EXECUTRIX OF THE ESTATE OF ROSEMARIE BELLINO,1 - v. COUNTY OF HUDSON HUDSON COUNTY SHERIFF'S OFFICE and SECOND INJURY FUND -Annotate this Case
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0275-11T4
EXECUTRIX OF THE ESTATE OF
COUNTY OF HUDSON, HUDSON
COUNTY SHERIFF'S OFFICE,
and SECOND INJURY FUND,
April 30, 2013
Argued October 11, 2012 - Decided
Before Judges Sapp-Peterson, Nugent and Haas.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 1998-036988 and 1998-034864.
D. Gayle Loftis argued the cause for appellant.
Cindy Nan Vogelman argued the cause for respondents County of Hudson and Hudson County Sheriff's Office (Chasan, Leyner & Lamparello, attorneys; John P. Beirne, of counsel; Ms. Vogelman, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Second Injury Fund (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Linda Schober, Deputy Attorney General, on the statement in lieu of brief).
Petitioner, Rosemarie Bellino,2 a retired sheriff's officer with Hudson County, filed five workers' compensation claims alleging two specific accidents and three occupational exposures. After completion of the trial, which occurred over eight non-consecutive days between September 16, 2009 and March 16, 2011, petitioner's counsel raised the possibility of bias on the part of the compensation judge and formally filed a motion for recusal. The judge denied the motion. In an oral decision subsequently issued, the judge found petitioner sustained her accident claim for her elbow injury and her occupational exposure claim for carpal tunnel syndrome, but dismissed the remaining claims. Additionally, the judge found petitioner was not totally and permanently disabled. We affirm.
At the time of trial, petitioner was a sixty-three year old female, weighing 232 pounds at the height of 5'6". Prior to her employment as a sheriff's officer, she was a beautician and a stay-at-home mother. She began working for the Hudson County Sheriff's Department in 1986. Over the course of her employment, she was assigned to both the criminal and civil courts, as well as to non-courtroom areas of the courthouse, such as central judicial processing, the security post at the entrance to the courthouse, and the elevator.
While working in the courtroom, petitioner was responsible for the security of approximately twenty prisoners each day. The prisoners were put in a detention area on the floor of the courtroom while awaiting entry into the courtroom. There was an average of twenty prisoners in each detention area and there was a detention area on the seventh, eighth, and ninth floors. In order to produce prisoners for court, petitioner walked through a tunnel area to the jail every morning to pick up her prisoners, cuffed them, brought them to the detention area, and uncuffed them in order to place them in the detention area. Only five prisoners for each courtroom were allowed in the detention area at one time. Therefore, if there were more than five prisoners for a given courtroom, the prisoners were retrieved in groups of five. These groups of prisoners would have to either be cuffed from behind or cuffed on a chain for security.
Petitioner cuffed or uncuffed prisoners, on average, ten times per day. For example, each time a lawyer wanted to speak to his or her client, petitioner went through the process of retrieving the prisoner from the detention area. This process involved her removing her service weapon, locking it into the gun locker, opening a steel door, cuffing and double-cuffing the prisoner from behind, then uncuffing the prisoner in some instances while meeting with defense counsel, and then re-cuffing and double-cuffing again once the meeting concluded.
The actual handcuffing procedure consisted of placing the handcuffs on the prisoner with room for two fingers between the handcuffs and the prisoner's wrist, then double-locking the handcuff so it would not get tighter against the prisoner's wrist. The entire process was repeated each time the prisoner was brought out of the holding area to speak to an attorney or judge.
According to petitioner, the distance from the holding cell to the courtroom was approximately 100 feet on concrete and granite floors. If she had to go down to Receiving to get a prisoner, she would have to walk around 200 feet, down the elevator and through the tunnel to the Receiving area in the basement of the jail and back.
Petitioner used stainless steel handcuffs she purchased on her own and had two pairs on her at all times, in case of a large prisoner or an arrest in the courtroom from an outstanding warrant. Petitioner demonstrated the cuffing procedures, with the judge noting that petitioner was able to manipulate the handcuffs and key, and did not appear to be in any discomfort while doing it. Petitioner testified she had difficulty demonstrating the cuffing procedure, it took longer, and she was having an issue with her wrists and her lower thumb area on the palm side because of her carpal tunnel.
