FRANK ASCIONE v. U.S. AIRWAYS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK ASCIONE,

Petitioner-Respondent,

v.

U.S. AIRWAYS,

Respondent-Appellant.

-

Argued Telephonically February 13, 2014 Decided April 10, 2014

 

Before Judges Maven and Hoffman.

 

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2009-28757.

 

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

 

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

PER CURIAM

Respondent U.S. Airways appeals from the order of the Division of Workers' Compensation (Division), in favor of petitioner Frank Ascione on the merits of his occupational exposure claim. The Division awarded petitioner seven and one-half percent permanent partial total disability for his pulmonary injury. For the reasons that follow, we reverse.

I.

We discern the following facts and procedural history from the record on appeal. Petitioner has worked for U.S. Airways at Newark Liberty International Airport (Newark Airport) as a fleet service agent since 1981. In this capacity, his job responsibilities over the years have included: loading and unloading baggage on and off planes, working in the bag room, putting the baggage in carts, driving tugs (both diesel and gas), driving the equipment to push back planes from the ramp area, de-icing planes, and customer service.

Petitioner often worked in the "bag room" where one of his primary responsibilities was to transport baggage to and from the plane; the bag room is a large open room with a large garage door that is generally open except it is "closed a little during the winter." Additionally, at times he assisted in the de-icing of planes with the chemical, glycol; he estimated he had de-iced planes on approximately twenty occasions during his years of employment.

Petitioner testified much of the airline equipment he uses is old; the diesel tugs he frequently drives release smoke that enters the cab of the tug, leaving heavy soot on the vehicle floor and making it difficult to breathe. Petitioner stated that, at times, the smoke inside the tug accumulates to the point he has to stick his head out the window to breathe. Additionally, petitioner described the baggage conveyor belt system as old, often jamming, causing him and his co-workers to crawl into the system to remove baggage. When this occurs, dust, dirt, and asbestos would fall on him. Next, regarding the loading and unloading of the baggage onto the planes, petitioner testified when a plane's engine would "spool down," a black cloud of smoke often comes out of the engine while he waits to unload the plane.

At trial, petitioner testified he continues to work full-time for U.S. Airways, doing the "mail run," which requires him to bring the mail to and from the airport, driving a diesel tug. He admitted he is still able to perform all the physical duties of his job. Petitioner also said he continues to regularly work over-time, "probably like once a week or once every two weeks;" however, there have been occasions when he did not work overtime for health reasons, although he never told anyone at work he was declining overtime because of a pulmonary condition.1

Petitioner testified he suffers from a lack of energy, a persistent cough, and shortness of breath. He stated the shortness of breath and lack of energy prevents him from engaging in physical exercise, like playing flag football or basketball with his friends.

Petitioner also has a medical history of heart problems. In 2009, he underwent cardiac catheterization because of chest pain. Since then, he has been taking hypertension medication and has been under the care of a cardiologist; at one point, he was required to wear a heart monitor. Petitioner also stated he had used an Albuterol inhaler about six or seven years earlier.

Petitioner filed his worker's compensation claim petition in October 2009, alleging occupational injuries, described as "pulmonary lungs," from exposure to "deleterious substances" during his employment with U.S. Airways over the previous twenty-eight years. A five-day trial was held before a judge of compensation, starting on February 23, 2011 with petitioner's testimony and concluding on April 1, 2013 with the testimony of Al Antao, the U.S. Airways station manager at Newark Airport.

Malcolm Hermele, M.D. testified on behalf of petitioner on May 23, 2012 and was accepted as an expert in internal medicine.2 Dr. Hermele examined petitioner once for thirty minutes before issuing his report. He performed a physical examination, a chest x-ray, and a pulmonary function test. The chest examination did not reveal wheezing, rales or rhonchi; however, Dr. Hermele noticed the "chest wall movement was poor on maximum spiratory effort." He also found petitioner had decreased breath sounds which could be due to his "lung parenchyma" or due to his obesity. As a result, Dr. Hermele concluded petitioner's performance on the pulmonary test was deficient.

Dr. Hermele interpreted the chest x-ray as showing damaged alveoli, which can be attributed to exposure to fumes, dust, and pulmonary irritants; damaged alveoli can consequently cause shortness of breath and restrictions in performing physical activities. Importantly, Dr. Hermele conceded petitioner's heavy weight could cause fatigue, shortness of breath, and difficulty stooping or bending down, all symptoms of which petitioner complains. He further noted if petitioner were to lose weight, the severity of his symptoms could decrease and he might be able to take a lower dose of hypertension medication. Nevertheless, Dr. Hermele concluded petitioner suffers from "chronic bronchitis and probable restrictive pulmonary disease . . . [and] the chest condition is causally related to, initiated or exacerbated by the exposure to the above pulmonary noxious agents while employed by U.S. Airways Newark." Dr. Hermele determined petitioner had a permanent disability rating of thirty-five percent of total.

