Pulmonary Award Is Reversed for Failure of Judge to Explain Why She Credited the Testimony of Petitioner’s Expert Over Respondent’s Expert
Frank Ascione worked for U.S. Airways at Newark Liberty International Airport as a fleet service agent since 1981. He handled baggage and drove equipment to push back planes. He would work in the “bag room,” transporting baggage to and from the plane. He assisted in de-icing of planes about 20 times in his career and worked with a chemical named glycol. He said the diesel tugs he drove released smoke that would enter the cab of the tug, leaving a heavy soot on the floor of the vehicle. It was often hard to breathe, and sometimes he would have to stick his head out the window for fresh air. Sometimes the baggage conveyor belt would jam, requiring him to crawl into the system to remove baggage. When that would happen, dirt, dust and asbestos would fall on him. He also was exposed on occasion to clouds of smoke emanating from the engine while unloading the plane.
Petitioner brought a claim for pulmonary injuries against U.S. Airways. At trial he testified that he had a lack of energy, although he still worked for the company and took overtime. He complained of a cough and shortness of breath which prevented him from exercising or playing sports. He admitted to a history of heart problems and had a cardiac catheterization in 2009.
Dr. Malcolm Hermele testified for petitioner as an expert in internal medicine, although he admitted he is not board certified in pulmonology. He testified that x-rays of petitioner’s chest showed damaged alveoli which could be caused by exposure to fumes, dust and pulmonary irritants. He did concede that petitioner’s excessive weight could be an independent cause of fatigue and shortness of breath. Losing weight, he admitted, would help petitioner reduce his symptoms. Dr. Hermele said petitioner suffered from chronic bronchitis and probably restrictive pulmonary disease caused or aggravated by work exposures. He estimated 35% permanent partial disability.
Dr. Benjamin Safirstein, a board certified pulmonologist, testified that petitioner’s physical exam was “pretty normal.” He said that the first set of pulmonary functions studies were entirely normal. He had no obstruction, restriction or impairment in diffusion. One of the key factors in this case was that Dr. Safirstein did more extensive pulmonary function testing than Dr. Hermele did. Dr. Safirstein performed spirometry, lung capacity and diffusion testing, while Dr. Hermele only did spirometry. According to Dr. Safirstein, spriometry alone is only preliminary and cannot be used to diagnose pulmonary diseases. Another point of contention between the experts was the x-rays, which were completely normal according to Dr. Safirstein.
Dr. Safirstein performed a second pulmonary function test in late 2012, which showed a mild decline in the vital capacity parameter of petitioner’s lung volumes. He attributed this decline to lack of effort on the part of petitioner in performing the test and his excessive weight, or cardiac enlargement. He did admit that petitioner would qualify as having bronchitis, but did not believe that this condition was due to work. As for petitioner’s shortness of breath, that could be caused by any number of conditions, including morbid obesity and an enlarged cardiac silhouette suggestive of cardiac disease.
The Judge of Compensation ruled for petitioner and awarded 7.5%. U.S. Airways appealed. It argued that the Judge of Compensation failed to make critical findings concerning the conflicting testimony of the medical experts in this case. The court said, “A workers’ compensation judge should ‘carefully explain why he or she considered certain medical conclusions more persuasive than others.’” Smith v. Montgomery nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). The court said the judge failed to articulate her reasons for making discretionary decisions. In a key statement the court said: “This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions.” What the court meant is that it was not enough for the judge to simply discuss the testimony of the experts: since their testimony conflicted, she needed to make credibility findings.
The court observed that Dr. Safirstein’s testing was superior to that of Dr. Hermele. All Dr. Hermele measured is air flow, not lung volumes. More testing was needed to confirm an abnormality, according to Dr. Safirstein. “As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele.” The court remanded the case for the judge to make specific and detailed findings as to expert witness credibility and determine whether petitioner has proven “by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease.”
This case can be found at Ascione v. U.S. Airways, A-5049-12T1 (App. Div. April 10, 2014).