(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 7, 1994 -- Decided June 1, 1995
POLLOCK, J., writing for a unanimous Court.
In this appeal, the Court determines the standard of proof required to establish an occupational
heart-disease claim under the Workers' Compensation Act (the Act).
On August 8, 1986, John Fiore, a truck driver employed by Consolidated Freightways, suffered an
angina attack while delivering freight. At the time of his attack, Fiore was thirty-nine years old and was
obese. In addition, he had smoked two packs of cigarettes per day for twenty years and had a family history
of heart disease. Fiore claims that while loading and unloading at Consolidated terminals, he was exposed to
toxic fumes, including carbon monoxide.
Fiore filed two workers' compensation claims: the first petition alleged that his occupational
exposure to "deleterious substances" had resulted in neurological, neuropsychiatric, and pulmonary injuries;
the second petition alleged that he had suffered a heart attack at work that resulted in neurological,
neuropsychiatric, and heart injuries. The Workers' Compensation judge dismissed Fiore's heart-attack claim
for failure to sustain the required burden of proof and dismissed the pulmonary-disability claim because
Fiore's own expert had classified the disability as mild. Nonetheless, the judge did award thirty-three and
one-third percent of partial-total permanent disability, finding that the occupational exposure to carbon
monoxide had caused Fiore's angina and coronary-artery disease and, therefore, his claim fell under the
section 7.2 (or the heart section) of the Act. The judge awarded Fiore 200 weeks of compensation at the
rate of $133 per week for a total of $26,000.
On appeal, the Appellate Division remanded for dismissal of the petition, finding that Fiore's claim
fell under section 7.2 but that he had not met that section's burden of proof. Although the court
acknowledged that section 7.2 is not designed for an occupational heart disease claim, it found that to accord
with legislative intent, the standard for such a claim must be as stringent as that set forth in section 7.2. The
court concluded that when exposure is related to toxic fumes, the petitioner must prove that the exposure
was in excess of that normally encountered in every day living; that it arose out of the course of employment;
and that it was due in a material degree to causes peculiar to the particular employment.
Fiore petitioned the Supreme Court for certification, asserting that an occupational heart-disease
claim should be analyzed under section 31 of the Act pertaining to occupational diseases, not section 7.2.
The Court granted the petition.
HELD: An employee claiming an occupational heart disease must show that the disease is due in a material
degree to causes or conditions that characterize the employee's occupation and that substantially
contribute to the development of the disease.
1. Dual causation is any occupational-disease causation problem in which a personal element combines with an employment element to produce a disease or disability. A difficult question to answer is whether the legal cause of the disease results from exposure to substances at work or to personal-risk factors, such as smoking or family history of the disease. Because no specific provision of the Act addresses the specific standard to
apply in dual causation cases, the Court looks to the Act as a whole to determine legislative intent. (pp. 4-12)
2. Because an occupational heart-disease claim could come under section 7.2 or section 31, both sections
should be construed in light of each other. Sections 31 and 7.2 are limited to work-related injuries.
Although section 7.2 is limited to heart attacks caused by excessive work effort or strain, and section 31 to
occupational disease, both sections require that causation occur in the workplace. Fiore's claim, which
relates to occupational exposure to carbon monoxide arising out, and in the course of, his employment,
focuses on his working conditions. Thus, section 31 more readily fits Fiore's claim. (pp. 12-19)
3. The Legislature did not address specifically the issue of a dual-causation occupational-disease that gives
rise to a cardiovascular disability. Because the statute is silent, the legislative intent must be discerned from
the terms of the Act and its structure, history and purpose. The Legislature enacted section 7.2 based on its
understanding that heart attacks are usually caused by natural or non-occupational causes; under that section,
employment must contribute something substantial to offset the causal contribution of the personal risk
factors. The Legislature could not have intended that a more relaxed standard apply under section 31 to
coronary disease resulting from occupational exposure than applies under section 7.2 to cardiovascular injury
caused by the work effort. (pp. 19-22)
4. To best effectuate legislative intent, the Court holds that a petitioner claiming an occupational heart
disease must show causes or conditions characteristic to the occupation or place of employment that
substantially contributed in a material way to the disease. To satisfy that standard, the petitioner must meet
three requirements: 1) that the disease is due in a material degree to causes arising out of the workplace that
are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment; 2)
prove, by suitable medical evidence, that the employment exposure caused or contributed to the disease by
demonstrating that the work exposure exceeds the exposure caused by the petitioner's personal-risk factors;
and 3) that the employment exposure substantially contributes to the development of coronary-artery disease
when the exposure is so significant that, without exposure, the disease would not have developed to the
extent that it caused the disability. (pp. 22-27)
5. A petitioner must provide sufficient credible evidence to support a claim for compensation. On remand,
the parties should provide more reliable evidence than the record now reflects. (pp.27-30)
6. The workers' compensation judge did not address the issue of apportionment and the record does not
provide a suitable basis to analyze the issue. To the extent that the issue is relevant on remand, it is noted
that the burden of proof is on the employer. (pp. 30-32)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Division
of Workers' Compensation.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI and STEIN join
in JUSTICE POLLOCK'S opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 1994
JOHN FIORE,
Petitioner-Appellant,
v.
CONSOLIDATED FREIGHTWAYS,
Respondent-Respondent.
