FRANK S. PROSCIA, II v. ADVANCED BIOTECH

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3017-17T2

FRANK S. PROSCIA, II,

           Petitioner-Respondent,

v.

ADVANCED BIOTECH,

           Respondent-Appellant.


                    Submitted January 24, 2019 – Decided April 26, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from the New Jersey Department of Labor
                    and Workforce Development, Division of Workers'
                    Compensation, Claim Petition No. 2015-029305.

                    The Chartwell Law Offices, LLP, attorneys for
                    appellant (Brittany Atkinson, on the brief).

                    Green, Jasieniecki & Riordan, LLC, attorneys for
                    respondent (John J. Jasieniecki, of counsel and on the
                    brief).

PER CURIAM
      Respondent Advanced Biotech (AB), petitioner Frank S. Proscia's former

employer, appeals a February 21, 2018 workers' compensation award of

temporary disability benefits. We now affirm.

      Petitioner worked at AB's site in Paterson, from the time he began his

employment in 2005, until 2012, when the facilities were relocated to a new

location. AB is a chemical company that manufactures and sells raw natural

flavor ingredients. According to the testimony of both experts, the list of over

1000 chemicals to which petitioner was exposed while working for AB includes

several suspected carcinogens.

      During the course of his employment, petitioner dealt with occasional

flooding in the Paterson building, requiring him to wear waders to walk through

the space in order to secure manufacturing materials, including drums filled with

chemicals. As a working manager, he examined and sampled many containers

as they arrived, and oversaw the "pouring" of those chemicals by others.

Petitioner's desk at the Paterson site was some fifteen feet away from the sealed-

off storage room where the drums of chemicals were stored.

      Petitioner also addressed multiple spills of hazardous chemicals over the

years, and at times, the chemicals would adhere to his skin and clothing. The

evening after a spill of acetic acid in February 2011, petitioner was hospitalized


                                                                          A-3017-17T2
                                        2
because of breathing difficulties. Petitioner worked at AB until October 2013.

He was diagnosed with colorectal cancer in or about March 2015.

      Petitioner's medical expert was qualified in the field of environmental and

occupational health medicine. Based on her review of petitioner's entire medical

history, and medical conditions, she testified that the harmful chemical exposure

at his place of work was a material factor contributing to his cancer, and that the

exposure had aggravated, exacerbated, and accelerated the disease.             She

testified:

             [petitioner] was exposed to multiple chemicals, a
             number of which are known to be carcinogenic.

                    One of the most important ones that's known to
             be carcinogenic is Acetaldehyde. That is known to be
             an IARC, International Agency for Research on Cancer
             designated Class 1 carcinogen. That is the highest level
             of rating that you can have for a carcinogen. It's as bad
             as something like asbestos in causing cancer.

                   ....

                   In addition to those known cancer-causing
             chemicals, he was also exposed to other hazardous
             toxic chemicals. For example, Diacetyl. That's known
             to be damaging to the lung, so he had a lot of chemical
             exposures that are known to be toxic to humans.

She also testified that some eleven to fifteen percent of colorectal cancers are

attributed to workplace chemical exposure, and as established by DNA testing,


                                                                           A-3017-17T2
                                        3
petitioner's body could not detoxify. We quote portions of her report in the

relevant section of the opinion.

      Further, petitioner's expert categorized his cancer as stage three or four,

unequivocally stated he could not return to work, and concluded he needed

further treatment and evaluation on an ongoing basis. Petitioner was only forty-

two, while ninety percent of colon cancers occur in persons fifty years of age or

older. He had no history of alcohol abuse, smoking, or a family history of

cancer. Although the expert could not say there was a direct causal relationship

between the cancer or petitioner's daily contact with hazardous chemicals at

work, her opinion to a medical certainty was that the exposure was likely a

material contributing factor.

