State News

As discussed in last month’s newsletter, attorneys’ fees are a hot topic of discussion in the Texas workers’ compensation system. With the recent indictment of a claimant’s attorney alleging fraudulent billing, as well as the revelations of some incredibly high hourly billers in the system, the Division is now weighing in on the issue. Tim Riley, Deputy Commissioner for Compliance and Investigations, issued a July 11 memo to remind attorneys of the Division’s requirements for submitting fee applications as well as the Division’s right to enforce compliance. Deputy Commissioner Riley specifically warns attorneys that approval of an application for attorney’s fees does not foreclose the possibility of an enforcement action related to the application.

The full memo is available on the TDI Website.

-  Copyright 2018, Stone Loughlin & Swanson, LLP

According to an article in The Texas Tribune, Governor Greg Abbott’s office will be reviewing all Texas agency rules before they are posted in the Texas Register for public comment. Luis Saenz, the Governor’s Chief of Staff, wrote a letter to the agencies saying, “Prior to publication of a proposed rule in the Texas Register, the Office of the Governor will review the Notice of Proposed Rule as well as the agency’s internal analysis of the rule.”

Governor Abbott claims this approach will “eliminate redundancies and inefficiencies, and provide a dispassionate ‘second opinion” to the proposed agency’s rules.

While the move is intended to promote efficiency, it also significantly expands the power of his office. The process will ensure the involvement of the Governor’s Office in all agency rule-making decisions, including the Texas Department of Insurance and the Division of Workers’ Compensation.

Texas agencies have been directed to provide certain information to the Governor—including the draft rule and its expected impact on local employment and the economy—before posting the proposed rule in the Texas Register. The letter does not specify what power the Governor has over those proposed rules. 

For agencies that have statutory or programmatic deadlines for rule promulgation, this mandate will require them to reconsider their timelines, adding extra time to allow for gubernatorial review.

Click the link to read Governor Abbott's letter.

-  Copyright 2018, Stone Loughlin & Swanson, LLP

Computers, smartphones, and tablets are everywhere and seemingly make peoples’ lives easier.  A study conducted by UCLA found that young people spend upwards of 7 hours a day attached to their devices. Garry W. Small, et. al.,Healthy behavior and memory self-reports in young, middle-aged, and older adults, 26.6International Psycogeriatrics 981-989. 

The consistent use and dependence on these devices comes with some negative consequences.  Individuals who rely heavily on technology may suffer deterioration in cerebral performance such as short-term memory dysfunction. Research has shown that reliance on devices can lead to issues with memory and cognitive skills, dubbed “digital dementia.” “Digital Dementia” is a term coined by Manfred Spitzer and is used to describe how overuse of digital technology can result in the breakdown of cognitive abilities in ways that are commonly seen in people who have suffered head injuries or psychiatric illness. 

What impact does this have for employers and workers’ compensation carriers?  Digital dementia may become the new carpel tunnel syndrome, especially with older generations who were not exposed to technology before entering the workforce.  An employee could argue digital dementia is an “occupational disease” that naturally results from working with technology.

These “digital dementia” claims will likely be decided in a manner similar to “job stress” or mental trauma claims. The Texas Supreme Court has held that damage or harm caused by repetitious mentally traumatic activities does not constitute an occupational disease and is not considered a compensable injury under the Act.  However, if the event can be traced to a definite time, place, and cause, it could produce a compensable injury.  In most cases, it will be difficult for an injured employee to pinpoint a discernable time, place, and cause to the alleged “digital dementia,” because it is a “repetitive” type injury that occurs over time.

Click the link to learn more aboutDigital Dementia and the effects it has on the brain. 

-  Copyright 2018,Stone Loughlin & Swanson, LLP

Enrique Colon, a healthcare worker, was convicted of falsifying workers’ compensation claims.  Mr. Colon was indicted along with EME International, Inc. and two others on charges of engaging in organized criminal activity for over-billing for the exams. Mr. Colon was found guilty of submitting false medical claims to an insurer for more time than it actually took to perform functional capacity evaluations.

In response to the conviction, Cassie Brown, Commissioner of Workers’ Compensation, said: “Addressing fraud is vital to the health and success of the workers’ comp system here in Texas.  The [D]ivision is committed to protecting injured employees and policyholders from these schemes.”

Report suspected cases of insurance fraud by calling 1-800-252-3439 or visit www.tdi.texas.gov/fraud/.