Argued November 7, 1994 -- Decided June 1, 1995
On certification to Superior Court, Appellate
Division, whose opinion is reported at
270 N.J. Super. 520 (1994).
Michael J. Dillon argued the cause for
appellant (Krumholz, Horn, Schechtman,
Hirsch, attorneys).
Joseph M. Soriano argued the cause for
respondent (Mattson, Madden & Polito,
attorneys).
George W. Conk argued the cause for amici
curiae New Jersey State Industrial Union
Council, AFL-CIO, District 15, International
Association of Machinists & Aerospace Workers
(Ball, Livingston & Tykulsker and Tulipan &
Conk, attorneys; Jon L. Gelman, of counsel;
Mr. Conk and Craig H. Livingston, on the
brief).
The opinion of the Court was delivered by
POLLOCK, J.
We granted certification,
137 N.J. 165 (1994), to determine
the standard of proof required to establish an occupational
heart-disease claim under N.J.S.A. 34:15-1 to -128, the Workers'
Compensation Act (the Act). We conclude generally that an
employee claiming an occupational heart disease must show that
the disease is due in a material degree to causes or conditions
that characterize the employee's occupation and that
substantially contribute to the development of the disease. That
conclusion leads to a remand to the Division of Workers'
Compensation (Division) to determine whether the work of
petitioner, John Fiore, substantially contributed to his angina
attack and coronary-artery disease. Complicating that
determination are Fiore's personal-risk factors, including the
facts that he had smoked two packs of cigarettes a day for twenty
years, was fifty-sixty pounds overweight, and had a family
history of heart disease. Thus, the case presents a question of
dual causation concerning an occupational disease.
On August 8, 1986, Fiore suffered an angina attack while delivering freight. He filed two workers' compensation claims. The first petition alleged that Fiore's occupational exposure to "deleterious substances" had resulted in neurological, neuropsychiatric, and pulmonary injuries. The second alleged that he had suffered a heart attack at work that had resulted in
neurological, neuropsychiatric, and heart injuries. The Workers'
Compensation judge dismissed both claims. He dismissed the
heart-attack claim for "failure to sustain burden of proof . . .
as to any specific incident," and the pulmonary-disability claim
because Fiore's own expert had classified the disability as
"mild."
Finding that the occupational exposure to carbon monoxide
had caused Fiore's angina and coronary-artery disease, however,
the judge awarded Fiore thirty-three and one-third percent of
partial-total permanent disability. Pursuant to the requirements
of N.J.S.A. 34:15-7.2 (subsequently described as "section 7.2" or
the "heart section" of the Act), the judge concluded that Fiore
had
proven by a fair preponderance of the
credible evidence that the angina incident of
August 8th, 1986 was produced by the work
effort or strain involving a substantial
condition, event or happening in excess of
the wear and tear of the petitioner's daily
living and in reasonable, medical probability
caused in a material degree, the angina and
coronary artery disease resulting therefrom.
The judge thereby awarded Fiore 200 weeks of compensation at the
rate of $133 per week for a total of $26,000.
The Appellate Division reversed and remanded for dismissal
of the petition.
270 N.J. Super. 520 (1994). Although the
Appellate Division agreed with the compensation judge's
determination that Fiore's claim fell under section 7.2, the
court held that Fiore had not met that section's burden of proof.
The court acknowledged that section 7.2 is not designed for an
occupational heart-disease claim, but concluded that to "be true
to the Legislature's intent," the standard for such a claim "must
be at least as stringent as those set forth in section 7.2
. . . ." Id. at 542. The Appellate Division posited the
following test:
Where the exposure is related to toxic fumes,
the test called for would translate to
requiring proof that the exposure was in
excess of that ordinarily encountered in
every day living; that it arose out of and in
the course of employment, and that it was due
in material degree to causes peculiar to the
particular employment.
Fiore petitioned for certification asserting that an occupational heart-disease claim should be analyzed under section 31, not section 7.2. Although we agree with petitioner that section 31, which pertains to occupational diseases, provides a more suitable framework for analyzing occupational heart-disease claims, a fair reading of the Act leads to the conclusion, as the
Appellate Division recognized, that the analysis should proceed
in light of the more stringent requirements of section 7.2. In
reaching that conclusion, we acknowledge that we have gleaned the
legislative intent, as did the Appellate Division, by reading
sections 7.2 and 31 together. Thus, whether the analysis
proceeds under section 31, as we deem appropriate, or under
section 7.2, as the Appellate Division decided, the result
remains that the compensability of occupational heart diseases
depends on satisfying the requirements of both sections. Our
conclusion leads to a reversal of the Appellate's Division's
judgment and a remand to the Division.
At the time of his heart attack, Fiore was thirty-nine years old and obese. Before the attack, he had smoked two packs of cigarettes a day for twenty years. His father, moreover, had died of a heart attack at age fifty-nine, thereby indicating a family history of heart disease.
Fiore began working at Consolidated in June 1967. For the
first three-and-one-half years of his employment, he worked as a
freight mover, a position that required him to move freight from
truck to truck at Consolidated's terminals in Newark and
Paterson.
Since January 1969, Consolidated has employed Fiore as a
truck driver. His duties entail picking up and delivering
freight. The drivers frequently leave the trucks running while
they load and unload them.
Fiore described the conditions at the Paterson facility as
"terrible," with "all kinds of dust and fumes and everything over
there." Trucks would be left "running from maybe 5 o'clock or 6
o'clock in the morning until the drivers came in about 8
o'clock." No cross-ventilation dissipated the fumes.
Consolidated did not contradict Fiore's description of the
working conditions.