In addition to these duties, each sheriff's officer had to work the elevator during lunch once each week. When operating the elevator, petitioner manually pulled a lever to open and close the doors. Petitioner worked the elevator for a five-month period in 1992 or 1993. She approximated that on average, she manually opened the elevator 200 times a day or more. Petitioner stated she also worked the security post at the doors on the ground floor, standing security as people entered the courthouse to go through the metal detectors.
Petitioner testified she wore a uniform to work daily. As part of the uniform, she wore a belt called a rig which held her gun, a .357 magnum with a four-inch barrel, weighing approximately four pounds. The rig also held twelve rounds of ammunition, two pairs of handcuffs, and a flashlight. With all of these items on the rig, petitioner believed the rig weighed approximately fourteen pounds.
As a sheriff's officer, petitioner had to qualify with her service weapon and a shotgun twice during each year. Qualifying required her to shoot 100 rounds of ammunition in the daytime at marks between twenty-five feet, fifteen feet, and ten feet. She also engaged in night shooting as part of the qualifying process and held a flashlight in her dominant hand and the gun in her weaker hand. She practiced shooting at the range once each month. She did not qualify during the eighteen-month period preceding her retirement. As a result, she could no longer be assigned to court.
Petitioner testified her normal working hours were from 8:30 a.m. to 4:30 p.m. but that roll call was at 8:00 a.m. and she often worked until 6:30 p.m. or 7:00 p.m. every night. She explained that if she was working in the central judicial processing court on a Monday she would be there until 10:00 p.m. or 11:00 p.m. Her payroll records corroborated her claims she worked beyond the normal eight- hour day and reflected overtime at 70.5 hours in 1999, 138.5 hours in 2000, 254 hours in 2001, 202.5 hours in 2002, 229 hours in 2003, 160 hours in 2004, 85.5 hours in 2005, and 14.5 hours in 2006.
Petitioner also testified the air quality throughout the courthouse was poor because the temperature was not properly regulated and the ceiling vents were black. She stated there was asbestos throughout the building that would fall from the ceilings. She described the tunnel between the courthouse and the jail as dank and dirty, with roaches, mice and puddles of water caused from flooding. She specifically referenced an incident in 1992 or 1993 where cable wires on the wall and ceiling burned for one month and she and other courthouse employees became ill.
Petitioner testified that on August 2, 1998, she injured her right elbow when it struck the lock in the detention area. She underwent physical therapy for a month and received temporary disability. In describing her current elbow complaints, she testified it becomes painful if she does too much with her hands and right arm. She stated she is unable to lift her arm above her head because it locks and she cannot do normal chores.
Petitioner testified she received steroid shots in her right dominant hand for her carpal tunnel condition. She stated she wears braces on her hands when she is asleep and around the house. She explained she did not have surgery because she was scared it would worsen her condition and then she would lose her job. She expressed difficulty grasping things with her right hand and experiences difficulty handling money, writing, painting, drawing, or performing chores.
Petitioner testified that in October, 2003, she received a letter directing her to see Dr. Isenberg, the county doctor. She complied, and during the examination on October 13, 2003, the doctor grabbed her foot. She later saw Dr. Mark Notari, who took an x-ray and an MRI of her foot. As a result of these tests, petitioner testified it was her understanding Dr. Isenberg had re-fractured the bone that was broken during her bunionectomy. However, Dr. Notari's records, which were admitted into evidence, do not contain a reference that Dr. Notari grabbed her foot or re-fractured a bone.
Petitioner testified she experiences constant pain in her left foot, despite the injection of cortisone shots into the foot. She is unable to walk "too far" and cannot stand "too long." She stated her left foot bothers her worse than her right foot because of the bunion operation, the re-fracture, a fallen arch and a heel spur, all in that foot, but she has had no treatment for her left foot since approximately 2005.
Petitioner testified she began having pains in her lower back, around her beltline, in the early 1990s. For her back pain, she received physical therapy, does stretching exercises, and takes five milligrams of Percocet every six hours, which "somewhat" relieves the pain in her foot, hand, and elbow. She also uses a cane to relieve pressure on her back.
Petitioner testified she was diagnosed as having varicose veins in 2002 and also suffers from painful deep vein thrombosis (DVT), the symptoms of which first surfaced in 2002 following her bunionectomy. She stated the DVT causes swelling in her legs but she wears compression stockings and takes Coumadin, a blood thinner. Since the bunionectomy, she has had blood clots in both the left and right leg.
