece of cartilage that covers the trachea during swallowing to prevent food from entering the lungs. He testified that an enlargement of the epiglottis could be caused by acid building up in the swallowing tube and is common among those suffering from sleep apnea.

This percentage determination was a compromise between Dr. Hermele's initial thirty-five percent opinion and Dr. Levinson's zero percent opinion of disability.

(continued)

(continued)

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A-5446-05T3

May 3, 2007