Before the angina incident, Fiore spent three hours out of a
twelve-hour working day driving his truck. In the past, the air
quality in the trucks was "pretty bad," particularly in the
winter when the windows were closed. The air quality in his
current cab, as he described it, is "O.K."
On August 8, 1986, when Fiore experienced his angina attack, he had been working for about two to three hours. He had unloaded about two hundred parcels, each weighing between forty to one-hundred pounds. While working, Fiore felt chest pains and discomfort, which caused him to rest a "few times." He left work at 6:00 p.m. On reaching home, Fiore informed his wife of his
discomfort. He then went to West Caldwell Quick Med, which
administered an EKG and immediately admitted him to St. Barnabas
Hospital. He remained in the hospital for eight days. During
his hospitalization, a catherization was performed. Thereafter,
he remained at home for five months.
Fiore testified that his health has deteriorated since the
angina attack. He is now easily winded, can walk only one block
before becoming short of breath, and can climb stairs only "a
little at a time." Before the attack, he had played racquetball
three times a week; now, he does not play. He does not perform
housework, such as mowing the lawn, taking out the garbage, or
painting the house because it is "too strenuous." Fiore sees a
doctor every three months, and daily takes aspirin, as well as
Lopressor (a beta blocker) and Isordil (a vasodilator).
Fiore returned to work in January 1987 and has continued his
employment as a truck driver. He has since been elected shop
steward, a position that involves one to two hours a day of paper
work. In February 1988, Fiore suffered a "spasms" attack and was
admitted to the hospital for three days.
Fiore claims that his coronary-artery disease results from exposure to carbon monoxide caused by diesel-exhaust fumes. His expert, Dr. Henry Velez, attributed Fiore's disease both to the
workplace and other risk factors. Dr. Velez explained that
prolonged exposure to carbon monoxide can cause plaque crystals
that narrow the coronary arteries. That narrowing can result in
angina, chest pain, and a heart attack. Dr. Velez acknowledged,
however, that cigarette smoke also exposes the smoker to carbon
monoxide and that Fiore's smoking was "certainly contributory to
his overall disability." Although Dr. Velez concluded that
"truck drivers and anyone exposed to vehicular exhaust is exposed
to increased levels of carbon monoxide in contrast to persons who
don't," he conceded that carbon-monoxide exposure from smoking
two packs of cigarettes a day is "as significant as any exposure
that [Fiore] has as a truck driver." Further, Dr. Velez
concluded that Fiore's "exposures to carbon monoxide through his
work environment were materially related" to his coronary-artery
disease and that it was impossible to determine what contributed
more, the workplace or the smoking. Dr. Velez discounted the
absence of carbon-monoxide tests in the workplace. He testified
that because workers might "take up" carbon monoxide in various
amounts, measuring the carbon-monoxide level in an individual's
blood provided more relevant evidence than that provided by
measuring carbon monoxide in the workplace. Dr. Velez then
admitted, however, that he did not know the levels of carbon
monoxide in petitioner's blood.
On cross-examination, Dr. Velez conceded that simple blood
tests could determine the carbon-monoxide levels and admitted
that he had not conducted any such tests. Instead, he relied on
Fiore's occupation as a known-risk factor.
Respondent's expert, Dr. Sanford M. Lewis, testified that in
his opinion Fiore's cardiac disease was not work-related, but was
due to general-risk factors. He found it "extremely improbable"
that exposure to carbon monoxide at work "related to the
development or progression of the underlying coronary artery
disease." In support of his testimony, Dr. Lewis referred to an
article, Fire Fighting and Coronary Heart Disease, Circulation,
vol. 65, no. 5 (May 1982). The article demonstrates that
firefighters, although exposed to carbon monoxide in a great
degree, do not have "an excess risk of coronary artery disease."
He also cited an editorial, Smoking and Coronary Artery Disease,
Chest, vol. 94, no. 3 (Sept. 1988), that discussed the connection
between cigarette smoking and heart disease without identifying
carbon monoxide as the harmful agent in smoking.
In rebuttal, Dr. Velez introduced two articles, Effect of Carbon Monoxide on Cardiovascular Disease, Preventive Magazine, vol. 8 (1979), and Mortality in Police and Fire Fighters in New Jersey, Am. J. Ind. Med., vol. 9 (1986). He did not know of any articles discussing the effect of the exposure of truck drivers
to carbon monoxide, but opined that truck drivers are exposed to
increased levels of such exposure.
Like Dr. Velez, Dr. Lewis had not conducted a blood test to
determine the level of carbon monoxide in Fiore's blood. The
record reflects, however, that a catherization on August 13,
1986, revealed, among other things, moderate obstruction in the
left ventricular function and two blockages in the left anterior
descending coronary artery.
To summarize, the experts disagreed on the relative roles of
Fiore's occupational-exposure and personal-risk factors as causes
of his coronary condition. The resolution of their disagreement
raises the question of medical causation, a question that
involves the determination of the cause in fact of the disease.
See Larson, supra, § 38.83(a) at 7-277.
Professor Larson describes dual causation as "any occupational-disease causation problem in which a personal element, such as smoking, combines with an employment element, such as inhalation of asbestos or textile fibres, noxious fumes, acrid smoke, or irritating dust, to produce lung cancer, emphysema, bronchitis and the like." 1B Arthur Larson, Workmen's Compensation Law § 41.64(a) at 7-465 (1987). The inherent dilemma in a dual-causation case is to determine whether the legal cause of the disease results from exposure to substances at work or to personal-risk factors. Compounding that problem is the difficulty of discerning the extent to which the dual exposures have contributed to the disease. Our task is not to create a standard of our own making, but to derive from the Act one that is consistent with the intent of the Legislature.
