Lindquist v. City of Jersey City Fire Dept.

• Decision Date: 11 February 2003
• Citation: 175 N.J. 244,814 A.2d 1069
• Parties: Richard LINDQUIST, Petitioner-Appellant, v. CITY OF JERSEY CITY FIRE DEPARTMENT, Respondent-Respondent.
• Court: New Jersey Supreme Court

814 A.2d 1069

175 N.J. 244

Richard LINDQUIST, Petitioner-Appellant, v. CITY OF JERSEY CITY FIRE DEPARTMENT, Respondent-Respondent.

Supreme Court of New Jersey.

Argued September 23, 2002.

Decided February 11, 2003.

Thomas W. Polaski, Freehold, argued the cause for appellant (Gary P. Sarlo, attorney).

John H. Geaney, Mt. Laurel, argued the cause for respondent (Capehart & Scatchard, attorneys). The opinion of the Court was delivered by COLEMAN, J.

The issue raised in this appeal is whether petitioner's employment as a fireman for approximately twenty-three years caused or contributed to his development of pulmonary emphysema within the meaning of the occupational disease provisions of the Workers' Compensation Act. Resolution of that issue requires us to decide how much workplace contribution is enough to trigger employer responsibility. The Judge of Compensation found that petitioner's occupational exposure materially contributed to the development of emphysema. The Appellate Division reversed, finding that the evidence was insufficient to establish medical causation between the employment and the emphysema. We disagree and reverse.

I.

Petitioner Richard Lindquist was employed as a full-time paid fireman with the City of Jersey City Fire Department from July 1972 until his retirement in January 1995. He was promoted to the rank of captain in 1979. Petitioner testified that during the first ten years of his employment, he responded to "30 to 60 large fires per year," "small one-room" fires, car fires, and "dump" fires. When he began his job in 1972, each firefighter was given a self-contained breathing apparatus, "but it was just very new and people didn't seem to use it until 1982." Although petitioner was exposed to "heavy smoke" for up to forty-five minutes to an hour and a half during larger fires, he frequently did not use the apparatus. In respect of smaller fires, petitioner described the duration of exposure to smoke as follows:

Well, I guess basically outdoor fires you try to stay upwind if you can, but a lot of times they are grass fires that—down where Liberty State Park is now and the Liberty Science used to be, it is all grass area, which still has pretty much been an abandoned grass area that many times will catch on fire and the whole area would be lit, and you would be completely engulfed in smoke at the time, you couldn't get away from it.

Some of the fires involved burning chemicals, plastics, household cleaners, and propane.

In 1982, respondent distributed to all firefighters a protective device known as a Scott mask. The mask provided oxygen or "purified air" to the user. Petitioner testified that the Scott mask "did a pretty good job" of preventing fumes from entering the breathing passages. Nonetheless, he still inhaled smoke that seeped into the mask. He also frequently removed the mask to give orders to other firefighters and to clear moisture that accumulated on the mask.

From 1986 to 1992, petitioner was assigned to supervise the Hazardous Materials Unit of the fire department. During that time, petitioner responded to both residential and industrial fires. The burning items consisted of plastics and chemicals, causing "much more toxic smoke than the `70s and `60s." After 1992, petitioner returned to his position as captain.

Prior to commencing employment with respondent, petitioner had not experienced any problems with breathing or with his eyes, nose, or throat. He testified that during his tenure with the fire department, he was taken to the hospital numerous times. On other occasions he was administered oxygen at the scene of a fire. He suffered from shortness of breath, heart palpitations, and weakness. After responding to a toxic dump fire in 1991, petitioner and "most of the other [firefighters]" were sent to the hospital to test for arterial blood gases. Although not hospitalized, petitioner experienced throat irritation, rapid breathing, and dizziness.

Petitioner retired in 1995 at the age of forty-seven, due in part to an early buyout offer and in part to health considerations. At the time of his retirement, petitioner was less able to perform his responsibilities as a firefighter, and in particular as captain, because his energy and normal breathing capacity gradually had diminished. According to petitioner, he developed a "post nasal drip which would result in phlegm and coughing" that was "pretty constant" during his employment years. Now, those symptoms occur "[m]aybe two to three times a week." He also suffers from dry eyes and shortness of breath and is no longer able to play basketball with his son or take long walks with his wife. He is able to walk only one quarter to one half of a mile "before [he begins] breathing heavily." He cannot perform yard work or house work, such as "building sheds, [and] putting [together] decks," without some difficulty. In 1995 or 1996, petitioner began seeing a physician who prescribed treatment with a bronchodilator one or two times per week. The treatment relieves petitioner's symptoms "almost instantly."

