Occupational disease death claims in NJ

A panel of Appellate Division judges overruled the Judge of Compensation in this occupational disease death case. The Workers’ Comp Judge found that the decedent, a heavy smoker, was exposed to asbestos when he worked for Mid-State Sprinkler. The Judge of Compensation decided that the asbestos exposure was what caused the cancer that the claimant died from. The Appellate Division disagreed, finding that the plaintiff’s proofs did not establish medical causation and there was no evidence brought out at trial that the decedent had symptoms of asbestosis.

The facts in the case are important to the ruling of the Appellate Judges. The decedent worked as a sprinkler pipe installer for 29 years with different companies (ultimately, working for himself for the last fifteen years of his employment). The claimant was also a smoker: he smoked from age 15 to age 25, quit for about ten years, and then began smoking again for two years before he was diagnosed with cancer (small-cell type)in 1996.

Various witnesses were called who testified about the working conditions the claimant experienced. A union leader who testified on behalf of the plaintiff described the potential for exposure to asbestos. In addition, doctors testified about the epidemiology of cancer (Dr. Neugut for the claimant). The plaintiff’s medical experts testified that the “heavy smoking” combined with the exposures to asbestos to cause the claimant’s lung cancer.

The plaintiff’s medical expert testified that it was asbestos exposure and cigarette smoking “acting in synergy” which caused the claimant’s lung cancer.

Another medical expert, Dr. Kritzberg, who testified for the defendant Mid-State Sprinkler, said that the type of cancer (small-cell carcinoma) is closely linked to smoking, not asbestos exposure. Dr. Kritzberg also testified that the the claimant’s CT scans and x-rays did not show changes in the lungs consistent with asbestosis or asbestos exposure. Dr. Kritzberg testified that the medical records he reviewed showed that the claimant smoked “4 or 5 packs a day” from age 15.

The Judge of Compensation found it was “more probable than not” that the claimant’s exposure to asbestos caused his lung cancer.

The Appellate Judges reversed: they said that the medical proofs were insufficient to establish causation. Specifically, the Appellate Judges found that ‘small cell carcinoma’, like the cancer the plaintiff had, is not causally linked to asbestos exposure. Further, the “synergy” theory of causation was dismissed as not based upon scientific evidence.

Case: Leonard v. Mid-State Sprinkler, A-4952-06T2-06T2 (App. Div. decided May 20, 2008)(per curiam, unpublished as of blog date).

Lien Recovery under Section 40

Section 40 lien reimbursements now allow for a reduction of up to $750 for petitioner’s expenses where a petitioner has recovered money in a third-party suit. Petitioner’s expenses were previously limited to a reduction of $200. This change has been codified at N.J.S.A. 34:15-40. The upshot: workers’ compensation insurers will now recover slightly less from claimants who receive an award or settlement in a third-party suit.

Time to pay judgments shortened

New for 2007: A Judge of Compensation can now award interest on awards that have not been paid within 60 days. This is a significant change in the law, as compensation judges previously could not award interest for withheld payments until after 90 days. This change has been codified at N.J.S.A. 34:15-28. Practice tip: issue payments due under an award as soon as possible to avoid a motion for interest (which can be brought by petitioner’s counsel or the Judge herself).

Same-sex couples granted Workers' Comp benefits in NJ

We’ve already reported on P.L. 2006, c. 103, codified at N.J.S.A. 37:1-28 which permits same-sex couples to enter into legally sanctioned unions. The new law requires that civil union couples are to be provided “the same benefits as married couples with respect to workers’ compensation benefits including but not limited to survivors benefits and payment of back wages.” As required by this provision, dependency benefits under N.J.S.A. 34:15-13 are to be provided to same-sex survivors of a civil union.

Defending Employers