Finally, plaintiff testified she suffers from asthma, a condition she has had since approximately age nineteen, as well as cancer. She acknowledged that she is a former smoker, having smoked from age nineteen until 2003.
Petitioner also presented: (1) two sheriff's officers, Officer Patricia Stafford and Officer Brian D. Lane; (2) Denise Hensle, the county payroll supervisor; (3) petitioner's orthopedic expert, Dr. Arthur Tiger; (4) petitioner's two internal medicine experts, Drs. Malcolm H. Hermele and William S. Kritzberg; and (5) her neurology expert, Dr. Arthur C. Rothman. Respondent presented Dr. Arthur Canario, its orthopedic expert.
Dr. Tiger testified he performed four examinations on petitioner and diagnosed her as suffering from carpal tunnel syndrome, orthopedic injuries in her left foot and right elbow, as well as multilevel degenerative disc disease, including bulging discs in her spine. He acknowledged he did not review any studies causally relating carpal tunnel syndrome to handcuffing procedures. He expressed the opinion that chemotherapy, which petitioner had undergone because of her cancer, and her age could have affected petitioner's condition. He also stated people develop bunions for a number of reasons.
Dr. Arthur Canario testified he diagnosed petitioner as suffering from epicondylitis, causally related to the work injury, resulting in two and one-half percent disability in her right arm. He found no causal connection between petitioner's heel spur and her duties as a sheriff's officer, opining that heel spurs do not arise solely from walking. Likewise, although he diagnosed carpal tunnel syndrome, he found no causal connection to petitioner's responsibilities as a sheriff's officer. He found that trauma or repeated pressure must be applied to the carpal tunnel to cause carpal tunnel syndrome, and that handcuffing a prisoner, opening a door, and shooting a gun were not activities that would cause this type of trauma. He stated further that carpal tunnel is common in petitioner's age group and is more common in women than men.
Turning to petitioner's bunion, Dr. Canario testified bunions can be hereditary, and certain types of shoes, like dress shoes, have been causally related to developing bunions. He opined it is impossible for a bunion to be caused by walking on a concrete floor.
As to petitioner's low back, Dr. Canario agreed petitioner had some degenerative disc disease but found no herniated discs or significant stenosis. He considered his findings consistent with a woman of petitioner's age and obesity, rather than causally related to employment as a sheriff's officer. He stated that he did not think it was possible for a doctor to fracture petitioner's foot by grabbing it and that based on his review of the x-rays, there was no evidence of an old stress fracture.
Dr. Hermele, petitioner's internal medicine expert, also examined the petitioner on four occasions. He classified petitioner as obese and noted that at the time of his examinations, petitioner was taking medication for asthma and chronic obstructive pulmonary disease (COPD). He diagnosed petitioner as having DVT, pulmonary emboli, and varicose veins. He attributed the varicose veins to prolonged standing as a sheriff's officer. He also opined that petitioner's cancer would have impacted her functioning at work and that it would have put her at a higher risk for DVT. In addition, he expressed the opinion that the dust, asbestos, cockroaches, mice, temperature differentials, and dampness all aggravated her pre-existing condition of asthma, as evidenced by her need to increase her medication.
Dr. Hermele further opined petitioner's DVTs were "time- related to the surgery" for her bunionectomy, in addition to standing, sitting, smoking, obesity, and inactivity, all of which may cause DVTs. He also testified smoking, over a prolonged period of time, would have adverse effects on asthma, varicosities, and peripheral vascular disease. In his view, the periods of time which petitioner had to stand were unusual and specific to her employment.
Dr. Rothman, petitioner's neurological expert testified the everyday movement of petitioner's hands would cause carpal tunnel. He did not find that petitioner was disabled as a result of her elbow injury. He diagnosed degenerative changes in her back, with no herniations, stating "[d]egenerative changes are caused by life, working, playing, doing things, living. Much to that extent, they're dependent on time, but can be accelerated by the kind of work one does." He expressed the opinion that he did not believe petitioner's degenerative changes to her back by themselves "would have caused any problem in her."
Dr. Kritzberg, the county's internal medicine expert, testified he conducted pulmonary function studies on the petitioner and the results were normal When questioned about the cause of varicose veins, he stated that genetics and high cholesterol are both components, and that obesity is a "very, very large risk factor[.]" Thus, petitioner had two of the major risk factors for varicosities: high cholesterol and obesity. He also testified that some people find that sitting for long periods of time cause varicosities.