-  Copyright 2018, Stone Loughlin & Swanson, LLP

In the past several years, there have been a litany of federal and state indictments (and convictions) for health care fraud involving healthcare providers and pharmacies. Most recently, a group of doctors, pharmacies, and federal worker advocates were indicted in connection with a compounded drug scheme that defrauded the federal workers’ compensation program and Tricare out of almost $40 million.

The court documents allege the fraud was coordinated by a Houston couple, John Cruise, CEO of the Injured Federal Workers Advocate Association, and his wife, Lashonia Johnson, the director of a group that helps federal workers who are injured on the job. The couple also ran a pharmacy in Texas that dispensed compounded medicine. The doctors involved in the scheme were allegedly taking kickbacks from Cruise and Johnson for prescribing expensive and unneeded compounds to federal workers referred by a therapy center.

-  Copyright 2018, Stone Loughlin & Swanson, LLP

Lynda Ferrari was injured at work falling down steps in April 2006.  She sought treatment for her right knee and lower back.  Dr. Joan O’Shea performed authorized surgery to address Ferrari’s right-sided herniated discs at L4-5 and L5-S1.  Ferrari experienced increased pain following surgery.  She saw multiple physicians after the surgery, seeking relief for her increased pain.

Ferrari filed a medical malpractice law suit on September 29, 2014 against Dr. O’Shea and Virtua Hospital.  The doctor filed an answer in January 2015 asserting that the law suit was barred by the statute of limitations.  Defendant relied on the employer’s IME in the workers’ compensation case performed by Dr. Anton Kemps in 2009.  In that report, Dr. Kemps opined that Ferrari developed arachnoiditis as a result of the surgery.  He provided an estimate of 5% permanent partial disability.  Defendant argued that more than two years expired from the date of Dr. Kemps’ 2009 report and the filing of the civil law suit.  The trial court ruled in favor of defendant and dismissed the case.

Ferrari appealed and argued that the two year limitations period should not have begun to run in 2009.  Both parties agreed that a medical malpractice case must be filed within two years of the accrual date, but New Jersey law makes clear that the cause of action does not accrue until the injured party discovers that he or she has an actionable claim.  Ferrari argued that the 2009 report from Dr. Kemps did not alert her that the surgery was a failure or that Dr. O’Shea may have committed malpractice.  It just said she developed arachnoiditis.

Ferrari maintained that she had no knowledge of potential malpractice until Dr. Kemps wrote another report in September 28, 2012.  In that second report, Dr. Kemps said that there was no indication that Ferrari “had any material placed within her disc spaces to replace the removed disc.”  He added that a review of the operative report did not show that any stabilization device was inserted to replace the removed disc.  There was also some evidence from a 2013 report of Dr. O’Shea that Ferrari experienced an additional herniation at the site of the operation at L4-5.

The Appellate Division disagreed with the trial judge.  “However, we agree with plaintiff that Dr. Kemps’ September 28, 2012 report was the first concrete information she received suggesting that Dr. O’Shea made a mistake in performing the surgery.  None of the other information defendant cites was reasonably likely to inform either plaintiff or her workers’ compensation attorney that Dr. O’Shea had done anything wrong.”  The Court added, “Until Dr. Kemps’ September 28, 2012 report, none of the doctors suggested that Dr. O’Shea was at fault.”

Based on this analysis, the Appellate Division reversed the dismissal of the civil law suit.  This does not mean that the Court found any evidence of medical malpractice:  it only means that Ferrari will have a chance to prove her medical malpractice case.

The case is interesting because it shows how an IME in a workers’ compensation case for permanency purposes can sometimes create the basis for a medical malpractice claim and indeed start the clock running on the injured worker’s potential civil law suit.  This is one compelling reason why parties need to read IME reports in workers’ compensation very closely.  Sometimes the tendency is to just focus on the overall percentage of disability and potential credits.  But both counsel have to pay close attention to discussions about the effectiveness of surgery.  In this case, the Appellate Division specifically noted that Ferrari’s workers’ compensation attorney would not have been alerted to potential malpractice until he read the September 2012 report.  Moreover, respondent’s lien rights depended on the revival of the medical malpractice law suit, so defense counsel must also be vigilant.  The case underscores why it often does not make sense for workers’ compensation counsel to hold onto IMEs until they get to court at a pretrial hearing.  A report such as this should be sent immediately to opposing counsel, since the Appellate Division in this case concluded that the cause of action accrued the very date of the September 28, 2012 report of Dr. Kemps.