      AB's medical expert, an oncology doctor, disagreed that Acetaldehyde

caused cancer, since he found no studies that showed a direct connection. He

conceded that it was a known contributor to cancer. Having reviewed the list of

chemicals to which petitioner was exposed over the years, AB's expert agreed

that at least some "would be considered carcinogenic."        He disagreed that

petitioner could not return to work, as his cancer was stable and only had a

likelihood of recurrence of fifteen percent.

      In his decision, rendered from the bench, the judge stated:


                                                                         A-3017-17T2
                                        4
      [I]f in the course of [petitioner's] work he is exposed to
      something that more probable than not causes him
      harm, he's entitled to have that harm covered, and
      there's a recognition implicit in that that we are not
      going to come forward with any certitude, but this man
      has colorectal cancer. There's no question about that.

              There is in his history presented no alternative
      cause. There is the certitude that he was exposed to a
      great deal of chemicals that could have harmful effects
      including causing cancer. That to me is sufficient for
      . . . a finding that it is more probable than not that his
      exposure on this job caused the cancer he presently
      experiences, and I so find.

           The respondent is responsible for treatment going
      forward.

AB on appeal raises the following points:

      POINT I

      The finding of causal relationship is not based on
      sufficient credible evidence.

      POINT II

      Regardless of the compensability of this claim, the
      [j]udge's finding of entitlement to temporary disability
      benefits was in error.

      POINT III

      [AB] was unfairly prejudiced as the [c]ourt did not
      afford due process.




                                                                   A-3017-17T2
                                  5
      We consider AB's third point to be so lacking in merit as to not warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

                                        I.

      Appellate review of a workers' compensation judge's decision is limited

to whether the conclusion "could reasonably have been reached on sufficient

credible evidence present in the whole record[.]" Hodgdon v. Project Packaging,

Inc.,  214 N.J. Super. 352, 360 (App. Div. 1986) (citing DeAngelo v. Alsan

Masons, Inc.,  122 N.J. Super. 88, 89-90 (App. Div. 1973). We give "due regard"

to the compensation court's specialized expertise, as well as its ability to judge

witness credibility. Close v. Kordulak Bros.,  44 N.J. 589, 599 (1965).

      Under the New Jersey Workers' Compensation Act (the Act), an employee

may recover from an injury "arising out of and in the course of his

employment[.]"     N.J.S.A. 34:15-1.     The "arising out of" portion refers to

causation, while "course of employment" refers to "the time, place, and

circumstances of the accident in relation to the employment." Valdez v. Tri-

State Furniture,  374 N.J. Super. 223, 232 (App. Div. 2005) (citing Coleman v.

Cycle Transformer Corp.,  105 N.J. 285, 288 (1986). Thus, compensability relies

on a causal connection between the employment and the injury. Id. at 235 (citing

Coleman,  105 N.J. at 290).      The controlling test requires the factfinder to


                                                                          A-3017-17T2
                                        6
determine "whether it is more probably true than not that the injury would have

occurred during the time and place of employment rather than elsewhere." Id.

at 236 (quoting Coleman,  105 N.J. at 290-91).

      Pursuant to  N.J.S.A. 34:15-31, an employee may also recover for 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." In order to

establish an occupational disease, an employee typically must prove both legal

and medical causation. Lindquist v. City of Jersey City Fire Dep't,  175 N.J. 244,

259 (2003). A worker must prove that "the exposure to a risk or danger in the

workplace was in fact a contributing cause of the injury." Ibid.

      Further, "[d]irect causation is not required; proof establishing that the

exposure caused the activation, acceleration or exacerbation of disabling

symptoms is sufficient." Ibid. If the employee proffers a medical expert to

prove causation, the scientific theory will be considered sufficiently reliable "if

it is based on a sound, adequately-founded scientific methodology involving

data and information of the type reasonably relied on by experts in the scientific

field." Id. at 262 (quoting Rubanick v. Witco Chem. Corp.,  125 N.J. 421, 449

(1991)). Finally, the employee must demonstrate by a preponderance of the


                                                                           A-3017-17T2
                                        7
evidence that workplace environmental exposure was "a substantial contributing

cause of . . . [the] occupational disease." Id. at 263.