The initial problem is to ascertain the standard to apply in
a dual-causation case involving an occupational disease that
allegedly has caused coronary-artery disease and an angina
attack. No specific provision of the Act explicitly resolves the
problem. Mindful that the Act is remedial legislation to be
liberally construed, Torres v. Trenton Times Newspaper,
64 N.J. 458, 461 (1974), we search beyond the individual sections of the
Act to discover the legislative intent.
We conclude that the more appropriate section to address the
question of causation is not, as the Workers' Compensation judge
and the Appellate Division decided, 7.2 - the heart section, but
N.J.S.A. 34:15-31 (subsequently described as "the occupational
disease section" or "section 31"). We begin with the terms of
the two sections.
Section 7.2 provides:
In any claim for compensation for injury
or death from 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 minimis.
By comparison, section 31 states in relevant part:
a. For the purpose of this article, the
phrase "compensable occupational disease"
shall include 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.
Both "heart" and dual-causation occupational-disease claims
present difficult problems of causation. Pre-existing diseases
can contribute substantially to either a heart attack or an
occupational disease. On the assumption that employers take
their workers as they find them, employers are "generally held
fully responsible even though the work-connected event would not
have caused any damage or at least very little damage except for
the presence of the pre-existing disease . . . ." Administrative
Recommendation by Herbert Kolavsky, Director, Div. of Workmen's
Compensation, "Heart Problem," 20 N.J. Workmen's Compensation Law
Study Committee: Transcript of Meetings at 7 (1968).
Accordingly, early heart cases in New Jersey reflect the
presumption that "injury or death from heart disease is the
result of natural physiological causes . . . ." Seiken v. Todd
Dry Dock, Inc.,
2 N.J. 469, 475 (1949); see also Ciuba v.
Irvington Varnish & Insulator Co.,
27 N.J 127, 138 (1958)
(stating that "it is to be presumed that injury or death from
heart disease is the result of natural physiological causes, and
the onus is upon the claimant to prove by a preponderance of the
probabilities that the employment was a contributing cause of the
injury or death").
Dual-causation occupational claims also are problematic. Legislatures are wary of compensating workers for diseases that might as "readily be contracted in every day life or in other
occupations." 1B Larson, supra, § 41.33 at 7-373. In a sense,
the resolution of the causation question reflects a court's
perception of the legislative balance of the interests of
employers, employees, and the public in allocating the costs of
work-related injuries.
Neither section 7.2 nor section 31 neatly applies to an
occupational heart-disease claim. Arguably, such a claim could
fit under either section. To ascertain which section governs and
the meaning of that section, we construe the sections in light of
each other. A statute should be read as a whole and not in
separate sections. Norman T. Singer, Sutherland Statutory
Construction § 46.05 (5th ed. 1992). Our task is to harmonize
the individual sections and read the statute in the way that is
most consistent with the overall legislative intent. State v.
Sutton,
132 N.J. 471, 479 (1993). In this sense, the meaning of
a statute is greater than the meaning of the sum of its
individual parts.
The Legislature enacted section 7.2 to overcome the assumption that employers take their employees as they find them. The section imposes a stringent level of proof by explicitly requiring an employee to show that the work effort was "in excess of the rigors of the claimant's daily living and that the cause of the injury or death was job-related in a material degree
. . . ." Senate Labor, Industry and Professions Committee, Joint
Statement to Senate Committee Substitute for Senate No. 802 &
Assembly Committee Substitute for Assembly No. 840, at 2 (Nov.
13, 1979).
The Legislature adopted Section 7.2 to counter Dwyer v. Ford
Motor Co.,
36 N.J. 487 (1962), which stated: "Benefits are not
lost because the amount of the work stress was such that it might
or could be duplicated in routine activity about the home or in
customary movements or effort while there." Id. at 492. Dwyer
eliminated the presumption that a heart attack is the result of
natural causes by holding that a claimant must show only that the
"ordinary work effort or strain in reasonable probability
contributed in some material degree to the precipitation,
aggravation or acceleration of the existing heart disease and the
death therefrom." Id. at 493. In Dwyer, this Court expansively
defined "material degree" to mean "a degree greater than de
minimis; it means that there was some employment exertion capable
medically of helping the attack -- of furthering its progress."
Id. at 493-94.
Section 7.2 modified Dwyer in two ways. First, the section requires proof that the work effort was "qualitatively more intense than the strain of the physical activity to which the worker was accustomed in his leisure time." Hellwig v. J.F. Rast
& Co.,
110 N.J. 37, 48 (1988). The section focuses "attention on
the intensity and duration of the precipitating work effort or
strain in evaluating its capacity to cause cardiac dysfunction."
Id. at 50. Second, section 7.2 redefines material degree to mean
"an appreciable degree or a degree substantially greater than de
minimis." As we concluded in Hellwig, "[w]e view the
legislature's modification of the Dwyer criteria as an effort to
require more reliable proof of the connection between work effort
and cardiac dysfunction." Id. at 54.