This case can be found at Ferrari v. Joan F. O’Shea, M.D. A-3289-16T2 (App. Div. July 13 2018). We thank our friend Ron Siegel, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

KANSAS WORK COMP EMERGING ISSUES AND TRENDS - 2018

2018 Kansas Legislature:  The 2018 Kansas legislature enacted several substantive workers compensation law changes related to death benefit claims.  Highly summarized, while the overall $300,000.00 death benefit cap remains, key death benefit statute changes include:  1) the funeral benefit cap was increased from $5,000.00 to $10,000.00; 2) the up-front lump sum payment increases from $40,000 to $60,000.00; 3) clarification of statutory language regarding cut off of payments to minor dependent children when still in high school; 4) increase in caps for dependents, if any, where employee leaves no legal spouse or dependent children; and 5) increase in allowable Conservator expenses for minor dependents up to maximum of $2,500.

Constitutionality of Statute Requiring Use of AMA Guidelines 6^th Ed. –Pardo Kansas Court of Appeals Ruling:  The 2013 Kansas Legislature amended the Kansas Workers Compensation Act to require use of the AMA Guides to the Evaluation of Permanent Impairment6^th Ed. to determine an award of permanent partial disability compensation based on the extent of functional impairment.  Prior to January 1, 2015, the statutorily required AMA Guides edition was the4^th Ed.  The change from use of the AMA Guides 4^th Ed. to the 6^th Ed. became effective for all injuries occurring on or after January 1, 2015.

Since 2015, Kansas claimants and the claimant’s bar have been heard to complained that the AMA Guides, 6^th Ed. so significantly reduces impairment ratings and resulting compensation awards, as to effectively eliminate an adequatequid pro quo substitution of a work comp remedy for the workers’ original civil tort damage remedy.  In the original grand bargain, Kansas injured workers relinquished their common law civil court tort remedy of uncapped damage award potential from a jury of their peers, in exchange for a no-fault benefit remedy system that was intended to adjudicate work injury disputes and deliver medical treatment more quickly and predictably, but with capped disability benefit recovery potential for injured workers and lower costs to employers.

On June 1, 2018, the Kansas Court of Appeals (Kansas’ intermediate appellate court) handed down its ruling in the case ofPardo v. United Parcel Service, Inc., (No. 116,842) concerning the constitutionality of the Kansas Workers Compensation Act’s 2015 adoption of the AMA Guides 6^th Edition in calculating permanent partial disability compensation benefits.

Claimant Pardo was a thirteen-year employee of UPS operating trucks, picking up and delivering loads, and working in the yard with a spotter.  The accidental work injury which was the subject of this claim occurred on March 18, 2015 while climbing on a piece of equipment.  Mr. Pardo slipped on an oil and grease buildup, causing his left arm to jerk, and he felt a pop and pull in his left shoulder.

The focus of Pardo’s constitutional challenge of the legislative requirement that permanent partial disability be computed based on the AMA Guides, 6^th Ed. was a unique 6^th Ed. rating limitation for shoulder injuries.  The 6^th Ed. specifies for a certain type of rotator cuff tear, a 0% -2% permanent impairment rating can be given.  However, the 6^th Ed. also adds the provision not found in the AMA Guides 4^th Ed. that a rating in the range of 0% to 2%for these types of shoulder injuries can only be given once in an individual’s lifetime (AMA Guides, 6^th Ed., Table 15-5, Page 402).

Pardo’s unique fact situation was that he had suffered a prior left shoulder rotator cuff tear in a previous 2013 work related injury, which resulted in a previous left shoulder surgical repair and disability compensation recovery.

When applying the AMA Guides 6^th Ed. to this 2015 claim of left shoulder re-injury, the employer’s argument was that Pardo was entitled to no additional permanent partial disability compensation for this 2015 shoulder work injury.  This is in stark contrast to what permanent disability compensation Pardo would have received had the law allowed Pardo’s impairment and disability compensation to have been based on the old AMA Guides 4^th Ed. language.

Under the previously required AMA Guides 4^th Ed. shoulder rating provisions, had they still been in place in 2015, Pardo would likely have been awarded, for the 2015 re-injury, permanent disability compensation of an additional 10% permanent impairment above the previous 15% permanent impairment Pardo had been awarded for his first left shoulder work injury.