Benjamin Safirstein, M.D.3 testified on behalf of U.S. Airways on January 28, 2013, after examining petitioner on March 5, 2010 and August 23, 2012. Dr. Safirstein characterized his first physical examination of petitioner as "pretty normal" apart from a heart murmur and an enlarged heart. Dr. Safirstein further noted the results from the pulmonary function studies were "entirely normal[,] demonstrating no evidence of obstruction, restriction or impairment in diffusion."

Notably, Dr. Safirstein tested petitioner with a different test from that used by Dr. Hermele. Dr. Safirstein specifically measured spirometry, lung capacity, and diffusion rates whereas Dr. Hermele's test only measured spirometry. According to Dr. Safirstein, spirometry is preliminary in nature and only used for screening purposes; it cannot be used to diagnose pulmonary diseases. Dr. Safirstein testified he used Morris standards in analyzing the test results because they are most reliable and a superior standard; Dr. Hermele used Knudson standards, which Dr. Safirstein considers less reliable.

Dr. Safirstein also described the x-ray as completely normal with clear lung fields, although he did note petitioner has an enlarged heart. Thus, based on the test results, Dr. Safirstein concluded, in March 2010, petitioner's lung function, diffusion, lung volume, and flow rates were all normal.

Dr. Safirstein examined petitioner again on August 23, 2012 and testified that, according to petitioner's statements, he fulfilled the "historical definition" of chronic bronchitis, defined as a chronic cough for three months of each year for more than two years. Dr. Safirstein again performed a physical examination and did not find adventitious breath sounds. Dr. Safirstein also performed another pulmonary function testing and the results were essentially the same; there was a mild decline in his vital capacity although his lung volumes were the same. According to Dr. Safirstein, this change, however, could be attributed to petitioner's lack of effort during the test, his weight, or cardiac enlargement. Regardless, Dr. Safirstein testified the reduced vital capacity was not a significant finding considering his other pulmonary function testing was normal, as was his physical examination. As such, Dr. Safirstein concluded the results were essentially unchanged. Therefore, he concluded petitioner did not suffer from pulmonary dysfunction or any respiratory disease, and had no permanent disability.

Dr. Safirstein also testified he had an opportunity to review Dr. Hermele's report and, while he agreed petitioner has chronic bronchitis, he disagreed with the diagnosis of restrictive pulmonary disease. Dr. Safirstein explained that petitioner does not have obstructive lung disease because his lung function studies were normal. He further asserted no board certified pulmonologist would rely on the test upon which Dr. Hermele relied because it is not a true test of lung function. Although Dr. Safirstein admitted one can have a pulmonary disease and still have normal results from pulmonary function testing, he explained one must consider the patient's entire examination, in addition to the diagnostic studies and pulmonary function studies, to properly assess a worker's alleged condition.

Nevertheless, Dr. Safirstein consistently concluded that although petitioner's results in the pulmonary function testing may, to some, appear abnormal, the remainder of petitioner's pulmonary function testing was normal which is indicative he does not suffer from a pulmonary disability. Finally, he testified there are a number of conditions that could cause shortness of breath including:

heart disease . . . hypertension, enlarged cardiac silhouette, congestive failure, obesity, morbid obesity, asthma, emphysema, interstitial lung disease, and a host of other forms of obstructive lung disorders. . . . Mr. Ascione, besides being morbidly obese, has a substantial increase in his cardiac silhouette suggesting significant underlying cardiac disease, and I would be very surprised if some of his shortness of breath were not due to that.

 

On June 10, 2013, the judge of compensation issued a written decision in favor of petitioner but only made factual findings regarding his work environment; in the decision, the judge largely recited the expert testimony. The judge did acknowledge "[b]oth medical experts in this matter agreed that [p]etitioner suffers from chronic bronchitis, although they disagreed on their reasons for diagnosing [p]etitioner with chronic bronchitis and on its etiology." Nevertheless, she further found this "diagnosis to be consistent, logical and probable in the context of petitioner's workplace exposure and complaints." The judge found petitioner had "met his burden of proof by a preponderance of the objective medical evidence, supported with consistent subjective complaints, to support a finding of partial permanent disability . . . of 7 1/2 % partial total for the residuals of the chronic obstructive pulmonary disease of chronic bronchitis[.]"

II.

 

Generally, reviewing courts "give 'substantial deference' to administrative determinations." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999)). Specifically, the scope of appellate review of workers' compensation cases is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). In these cases, the petitioner bears the burden of demonstrating "by a preponderance of the evidence" that the employment "was a substantial contributing cause of his or her occupational disease. Such a petitioner is not required to 'prove that the nexus between the disease and the place of employment is certain.'" Id. at 263 (quoting Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11 (App. Div.), certif. denied, 162 N.J. 485 (1999)).

We defer to the judge of compensation's factual findings and legal determinations, "unless they are 'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484, (1974)), certif. denied, 140 N.J. 277 (1995). Judges of compensation are considered experts with respect to weighing the testimony of competing medical experts and appraising the validity of compensation claims. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). However, "[a] decision without proper factual findings and a reasoned explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process.'" Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)).

