CP# 03-3076 Simmons v. Federated Logistics
AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
ESSEX COUNTY DISTRICT
124 Halsey Street, 2nd Floor
Newark, New Jersey 07101
Telephone: 973-648-2785; Fax 973-648-7780
Claim Petition No. 2003-3076
Judge of Compensation
Freeman & Bass, Esqs.
BY: Samuel Bass, Esq.
24 Commerce Street
Newark, New Jersey 07102
Attorney for Petitioner
Braff, Harris & Sukoneck, Esqs.
BY: Daniel A. Lynn, ESQ.
570 Mt. Pleasant Avenue
Livingston, New Jersey 07039
Attorney for Respondent
This is a written decision on Claim Petition 2003-3076, which alleges that the petitioner, Sylvia Simmons, is totally disability as a result of a plethora of occupational disabilities that were caused, aggravated or accelerated while working for Federated Logistics.
The petitioner commenced her employment with Speedmark in 1986. Federated Logistics became the successor company of Speedmark during January of 1999. Petitioner continued working for Federated Logistics, Speedmark’s successor entity, until she was “laid off” on May 15, 2002.
During her entire career with Speedmark and Federated Logistics as a “checker/marker” petitioner testified that she was exposed to the same types and intensities of occupational orthopedic, pulmonary and cardiovascular substances and activities. Specifically, petitioner testified that she was exposed to dust, fumes from tow motors and trucks, which according to her testimony were approximately thirty feet from one of the locations that she periodically worked. Petitioner also testified that she was also exposed to noise from trucks and conveyors that carried the clothes that she was required to pack. Concerning her expose to noise and fumes from the trucks, the petitioner candidly admitted that most of the time she worked “upstairs” and therefore was not exposed to noise and fumes from the trucks which made their deliveries on the ground floor.
Petitioner’s job description was substantially the same during her entire career at Speedmark and Federated. That is, the majority of her time was spent packing clothes. However when “things got slow” she was required to do other activities. For example, she should but buttons on jewelry and put the finished product into boxes and put security tags on items. All of these functions required repetitive use of both hands, bending and lifting of items ranging from ounces to two to four pounds.
The petitioner did have a cerebral vascular accident during July 1997 while working for Speedmark. After treatment at Kessler Institute she went back to work for Speedmark doing the same type of work without any restrictions. I quote.
Q When you came back to work after you were treated at Kessler, did you do the same thing in the same factory?
A Yes, sir.
Q Did you work with coats again?
A Well, they tried to put me with what they call breaking down which I had to separate the clothes, but my mind wasn’t right. There as a lot of paperwork that I can’t do that because my mind is bothering me, so I went back with the coats.
Q So you weren’t able to do the paperwork?
Finally, petitioner testified that while working for Speedmark and Federated she was laid off “once a year” for a period of time ranging from two weeks to approximately two months during which time she collected unemployment.
On February 22, 2000 the petitioner filed Claim Petitioner 2000-5516 against Speedmark alleging occupational “Pulmonary, arthritic, ortho, hypertensive, cerebrovascular, cardiovascular” disabilities to February 00, 1999. Petitioner represented by her current attorneys settled that claim on August 23, 2001, under N.J.S.A. 34:15-20 for $4800.00.
Petitioner alleges that during her employment with Federated Logistics from January 1999 until May 15, 2002 when she was “laid-off” she continued to be exposed to pulmonary, orthopedic, cerebrovascular and cardiovascular occupational exposures and as a result she is now totally and permanently disabled.
Petitioner called Ms. Judith Hernandez as a witness to corroborate her testimony concerning the nature and extent of her occupational exposures. Ms. Hernandez testified that the areas that she and the petitioner worked in were dusty and noisy. She also indicated that the pictures that were introduced into evidence accurately depicted the condition of the atmosphere that was prevalent in the areas in which she and the petitioner worked.
Paradoxically, neither the petitioner nor her only fact witness testified that they ever complained to management about any of the deleterious environmental conditions which they testified about. Notwithstanding the fact that Ms. Vasquez, the Human Resource Manager for the respondent testified that, “We run employee events. Things such as round tables for the associates to met with an HR Manager. We get together as a group and they can explore any kind of problems, suggestions, or issues that they may want to bring to management.”
Finally, as to petitioner’s allegation that the noise was the a competent factor in increasing her cerebrovascular pathology I find it curious that petitioner offered no proof that the so-called noise pollution was at a level that OSHA required ear protection. Furthermore, neither the petitioner nor Ms. Hernandez testified that they or anybody else asked for ear protection. To be sure in my own mind that petitioner never complained about the noise level I asked Ms. Vasquez, respondent’s Human Resource Manager, “Did you find any complaint about anything from Ms. Simmons?” To which she responded, “No, sir.”
