Appellate Division Upholds Dismissal of Occupational Heart Attack Claim and Claim of Entitlement to Second Injury Fund Involvement

New Jersey - Workers' Compensatio

Key Points:

• Section 31 and Fiore control issues of occupational heart claims.
• Section 31 defines a compensable occupational disease.
• Fiore provides three requirements for proving a compensable occupational heart disease claim.
• The opinion of the treating doctor was not more credible than that of permanency/causal relationship expert.

You may currently have a pending occupational heart claim, or you may have one in the future. In any event, this is a case of importance to you. The New Jersey Appellate Division recently addressed the issue of compensability of an occupational heart claim and affirmed the lower court's decision in favor of the employer/respondent. On May 2, 2011, the court rendered its decision in the matter of Kominsky v. Kominsky & Company and Second Injury Fund; Docket No. A-2535-09T2.

The petitioner appealed the final orders of the judge of workers' compensation dismissing his petitions for workers' compensation benefits and Second Injury Fund contribution. The petitioner argued that the workers' compensation judge erred (1) in evaluating the testimony presented at trial and (2) in applying the wrong legal standard to his claims.

By way of background, the petitioner suffered a non-work-related massive heart attack in 1995 after running a 10 kilometer race. At the time, he had no pre-existing health problems. Following the heart attack, he commenced cardiology medical care and underwent catheterization and angioplasty. At the time of the heart attack, the petitioner was the managing partner of his father's accounting firm. The petitioner testified that he worked 50 to 60 hours a week during non-tax season and upward 100 hours per week during the tax season. After the heart attack, the petitioner did not return to work for three weeks, but resumed his full supervisory duties for the firm in early 1996. The petitioner continued with cardiac treatment in addition to psychological counseling due to his Type A personality. In 1999, the company's business increased, which increased the petitioner's job demands.

The petitioner's treating doctor was Dr. Clemente, who continued to treat the petitioner and indicated a destabilization of his condition. As such, the petitioner was undergoing annual cardiac catheterizations.

In 2000, the petitioner experienced sweating and dry heaving while traveling from a meeting with a client. He was taken directly to the hospital where he underwent another catheterization. By the end of the year, the petitioner was back at work in his full-duty capacity.

By the next year, the petitioner was experiencing daily symptomatology. His treating doctor, Dr. Clemente, told him that he had "two more years to live if he didn't quit working because work was killing him." Thereafter, the petitioner sold his practice. His last date of work was June of 2001.

The petitioner filed a workers' compensation claim in 2003 followed by a Second Injury Fund petition in 2004. He also continued to treat following his termination of employment. Three years after his termination of employment, the petitioner underwent additional cardiac surgeries. In fact, he was ultimately placed on the standby list for a heart transplant.

Although the petitioner testified regarding his deteriorating health and work requirements, he also conceded on cross examination that he had "basically the same job duties" before and after the initial heart attack and that he was emotionally attached to his work. The petitioner described a "love" for his work and clients.

The treating doctor, Dr. Clemente, testified on the petitioner's behalf during trial. The petitioner also presented an internal and psychiatric expert. On its behalf, the respondent presented an internal and psychiatric expert also. The petitioner's experts provided testimony that the petitioner was totally and permanently disabled as a result of his work as an accountant. However, the experts presented no supporting studies. To the contrary, the respondent's experts testified that the petitioner's heart condition could not be scientifically attributed to his work. The respondent's internal expert cited conflicting medical studies evincing a long standing debate over the issue within the medical community. Furthermore, the respondent's internal expert noted that the petitioner's condition continued to worsen even after he terminated his work in 2001. In conclusion, the expert testified that the petitioner's condition deteriorated as a result of the natural progression of his cardiac disease and not his work. Furthermore, the respondent's psychiatric expert pointed out that the petitioner loved his work and did not find it stressful as opined by the petitioner's experts.

Occupational heart disease claims are governed by N.J.S.A. 34:15-31 and Fiore v. Consolidated Freightways, 140 N.J. 452 (1995), rev'g, 270 N.J. Super. 520 (App. Div. 1994). Section 31(a) states that "compensable occupational disease shall include all diseases arising out of an 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."

Fiore outlines three requirements as a petitioner's burden of proving an occupational heart disease claim. First, 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." Fiore cites Section 7.2 as the definition of "material degree" as an "appreciable degree or a degree substantially greater than de minimis." The Fiore Court goes on to point out that "material degree" must be demonstrated by objective evidence of causation and the court "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."

Secondly, the petitioner must prove by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease. And, thirdly, 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. The court went on to state that "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."

The Appellate Division noted that the petitioner's treating doctor and witness, Dr. Clemente, failed to produce any studies to support his position. The Appellate Division agreed with the judge of compensation that there is nothing peculiar to the profession of accountant that is objectively stressful nor did the petitioner describe his particular work environment in a negative way. The Appellate Division further disagreed with the petitioner's experts in this regard, pointing out that the doctors ignored the attitude of the person involved, noting that "a situation that one person finds oppressive, another may find exhilarating." Ultimately, the Appellate Division found the respondent's experts' opinions more persuasive in their judgment that the natural progression of the petitioner's heart condition forced him to stop working. The Appellate Division was also impressed by the fact that the petitioner's condition continued to deteriorate after termination of his employment.

This case is useful in analyzing how to handle occupational cardiac claims. Furthermore, the claim shows that the opinion of a treating doctor is not always more credible than that of a permanency/causal relationship expert if the treating doctor does not have proper supporting bases for the opinion.

*Angela is an associate in our Cherry Hill, New Jersey, office. She can be reached at 856.414.6409 or aydemary@mdwcg.com.

Defense Digest, Vol. 17, No. 3, September 2011