      With regard to temporary disability benefits, an employee who suffers a

work-related injury may recover under the Act until "the employee is able to

resume work and continue permanently thereat or until he [or she] is as far

restored as the permanent character of the injuries will permit, whichever

happens first." Cunningham v. Atl. States Cast Iron Pipe Co.,  386 N.J. Super.
 423, 427-28 (App. Div. 2006) (alteration in original) (internal quotations

omitted) (quoting Monaco v. Albert Maund, Inc.,  17 N.J. Super. 425, 431 (App.

Div. 1952));  N.J.S.A. 34:15-38.

                                        II.

      We are satisfied that sufficient credible evidence supports the judge's

decision. Compensability requires a causal connection between employment

and injury. Valdez,  374 N.J. Super. at 235 (citing Coleman,  105 N.J. at 290);

see also  N.J.S.A. 34:15-1. The judge found, based on petitioner's expert's

testimony, that it was more probably true than not that the injury occurred as a

result of petitioner's daily contacts with hundreds of hazardous chemicals over

the course of years at his place of employment. Thus, the judge reasonably

concluded petitioner established by a preponderance of the evidence that his


                                                                        A-3017-17T2
                                         8
workplace environmental exposure was "a substantial contributing cause of . . .

[the] occupational disease." Lindquist,  175 N.J. at 263. Contrary to AB's

arguments, a petitioner need not prove direct causation. See id. at 259. "[P]roof

establishing that the exposure caused the activation, acceleration or exacerbation

of disabling symptoms is sufficient." Ibid.

      AB's expert acknowledged some of the chemicals on the lengthy list of

items to which petitioner was exposed over the years were known to be

hazardous and carcinogenic. The workers' compensation judge was in the best

position to evaluate the medical experts' testimony. See id. at 260-61. He could,

at his option, decide to give petitioner's expert testimony greater weight than the

expert who testified on behalf of AB.

                                        III.

      AB also challenges the award of temporary disability benefits. We are

satisfied that given petitioner's stage of cancer, the physical consequences of the

disease and the treatment, and the possibility that it has metastasized, fully

support the judge's conclusion. It too was also based on sufficient credible

evidence in the record.

      Petitioner faces significant physical struggles post-chemotherapy. As his

expert said in her report, he is simply unable to return to work at this time:


                                                                           A-3017-17T2
                                         9
                  [Petitioner's] colorectal cancer disease has
            unfortunately progressed with a worsening prognosis
            although further treatment options may be available to
            him through his specialist providers. As such, he has
            not yet achieved maximum medical improvement, and
            further ongoing medical treatment for colorectal cancer
            remains a medical necessity for [petitioner].

                   The severity of his colorectal cancer condition
            (Stage IV) preclude[s] [petitioner] from return[ing] to
            work at the present time. Given the relatively poor
            prognosis associated with his severe disease, the
            likelihood that he will recover from his condition to the
            extent that he will be able to return to work in any
            capacity in the foreseeable future is low. As such he is
            deemed as permanently and totally disabled from the
            time of his colorectal cancer diagnosis to the present
            time, and going forward.

      The judge could, at his option, reasonably rely on the medical report. See

Lindquist,  175 N.J. at 260-61. It was "based on a sound, adequately-founded

scientific methodology involving data and information of the type reasonably

relied on by experts in the scientific field." Id. at 262 (quoting Rubanick,  125 N.J. at 449). Under the Cunningham standard, petitioner has established by a

preponderance of the evidence that his current condition prevents him from

returning to work. See  386 N.J. Super. at 427-28. The judge's decision to grant

temporary benefits from the date the motion was filed was not error.

      Affirmed.



                                                                        A-3017-17T2
                                      10