While several of the pictures do depict some dust in the air, several do not. What is troubling is the fact that petitioner’s highly experienced attorney did not ask whether the photographs depicted the condition that existed throughout the entire work day, or just portions of the day. For example, when the garbage can were emptied by the porters or when the area was swept. I quote Ms. Vasquez’s testimony because it would indicate that the photographs may have been taken at the end of the work day when the workers swept their work station. This would explain why some photographs did not reveal dust and some did show dust particles.
Q Do they ever sweep up any dust?
A There is probably dust.
Q How do they catch – fetch that up?
A Each department has cleaning utensils. They have brooms and dust pans.
THE JUDGE: How often where Ms. Simmons worked from 1999 to 2002 would that activity take place?
THE WITNESS: Well, what’s supposed to take place, at the end of the day about ten minutes before quitting time everyone would normally just sop working and clean up their work area.
As I have said, this explanation perhaps could explain the reason why some pictures depict dust in the air and some do not show any dust in the work environment. Indeed, the pictures refute both Ms. Hernandez’s and petitioner’s impression that their testimony implied, namely, that dust permeated the work area during their entire shifts.
Furthermore, while it is true that the photographs reveal dust on the overhead pipes there was no testimony about how long is took for that dust to form. If the dust on the pipes formed on a daily basis that would of course indicate that the work environment was as the petitioner indicated “very dusty.” However, if the dust was accumulated over a long period of time it would indicate that the work environment was not dusty. This of course would be consistent with the photographs which did not show dust in the air.
Respondent called Ms. Geri Vasquez, the Human Resource Manager for Federated Logistics to rebut petitioner’s and Ms. Hernandez’s testimony that the work environment was noisy and dusty. I accept her testimony that the air was free of any significant dust because it is consistent with the nature of respondent’s business and its customers’ requirements.
Q What condition is the clothing in when it comes in and when it goes out?
A It comes directly to us from the vendor. So it’s in immaculate condition when it comes to us, and immaculate condition when it goes out.
Q How do you know that?
A Because I’m there and I see the merchandise. And we couldn’t ship it to the store if it wasn’t store ready. It goes on the shelves when it goes to the store.
Q You used the phrase sore ready. What does that mean?
A It means it comes in to us. We do the ticketing on it. We sort it into the proper store locations. It gets shipped to the store. When it comes off the truck the receivers on the other end that work at Macy’s or Bloomingdale’s put it right out for sale.
The stores do not have any areas to store merchandise or stock merchandise. They want all of their floor space to be floor space. So they don’t have stockrooms.
Q From 1999 through 2002, can you recall, or were you aware of any incident in which Macy’s or Bloomingdale’s returned merchandise because it was dust, dirty, or defected?
Ms. Vasquez also contradicted the petitioner’s testimony that she worked at least a part of the time near the fumes from the trucks that were unloading and loading the goods to be packed and shipped. Ms. Vasquez’s testimony, which was not rebutted clearly indicated that the areas which the petitioner worked were not as depicted by the petitioner. For example, Ms. Vasquez testified that the area that the petitioner worked on the coats was “a floor away. There are no docks or anything on the second floor [where the petitioner worked on the coats] because the trucks couldn’t pull up to a second floor.”
Finally as to this issue Ms. Vasquez testified that the times the petitioner was required to work with jewelry, pocketbooks, and wallets she was not exposed to any fumes because this area was “in a separate building and they were probably, off the top of my head, I say about 250 to 300 feet away. It was a separate building were receiving is.” Once again, petitioner offered no testimony to refute Ms. Vasquez’s testimony.
As to the petitioner’s testimony about the noise emanating from the conveyors, Ms. Vasquez testified that the petitioner worked fifty to seventy-five feet from the conveyors. I quote.
Q Now, the conveyors, did they run near where Ms. Simmons was working?
THE JUDGE: How far?
THE WITNESS: Probably – it depends upon whether she was upstairs or downstairs.
THE JUDGE: Let’s talk about both places. How far upstairs?
THE WITNESS: Upstairs, probably – I just have to visualize it.
THE JUDGE: Take your time if you need to think about it.
THE WITNESS: When she was upstairs she was probably about 70 to 75 feet away from the conveyor.
THE JUDGE: How about downstairs?
THE WITNESS: Downstairs?
THE JUDGE: The jewelry cage that we are talking about, right?
THE WITNESS: Yes.
THE JUDGE: How far away was she there?
THE WITNESS: Downstairs, probably about 50 feet.
Once again, petitioner offered no testimony to rebut Ms. Vasquez estimate of the distance that the petitioner worked from the conveyors. This is important because if the petitioner worked near or adjacent to the conveyors Dr. Friedman’s testimony that noise contributed to the exacerbation of petitioner’s cerebrovascular pathology would be more meaningful. Whereas if the petitioner worked from fifty to seventy-five feet from the conveyors his opinion of causal relationship would be less convincing. For paraphrasing our Appellate Courts, the value of an expert’s witness opinion is diminished if his opinion is based on incorrect facts.