III.

U.S. Airways argues the June 10, 2013 order warrants reversal because the judge of compensation, in her decision, failed to make critical findings concerning the conflicting testimony of the medical expert in the case. We agree.

N.J.S.A. 34:15-36 defines "[d]isability permanent in quality and partial in character" as:

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

 

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

A workers' compensation judge should "carefully explain[] why he [or she] considered certain medical conclusions more persuasive than others." Smith v. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000) (affirming the judge of compensation's decision where the judge appropriately explained why certain medical conclusions were more persuasive than others and why more weight was given to one expert over the other). Workers' compensation judges must furnish clear, complete, and articulate reasons grounded in the evidence to explain the decision. See Van Holten Group v. Elizabethtown Water Co., 121 N.J. 48, 67 (1990) (explaining administrative agencies must "articulate the standards and principles that govern their discretionary decisions in as much detail as possible" (internal quotation marks omitted)). That was not done here. "When the absence of particular findings hinders or detracts from effective appellate review, the court may remand the matter to the agency for a clearer statement of findings and later reconsideration." In re Vey, 124 N.J. 534, 544 (1991).

This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions. See Oszmanski v. Bergen Point Brass Foundry, Inc., 95 N.J. Super. 92, 94 (App. Div. 1967), certif. denied, 51 N.J. 181 (1968). "A mere cataloging of evidence and an ultimate conclusion of liability without reasoned explanation from specific findings of underlying basic facts does not satisfy the requirements of the adjudicatory process." Id. at 95 (citing Delaware, L. & W.R. Co. v. City of Hoboken, 10 N.J. 418 (1952)).

Here, we cannot discern the specific conclusions of fact for petitioner's pulmonary disability "in order to be able to determine whether [it] 'could reasonably have been reached on sufficient credible evidence in the record,' with due regard for the compensation judge's ability to weigh credibility and for his [or her] expertise[.]" Id. at 94 (quoting Close, supra, 44 N.J. at 599). The judge did make specific findings of fact regarding petitioner's work history and the conditions of his employment, including exposure to pulmonary irritants. The judge found petitioner "entirely credible and consistent" in addition to assessing him as "forthcoming, cooperative, candid and, therefore reliable." Although the judge discussed both experts' testimony and conclusions, which are diametrically opposed, she failed to make credibility findings. While the award in favor of the petitioner indicates the judge chose to credit the testimony of Dr. Hermele over the testimony of Dr. Safirstein, such a choice should be stated clearly and not implied.

While Dr. Hermele performed lung function tests that measured only spirometry, Dr. Safirstein administered additional tests including diffusion analysis. Dr. Safirstein testified that Dr. Hermele's test "measures air flow, it does not measure lung volumes" and is "used purely as a screen[;]" if there is an abnormality, a doctor is obligated to do further testing. Dr. Hermele concluded that petitioner "had chronic bronchitis and probable restrictive pulmonary disease" which was exacerbated by the exposure to various pulmonary noxious agents while employed at U.S. Airways; in contrast, Dr. Safirstein concluded petitioner has normal lung function, with "no evidence of obstruction, restriction or impairment in diffusion."

As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele. Faced with disparate expert opinions, the judge, who had the opportunity to evaluate the conflicting testimony, was required to utilize her "expertise with respect to weighing the testimony of competing medical experts" in appraising the validity of petitioner's compensation claim. Ramos, supra, 154 N.J. at 598. As the judge failed to make such findings, we are constrained to remand for findings as to whether petitioner satisfied the requirements of N.J.S.A. 34:15-31, which defines "compensable occupational disease" as including "all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." Section 34:15-31 was designed to compensate "diseases arising out of the workplace, and not the 'ordinary diseases of life[.]'" Fiore v. Consol. Freightways, 140 N.J. 452, 470 (1995).

On remand, the judge shall make detailed findings, including specific findings as to expert witness credibility, and determine on the present record whether petitioner has proven "by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease." Id. at 473.

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

1 The station manager, who has known petitioner in his employment capacity for over twenty years, testified he knows when employees would call out of work. However, he was never aware petitioner was unable to work due to respiratory, pulmonary, or coughing problems.

2 Dr. Hermele is not board certified in pulmonology and did his internship, residency and specialty in rheumatology, not pulmonology. However, Dr. Hermele studied under a doctor who "discovered the association between asbestos exposure, cigarettes, and cancer in the lung" and is "generally known as being famous in the area of workplace exposure and workplace disease." The judge of compensation determined he was qualified to render opinions on internal and pulmonary medicine.

3 Dr. Safirstein is board certified in internal medicine and pulmonary medicine. His practice focuses 100% on all forms of lung disease and mainly treats patients with obstructive lung disease, including chronic bronchitis; he also teaches at St. Michael's Medical Center. Moreover, he has been published in pulmonary medicine.