In short, because Kansas required the AMA Guides 6^th Ed. to be used to determine his permanent disability compensation for the 2015 left shoulder re-injury, Pardo is now entitled to zero dollars ($0) additional permanent disability compensation above his previous 2013 original shoulder injury award.  Contrast the $0 permanent partial disability compensation award under the AMA Guides 6^th Ed. for the Pardo 2015 re-injury claim, with the approximate $13,000.00 award he would have received for that 2015 re-injury claim had the old 4^th Ed. version of the AMA Guides still been in place in the statute.

This compensation recovery differential under the AMA Guides 6^th Ed. left Pardo with the obvious legal argument thatas applied to his case the legislative change from the AMA Guides 4^th Ed. to the 6^th Ed. was unconstitutional because not only was the amount of his permanent disability compensation significantly reduced for this second work related shoulder injury, he was actually completely denied any permanent disability compensation remedy under the 6^th Ed. requirement applicable to his 2015 accidental re-injury claim.  Therefore, the quid pro quo basis of the original grand bargain was lost to Pardo as the amended law requiring the use of the 6^th Ed. was applied to his 2015 re-injury claim situation.

The Pardo Kansas Court of Appeals decision reversed the Appeals Board denial of permanent disability compensation benefits.  In doing so, the Court of Appeals held thatas applied to Mr. Pardo, the use of the AMA Guides 6^th Ed. was unconstitutional and remanded the case back to the administrative agency for a determination of permanent impairment and disability compensation entitlement based on the AMA Guides 4^th Ed.

Interestingly, neither the employer nor Pardo filed with the Kansas Supreme Court, a timely Petition for Review by the Supreme Court of thisPardo Court of Appeals decision.  This is because while the outcome of thePardo Court of Appeals decision to reverse the Appeals Board favored claimant Pardo, the very narrow and limited rationale for the decision used by the Court in its opinion to reach that result could be seen as actually potentially benefiting employers in future AMA Guide 6^th Ed. rating disputes.  It appears each side calculated the risks of further appealing this particular Court of Appeals outcome and decided the risks of further appeal to the Kansas Supreme Court were greater than simply living with the outcome of the Court of Appeals decision as written in Mr. Pardo’s case.

Claimant Pardo prevailed in the outcome of this decision in that his case will now return to the Appeals Board and instead of receiving $0 additional permanent disability compensation for the 2015 re-injury, he will likely receive a modest award of some additional permanent disability compensation.  Yet this is a far cry from what claimant Pardo argued for before the Kansas Court of Appeals in this appeal.

Pardo’s basic request to the Kansas Court of Appeals was that the Court determine the entire Kansas Workers Compensation Act unconstitutional and allow Kansas injured workers to regain their original civil tort remedy in Kansas general civil courts, before a jury of their peers.  Pardo argued that his $0 permanent disability compensation award was unconstitutional as it denied him due process, violated equal protection, violated separation of powers and was an unlawful delegation of the State’s legislative powers.

The rationale of the Pardo Court’s ruling did not grant claimant Pardo with the sweeping evisceration of the Kansas Workers Compensation Act his counsel requested of the Kansas Court of Appeals.  The Court rejected Pardo’s recommendation that he be allowed to purse civil tort damages for his 2015 work injury because the requirement of use of the AMA Guides 6^th Ed. denied him a remedy under the Act.  The Court potentially limited the scope and future application of its decision to other Kansas injured workers through its holding that the Act’s use of the AMA Guides 6^th Ed. was unconstitutional, by carefully restricting its determination of unconstitutionallyto this particular claimant’s fact situation as opposed to the entire Kansas Workers Compensation Act as applied to all other current and future injured worker claims.

The current and future impact of this limited Pardo Court of Appeals decision will be closely followed.  Undoubtedly, this will not end the claimants’ bar challenges to the constitutionally of the AMA Guides 6^th Ed. in other fact situations, and other more general constitutional challenges as to the broader pro-employer 2011 reform amendments to the Act.  While other pending and future shoulder re-injury claims in Kansas will likely be resolved by the parties with a compromise consideration of AMA Guides 4^th Ed. impairment ratings for specific rotator cuff re-injury claims, whether thisPardo Court of Appeals decision will impact the routine resolution of Kansas claims involving body part problems beyond just certain shoulder injury conditions is yet to be determined.

Kim R. Martens
MARTENS WORK COMP LAW LLC
Phone: 316.461.0135
E-mail:Kim@MartensWorkCompLaw.com
www.MartensWorkCompLaw.com

On July 13, 2018 the Alabama Court of Civil Appeals released its opinion in Lawler & Cole CPAs, LLC, and Alabama Retail Association d/b/a Alabama Retail Comp v. Donald Cole which was on appeal for the Marion County Circuit Court. In the underlying case the employee’s estate filed a motion for summary judgment on its claim for death benefits based on the employee’s death as a result of a former client shooting her in her office. The employer also filed a motion for summary judgment which was denied. The trial court found that the employee’s death occurred in and arose out of the employee’s employment with the employer.