The Legislature enacted section 7.2 to prevent recovery from
cardiac incidents that as a matter of circumstance happen to
manifest themselves in the workplace. Thus, section 7.2
reinstates the presumption that coronary-artery disease and heart
attacks are the result of natural causes. Requiring a comparison
between the work effort and daily-living effort relieves
employers of liability for heart attacks that were as likely to
have occurred outside the workplace.
By its terms, section 7.2 pertains to cardiovascular claims
attributable to work effort or strain. To this extent, we agree
with the Appellate Division, which observed:
Here, petitioner is attempting to prove that his underlying coronary artery disease was itself caused by exposure to carbon monoxide at work. Section 7.2 is not
designed for practical application to such a
claim. Indeed, the language of N.J.S.A.
34:15-7.2 is hardly capable of being applied
to occupational exposure to fumes or toxins
which bring about cardiovascular disease.
The work effort in such circumstances is
irrelevant . . . . The fact that the present
petitioner's work effort as a truck driver
was "probably" more strenuous than his
activities outside of work has no practical
relationship to his claim that exposure to
carbon monoxide fumes gave him coronary
artery disease. Nor was there any relevance
to his testimony that he took care of his
lawn, painted his house, played with his son,
and played racquetball. There was no
assertion that these activities, despite the
effort involved, exposed him to fumes or
otherwise caused his underlying heart
disease.
Stated generally, the overall purpose of the 1979 amendments to the Act, which include sections 7.2 and 31, was to "make available additional dollars for benefits to seriously-disabled workers while eliminating, clarifying, or tightening awards of compensation based upon minor permanent/partial disabilities not related to the employment." Senate Labor, Industry and Professions Committee, supra, at 1.
The 1979 amendments modified section 31 in three ways. First, the Legislature deleted the pre-existing definition of occupational disease that included diseases "due to the exposure
of any employee to a cause thereof arising out of and in the
course of employment." Ch. 29, § 2, N.J.S.A. 34:15-31 (1949),
amended by N.J.S.A. 34:15-31 (1979) (emphasis added). The
purpose of the deletion was to ensure that employers would be
liable solely for those diseases "characteristic of and peculiar
to a particular employment . . . ." Senate Labor, Industry and
Professions Committee, supra, at 2.
As one writer explains,
the practical effect of the revision is best
presented by an example. If an employee
contracted pneumonia as a result of working
in a freezer as a packer, the condition would
be a compensable occupational disease because
it would be due to a cause which is peculiar
to the employment. If the same employee
contracted pneumonia as a result of
incidental exposure to a fellow employee with
pneumonia, however, this might not be
compensable because the condition may not be
due to a condition characteristic of or
peculiar to the employment.
[Fred Kumpf, Occupational Disease Claims
Under the Workers' Compensation Reforms,
12
Seton Hall L. Rev. 470, 473 (1982).]
Second, the Legislature added subsection b, which restricts compensability by providing: "Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable." N.J.S.A. 34:15-31b.
Subsection b further restricts compensability by "excluding from
compensability degenerative changes due to the natural aging
process . . . ." Senate Labor, Industry and Professions
Committee, supra, at 2.
Third, the Legislature redefined a "compensable occupational
disease" both to restrict and broaden coverage. The new
definition restricted coverage by requiring that the disease be
"due in a material degree" to "causes or conditions
. . . peculiar to the place of employment." In effect, the
"material degree" standard imposes on a claimant a burden to
"show a greater nexus between the malady and the employment."
Kumpf, supra,
12 Seton Hall L. Rev. at 473.
The amendment broadens coverage by adding the phrase "peculiar to the place of employment." This addition "[e]xpand[s] the definition of 'compensable occupational disease' to include diseases due in a material degree to conditions characteristic of the place of employment." Statement, Senate Amendments to Senate Committee Substitute for Senate No. 802, at 2 (adopted Dec. 3, 1979). The expanded definition includes claims that result not only from a particular trade, but also from a particular place of employment. For example, a teacher who develops asbestosis from working in a classroom with a flaking asbestos ceiling would be covered under section 31. See
Steven L. Lefelt, Workers' Compensation in New Jersey: A
Critique of S-802,
104 N.J.L.J. at 425 (Nov. 15, 1979).
By compensating diseases arising out of the workplace, and
not the "ordinary diseases of life," section 31 comports with the
rationale underlying the compensation of occupational diseases.
Hence, the Legislature amended section 31 to eliminate a
statutory provision that an employee was entitled to compensation
for a disease due to "exposure from a cause arising out of and in
the course of employment" or for deterioration due to the
"natural aging process". Ch. 29, § 2, N.J.S.A. 34:15-31 (1949),
amended by N.J.S.A. 34:15-31 (1979) (emphasis added). As
Professor Larson explains, occupational-disease claims are an
"inherent hazard of continued exposure to conditions of the
particular employment . . . ." 1B Larson, supra, § 41.31 at
7-362.
Generally, then, both sections 7.2 and 31 are limited to work-related injuries: Although section 7.2 is limited to heart attacks caused by excessive work effort or strain, and section 31 to occupational diseases, both sections require that causation occur in the workplace. The subject claim, which relates to occupational exposure to carbon monoxide arising out, and in the course, of Fiore's employment, focuses on Fiore's working
conditions. From our perspective, section 31 more readily fits
the claim.
As the Appellate Division recognized, supra at 15-16,
however, the first sentence of section 7.2 obscures the clarity
of the legislative intent. By its terms, the section applies to
"any claim for compensation for injury or death from
cardiovascular or cerebral vascular causes . . ." (emphasis
added). Both the workers' compensation judge and the Appellate
Division, 270 N.J. Super. at 539, concluded that the Legislature
could have intended section 7.2 to apply to a claim of
occupational heart disease arising from cardiovascular causes.