I also find it curious that petitioner did produce rebuttal testimony that the respondent passed out “chocolates,” but did not rebut respondent’s testimony that it maintained an open door policy concerning complaints that its employees may have had. This is particularly important if one considers that petitioner offered no testimony to rebut respondent’s testimony that petitioner never complained about the air quality or the alleged noise pollution.
Respondent’s position that there was no noise or pulmonary irritants sufficient to cause or aggravate her pulmonary or cerebrovascular pathology is buttressed by the fact that petitioner never offered any testimony that she or any of her colleagues ever asked for ear plugs to muffle the noise that she testified about, or ever asked for a mask to protect her from the dust that she testified she was exposed to, notwithstanding respondent’s unchallenged open-door policy.
Furthermore, neither the petitioner nor her fact witness was asked to compare the noise level with something that would describe the level and the intensity of the noise petitioner was exposed to. This omission is inexplicable if we consider the highly experienced and competent attorney the petitioner chose to represent her. However, it is consistent with Ms. Vasquez’s testimony that “the company has the sound level checked on a regular basis.”
I only add, in many occupational cases petitioners have testified that when their requests for ear plugs or masks have been denied they bought the protective gear themselves. Once again, in this matter there is no such testimony.
For all of the aforementioned reasons I find that the petitioner was not exposed to noise or deleterious substances which caused, aggravated or accelerated her preexisting pulmonary or cerebrovascular pathology.
Of course, the starting point for the consideration of any occupational
claim is N.J.S.A.34:15-31, which defines a compensable occupational disease. I have discussed petitioner’s alleged pulmonary, cardiovascular and cerebrovascular occupational exposures first because of petitioner’s admitted pathology in at least the cardiovascular and cerebrovascular areas. Respondent denies that the petitioner suffers from any pulmonary disability. Although I have found no occupational exposure in those areas for the sake of completeness I will discuss the medical proofs concerning those allegations as well as her claim for occupational orthopedic and psychiatric disability.
As part of the extensive revisions of the 1979 Workers' Compensation Reform Act, the statutory definition of an occupational disease was changed. As it now reads, Section 31 states:
(a) For the purpose of this article, the phrase 'compensable occupational disease' shall include 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.
(b) Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.
Of course, in occupational claims as in all cases, a petitioner must also prove by a preponderance of evidence objective evidence of a disability. A petitioner must also establish that there has been a lessening to a material degree of his/her working ability, or that his/her ordinary life pursuits have been significantly impacted. N.J.S.A. 34:15-36, Perez v. Pantasote, Inc., 95 N.J. 105 (1984), Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994).
Keeping these precepts in mind, I dismiss petitioner’s claim for psychiatric disability because petitioner did not submit any evidence, either by way of medical reports or testimony to establish any psychiatric disability. Finally, petitioner offered no psychiatric complaints.
As to petitioner’s claim for occupational orthopedic disability, Dr. Ahmad testified on behalf of petitioner and Dr. Canario testified on behalf of the respondent. Once again, based on the statutory requirements of N.J.S.A. 34:15-36 and Perez v. Pantasote, Inc., 95 N.J. 105 (1984) I dismiss petitioner’s claim for occupational orthopedic disability for failure to sustain burden of proof. I do this for the following reasons. First, on February 22, 2000, petitioner filed an occupational claim (CP 2000-5515) alleging occupational pulmonary, orthopedic, hypertensive, cerebrovascular and cardiovascular disabilities to February 2000. Represented by her present Counsel on August 23, 2001, she settled these matters under N.J.S.A. 34:15-20 for $4800.00.
A careful comparison of Dr. Ahmad’s report dated March 9, 2000 which was done in preparation for the prior occupational claim on CP 2000-5516 and his report dated January 27, 2003, which was prepared for this matter and his testimony indicates at best a de minimis increase in objective medical evidence of orthopedic disability, certainly not sufficient to meet the mandate of N.J.S.A. 34:15-36. That is, in order for the petitioner to receive an award for an orthopedic disability beyond that encompassed by the terms of her Section 20 award of August 23, 2001, she must prove that her orthopedic disabilities have increased. Put another way, there must be an increase in the objective medical evidence sufficient to satisfy N.J.S.A. 34:15-36.
As I have said, a comparison of Dr. Ahmad’s reports indicates only a 5 % increase of restriction of motion of both the cervical and lumbar spine. Furthermore, once again paraphrasing our Supreme Court in Colon v. Coordinated Transport Inc., 141 N.J. 660 (1995) restriction of motion tests are generally not to be considered objective evidence of a disability. I only add, not only are the orthopedic findings in both reports similar, but the verbiage in the two reports is virtually the same.
