Wiggins v. Port Authority

648 A.2d 743, 276 N.J. Super. 636
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 28, 1994
StatusPublished
Cited by5 cases

This text of 648 A.2d 743 (Wiggins v. Port Authority) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiggins v. Port Authority, 648 A.2d 743, 276 N.J. Super. 636 (N.J. Ct. App. 1994).

Opinion

276 N.J. Super. 636 (1994)
648 A.2d 743

RICHARD A. WIGGINS, PETITIONER-RESPONDENT,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, RESPONDENT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Argued October 5, 1994.
Decided October 28, 1994.

*637 Before Judges SHEBELL, SKILLMAN, and KLEINER.

George P. Cook argued the cause for respondent-appellant (Hugh H. Welsh, Deputy General Counsel, of counsel; Christopher J. Neumann, on the brief).

D. Gayle Loftis argued the cause for petitioner-respondent.

The opinion of the court was delivered by KLEINER, J.A.D.

Respondent Port Authority of New York and New Jersey appeals from a judgment in the Division of Workers' Compensation awarding petitioner Richard A. Wiggins one hundred percent total permanent disability. The judgment characterized the award as "permanent aggravation of pre-existing multiple sclerosis and associated depression, neurological and psychiatric in nature. Petitioner is totaled from the neurological disability alone."

*638 In a review of a decision of a workers' compensation judge, the general rule is that we will only decide whether the findings made could reasonably have been reached on "substantial" or "sufficient credible evidence present in the record," considering the proof as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965). After careful review of this record and particularly the medical evidence presented, we conclude that there was insufficient credible evidence considering the proofs as a whole to support the court's award. Accordingly, we are constrained to reverse the judgment.

At trial, petitioner testified that he was then fifty years old and had been employed by respondent from March 29, 1966 until his retirement on disability on January 16, 1989. Petitioner had been assigned to various facilities in a janitorial capacity from 1966 to 1985. In 1985, he was assigned as a grounds attendant at the Newark Airport, where he worked closely with the gardener and was exposed to pesticides, insecticides and herbicides. In November 1985, he was promoted to a "trades helper" position to perform gardening. His responsibilities included cutting grass, planting seed, pulling weeds and applying fertilizer and other chemicals to the grounds and shrubs surrounding the airport. Respondent stipulated that petitioner had been exposed to milorganite Greens Keeper; Surflan and Treflan, pre-emergent weed killers; Round-up, a post-emergent weed killer; benlate; fungicide; Sevin, a beetle pesticide; dormant oil and bug spray. Working outside, petitioner was also exposed to temperature extremes.

In 1975, petitioner was diagnosed with multiple sclerosis. Since 1981, he was hospitalized on three occasions for complications related to his multiple sclerosis, including "blurry vision" and "wobbly legs." After his assignment to the gardener position, petitioner experienced discomfort when the temperature exceeded seventy-five degrees or dropped below forty degrees for a period of three hours. Petitioner's testimony was offered to establish an occupational disease within the purview of N.J.S.A. 34:15-31(a), which defines occupational diseases as those "arising out of and in *639 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." Ibid. (Emphasis added.)

Because respondent stipulated that petitioner is totally and permanently disabled, at issue was the causal link between: plaintiff's emotional stress, occupational exposure to chemicals, and temperature variations; and the exacerbation of his multiple sclerosis. As noted, petitioner had the burden to prove this causal link by a preponderance of the evidence. "All that is required is that the claimed conclusion from the offered fact must be a probable or a more probable hypothesis.... The test is probability rather than certainty." Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 203, 173 A. 606 (Sup.Ct. 1934) (citation omitted), aff'd, 114 N.J.L. 254, 176 A. 198 (E. & A. 1935).

There is precedent for an award of compensation or damages for the aggravation of pre-existing multiple sclerosis by trauma. See Galloway v. Ford Motor Co., 7 N.J. Super. 18, 71 A.2d 657 (App.Div.), aff'd, 5 N.J. 396, 75 A.2d 855 (1950) (compensation for heavy lifting accident that activated dormant MS); Cohrs v. Igoe Bros., Inc., 71 N.J. Super. 435, 177 A.2d 284 (App. Div. 1962) (compensation for slip and fall, blow to head that activated dormant MS); Schust v. Wright Aeronautical Corp., 7 N.J. Super. 54, 71 A.2d 894 (App.Div.) certif. denied, 5 N.J. 177, 74 A.2d 376 (1950) (compensation for fall from chair that activated dormant MS); Sanderson v. Crucible Steel Corp., 3 N.J. Super. 209, 66 A.2d 188 (App.Div. 1949) (compensation for blow to spine that aggravated MS); Davis v. Lotz, 126 N.J.L. 615, 20 A.2d 602 (Sup.Ct. 1941) (compensation for fall from ladder that aggravated MS); Woodle v. Sullivan, 19 N.J. Misc. 458, 21 A.2d 151 (N.J.Dept. of Labor 1941) (compensation for fall that aggravated MS). Although each of the cited cases involved trauma, theoretically there is no reason to deny compensation where a petitioner proves that occupational conditions contribute in a material degree to the aggravation or exacerbation of multiple sclerosis. N.J.S.A. *640 34:15-31(a) has been extended to an employee burdened with pre-existing diseases or conditions. Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 107 A.2d 801 (App.Div. 1954). The claimant must demonstrate that "conditions characteristic to the occupation ... contributed in a material degree to [the] disability." Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 504, 631 A.2d 1274 (App.Div. 1993), certif. denied, 135 N.J. 304, 639 A.2d 303 (1994).

The evidence at trial was limited to petitioner's testimony, the admission of petitioner's medical records since 1975, and the conflicting expert testimony of two examining physicians.

Petitioner presented Dr. Paul Kiell, a Board Certified psychiatrist whose private practice is essentially psychiatry.[1] He has treated multiple sclerosis patients for psychiatric disease but has never treated multiple sclerosis. Dr. Kiell has evaluated claimants and those examinations were predominantly neurologic in nature.

Dr. Kiell evaluated petitioner on January 5, 1990 and on January 13, 1993. In comparing these evaluations, he found constancy in the degree of petitioner's disability. He concluded that occupational exposure either aggravated, accelerated or exacerbated petitioner's multiple sclerosis. Dr. Kiell's testimony ascribed three occupational facts which aggravated petitioner's multiple sclerosis: stress at work, exposure to toxic substances and exposure to temperature variations.

Petitioner referred in his testimony to two specific instances of stress at work. He related an event in which he perceived he was being subjected to racial discrimination by fellow employees and an occasion when he discovered a dead body within the Lincoln Tunnel. Dr.

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648 A.2d 743, 276 N.J. Super. 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiggins-v-port-authority-njsuperctappdiv-1994.