MICHELLE LOMET VS. LAWES COAL COMPANY (NEW JERSEY DIVISION OF WORKERS' COMPENSATION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1169-16T1
MICHELLE LOMET,
Petitioner-Appellant,
and
DENNIS LOMET, SR.,
Petitioner,
v.
LAWES COAL COMPANY,
Respondent-Respondent.
______________________________
Argued March 12, 2018 – Decided July 11, 2018
Before Judges O'Connor and Vernoia.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition Nos. 2012-16521
and 2012-32718.
Michelle Lomet, appellant, argued the cause
pro se.
David P. Kendall argued the cause for
respondent (Ann DeBellis, of counsel and on
the brief).
PER CURIAM
Appellant Michelle Lomet is the widow of Dennis Lomet, Sr.1
She appeals from a Division of Worker's Compensation order
dismissing a petition Dennis filed after he was diagnosed with
lung cancer, in which he sought worker's compensation benefits
from respondent Lawes Coal Company (Lawes). The order also
dismissed a dependency claim petition Michelle filed. The two
petitions were consolidated for the hearing, in which the sole
issue was whether the lung cancer from which Dennis died was
caused by exposure to asbestos and other chemicals during his
employment with Lawes.
After reviewing the evidence adduced at the hearing and the
applicable legal principles, we affirm for the reasons set forth
in the judge of compensation's October 6, 2016 oral decision.
Dennis was employed by Lawes from 1987 to 2012, when he
died of lung cancer at the age of forty-seven. His job duties
at Lawes were to install, remove, or repair heating and air
conditioning equipment. He had never been a smoker. Before his
death, he informed one of his treating physicians that he had
been exposed to chemicals, soot, and asbestos in the workplace.
One of Dennis's friends who worked for Lawes from 1987
through 1992 testified he believed he and Dennis were exposed to
1
To avoid confusion, we refer to Michelle Lomet as "Michelle"
and Dennis Lomet, Sr., as "Dennis." We intend no disrespect by
referring to these parties by their forenames.
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asbestos during that five year period. Michelle testified that
when Dennis came home from work, she often observed him blowing
his nose, and saw black material come out of his nose when he
did so. In addition, he often had to shower twice in order to
get clean. There was no other evidence about Dennis's alleged
exposure to asbestos or other chemicals while he worked for
Lawes.
Michelle called William A. Lerner, M.D., as her expert
oncologist. On the question of what caused the lung cancer in
Dennis to develop, the substance of Dr. Lerner's testimony was:
There are a lot of things out there that are
. . . known carcinogens[] that are
contributing to developing lung cancer. 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.
He subsequently testified:
There are lots of things that we don't know
why people get certain cancers. . . .
[T]here are things that we don't know that
he may or may not have been exposed to that
could have led to his increased risk of lung
cancer.
Lawes' expert oncologist, Jack Goldberg, M.D., testified
that if asbestos fibers enter the lung and cause cancer, neural
plaques and "B readers" are visualized on radiographical films.
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He noted none of these was found on Dennis's radiographical
studies. Further, none of the pathological studies indicated
Dennis had been exposed to asbestos. In addition, Dr. Goldberg
testified the radiographical studies failed to show evidence
Dennis's cancer was caused by chemical exposure.
The judge found Dr. Goldberg more credible than Dr. Lerner,
and concluded that even if Dennis had been exposed to asbestos
or carcinogenic chemicals when he worked for Lawes, there was no
objective medical evidence such exposure caused or contributed
to the onset of Dennis's lung cancer. As the judge stated, this
is "a case where there [is] zero medical evidence and 100%
medical speculation."
On appeal, Michelle argues there was sufficient evidence
Dennis was exposed to asbestos or other chemicals while he
worked for Lawes that led to his developing lung cancer.
The scope of our review is limited. Our function is to
determine "'whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record,'
considering 'the proofs as a whole,' with due regard to the
opportunity of the one who heard the witnesses to judge . . .
their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599
(1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
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N.J.S.A. 34:15-31 defines a compensable occupational
disease as any "disease[] arising out of and in the course of
employment, which [is] 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."
"Material degree" means "a degree substantially greater than de
minimis." Fiore v. Consol. Freightways, 140 N.J. 452, 467
(1995).
The burden is on a petitioner to prove his case by a
preponderance of the evidence. Rivers v. Am. Radiator Standard
Sanitary Corp., 24 N.J. Misc. 223, 227 (C.P. 1946). A
petitioner seeking worker's compensation benefits must prove
both legal and medical causation when those issues are
contested. Lindquist v. City of Jersey City Fire Dep't, 175
N.J. 244, 259 (2003). Medical causation means the disability is
a consequence of work exposure. Ibid. Legal causation requires
proof the disability is work connected. Kasper v. Board of
Trustees of Teachers' Pension and Annuity Fund, 164 N.J. 564,
591 (2000) (Coleman, J., concurring).
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
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Lawes. Even if Dennis had come into contact with such agents,
there was no evidence of the extent to which he was exposed.
Further, the judge credited Dr. Goldberg's testimony, who
testified that if Dennis's cancer were caused by asbestos or
chemical exposure, evidence of such exposure would have but did
not appear on his radiographical and pathological studies.
Because the judge's findings were reached on sufficient credible
evidence present in the record, we must affirm.
Affirmed.
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