Dr. Kritzberg noted that the risk factors for deep vein thrombosis were similar to risk factors for varicosities and that smoking is an extremely important risk factor to DVT. He also opined that it is "medically extremely unlikely, given her other risk factors, that . . . [DVT] is in any significant way due to her employment." He stated there were no studies linking varicosities and DVT to how long people stand. Rather, he testified being seated for long periods has been causally related to varicosities and DVT.
Addressing petitioner's asthmatic condition, Dr. Kritzberg testified petitioner's smoking would exacerbate the condition, but found during his examination that petitioner had normal pulmonary function. He expressed that given petitioner's history, he would have expected her asthma to have worsened when exposed to triggers and to have improved if the triggers had been removed, but that in petitioner's case, her condition remained stable over a long period of time.
Following conclusion of the testimonial stage of the trial, petitioner's counsel asked to speak to the judge, but the judge's clerk informed the attorney the judge did not want to engage in any ex parte communications in the matter. As a result, counsel left an envelope with two cases and a handwritten note. The note read:
Judge, I didn't want to include anything in writing but thought it might be a concern you may want to mull over. I am including two cases and have highlighted where they may begin to have relevance. Again, I hope you take this as an effort to bring a matter to your attention as a personal issue rather than official. Enjoy your day, Gayle.
After receipt of the note, the judge held a conference call with counsel for the parties. During that call, petitioner's counsel stated she thought the judge "pushed the limit, that [she] may have crossed a line in terms of becoming more of an advocate for the adverse parties than [she was] given [sic] the appearance of an impartial trier of the facts." The judge responded she found the letter inappropriate and directed petitioner's counsel to file a motion for recusal.
In the brief submitted in support of the motion, petitioner charged the judge with exceeding "permissible involvement in the trial proceedings, as reflected by an unreasonable degree of questioning of the [p]etitioner to the point of apparent assumption of the role of an and to the prejudice of the rights of the [p]etitioner." Petitioner claimed the concern for the judge's advocacy arose from a review of the trial transcript, specifically pointing to the judge's "expressed incredulity to the [p]etitioner's statements that . . . she had been regularly required by her job to work beyond the 4:30 p.m. normal workday end," the judge's reliance upon "her own personal prior trial experience in Hudson County," the judge preventing "[p]etitioner from placing a description on the record of the process delineating her manner of interaction with prisoners/participants and the physical movements that would have been involved," and the judge's allowance of inquiries into the income and the nature of petitioner's spouse's retirement.
The brief additionally contended:
[B]eginning at [P]age 109, [L]ine 20, the [c]ourt interrogated the witness through Page 122, Line 3. The [c]ourt's involvement in asking those questions consumed over twelve pages of transcript and far exceeded what [her] thirty-plus years of experience in the Workers' Compensation Courts have led [her] to believe were simply questions of clarification of issues or questions raised by counsel on either direct or cross[-] examination.
The judge denied the motion, summarizing the history of the proceedings, noting petitioner's failure to raise any concern of bias until twenty-one months after her testimony, and the likelihood the transcript of the proceedings had been reviewed by counsel much earlier, implying petitioner could have raised this issue much earlier.
Focusing upon the three exchanges petitioner raised as evidencing the judge's bias, the judge stated counsel's question about the arraignment process in Hudson County was apparently for the judge's clarification but that she was already aware of the process, having practiced in that court and therefore did not need clarification. Next, the judge disagreed that permitting questions related to petitioner's husband's retirement demonstrated bias. The judge then addressed the third criticism, which the judge believed represented the bulk of petitioner's bias argument, the judge's follow-up questions upon completion of direct and cross-examination.
The judge rejected her questioning of petitioner as a basis for disqualification, as well as counsel's additional contention that it appeared the judge was tilting towards a specific ruling, and that the judge should not continue hearing the case if the judge felt threatened. The judge subsequently issued her determination, finding plaintiff proved her work-related claim for her elbow injury and occupational exposure claim for carpel tunnel syndrome. The judge found petitioner failed to prove the remaining allegations and dismissed those claims. The present appeal followed.
On appeal, petitioner raises the following claims:
THE APPLICATION FOR RECUSAL SHOULD HAVE BEEN GRANTED AS THE COURT'S IMPARTIALITY COULD BE REASONABLY QUESTIONED.