In sum, although the Legislature mentioned certain cardiovascular
diseases, it did not address specifically the issue of a
dual-causation occupational-disease that gives rise to a
cardiovascular disability.
That omission leads us to "the land of mystery," see Benjamin N. Cardozo, The Nature of the Judicial Process 18 (Yale Univ. Press 1979), where the legislation is silent. In the absence of specific guidance, our task is to discern the intent of the Legislature not only from the terms of the Act, but also from its structure, history and purpose. Roig v. Kelsey, 135 N.J. 500, 515 (1994). Apparently, the Legislature enacted section 7.2 based on its understanding that heart attacks are
usually caused by natural or non-occupational causes. Often both
a heart attack and the attack's underlying cause result from
personal-risk factors peculiar to the claimant's lifestyle and
medical history. Seiken, supra, 2 N.J. at 475. To ensure that
employers would be liable only for heart attacks caused by
occupational factors, the Legislature provided in section 7.2
that a claimant must prove that the workplace substantially
caused the attack. Section 7.2 achieves this result by requiring
that a claimant prove that the work effort exceeded the
claimant's normal efforts in daily living. In this sense,
section 7.2 requires that the employment contribute something
substantial to "offset the causal contribution of the personal
risk." 1B Larson, supra, § 38.83(b) at 7-319.
Courts in other jurisdictions likewise have required more stringent standards of causation in cases involving personal-risk factors. See, e.g., Farrington v. Total Petroleum Inc., 501 N.W.2d 76, 83 (Mich. 1993) (concluding that myocardial infarction "must be significantly caused or aggravated by employment considering the totality of all the occupational factors and the claimant's health circumstances and nonoccupational factors"); Sellens v. Allen Products Co., 293 N.W.2d 415, 417-18 (Neb. 1980) (holding that question with worker who died of thrombosis of right coronary artery is "whether the injury was the result of a personal rather than employment risk" and requiring that
"employment risk must offset the causal contribution of the
personal risk"); Cheshire Toyota/Volvo, Inc. v. O'Sullivan,
531 A.2d 714, 715 (N.H. 1987) (determining that heart-attack claimant
suffering from pre-existing heart disease must show that
employment contributed "something substantial to the heart
attack"); see also Market Food Distrib., Inc. v. Levenson,
383 So.2d 726, 727 (Fla. Dist. Ct. App. 1980) (concluding that worker
suffering from pre-existing spinal disease who injured spine at
work had to show employment exertion substantially contributed
and was greater than worker's non-employment exertion); Bryant v.
Masters Mach. Co.,
444 A.2d 329, 337 (Me. 1982) (holding that
employment must contribute substantial element to offset personal
risk of pre-existing condition of "frozen knees," when employee
fell from stool); Rutledge v. Tultex Corp.,
301 S.E.2d 359, 369-70 (N.C. 1983) (holding that chronic obstructive lung-disease
claimant also suffering from asthma and allergies was entitled to
compensation if occupational exposure "significantly contributed"
to disease's development); McCloskey v. Workmen's Compensation
Appeal Bd.,
460 A.2d 237, 241 (Pa. 1983) (holding that
compensable claim exists even if multiple causes of death from
lung disease are present, so long as claimant shows occupational
disease was substantial contributing factor).
We doubt that the Legislature intended a more relaxed standard to apply under section 31 to coronary disease resulting
from occupational exposure than applies under section 7.2 to
cardiovascular injury caused by work effort. When the injury or
disease is heart-related, the enhanced standards of section 7.2
naturally extend to other cardiovascular claims.
Consequently, we believe we best effectuate the legislative
intent by holding that a petitioner claiming an occupational
heart disease must show causes or conditions characteristic to
the occupation or place of employment that substantially
contributed in a material way to the disease. To satisfy the
standard, a petitioner claiming occupational heart disease must
fulfill three requirements. First, as section 31 provides, the
petitioner must show that the disease is due in "a material
degree" to causes "arising out of" the workplace and that are or
were characteristic of or peculiar to a particular trade,
occupation, process or place of employment." 1B Larson, supra, §
41.64(c) at 7-479.
Second, the petitioner must prove "by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease -- especially in the light of the competing claim of the smoking to be the causal agent." 1B Larson, supra, § 41.64(c) at 7-479. We doubt that the Legislature, when enacting section 7.2, contemplated that employers should compensate employees for coronary disease caused
substantially by a lifetime of smoking or other personal-risk
factors and immaterially by occupational exposure. Thus, a
petitioner asserting an occupational heart-disease claim must
show that the work exposure exceeds the exposure caused by the
petitioner's personal-risk factors.
Third, the petitioner must show that the employment exposure
substantially contributed to the development of the disease. An
occupational exposure substantially contributes to the
development of coronary-artery disease when the exposure is so
significant that, without the exposure, the disease would not
have developed to the extent that it caused the disability
resulting in the claimant's incapacity to work. Rutledge, supra,
301 S.E.
2d at 370.
The determination that occupational conditions have
substantially caused coronary-artery disease generally will
require, in addition to medical testimony, proof of other
relevant circumstances, such as: (1) the extent of the worker's
exposure to the alleged occupational condition; (2) the extent of
other non-work-related exposures and conditions; and (3) the
manner in which the disease developed with reference to the
claimant's medical and work history. See Rutledge, supra, 301
S.E.