Petitioner smoked approximately three-fourths of a pack of cigarettes per day for twenty-two years, stopping in 1992 or 1994. During the 1970s, he had a second job driving an oil truck. From 1982 through 1989, petitioner worked in residential construction in addition to his employment with the City of Jersey City. Shortly after leaving the fire department, petitioner became employed as a school bus driver.

Dr. Bernard Eisenstein testified on petitioner's behalf. Dr. Eisenstein specializes in heart and lung medicine and is Board Certified in internal medicine. He performed a complete examination of petitioner on January 16, 1995, to evaluate his pulmonary disability. In addition to the physical examination, Dr. Eisenstein performed a chest x-ray, and pulmonary function studies. The physical examination was "essentially negative, except [for] some areas of expiratory wheezing in the thorax." However, the chest x-ray was "abnormal, [and] revealed increased bronchovascular markings with large lung volume, which ... is compatible with emphysema." The doctor explained that petitioner's x-ray revealed "a hyperinflation... [indicating] ... [that petitioner] has too much air in there [and] expiratory obstruction." The results of the pulmonary function studies were "only a little abnormal."

Based on those tests, Dr. Eisenstein concluded that petitioner suffered from "chronic obstructive pulmonary disease in the form of emphysema." He attributed petitioner's condition primarily to occupational exposure as a firefighter to fire, smoke, hazardous waste, combustion, and secondarily to cigarette smoking. However, he was unable to allocate an exact percentage to each cause. Specifically, Dr. Eisenstein stated:

Firefighters get bronchitis, firefighters get emphysema, and in my experience of many years you can't tell looking at an x-ray that this is due to cigarettes and this is due to work because of an occupation.... In other words, emphysema can be caused by many things, as I said, so there's nothing characteristic as an occupation by a fireman, and they get a certain x-ray. There are certain changes seen in smoke inhalation, but he also can have these changes due to his exposures.

The doctor concluded that, "based upon a reasonable degree of medical probability," petitioner suffered "30 percent of partial total" permanent disability. On cross-examination, Dr. Eisenstein admitted that he could not cite any studies in which non-smoking firefighters developed emphysema.

In response to Dr. Eisenstein's testimony, respondent presented the testimony of Dr. Douglas Hutt. Dr. Hutt is Board Certified in internal, pulmonary, and critical care medicine. During his examination of petitioner on December 19, 1996, petitioner informed Dr. Hutt that his primary symptom was a post-nasal drip that began one year after he retired from the fire department. Petitioner also told the doctor that "he really wasn't very short of breath and could do all of his normal [activities] including normal walking and even walking upstairs and even doing some exercise including some mild jogging." However, petitioner advised Dr. Hutt that he noticed "a subtle difference in his ability to exercise and he really wasn't sure if this was related to some underlying medical condition or breathing problem or possibly because he was just getting older." Dr. Hutt further testified that petitioner "did not think this was a major problem at the time" of the examination. He noted that petitioner "did not remember any long term symptoms that he had after any of the ... exposures to any of the[ ] bad fires." Additionally, petitioner told Dr. Hutt that "he smoked about three quarters of a pack [of cigarettes] a day for [twenty-two] years and that ... his family pressured him to stop smoking about five years before [the] interview, but he did not stop because he was having breathing problems." He also told Dr. Hutt that his brother and sister suffer from allergies and that his grandfather died from emphysema.

Dr. Hutt performed a complete physical examination of petitioner including a chest x-ray, which revealed that petitioner's lungs were over-inflated and "that the lung fields themselves are very, very big." Finally, Dr. Hutt performed a complete set of pulmonary function tests. The results showed that petitioner "had some mild airflow obstruction," that he suffers from "air trapping," which means that petitioner retains almost three and a half liters of air in his lungs after a complete exhale, and that his diffusing capacity—the ability of the lungs to transfer oxygen from the air to the bloodstream—was moderately to severely reduced. Dr. Hutt stated that petitioner's reduced diffusing capacity "correlates with destruction of lung tissue, lung injury, possibly scarring between the alveoli, which are the small air sacs, and the capillaries, which are small blood...