NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6414-06T16414-06T1

DORIS SEXTON,

Petitioner-Appellant,

v.

COUNTY OF CUMBERLAND/CUMBERLAND

MANOR,

Respondent-Respondent.

________________________________________________________________

Argued September 29, 2008 - Decided

Before Judges Lisa, Sapp-Peterson and Alvarez.

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

Christine DiMuzio Sorochen argued the cause for appellant (Hoffman DiMuzio, attorneys; Kenneth A. DiMuzio, Sr., on the brief).

Robert G. Malestein argued the cause for respondent County of Cumberland/Cumberland Manor (Lipman, Antonelli, Batt, Dunlap, Wodlinger & Gilson, attorneys; Mr. Malestein, on the brief).

Cheryl B. Kline, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Anne Milgram, Attorney General, attorney; Ms. Kline, on the brief).

The opinion of the court was delivered by

LISA, P.J.A.D.

The sole issue in this workers' compensation case is whether Doris Sexton's alleged aggravation of her preexisting chronic obstructive pulmonary disease (COPD), caused by inhaling a particular perfume sprayed by a co-employee in her employer's workplace on three occasions on the same day, arose out of the employment. The judge of compensation reasoned that because the alleged reaction to the perfume was the result of a personal proclivity of Sexton, any aggravation of her preexisting condition did not arise out of the employment. We disagree and reverse.

At the time of the January 3, 2004 accident, Sexton was sixty-four years old and a part-time licensed practical nurse at Cumberland Manor, a nursing home operated by the County of Cumberland. She worked weekends from 7:00 a.m. to 3:00 p.m. She had previously worked there from the late 1970s until the early 1980s, and then resumed on a part-time basis in the late 1990s.

On Saturday, January 3, 2004, Sexton arrived at work at 6:45 a.m., relieved the nurse from the prior shift, and began her usual work routine, dispensing medications in A hall. Sometime after 10:00 a.m., she went to B hall, where she detected the smell of a perfume in the air. She continued her work and by late morning went to the day room to dispense medications and feed residents. A nurse's aide sprayed the same perfume in the air. Sexton experienced difficulty breathing. She hurriedly completed her assigned task and left the day room. She proceeded directly to the nurse's station and reported what happened to the supervising nurse. Sexton told her she could not get her breath and was experiencing a breathing problem. Because of Sexton's breathing difficulties, another nurse performed Sexton's afternoon rounds, beginning at about noon. Sexton spent the remainder of her shift seated, doing desk work. As she described it, "I did some paperwork, some charting, and I didn't get up and move around because I was having a problem."

Just before Sexton completed her shift at 3:00 p.m., the nurse's aide who had previously sprayed the perfume was seated at a nearby desk and again sprayed it. Upon smelling it, Sexton "got away from her . . . went over to count the narcotics with the nurse going out" and immediately clocked out, left the building, and began walking to her car. She was unable to reach her car because she was "breathless." She sat on a bench outside of the building for about twenty minutes. She then walked to her car and sat there "a good long while." She then made the twenty minute drive home, arriving at about 4:30 p.m. She went directly to bed.

The next morning, Sexton's breathing difficulties continued. Her daughter transported her to a local hospital. The hospital record stated that she was admitted due to complaints of shortness of breath resulting from exposure to perfume at work. She was discharged on January 16, 2004. Her discharge summary diagnosis was acute pulmonary disease exacerbation as a result of being exposed to odors at work. From the hospital, Sexton was transferred to a rehabilitation center until January 23, 2004, after which she was transferred to a different hospital until January 30, 2004.

Since then, Sexton has been oxygen-dependent on an almost constant basis and has never returned to work. Prior to January 3, 2004, she had an active lifestyle and worked regularly. The judge of compensation found that since then her "physical health and abilities have radically deteriorated," and her life activities have been greatly curtailed.

Before January 3, 2004, Sexton smoked an average of one pack of cigarettes per day for forty-three years. She has not smoked since then. She was diagnosed with COPD as early as 1989, and she used an inhaler as needed.

The judge of compensation heard medical testimony from a pulmonary expert for each side. Sexton's expert opined that Sexton's preexisting COPD was exacerbated by the perfume inhalation and two episodes of intubation during her second hospitalization, rendering her totally and permanently disabled. Respondent's expert opined that Sexton's perfume exposure "was not a relevant factor" in her current level of disability and that the intubations might have caused only a temporary worsening of her condition. He found Sexton's overall pulmonary disability was 75% permanent partial disability, none of which was attributable to the perfume exposure or the intubations.

Because the judge of compensation determined that any aggravation of Sexton's preexisting condition was not compensable, he did not make findings on the causation issue. Instead, he dismissed Sexton's petition against her employer and the Second Injury Fund. See N.J.S.A. 34:15-95.

In a thorough and thoughtful opinion, the judge of compensation found that the perfume exposures constituted accidents, see N.J.S.A. 34:15-7, not occupational exposures, see N.J.S.A. 34:15-30, -31. He found that the accidents occurred in the course of Sexton's employment. The remaining criterion for compensability, therefore, required a determination of whether the accidents arose out of the employment. See N.J.S.A. 34:15-7 (rendering compensable injuries to employees caused "by accident arising out of and in the course of employment").

Relying primarily on Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986), the judge of compensation concluded that no condition of employment or of the employer's premises played a role in Sexton's accident. He found "that the presence of a perfume sprayed by a co-employee on the employer's premises does not equate to such a condition." He further found "that the probability of the aggravation of [Sexton]'s preexisting pulmonary condition due to the perfume exposure at work was no greater than it would be under the normal circumstances of life." He noted, for example, that the medical records revealed that in 1995 Sexton had experienced a reaction to an exposure to perfume, although it did not result in her hospitalization.

The factual findings of the judge of compensation were essentially as we have set forth. They are well supported by the record, see Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973), and are not disputed by Sexton. It is the legal consequences flowing from those facts that form the basis of Sexton's appeal. We owe no particular deference to the judge of compensation's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also Verge v. County of Morris, 272 N.J. Super. 118, 123 (App. Div. 1994) (holding that if a judge of compensation mistakenly applies the law to the facts, an appellate court "must grant appropriate relief").

In Coleman, supra, 105 N.J. at 286-87, during an unpaid one-half hour lunch break, the employee ate her lunch, which she brought from home, in the employees' lunchroom. The employer did not serve or provide food, and employees were free to remain on or off the premises during their lunch break. Id. at 287. After eating her lunch, the employee struck a match to light a cigarette, but as she turned her head, the match caught her hair on fire causing her injuries. Ibid.

The dispositive issue was whether the accident, which occurred in the course of her employment, arose out of the employment. Id. at 286, 290. The judge of compensation "concluded that the accidental touching of a lighted match to the petitioner's hair by the petitioner's own hand was not 'reasonably incidental' to her employment." Id. at 287. "He concluded: 'Neither the tasks of her employment, nor the place where she was eating her lunch at the time, nor any act on the part of any of her co-employees caused her injury,' and therefore 'the accident did not arise out of' the employment." Ibid. We reversed, but the Supreme Court reversed our decision and reinstated the decision of the judge of compensation. Id. at 286-88.

The Court noted that, in analyzing the criteria for compensability in N.J.S.A. 34:15-7, it is useful to consider the two key terms separately, "with the 'arising out of' portion construed to refer to causal origin, and the 'course of employment' portion to the time, place, and circumstances of the accident in relation to the employment." Id. at 288 (quoting 1 A. Larson, Workmen's Compensation Law,