Renner v. At

• Decision Date: 30 July 2014
• Citation: 95 A.3d 201,218 N.J. 435
• Court: New Jersey Supreme Court
• Parties: James P. RENNER, Petitioner–Respondent, v. AT & T, Respondent–Appellant.

218 N.J. 435

95 A.3d 201

James P. RENNER, Petitioner–Respondent,

v.AT & T, Respondent–Appellant.

Supreme Court of New Jersey.

Argued Jan. 6, 2014.

Decided July 30, 2014.

Ivan R. Novich, Newark, argued the cause for appellant (Littler Mendelson, attorneys).

Patrick R. Caulfield, Edison, argued the cause for respondent (Levinson Axelrod, attorneys).

Judge RODRÍGUEZ (temporarily assigned) delivered opinion of the court.

In this appeal, we consider the statutory requirements for establishing a compensable claim for cardiovascular injury disease or death, as defined by N.J.S.A. 34:15–7.2 (section 7.2) of New Jersey's Workers' Compensation law. Section 7.2 was enacted in 1979 as part of comprehensive reforms to the Workers' Compensation system. In that amendment, the Legislature set higher standards of proof and causation for cardiovascular claims.

Here, we apply those standards to a petition filed by petitioner James Renner (James), who sought dependency benefits arising from the death of his wife, Cathleen Renner (Cathleen). Cathleen, an employee of defendant AT & T who worked primarily from a home office, died on September 25, 2007, as a result of a pulmonary thromboembolism. The Division of Workers' Compensation (Division) and the Appellate Division found that James had presented sufficient evidence to establish a compensable claim pursuant to section 7.2.

We reverse and hold that James has failed to demonstrate that Cathleen's death resulted from a “work effort or strain” within the meaning of N.J.S.A. 34:15–7.2, and has failed to present a compensable cardiovascular claim pursuant to the Workers' Compensation law.

I.

Cathleen died on September 25, 2007, as a result of a pulmonary thromboembolism while she was working at home in the course of her employment for AT & T. Her widower James initially filed a dependency claim petition in the Division. He alleged that Cathleen's death was compensable as an occupational disease as defined by N.J.S.A. 34:15–31. The judge of compensation awarded him dependency benefits.

The Appellate Division reversed, concluding that the judge had applied the incorrect standard to the facts presented, and remanded to the Division to determine whether dependency benefits could be awarded pursuant to the cardiovascular injury, disease or death standard defined by N.J.S.A. 34:15–7.2.

On remand, based on the same evidence, the judge of compensation concluded that Cathleen's pulmonary thromboembolism was a vascular disease injury rather than an occupational disease injury and that the evidence was sufficient to prove a cardiovascular injury claim. The Appellate Division affirmed.

We granted AT & T's petition for certification. Renner v. AT & T, 209 N.J. 233, 36 A.3d 1065 (2012). For the reasons that follow, we reverse the judgment of the Appellate Division.

II.

A.

The following evidence was presented by James at the original and remand hearings. At the time of her death, Cathleen had been employed by AT & T for about twenty-five years as a salaried manager. Her duties included formulating and executing contingency plans so that AT & T could operate as usual in the event of an anticipated job action by AT & T employees.

Cathleen had a telecommuting agreement with AT & T wherein she was allowed to work from a home office. She usually worked about three days a week from home and went into the office about twice a week. Although AT & T describes Cathleen's job as a “nine-to-five” position, her husband testified that she worked at all hours from home and worked much more than forty hours per week—at times until 2:00 a.m. Cathleen usually got up around 7:25 a.m. and would immediately begin working on her computer.

On the night before Cathleen's death, James was on a business trip and spoke with her on the telephone around 11:00 p.m. Cathleen told James that she was working on a project that was due the next day and that she would be working throughout the night if needed because the project had to be completed. Computer records show that she was still sending electronic communications regarding the project after midnight.

Robert Desiato, Cathleen's direct supervisor, testified about her work and his interactions with Cathleen in general and on the day she died. According to him, Cathleen's work was deadline driven, which required that Cathleen make sure that the projects were completed on time. Desiato also explained that the amount of work Cathleen had would have kept her busy and required her to be on the computer and telephone.

E-mail records confirm that Cathleen worked into the early morning hours of September 25, 2007, and throughout the morning later that day. Cathleen's computer records revealed that she had sent an e-mail with an attachment to a co-worker at 12:26 a.m., and then electronic communications at 9:10 a.m., 9:12 a.m., 9:55 a.m., 10:21 a.m., and 10:36 a.m. that morning. These e-mails disclosed messages with various other individuals regarding the project.

Cathleen's son Jeffrey testified that his mother had started working in her home office when they got home from dinner on September 24, 2007. She was still working at her work station when he went to bed around 10:30 p.m. that night.

According to Jeffrey, Cathleen was working in her office when he woke up around 7:00 a.m. on the next day. At around 7:50 a.m., Cathleen took Jeffrey to catch his school bus around the corner. Cathleen grabbed her leg and said “ow” while walking out of the house.

At around 9:00 a.m., Cathleen told a co-worker that she was not feeling well, but she was going to complete the project. Cathleen completed the project and sent out an e-mail around 10:30 a.m. to her co-workers.

At 11:34 a.m., Cathleen called the Edison Township Emergency Medical Services (EMS). EMS workers responded to her house and found Cathleen lying prone in the vestibule screaming, “I can't breathe. Help me! I'm choking! Help me!” They began first-aid treatment and transported her to JFK Medical Center. Emergency resuscitative measures were unsuccessful, and she was pronounced dead after her arrival at the hospital. An autopsy revealed that Cathleen had died of a pulmonary thromboembolism that became lodged in the main trunk of her pulmonary artery.

Leon H. Waller, D.O., a board certified internal medicine physician by the American Board of Internal Medicine, testified in support of James's claim. He reviewed the EMS report, JFK admission record, autopsy report, and records from Cathleen's treating gynecologist (Somerset Piscataway OBGYN Group) prior to issuing his opinion.

Dr. Waller found that the work effort of sitting at her desk the day before and the day of her death contributed in a material degree to her deep vein thrombosis (DVT) and ultimate death. He opined that, within a reasonable degree of medical probability, the sedentary nature of Cathleen's work “was the precipitant in her getting a pulmonary embolism which resulted in her demise.” Dr. Waller also opined that the pulmonary embolism was caused by DVT and that, based on the autopsy report, the clot had formed in Cathleen's leg between twelve to twenty-four hours before her death. He noticed that the clot was “a very big clot,” coiled six centimeters long by three and a half centimeters wide by a half centimeter. He concluded such a large clot would have taken several hours to form. Dr. Waller explained the clotting process—that for three to five days a clot will “organize,” that is, it will grow and stay where it originates. Because there was no organization present, Dr. Waller concluded that the clot was fresh and did not originate in the lungs. He explained that because ninety to ninety-five percent of clots originate in the deep veins of the leg, it is likely that Cathleen's clot originated there. Dr. Waller noted that one would not expect to find the clot in a lower extremity in the autopsy because it had traveled to its destination in the lungs.

According to Dr. Waller, Cathleen's other risk factors would not have played a large role in her death. Although Cathleen was obese, Dr. Waller said that this was only a minor risk factor. He testified that Cathleen's use of birth control pills was also a minor risk factor because she did not have a history of DVT or embolisms. He testified that Cathleen's enlarged heart would not have increased her risk of blood clots. Dr. Waller also noted that Cathleen was an active woman who often attended her children's sporting events and never sat and watched television.

Dr. Waller criticized the anticipated testimony from AT & T's expert by noting that AT & T's expert's pretrial report “doesn't address the autopsy findings or try to explain how an unorganized massive pulmonary embolism isn't related to the preceding several hours of inactivity.”

William S. Kritzberg, M.D., a board certified internal medicine physician, testified for AT & T. He opined that Cathleen's pulmonary embolism was caused by a combination of risk factors: her morbid obesity; birth control pills; age; and enlarged heart. Moreover, Dr. Kritzberg stated that Cathleen's risk factors contributed to the formation of the clot more than her extended sitting for this project. According to him, the autopsy report showed no evidence of a clot in the legs or DVT. Dr. Kritzberg further noted that he did not believe it was possible to state within a reasonable degree of medical probability that Cathleen's cause of death was related to her work effort.

Dr. Kritzberg described Cathleen as “obviously sedentary” while working at home as well as during her time outside of work, driving her kids to their sports activities, and watching them play. Based on that information, Dr. Kritzberg found it not possible to distinguish between Cathleen's activity level at work and outside of work.

B.

Following the remand hearing, the judge of compensation reconsidered the evidence against the standard set by N.J.S.A. 34:15–7.2. The judge of compensation found that...