Burden Relaxed in Heart Disease Claims
The state Supreme Court last Thursday ruled that workers claiming occupational heart disease need only show that their job substantially contributed to the development of the disease to be awarded compensation. But in the first ruling of its kind in the country, the Court specifically held that smokers can be denied compensation if a job-related disease is principally caused by personal-risk factors such as smoking, obesity or a family history of the illness.
The Court’s 6-0 decision in Fiore v. Consolidated Freightways, Inc., A-46 [digested in this issue at page 73], upholds an Appellate Division ruling that recognized claims for occupational heart disease under the Workers Compensation Act. The Court relaxed the appeals court’s formulation of the standard of proof that claimants have to meet. Writing for the Court, Justice Stewart Pollock said that the determination in the case of John Fiore of Fairfield is complicated by his "personal-risk factors. ... Thus, the case presents a question of dual causation concerning an occupational disease."
Under the decision, workers submitting claims for 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 will be the task ahead for Fiore, now that the high court remanded his case to Compensation Judge Stephen Tuber, who sits in Jersey City.
Fiore was a truck driver for Consolidated Freightways, the Portland, Ore., trucking giant. He alleges that exposure to carbon monoxide in diesel fumes during the 19 years he loaded and unloaded trucks at Consolidated terminals in Newark and Paterson caused him to have a heart attack in August 1986. At the time, Fiore was 39 years old, weighed 240 pounds and had smoked two packs of cigarettes a day for 20 years. His father had died of a heart attack at age 59. The Appellate Division had construed Fiore’s claim as falling under Section 7.2 of the Workers’ Compensation Act, although that section is limited to heart attacks caused by excessive work effort or strain. Fiore claimed that his ailment should also be construed under Section 31, which covers occupational disease. Sections 7.2 and 31 are both limited to work-related injuries and both require that causation occur in the workplace.
The Court agreed with Fiore, finding Section 31 more applicable as long as he can demonstrate that his disease was caused by occupational exposure to carbon monoxide. "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," Pollock wrote.
Although the justices expressed no view on the compensability of Fiore’s condition, they found that unless his employer can show that its workplace was clean and nontoxic, the court may be forced to rely on Fiore’s testimony. "In most cases, employers are better situated than employees to test the workplace for exposure to harmful substances," Pollock stated. "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." Fiore’s attorney, Michael Dillon, an associate at Jersey City’s Horn Schechtman & Hirsch, and union labor lawyers who joined on Fiore’s behalf as amici curiae, hail the high court’s decision. "It’s significant that the justices of the New Jersey Supreme Court have recognized for the first time an occupational heart disease cause of action," says Dillon. "It’s also very significant that they’ve stripped down the onerous and impractical test the Appellate Division set up."
George Conk, a partner at South Orange’s Tulipan & Conk, argued for the amici -- New Jersey State Industrial Union Council, AFL-CIO, District 15 and the International Association of Machinists & Aerospace Workers. His argument, which the Court adopted, was that a worker claiming he suffered from occupational heart disease need only show that the work was a substantial contributing factor in the development of the disease.
Conk says the high court did something no other court has done. "The Court does do something unusual," he says. "The justices say they’re gleaning the legislative intent [of the statute] in finding that when workers’ personal habits—like smoking and obesity—are the principle causes of heart disease, compensation will be disallowed." Higher Quality of Evidence
Jon Gelman, a solo practitioner in Wayne who wrote the West New Jersey Practice Series volume on workers’ compensation, says that Pollock has emerged as the "Court’s leading voice in trying to bring a higher quality of scientific evidence" to workers compensation cases. "The Court has kept the door open for the injured worker to get benefits as the Legislature intended," says Gelman. "Heart claims are diseases of complex causation. The Supreme Court has determined that scientific evidence is necessary to bring these cases into the 21st century. The Court has struggled with this issue for years and years and has finally grasped a fair and reasonable solution to the problem. The Court deserves a Nobel Prize for the standard it has reached."
The decision, says Gelman, "maintains a standard of the burden of proof consistent with the intent of the social remedial aspects of the Workers Comp[ensation] Act." Although Conk and Gelman say the Court is telling the bench and the bar that they must use scientific evidence, they both are doubtful that more employers will actually test workplaces for air quality and safety as a result of the high court’s decision. "It’s a dual-edged sword," says Gelman. "It’s to the benefit of the worker. ... But if employers perform the tests, they have a duty to inform the worker. If they perform the tests and fail, it’s going to cost money to improve conditions. If they don’t perform the test, they can’t meet the burden of proof, and [a judge] will rely on what the employee says."
"They call for toxicology testing but say, where an employer has failed to test we’re not going to punish the employee," says Conk. "Unfortunately, the court’s unlikely to find employers who will test to their satisfaction. I think the Court is absolutely correct to improve the quality of evidence. Unfortunately, I don’t see much money being invested on the research end to give workers the kinds of materials that the Court would like to see available at the trial level."
‘Still Up in the Air’
Consolidated’s attorney, Joseph Soriano, a partner at South Orange’s Rotella & Soriano, took a narrow view of the high court’s decision. "I look at this narrowly as a case in which a worker was exposed to carbon monoxide," says Soriano. "I don’t know if its going to prompt more testing. It’s still up in the air.
"I’m not happy with the decision," Soriano adds. "They should have taken the bull by the horns more. This case failed to sustain the burden of proof based on the standard the court sets forth."
Because neither side presented scientific evidence on the carbon monoxide levels at Fiore’s workplace, Worker’s Compensation Judge Tuber relied on the trucker’s testimony. He described conditions at the Paterson facility as "terrible" with "all kinds of dust and fumes and everything over there." Tuber dismissed two of Fiore’s claims but awarded the trucker 33 percent of partial-total permanent disability, finding that his exposure to carbon monoxide at work caused his angina. Tuber gave him 200 weeks of compensation for a total of $26,000.
On appeal, a panel led by Appellate Division Judge Thomas Shebell Jr. reversed and dismissed Fiore’s petition, finding that although his claim fell under Section 7.2 of the act, he didn’t meet the burden of proof. Reversing the appellate court, the Supreme Court relaxed the Section 7.2 standard, imposing three requirements to establish eligibility for benefits. First, the Court said, the worker must show 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 or place of employment. Second, the worker must present medical evidence proving exposure at work caused or contributed to the disease more so that the worker’s personal risk factors—smoking, being overweight or having a family history of disease. Third, the worker must prove that his or her exposure at work was so great that the disability would not have occurred without the worker, a far cry from what the Appellate Division did by creating insurmountable barriers to workers claiming job-related heart disease," says Craig Livingston, a partner at Newark’s Ball, Livingston & Tykulsker, who, along with Conk, represents the Industrial Union Council. "Workers won’t need to bring a scientist with them every day they go to work. The Supreme Court recognizes on a practical level what judges in compensation have been doing for years in trying to apportion responsibility for what’s caused by smoking and what’s caused by work. They’re suggesting a streamlined and efficient system, not one cluttered with experts." Livingston says that New Jersey’s Supreme Court is the first state high court to recognize the thorny issues involved in dual causation and heart disease claims. "This is one of the most important decisions since the law was amended in 1979," he says, referring to amendments that made it more difficult for workers who suffered heart attacks to get compensation.
"This is an interesting ruling," says Gelman. "People are going to pay a lot of attention to it in the workers’ comp bar."
Justice James Coleman Jr., who was not yet appointed to the Supreme Court when the case was argued last November, did not participate in the decision.
This article is reprinted with permission from the June 5, 1995 issue of the New Jersey Law Journal. c. 1995 American Lawyer Media.