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Court Rejects Respiratory Reopener Claim of Detective Investigator Who Alleged Her COPD Condition Worsened Due to Work Exposures

By on October 29, 2015 in Claims with 1 Comment

One of the hallmarks of the New Jersey workers’ compensation system is that awards of partial permanent disability can be reopened for more medical, temporary or permanent disability benefits.  In this case, Rebecca Weston, a detective investigator for the Union County Prosecutor’s Office, received an award of 55% of partial total, 31% of which was attributed to her cigarette smoking.  She reopened the case in 2010 claiming that her chronic obstructive pulmonary condition (COPD) had worsened.

In 2011 Mrs. Weston passed away and her husband continued the litigation.  The Honorable Lenore Kramer Mohr, Administrative Supervising Judge of Compensation, found that the increase in petitioner’s pulmonary disability was due exclusively to continued cigarette smoking, not to work exposures. The Judge found that petitioner “never gave up smoking for any significant period of time and continued to smoke regularly until the time of her death.”  Mr. Weston appealed.

The Appellate Division said that the controlling test is “whether the work exposure substantially contributed to the development or aggravation of petitioner’s medical condition.” One of the key reasons for the affirmance in this case was that Mrs. Weston’s last exposure to environmental pollutants at work ended in the year 2000.  The Court concluded that this fact made it extremely difficult for the claimant to show material worsening from work exposures, given that she continued to smoke cigarettes.

There was apparently a dispute in testimony about whether Mrs. Weston stopped smoking in 2006 after she developed COPD but the Judge of Compensation did not believe Mrs. Weston’s testimony.

The Judge also credited the testimony of the employer’s medical expert that Rebecca’s COPD became worse due to her continued smoking.  The judge did not credit the testimony of petitioner’s medical expert, because he based his opinion on the factual assumption that Rebecca stopped smoking in 2006, and he overlooked what the judge found was clear evidence in Rebecca’s medical records that she had continued to smoke.  The judge found petitioner’s expert’s ‘conclusions based on his faulty assumptions were therefore flawed and unreliable.

This case can be found at Weston v. Union County Prosecutor’s Office, A-3578-13T4 (App. Div. October 23, 2015).

The reasoning here is compelling because the only harmful respiratory exposures after retirement were non-work-related cigarette exposures.   But the rationale of this case should not be limited to respiratory claims.  One can apply the same reasoning to orthopedic claims where an employee with an award of partial permanent disability for the back, for example, retires and later reopens the case.  If the employer can show that the worsening of the spine is due to physical exertion in a new job, not the original employment, the same result should follow.  Readers should also consider that the employer won this case because of diligent searching of medical records.  While the search for past and current medical records may seem tedious and expensive, many cases are won by detailed attention to entries in medical records such as the comments in these records about continued cigarette smoking.

Capehart Scatchard is a proud sponsor of Kids’ Chance of New Jersey, which is devoted to helping provide college scholarship funds to children whose parents have been seriously injured or killed in a work accident. John Geaney and Lora Northen are members of the Board of Kids’ Chance, and Carol Wright is an Advisory Committee Board member. Governor Chris Christie, in recognition of the work Kids’ Chance of New Jersey has done in awarding scholarships to children, has proclaimed Novermber 2 to November 6, 2015  Kids’ Chance Awareness Week. Click here to view the proclamation. If you are interested in helping to provide support for the scholarship fund, please contact the undersigned.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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