A Capehart Scatchard Blog

Pulmonary/Respiratory – Laffey v. City of Jersey City

By on July 7, 2008 in Claims with 0 Comments

In one of the most important decisions since the 1979 amendments, the Appellate Division reversed in Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996) an award of 35% permanent partial disability for a Jersey City police officer who testified that his breathing was worsened by constant exposure to dusts, fumes, chemicals, and other irritants. Every adjuster and practitioner should keep this case in his or her desk because the Appellate Division, in throwing out the award, spelled out what it means by the phrase “characteristic of or peculiar to a particular trade or occupation.”

The Laffey case is also interesting because the appellate court reiterated the need for scientific proof. The court was not impressed with guesswork from a medical standpoint. Rather, it wanted the claimant to prove that his exposure as a police officer was indeed higher than the degree of exposure to dusts or fumes of any other person living in Jersey City. This idea most closely tracks the idea that Professor Larson gives when he says that there is a difference between diseases that are common to people in every day life and those that are peculiar to the employment. The petitioner in Laffey could not show scientifically that his exposure was any greater than that of others. The court said:

Here, petitioner has done no more than offer subjective characterization about his work environment. He has failed to provide quantitative evidence concerning the level of pollution, or the duration of exposure in any measurable manner. There was no evidence of any articles, treatises or medical studies that link exposure to fumes from vehicles, furnaces, landfills or fires to petitioner’s ailments. Petitioner’s expert’s testimony of a causal relationship was based solely on the subjective characterization of the petitioner and not on any existing medical epidemiological or scientific studies establishing causation.

Id. at 306. The court added:

We are satisfied that Dr. Velez has asserted a causal relationship without credible foundation. Furthermore, petitioner presented no scientific evidence that police officers as a class, or even Jersey City police officers as a sub-class, are more particularly prone to exposure to the environment than any other resident or employee of Jersey City.

Id. at 307.

More than any other factor, medical science determines the outcome in occupational disease claims. Employers need to be aware of the not-so-bright line which the Appellate Division is drawing between cases which utterly fail to meet the standards of Section 31 and those which just barely meet the standards. Subtle differences in the quality of scientific proof can turn a case which would fail under Laffey, supra, into a compensable claim. For example, in Kiczula v. American Nat’l Can Co., 310 N.J. Super. 293 (App. Div. 1998), even though the claimant’s expert could not cite the cause of a severe pulmonary condition known as “Wegener’s granulomatosis,” the Appellate Division nevertheless affirmed an award of 50% permanent partial disability to the claimant who alleged that fumes from solder and from solvents aggravated and accelerated her breathing problem. The Appellate Division held that claimant’s expert listed specific pollutants to which petitioner was exposed, discussed the duration of exposures, and evaluated a medical article which theorizes that Wegener’s granulomatosis is a kind of hypersensitivity disorder and states that many researchers consider it to be “aggravated by inhalation of an environmental agent or agents.” Id. at 303. The court contrasted this evidence with that in Laffey, supra, in which the claimant only identified generally “dust, fumes and pulmonary irritants” and failed to offer any scientific evidence at all.

 

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John H. Geaney

About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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