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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.
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 firstname.lastname@example.org.