2d at 372.
The "substantial contribution" requirement should be read in
light of the requirements of both sections 31 and 7.2 that the
disease be "due in a material degree" to the workplace. Section
31 requires that a "compensable occupational disease" be "due in
a material degree" to causes or conditions in the workplace. We
read that requirement in light of section 7.2's definition of
"material degree" as meaning "an appreciable degree or a degree
substantially greater than de minimis." Cases interpreting other
sections of the Act likewise have followed section 7.2's
definition because "[a]ttributing the same meaning to the phrase
. . . is in harmony with the general rule that a word or phrase
should have the same meaning throughout the statute in the
absence of a clear indication to the contrary." Perez v.
Pantasote, Inc.,
95 N.J. 105, 116 (1984) (applying section 7.2
meaning to section 36); see also Peterson v. Herman Forwarding
Co.,
267 N.J. Super. 493, 494 (App. Div. 1993) (applying section
7.2 definition to section 31), certif. denied,
135 N.J. 304
(1994).
The "material degree" standard requires courts to evaluate
carefully an expert witness's conclusion "in the context of both
the statutory criteria and prevailing medical standards."
Hellwig, supra, 110 N.J. at 54. The evaluation should
take into account the worker's medical history, the intensity and duration of the
precipitating work effort, and the time
interval between the work effort and the
evidence of heart dysfunction. Compensation
judges should be particularly skeptical of
expert testimony that supports or contests a
finding of causation on the basis of
reasoning inconsistent with prevailing
medical standards.
See Walck v. Johns-Manville Prods. Corp.,
56 N.J. 533, 556 (1970)
(reasoning under prior section 7.2 that "material degree" means
that a heart attack "must be due in some realistic sense and
material degree to a risk reasonably incidental to the
employment, the attack must issue from or be contributed to by
conditions which bear some essential relation to the work or its
nature"); cf. Goyden v. Judiciary, Superior Court,
256 N.J.
Super. 438, 458 (1991) (stating that "[t]he question is whether
objectively verified stressful work conditions found in this case
were established which were 'peculiar' to the workplace and which
justified the medical opinion that they were the 'material'
causes of [worker's depression]"), aff'd per curiam,
128 N.J. 54
(1992).
Accordingly, the Appellate Division has emphasized the need for objective evidence demonstrating that the workplace is a material cause of a disease. In Wernowski v. Continental Can Co., 261 N.J. Super. 269 (App. Div.), certif. denied, 133 N.J.
437 (1993), the court sustained the decision of a workers'
compensation judge that the petitioner did not suffer from
aluminum poisoning, but remanded for a determination whether
petitioner's workplace exposure to aluminum dust had caused his
perception that he so suffered. On remand, the workers'
compensation judge was to consider the duration and extent of
petitioner's exposure, the reasonableness of his psychological
response to a medical diagnosis of aluminum poisoning, and
whether any unrelated event may have triggered his disorder. As
the court stated, "the issue is whether there is objective
evidence that the repetitive stimuli, viewed realistically, were
peculiar to the workplace. If so, there must be competent,
objective medical evidence that the psychiatric disorder is 'due
in a material degree' to the repetitive workplace stimuli." Id.
at 275.
Similarly, in Wiggins v. Port Auth., 276 N.J. Super. 636 (1994), the Appellate Division determined that a grounds keeper at Newark Airport who was diagnosed with multiple sclerosis did not have a compensable occupational disease. The petitioner claimed that his occupational exposure to gardening chemicals, high temperatures, and general stress had exacerbated his multiple sclerosis. Noting that petitioner's expert could not identify any medical literature that found a causal connection between toxins and multiple sclerosis, the court concluded that
"petitioner did not provide any objective medical or scientific
evidence establishing a causal link between chemical exposure and
temperature variations and the exacerbation of his multiple
sclerosis." Id. at 644.
Finally, in Perez v. Monmouth Cable Vision,
278 N.J. Super. 275 (1994), the Appellate Division affirmed a compensation award
for a cable television installer who claimed that occupational
exposure had led to the disability of his right hand.
Specifically, the petitioner alleged that his constant "climbing,
installing, pulling wire [and] carry[ing] ladder[s]" had
aggravated a pre-existing injury to his right wrist. Id. at 277.
The Appellate Division stated that a claim must rest on
demonstrable objective medical evidence, which includes
"`clinical and laboratory tests by the physician. The medical
diagnosis usually looks for, and is in terms of, observable,
measurable, physical manifestation.'" Id. at 284 (quoting
Saunderlin v. E.I. DuPont Co.,
102 N.J. 402 (1986)).
Although proof in workers' compensation proceedings may differ somewhat from that in judicial proceedings, a petitioner must provide sufficient credible evidence to support a claim for compensation. On remand, petitioner, if possible, should adduce more specific evidence, perhaps through a toxicologist or other qualified expert, of the amount of carbon monoxide in diesel
exhaust. Furthermore, like the Appellate Division, 270 N.J.
Super. at 541, we believe that petitioner should provide such
evidence, either through the testimony of a qualified expert or
through scientific literature, of the effect of diesel fumes on
workers, particularly on truck drivers.
Generally, moreover, the parties should adduce reliable
scientific evidence about exposure to fumes in the workplace.