The parties agreed with the facts of the circumstances of the employee’s death in that the employee had served as the accountant for a Mr. Jimmy Dale Cooper since at least the 1980s. At some point in handling Mr. Cooper’s business, Mr. Cooper was audited and Mr. Cooper ultimately refused to comply with the lawful request of the Alabama Department of Industrial Relations. The employee and her employer subsequently ceased to handle Mr. Cooper’s business at which time the employee told Mr. Cooper she did not want any hard feelings between them because they were friends and they had worked together for such a long time but the employer could no longer handle his business. In February of 2016 Mr. Cooper entered the premises of the employer and ultimately shot and killed the employee. The evidence presented established that Mr. Cooper had stated that he was upset and going to shot the employee because he blamed the employee for the tax problems in his past. Nothing in the evidence established that Mr. Cooper and the employee had any sort of personal disagreement.

Under the Alabama Workers’ Compensation Act, the unexpected willful assault upon an employee by another person constitutes an accident for the purpose of the Act and any injury resulting from shall be compensable if the rational mind can trace the resultant injury or death to a proximate cause set in motion by the employment and not some other agency. SeeGarrett v. Gadsden Cooperage Co., 96 So. 188 1923 and Beverley v. V. Ruth’s Chris Steakhouse, 682 So. 2d 1360, 136, (Ala. Civ. App. 1996). Furthermore, the supporting case law indicates that the employment can still be the approximate cause if the assault was not foreseeable as a natural and anticipated risk of the employment.

In this case, the employer was arguing that the length of time between the interaction between the employee and Mr. Cooper supported that there was something personal that resulted in the employee being killed or that at the very least it was unrelated due to the gap in time. However, the Alabama Court of Civil Appeals pointed out that the plain language of the statue, § 25-5-1(9) clearly and unambiguously provides that the intentional assault would not arise out of the employment if it was committed upon the employee because of reasons personal to the employee and not because of his/her status as an employee or because of his/her employment. In this case, the Alabama Court of Civil Appeals stated that despite the fact that there was a significant lapse in time between the employment related act and the employee ultimately being killed, the evidence was undisputed that Mr. Cooper intentionally assaulted and killed the employee not out of personal ill will but solely because of the employee’s work performed on Mr. Cooper’s taxes. Immediately before opening fire on the employee Mr. Cooper stated his intent to kill the employee because she “f***** (his) taxes”. The Court specifically rejected any contention that an assault would be considered purely personal because of the long passage of time between the professional relationship between Mr. Cooper. Furthermore, while the record may have been vague as to what happened between their professional relationships and the time Mr. Cooper shot the employee it was clear at the time of the assault that Mr. Cooper was angry and blamed the employee for his tax problems and was acting as a result of that. Therefore, the Court of Civil Appeals upheld the trial court’s motion for summary judgment ruling stating that the death of the employee was caused by accident arising out of and occurring in the course of the employee’s employment and therefore, benefits were due to the employee’s estate.

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 About the Author

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

Victor Campos worked for the Department of Public Works for the City of Passaic.  On December 23, 2013, he was performing maintenance work at City Hall when he began to feel ill.  He made the decision to go home early, but first he had to notify his employer that he was finished for the day and complete paperwork for his supervisor to sign.  On the way back to the DPW office, a car driven by a co-employee, Miguel Cruz, a police officer in the City, ran a red light and collided with Campos’ car.

Campos sued Cruz for his personal injuries, and he also brought a workers’ compensation claim against the City, which he settled on a Section 20 basis. Counsel for the City and Cruz in the civil action argued that the civil suit was barred because Campos was in the course of his employment when the action took place and he was injured by a fellow employee of the City.  The Superior Court dismissed the civil suit as barred under N.J.S.A. 34:15-8.  That provision prevents civil suits against fellow employees.

On appeal Campos argued that he was just returning to the DPW office for personal reasons: namely to fill out paperwork so he could go home.  He argued that his day was done when he finished working at City Hall.  The Appellate Division disagreed and noted that Campos left the City Hall location to submit required paperwork in order to take off a half-day.  Only after completing paperwork would he be permitted to go home.  The Court concluded that Campos was therefore performing duties “assigned or directed by the employer” at the time of the accident.