THE TRIAL COURT ERRED [IN] DISMISSAL OF THE PULMONARY CLAIM BASED ON ITS DETERMINATION THAT IT WAS FILED OUTSIDE THE STATUTE OF LIMITATIONS AND THAT THE OPINIONS OF THE PULMONARY EXPERT WERE NET OPINIONS.
THE TRIAL COURT ERRED IN [THE] DETERMINATION THAT THE OPINIONS OF THE ORTHOPEDIC AND INTERNIST EXPERTS WERE NET OPINIONS AND TO DISMISS THE APPELLANT'S DVT AND ORTHOPEDIC CLAIMS.
We reject each of the points advanced. We are satisfied the judge did not abuse her discretion in denying the recusal motion and properly concluded the pulmonary claims were time- barred and otherwise not cognizable because there was no expert testimony causally relating the workplace conditions, about which petitioner complained, to petitioner's specific condition. Likewise, none of the experts petitioner presented established a causal connection, to a reasonable medical probability, to the claimed conditions. Each expert noted that petitioner's conditions could have equally been attributed to other non-work related factors, such as petitioner's age, obesity, pre-existing asthmatic condition, residuals of her bunionectomy procedure, cancer, and history of smoking.
The disposition of a recusal motion is entrusted to the "'sound discretion' of the judge whose recusal is sought." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-2 (2013) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). "When one's own capacity . . . to be fair . . . is challenged, it requires a conscious exercise of good will and mature judgment . . . [b]ut it is the capacity to exercise good will and mature judgment in difficult circumstances that qualifies one to act as a judge at all." Magill, supra, 238 N.J. Super. at 63-64. The denial of a motion seeking recusal is reviewed under an abuse of discretion standard. See Panitch v. Panitch, 339 N.J. Super. 63, 71 (App. Div. 2001).
Judges of compensation are governed by rules of conduct, N.J.A.C. 12:235-10.1 to 10.23, modeled after the Code of Judicial Conduct. With respect to disqualification, N.J.A.C.12:235-10.7 provides in pertinent part that:
(a) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including, but not limited to, instances where:
1. The judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding[.]
That standard requires judges to "refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial." State v. McCabe, 201 N.J. 34, 42-43 (N.J. 2010) (internal citations and quotations omitted) (discussing the Code of Judicial Conduct).
Where the ground for recusal is bias, the moving party must prepare the case "on paper or by calling witnesses." Magill, supra, 238 N.J. Super. at 64-65. Where transcripts are relevant, the moving party has the burden of providing sufficient transcripts, and when "the movant relies on trial incidents allegedly exemplifying the judge's tone of voice or other mannerisms not revealed by the printed transcript, then the recollection of people who were there and witnessed the incidents may have to be produced, in certifications or testimony." Id. at 65. A judge cannot be considered partial or biased merely because of rulings that are unfavorable toward the party seeking recusal. State v. Marshall, 148 N.J. 89, 186-87 (1997).
Petitioner relies heavily upon our unpublished decision in Verni v. Lanzaro, No. A-4058-07 (App. Div. August 12, 2010)(slip. op. at 19), to support her contention the court exhibited bias. Apart from the fact that unpublished opinions have no precedent, R. 1:36-3, in Verni, our primary concern focused upon the "considerable impatience" exhibited by the trial judge and the judge's expression of "considerable irritation and skepticism about the opinion offered." Id. at 19. The record does not evidence such impatience and irritability here. Nor are we persuaded by petitioner's reliance upon Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 545-46 (App. Div. 1960). There, the trial judge called witnesses, took over the examination of witnesses, and asked more questions than defense counsel. Ibid.
The record does not evidence the judge's expression of incredulity to petitioner verbally or otherwise. The transcript of the trial consumed 122 pages, of which direct examination consumed seventy-two pages. Cross-examination by the respondent spanned twenty-eight pages, while cross-examination by the Second Injury Fund consisted of ten pages. The judge's questioning consumed twelve pages. We are satisfied neither the length of the questioning nor nature of the judge's questioning rises to the level of the judge becoming an advocate, dominating questioning and calling witnesses.
Finally, during the conference call prior to the recusal motion, petitioner raised issues relating to the judge's demeanor, tone and facial expressions. However, she failed to produce affidavits or certifications to support her allegations of the judge's demonstrated bias. Magill, supra, 238 N.J. Super. at 65.
