JAMES P. RENNER v. AT&T -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2393-10T3

JAMES P. RENNER,

Petitioner-Respondent,

v.

AT&T,

Respondent-Appellant.

______________________________

Argued June 2, 2011 Decided June 27, 2011

Before Judges Cuff and Fasciale.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2007-29662.

Francis W. Worthington argued the cause for appellant (Worthington and Worthington, attorneys; Mr. Worthington, on the brief).

Patrick R. Caulfield argued the cause for respondent (Levinson Axelrod, P.A., attorneys; Mr. Caulfield, on the brief).

PER CURIAM

Respondent, AT&T appeals from a January 11, 2011 order awarding dependency benefits to petitioner James Renner following his wife Cathleen's death from a pulmonary embolism. The workers' compensation judge determined that petitioner's claim is compensable under the standard governing cardiovascular injury or death, N.J.S.A. 34:15-7.2 (Section 7.2). We agree and affirm.

The facts giving rise to AT&T's appeal are set forth in our earlier unreported opinion. Renner v. AT&T, No. A-3237-09 (App. Div. November 29, 2010).1 We summarize briefly those facts here.

Cathleen worked at AT&T for twenty-five years and was a salaried manager at the time of her death. When Cathleen worked from home, she sat at her computer for long hours to meet various deadlines imposed by AT&T. Although she had a "nine-to-five" job, at home she worked all hours of the day and night.

On Monday, September 24, 2007, Cathleen began working on a project at home in the evening. The parties disputed the length of time she worked that night, but computer records demonstrated that Cathleen sent an email to a coworker at 12:26 a.m. When her son awakened at 7:00 a.m., Cathleen was at her desk in her home office. At 9:00 a.m., Cathleen advised a coworker that she was not feeling well but would keep working to complete the project. She finished the project from home and sent an email to a coworker at 10:30 a.m. At 11:34 a.m., Cathleen called 9-1-1 because she could not breathe. She was pronounced dead when she arrived at the hospital. She died from a pulmonary embolism.

Dr. Leon H. Waller, petitioner's expert, opined that sitting for an extended period of time precipitates stasis of blood flow that leads to the formation of blood clots. He concluded within a reasonable degree of medical probability that Cathleen's work effort of sitting at her desk for long periods of time contributed to a material degree in causing her death. He acknowledged Cathleen had other risk factors, such as obesity and using birth control pills, but reasoned that her inactivity while working was to blame because the blood clot was unorganized and therefore, developed within the time period she was working.

Respondent's expert, Dr. William S. Kritzberg, opined that Cathleen's pulmonary embolism was caused by a combination of her various risk factors. Kritzberg admitted, however, that "it would certainly be less likely" for Cathleen to have a pulmonary embolism had she not been working that day.

The compensation judge concluded that the claim was compensable under Section 7.2. and found that Cathleen's work inactivity was greater than her non-work inactivity. He determined that Cathleen's inactivity at work caused her pulmonary embolism in a material way. He stated that Cathleen led an "active life," her job required her to "spend unusually long hours at her computer," and that the blood clot developed as a result of her work inactivity.

On appeal, AT&T argues that the findings of the workers' compensation judge were not supported by the evidence. AT&T contends there is no evidence that (1) Cathleen's work effort or strain was in excess of the wear and tear of her non-work activities, and (2) Cathleen's work activities caused the pulmonary embolism.

Our scope of review of the factual findings of a Judge of Compensation is limited. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). The standard of review governing appellate intervention is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record . . . consider[ing] . . . the proofs as a whole[.]" State v. Johnson, 42 N.J. 146, 162 (1964). If the judge's findings satisfy this standard the result should not be disturbed, even if the court might have reached a different conclusion had it been the trial judge. Ibid. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

The workers' compensation judge followed our instructions on remand and applied Section 7.2 which states that:

In any claim for compensation for injury or death from a cardiovascular or cerebral vascular causes, the claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.

Material degree means an appreciable degree or a degree substantially greater than de minimus.

Thus, the question is whether Cathleen's lack of movement at work was more severe than her lack of movement in her daily living,2 and whether the inactivity at work caused her pulmonary embolism in a material way.

Cathleen led a sedentary life in and out of work; however, credible evidence exists in the record to support the judge's finding that her work inactivity was greater than her non-work activity. Petitioner testified that Cathleen always kept busy outside of work. He stated:

Q: How much time per week, if you can estimate, was your wife involved with the driving the kids to their after school activities and waiting for them to complete their events?

A: Many hours a day when she wasn't working. That was all of her time. She would never sit with them and watch TV, you know. I would come home from work, be tired and sit on the couch. She was never sitting on the couch with me. She was always up and out, you know, running with the kids and taking them wherever they needed to be. Take her mother to dinner, my mother out to dinner and, you know transporting the kids. My kids always had friends across town. They never had friends in the neighborhood, so always running. Always running.

In addition, Cathleen told her husband over the phone that she "is going to work[] . . . through the night," and that a project deadline was approaching. Her supervisor, Robert DiSiato, testified that Cathleen had enough other work to keep her busy throughout the next day. There is sufficient credible evidence to support a logical inference that Cathleen worked throughout the night. Thus, Cathleen's work inactivity was "in excess of the wear and tear" of her "daily living."

Finally, substantial, credible evidence exists to support the conclusion of the workers' compensation judge that Cathleen's inactivity caused stasis of the blood resulting in the formation of a blood clot as opposed to one of Cathleen's other risk factors. Dr. Waller, concluded that the

sedentary nature of her work in the immediate day, . . . leading up to her fatal event was a major precipitant of her fatal embolus . . . because sitting for prolonged periods of time precipitates stasis of blood flow and . . . that blood flow . . . [led] to her developing clots . . . .

Dr. Waller's conclusion is supported by the autopsy report, which indicated the clot was unorganized. He concluded that the unorganized character of the clot indicates that it was fresh and had formed recently. Dr. Waller further deduced that the clot formed most likely five to seven hours before her death because Cathleen felt pain in her leg at approximately 7:00 a.m. Thus, the time she worked -- throughout the night -- coincided within the clot's formation period. Dr. Kritzberg, however, failed to address the autopsy report and admitted that "it would certainly be less likely" for Cathleen to have a pulmonary embolism had she not been working that day. Therefore, sufficient, credible evidence exists to support the finding that Cathleen's prolonged inactivity while working caused her pulmonary embolism by a material degree.

1 The compensation judge previously applied the occupational disease standard, N.J.S.A. 34:15-31 (Section 31), and awarded dependency benefits. We determined that the compensation judge erred by applying Section 31, reversed, and remanded to determine whether Renner qualified for benefits under Section 7.2.

2 AT&T's counsel conceded that, under certain facts, a Section 7.2 analysis involves a comparison between inactivity at work and in daily living.