That plaintiff was not physically at his workplace when the accident occurred is thus of no moment.  Indeed, as a DPW worker, plaintiff could have been working in any part of the City when he was involved in the accident.

The Court held that part of Campos’s job was to complete paperwork to take off the rest of the day. “The City had a policy requiring him to fill out paperwork prior to going home for the day.  Plaintiff was complying with that policy as directed by his employer.”

Campos also tried to argue that a Section 20 settlement does not bar his damages claim against his employer and co-employee.  The Court gave some interesting analysis on this issue, citing Sperling v. Bd. of Review, 301 N.J. Super. 1, 5 (App. Div. 1997).  “Receipt of a lump sum settlement under N.J.S.A. 34:15-20 constitutes an implied acknowledgement that the claimant’s disability was work-related and compensable under the Workers’ Compensation Act.”  The Court stated:

Having recovered a workers’ compensation award for his injuries, plaintiff now seeks to pursue a negligence claim for damages involving the same accident and resultant injuries.  Because plaintiff’s present claims are prohibited by both statute and common law, the trial court did not err in finding that plaintiff’s receipt of workers’ compensation benefits bars any further recovery at law.

The facts are certainly unusual here, but the reasoning of the Court is sound:  petitioner was driving from one city location to his office at the DRW office to fill out paperwork before he could leave work.  Therefore he was still in the course of his employment.  Plaintiff probably thought the settlement on a Section 20 would keep his potential civil suit alive but the Court treated the Section 20 payment as an admission that the car accident was compensable. The more important point was that an employee cannot sue a co-employee when they are both engaged in work activities.  This case can be found at Campos v. Cruz and the City of Passaic, A-3825-16T2 (App. Div. July 12, 2018).

Thanks to our friend Ron Siegel, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Dennis Lomet worked for Lawes Coal Company from 1987 to 2012 when he died of lung cancer at the age of 47.  He installed, removed, or repaired heating and air conditioning equipment.  He never smoked cigarettes.  Before he died, he told one of his treating physicians that he thought he had been exposed to chemicals, soot and asbestos in the course of his employment.  One of his friends testified at trial that he believed he and the decedent were exposed to asbestos during the period from 1987 to 1992.

Mr. Lomet’s widow, Michelle Lomet, testified that her husband would be so dirty when he returned home from work that he would need to take two showers.  When he would blow his nose, there was black material on the tissues.

Petitioner’s expert, Dr. William Lerner, did not give strong testimony regarding exposure to asbestos.  He seemed to assume there was exposure to asbestos:  “In somebody who is exposed to chemicals like that and asbestos with no other smoking history and no other known cause for his lung cancer, a reasonable probability of these carcinogens causing Dennis’s lung cancer. . . is not unreasonable as a conclusion.”

Respondent’s expert, Dr. Jack Goldberg, testified that there was no evidence of asbestos exposure in this case.  He said that if asbestos fibers enter the lung and cause cancer, plaques are visualized on radiographical films.  He said there were none in petitioner’s studies.  He also said that none of the pathological studies indicated exposure to asbestos.  Finally, he said that there were no radiological studies showing that the decedent’s cancer was caused by chemical exposure either.

The Judge of Compensation concluded that there was no objective medical evidence showing that asbestos exposure caused or contributed to the decedent’s lung cancer.  The Judge stated that this is “a case where there is zero medical evidence and 100% medical speculation.”

Petitioner appealed and argued that there was sufficient credible evidence in the record showing exposure to asbestos.  The Appellate Division affirmed the dismissal of petitioner’s dependency claim.  “We have examined the evidence, and concur with the judge of compensation’s finding there was no evidence of substance that causally links Dennis’s lung cancer to asbestos or other chemicals to which he may have been exposed while working for Lawes.”  The Court also said that there was also no evidence of the extent of any exposure, even if there was exposure.

The case is interesting in that it focused on the threshold issue in every asbestos-related pulmonary claim: namely proof of asbestos exposure.  The Court did not believe that statements by the decedent and co-worker that they thought they were exposed to asbestos was sufficient proof of exposure.  Rather, they insisted on objective evidence.  There was no proof of any asbestos remediation project and no showing of any asbestos products in the workplace.  By far the most damaging element of the case was that the radiographic studies showed no asbestos-related plaques in the decedent’s lungs.

The case can be found at Lomet v. Lawes Coal Company, A-1169-16T1 (App. Div. July 11, 2018).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.