Turning to her pulmonary and orthopedic claim raised in Points II and III, as respondent notes, petitioner failed to present competent evidence that her occupational exposure to dirt, dust, changes in temperature, puddles of water, roaches or mice in the workplace aggravated her pre-existing asthma or that her prolonged standing was causally related to her orthopedic condition.
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.
The definition of compensable occupational disease is contained in N.J.S.A. 34:15-31, as: "those diseases established by a preponderance of the credible evidence to have arisen '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.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 256 (2003) (quoting N.J.S.A. 34:15-31a). Further, "'[m]aterial degree' means 'a degree [substantially] greater than de minimis.'" Ibid. (alterations in original) (quoting Dwyer v. Ford Motor Co., 36 N.J. 487, 493-94 (1962)); see also N.J.S.A. 34:15-7.2 (defining material degree as "an appreciable degree or a degree substantially greater than de minimis").
Thus, for petitioner to prevail in a workers' compensation claim, she must establish causation between the disease and the occupational conditions by a preponderance of the evidence. Laffey v. City of Jersey City, 289 N.J. Super., 292, 303 (App. Div.), cert. denied, 142 N.J. 500 (1996). "The test is probability rather than a certainty." Ibid. And, "[i]t is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury." Lindquist, supra, 175 N.J. at 259. But "'[t]o satisfy the requirement that the occupational disease arose out of his employment [petitioner] must show that his work exposed him to greater risks that those in his daily life.'" Laffey, supra, 289 N.J. Super. at 303 (alterations in original) (citing Fiore v. Consol. Freightways, 140 N.J. 452, 477 (1995)).
Further, mere characterization about the work environment is not enough, rather, petitioner must provide "quantitative evidence." Ibid. Thus,
[w]here an employee seeks to recover on an occupational disease because of exposure to the general environment to which the rest of the public is also exposed, the employee must present sufficient, credible, objective evidence that will raise the compensation court's determination from one of conjecture to one of cautious reasoned probability.
[Id. at 308.]
However, where a personal risk factor plays a significant role, a petitioner is not required to prove that work exposure exceeded the exposure caused by the personal risk factor, but only that the work exposure was a substantial contributing factor to the aggravation of her personal risk factor, which in this case was petitioner's asthmatic condition. See id. at 264.
Here, beyond petitioner's expert's acknowledgement of the existence of the workplace conditions about which petitioner complained, there was no additional evidence establishing that petitioner's pulmonary or orthopedic conditions were caused by or aggravated by the workplace environment. An expert's opinion which reaches conclusions without any factual basis to support the conclusion is a net opinion. Creanga v. Jardal, 185 N.J. 345, 359 (2005).
As for the pulmonary condition, the judge noted petitioner smoked over one-half pack of cigarettes a day for approximately twenty years. All of the expert witnesses agreed smoking can aggravate asthma. Thus, there was substantial credible evidence in the record to support the judge's rejection of petitioner's pulmonary claims on substantive grounds, in addition to the statute of limitations in connection with the claim arising out of the burning ceiling, which occurred in 1992 or 1993, more than fourteen years before petitioner filed her claim. N.J.S.A. 34:15-34 (providing the statute of limitations for occupational claims is two years from discovery of occupational diseases).
Turning to the claimed orthopedic injuries attributed to prolonged standing, petitioner presented no evidence that her degenerative disc disease and back pain were peculiar to her work environment, as distinguished from the aging process or her obesity. The record established petitioner gained an additional 100 pounds during the course of her employment. Likewise, while petitioner's experts opined that standing could cause petitioner orthopedic problems, none of the experts opined that petitioner's claimed prolonged standing or walking was a substantial contributing factor to her DVT, varicosities, heel spurs and bunions.
As a reviewing court, we exercise a limited role in reviewing the determination of a state agency and "may not substitute [our] own factfinding for that of the agency." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). Rather, we will uphold those findings, as long as they are "supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Ibid. We discern no basis to intervene with the judge's determinations here.
1 In accordance with our order dated August 16, 2012, Petitioner-Appellant has been changed from Rosemarie Bellino to Executrix of The Estate of Rosemarie Bellino, as Rosemarie Bellino passed away on April 17, 2012.
2 For ease of reference, Rosemarie Bellino is referred to as petitioner in the body of our opinion.