Here, the record does not reflect any tests of petitioner's work
environment. Petitioner's testimony provided the only evidence
about diesel fumes. In most cases, employers are better situated
than employees to test the workplace for exposure to harmful
substances. If, as may be the case here, the employer has not
conducted such tests, or if the judge finds the tests are
unreliable, the employee's testimony may suffice. An injured
worker should not be denied recovery because the employer has
failed to determine whether the workplace is safe.
In sum, the parties generally should provide more reliable
evidence than the record reflects. Although we do not want to
impose an undue evidentiary burden on the parties, the interests
of truth and justice require the production of sufficient
credible evidence to support the decision of the workers'
compensation judge.
The inescapable problem here, as the testimony of the
medical experts for both petitioner and respondent makes clear,
is that Fiore's heart disease may be more readily attributable to
personal factors than to those that are work-related. To satisfy
the requirement that the occupational disease arose out of his
employment, Fiore must show that his work exposed him to greater
risks than those in his daily life. For example, Fiore should
show that his occupational exposure to carbon monoxide exceeded
his exposure to carbon monoxide from cigarettes.
At the hearing, Consolidated did not contest Fiore's
testimony about his exposure to carbon monoxide. Neither Fiore
nor Consolidated provided specific evidence of the amount of
carbon monoxide found in diesel exhaust, at Consolidated's
freight terminal, or in the driving cabin of a Consolidated
truck. They did not provide specific evidence about either the
amount of carbon monoxide to which a daily smoker of two packs of
cigarettes is exposed or the other effects of smoking on the
cardiovascular system. Nor did they provide results of tests
that would indicate the carbon monoxide in Fiore's blood. Even
if such tests will not reveal the source of the carbon monoxide,
they will disclose its presence.
Specific testing of working conditions can provide persuasive evidence. Courts in other states have more readily
affirmed compensation awards when specific testing of the air
quality in the work environment had been conducted. See, e.g.,
Wood v. Ulmer's Car & Truck,
769 P.2d 1264 (Mont. 1989)
(affirming award of compensation for mechanic's heart-disease and
attack claim due to carbon-monoxide exposure where garage tested
for presence of carbon monoxide revealed levels of gas present
could have posed health risk); Mitchell v. Ideal Cement,
813 P.2d 1044 (Okla. 1991) (sustaining compensation court's denial of
benefits for worker's respiratory claim due to purported exposure
to dust and fumes when employer conducted air quality tests at
workplace showing air levels would not cause harmful effects to
workers); Yakemowicz v. Workmen's Compensation Appeal Bd.,
428 A.2d 781 (Pa. Commw. Ct. 1981) (affirming denial of compensation
for dispatcher's heart-attack claim due to carbon-monoxide
exposure when claimant offered no evidence indicating percentage
of carbon monoxide emitted from towmoter).
The final issue concerns apportionment under N.J.S.A. 34:15-12d, which provides an employer with a credit for an employee's "previous loss of function to the body, head, a member or an organ." To encourage employers to hire workers with previous disabilities, the Legislature included N.J.S.A. 34:15-12d in the 1979 amendments to the Act. See Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26, 29-30 (App. Div. 1983) (summarizing purpose
of section 12d). Under that section, which counteracts the prior
rule that employers take employees as they find them, an employer
is entitled to a credit for an employee's previous loss of
function to the same body part as that caused by the occupational
disease.
N.J.S.A. 34:15-12d provides:
If previous loss of function to the
body, head, a member or an organ is
established by competent evidence, and
subsequently an injury or occupational
disease arising out of and in the course of
an employment occurs to that part of the
body, head, member or organ, where there was
a previous loss of function, then and in such
case, the employer or the employer's
insurance carrier at the time of the
subsequent injury or occupational disease
shall not be liable for any such loss and
credit shall be given the employer or the
employer's insurance carrier for the previous
loss of function and the burden of proof in
such matters shall rest on the employer.
In an analogous case involving a worker with a history of smoking who contracted asbestosis, the Appellate Division ruled that a workers' compensation judge should "give the employer credit for the functional loss attributable to cigarette smoking when that loss can be quantified." Field v. Johns-Manville Sales Corp., 209 N.J. Super 528, 530, certif. denied, 105 N.J. 531 (1986); cf. Dafler v. Raymark, 259 N.J. Super 17 (1992)
(affirming judgment in products liability action that apportioned
responsibility between asbestos and cigarette smoking).
Here, the worker's compensation judge did not address
apportionment. Although the Appellate Division mentioned the
issue, it recognized that it was "dealing with concomitant causes
. . .," 270 N.J. Super. at 543, and made "no holding on this
additional issue as there is no evidence of aggravation in the
present case," id. at 545.
We likewise find that the record does not provide a suitable
basis to analyze the issue of apportionment. To the extent that
apportionment is relevant on remand, we note that the Legislature
has explicitly allocated the burden of establishing a previous
loss of function "on the employer." N.J.S.A. 34:15-12d.
Because our construction of the Act differs from that of the
Workers' Compensation judge and the Appellate Division, we remand
the matter to the compensation judge for redetermination
consistent with this opinion. In remanding, we express no view
about the compensability of Fiore's condition.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Division of Workers' Compensation.
Chief Justice Wilentz and Justices Handler, O'Hern,
Garibaldi, and Stein join in Justice Pollock's opinion. Justice
Coleman did not participate.
NO. A-46 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOHN FIORE,
Petitioner-Appellant,
v.
CONSOLIDATED FREIGHTWAYS,
Respondent-Respondent.
DECIDED June 1, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY