Williams v. Port Authority

• Decision Date: 10 December 2001
• Citation: 786 A.2d 114,345 N.J. Super. 549
• Parties: John J. WILLIAMS, Petitioner-Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Respondent-Appellant.
• Court: New Jersey Superior Court

786 A.2d 114

345 N.J. Super. 549

John J. WILLIAMS, Petitioner-Respondent, v.The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Respondent-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued November 7, 2001.

Decided December 10, 2001.

Michael D. Driscoll, New Jersey Solicitor, argued the cause for appellant(Hugh H. Welsh, Deputy General Counsel, of counsel; Howard Conkling, on the brief).

James P. Sheehan, argued the cause for respondent(Brian P. Campbell, of counsel and on the brief).

Before Judges PRESSLER, WEFING and PARRILLO.

The opinion of the court was delivered by PRESSLER, P.J.A.D.

This is a workers' compensation case.The issue before us is whether the New Jersey Division of Workers' Compensation properly exercised subject matter jurisdiction over the claim petition of petitioner, John J. Williams, an employee of Port Authority of New York and New Jersey for some twenty-eight years.Petitioner claims to have suffered an occupational pulmonary disease as the result of his continuous exposure to toxic substances on the job from February 1973 to some time in 1994.He worked in New Jersey, however, only during the first four months of that period and thereafter exclusively in New York at LaGuardia and Kennedy Airports.The judge of compensation concluded that the initial four-month period was sufficient to constitute New Jersey a site of the injury and, therefore, sufficient to confer subject matter jurisdiction on this State.We agree and affirm the award to petitioner of twenty percent of partial total.

The facts relevant to the jurisdictional issue are not in dispute.Petitioner is a resident of New York and has been since his employment by Port Authority in 1969.He has never lived in New Jersey.New York is the place where the employment relationship arose.For the first three to four years of petitioner's Port Authority employment he worked as an elevator operator in New York.He was then assigned to maintenance work.His first maintenance assignment was on the New Jersey side of the George Washington Bridge cleaning the toll booths and the tiled walls of the tunnels leading out of the bridge proper.He worked eight-hour shifts five days a week doing these tasks which involved strong and toxic chemicals as cleaning agents and exposed him to a constant stream of exhaust fumes from the vehicles crossing the bridge.He was usually, but not always, provided with a protective face mask.After four months, he was assigned to do substantially the same work using substantially the same chemicals at LaGuardia Airport.As he explained his job:

[At] LaGuardia I was building and grounds attendant as well.My duties there was to clean tiles.We have to go out in the taxiways, the runways.Sometimes cleaning inside the terminal with mopping and cleaning stuff like that.

After about eight years at LaGuardia Airport, petitioner was reassigned to Kennedy Airport, doing essentially the same work with essentially the same exposure to chemicals and exhaust fumes.He continued in that job at Kennedy Airport until 1994, when he accepted work as a skycap.He retired three years later in 1997.He first saw a physician, a Port Authority physician, for his pulmonary complaints in 1993 and for some time has been under the care of a physician for those complaints.¹Petitioner's medical expert witness, Dr. Malcolm H. Hermele, opined, based on his examination of petitioner and his work history, that he suffers from "chronic bronchitis and probable restrictive pulmonary disease," estimated as "a permanent pulmonary disability of 40 percent."The theory of this occupational disability is encapsulated by the hypothetical question asked of Dr. Hermele:

Doctor, I want you to assume the following facts as being true.That the petitioner was employed by the Port Authority from 1969 to 1997, most of which his time was spent as a bridge and tunnel agent or maintenance man, and the last three years as a sky cap.

He testified that he was exposed during his employment to exhaust, fumes from motor vehicles, trucks, planes, buses, he was exposed to various cleaning chemicals, to dust, to dirt, smoke, sand, and that his face and uniform was dirty after work.He had complaints of coughing up phlegm, he testified he had labored breathing in the A.M., he had difficult breathing after walking two blocks, and the petitioner indicated that he smoked in the past about a pack every three days.

If these facts taken as true, are they consistent with your opinion regarding the petitioner's permanent disability and percentage that you affixed to it?

Dr. Hermele's response was as follows:

Yes, sir.It's my opinion that his chest condition was causally related to and or exacerbated by his prolonged exposure to the various pulmonary noxiousations that you mentioned while employed by the Port Authority of New York and New Jersey.

As we have noted, Port Authority challenges the ensuing award to petitioner on jurisdictional grounds only.The principles governing the subject matter jurisdiction of the Division of Workers' Compensation have been well settled in this State for four decades.Thus in Boyle v. G. & K. Trucking Co.,37 N.J. 104, 179 A.2d 514(1962), Justice Jacobs, writing for the Supreme Court, made clear that while the state in which the employment relationship was entered into and the state or states of the parties' residences certainly have subject matter jurisdiction, so also does the state in which the worker sustains an injury even if that injury is the only nexus it has to the parties and their relationship.As he explained:

The petitioner is justly permitted to file his claim for compensation in our State because he was accidently injured here while performing his duties here on a work assignment from his employer.While this may afford a choice of jurisdictions to the employee (seeWilson v. Faull, supra,27 N.J. at p. 117, 141 A.2d 768;Gotkin v. Weinberg,2 N.J. 305, 307, 66 A.2d 438(1949)), it does not afford double compensation (seeBowers v. American Bridge Co., supra,43 N.J.Super. at p. 65, 127 A.2d 580;In re Lavoie's Case, supra,135 N.E.2d at p. 751) and to the extent that it allows the employee to seek the highest available amount of compensation it is consonant with the high-minded remedial purposes underlying compensation enactments.

[Id. at 112, 179 A.2d 514.]

We have followed that rule since.See, e.g., Phillips v. Oneida Freight, Inc.,163 N.J.Super. 297, 301, 394 A.2d 891(App.Div.1978);Toebe v. Employers Mut. of Wausau,114 N.J.Super. 39, 43, 274 A.2d 820(App.Div.1971), rev'd on other grounds,63 N.J. 198, 306 A.2d 66(1973);McAllister v. Bd. of Ed., Kearny,79 N.J.Super. 249, 260, 191 A.2d 212(App.Div.1963), aff'd,42 N.J. 56, 198 A.2d 765(1964).

We recognize that New Jersey's subject matter jurisdiction cannot here be predicated solely upon Port Authority's status as a bi-state agency.Connolly v. Port Auth.,317 N.J.Super. 315, 321, 722 A.2d 110(App.Div.1998).Nor can it be predicated on petitioner's place of residence or on the place where the employment relationship was entered into.The only nexus to New Jersey is the four-month period of petitioner's employment in New Jersey in 1973.Thus the sole issue before us is whether petitioner's exposure to toxic substances during that period, immediately followed by an additional twenty-one year exposure to the same or similar toxic substances in New York, is sufficient to sustain the compensation judge's finding that an injury occurred in New Jersey.In concluding that it is, we rely on our well-settled case law regarding the nature of occupational disease.

N.J.S.A. 34:15-31a defines "compensable occupational disease" for purposes of the Workers Compensation Act,N.J.S.A. 34:15-1, et seq., as "all diseases arising out of and in the course of employment, which are 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."Although the statute does not expressly so provide, it is judicially recognized that there is a category of gradually progressive occupational disease resulting from cumulative exposure whose symptoms may not be manifest until there has been prolonged exposure, and, consequently, determination of the date of onset of the disease defies ascertainment.These characteristics of the disease process inform the law of workers' occupational disease and underlie both legislative and judicial resolution of the special problems raised by its inherent nature.

Thus, because manifestation of the injury may occur long after the exposure causing the injury, the statute of limitations does not begin to run until the worker knows or is chargeable with knowledge of the disability and its work-relatedness.N.J.S.A. 34:15-34.And seeEarl v. Johnson & Johnson,158 N.J. 155, 728 A.2d 820(1999);Panzino v. Cont'l Can Co.,71 N.J. 298, 303, 364 A.2d 1043(1976).As Judge Conford had expressed it in Bucuk v. Edward A. Zusi Brass Foundry,49 N.J.Super. 187, 206-207, 139 A.2d 436(App.Div.),certif. denied,27 N.J. 398, 143 A.2d 9(1958),

When the disease is of a nature which is gradually progressive and does not manifest the kind of tangible bodily injury or impairment which is specifically demonstrable, and cognizable even by a layman, but takes its toll in a general over-all condition of malaise eventually forcing discontinuance of work at the injurious occupation, the inception of compensable status is when such discontinuance at work begins.

Moreover, because of the difficulty, if not the impossibility, of determining when, in terms of the exposure, the disease process commenced, it has long been settled that where a worker is employed by successive employers but is exposed to the same deleterious work conditions by all of them, considerations of both practicality and equity dictate that the entire burden be borne by the last...