Another reason I am going to dismiss petitioner’s occupational orthopedic claim is that Dr. Ahmad admitted that he could not state whether the nature and extent of petitioner’s disabilities that he found on January 27, 2003 would still exist today i.e. were permanent in nature. I quote.
Q You can’t tell us, since you haven’t seen her since January 2003, you can’t tell us whether her lateral bending, lumbar spine, is better, worse or the same today than it was in January of 2003?
A No, I would be unable to do so.
Q You can’t tell us whether or not tenderness in the cervical area or the lumbar area is present, whether it’s worse, whether it’s better than it was than January 2003?
Q You can’t tell us whether flexion of cervical spine is restricted by less than 15 degrees or more than 15 degrees as we sit here today?
A That is correct.
Q You can’t tell us whether or not extension of the cervical spine is better or worse than it was in January of 2003?
A That is correct.
Q You can’t tell us whether the trapezius and sternomastoid muscles are spastic today?
A That is correct.
Q You cannot tell us whether or not she continues to have pain radiating into the shoulders and upper extremities?
A That is correct.
Q In the lumbar spine, you cannot tell us whether or not flexion is restricted today?
Q You cannot tell us whether or not she currently has restriction of extension?
A I would be unable to do so.
I, of course, could give additional examples, but that is unnecessary. The point is Dr. Ahmad candidly admitted that the orthopedic pathology that he found when he examined her on January 27, 2003 may not be present i.e. be permanent, when he testified before me on February 23, 2006. His candor is refreshing. For Dr. Ahmad could have said considering the nature of his findings he would expect that the petitioner’s condition to remain the same or to deteriorate.
Furthermore, Dr. Ahmad indicated that the medical literature would indicate that petitioner’s arthritic condition, which could be a cause of her restriction of motion, could have been aggravated by her smoking habit. Once again, I quote.
Q Doctor, is there medical literature that discusses the impact of cigarettes smoking on arthritis?
A Yes. Cigarettes can – they do restrict the blood vessels. They do restrict the blood flow through the organs, including the bones. So therefore arthritis and bone healing is impaired by smoking.
Q So cigarette smoking can aggravate, exacerbate or accelerate an arthritic condition?
Thus, because of the paucity of objective medical evidence of petitioner’s orthopedic disability and her own orthopedic evaluator testimony that he could not within a reasonable degree of medical probability opine that her orthopedic disability was permanent in nature, and finally his testimony that petitioner’s arthritic condition could have been aggravated or accelerated by her smoking habit, I dismiss her occupational orthopedic claim for failure to sustain her burden of proof.
I only add that I accept Dr. Canario’s concurring opinion that petitioner’s work effort did not cause, aggravate or accelerate petitioner’s arthritic condition, which presumably could have contributed to her orthopedic condition. I accept his conclusion that the petitioner does not have any orthopedic disability for several reasons. First, Dr. Canario’s orthopedic examination revealed no objective evidence of any disability to petitioner’s cervical or lumbar spine. Indeed, Dr. Canario found a full range of motion of both the cervical and lumbar spine in flexion, extension, lateral bending and lateral rotation. Apparently, Dr. Ahmad’s candid statement that he could not state that the restriction of motion to the petitioner’s cervical or lumbar spine that he found would be present when he testified was correct.
For all of the aforementioned reasons, I find that the petitioner has failed to prove by objective medical evidence any orthopedic disability.
I now turn to petitioner’s claim for pulmonary, cardiovascular and
cerebrovascular disability. Although I have already decided that the petitioner was not exposed to noise or deleterious substances which caused, aggravated or accelerated her preexisting pulmonary, cardiovascular or cerebrovascular pathology, for reasons which I will go into at length in this opinion, I also find that petitioner has failed to sustain her burden of proof by objective medical evidence any pulmonary, cardiovascular or cerebrovascular disability causally related to her work for the respondent.
Dr. Freidman testified on behalf of the petitioner and Dr. Kahnowitz testified on behalf of the respondent. I accept the conclusion of Dr. Kahnowitz that the petitioner does not suffer from any pulmonary disability and that her cardiovascular and cerebrovascular disabilities are unrelated to her work for the respondent.
I have rejected Dr. Friedman’s testimony because his conclusion that the petitioner has a pulmonary disability is contrary to the medical evidence produced at this trial, and is not based on facts adduced at this trial.
I accept Dr. Kahnowitz’s testimony that the petitioner does not have any pulmonary disability because unlike Dr. Friedman, he based his opinion on objective medical evidence i.e. the x-rays he took of the petitioner and the pulmonary function test he performed. In this regard I note that that the petitioner’s PFTs have gradually improved since she stopped working for the respondent. Indeed, when Dr. Kahnowitz performed a PFT test on petitioner on January 11, 2000 he found that her FVC was 60%. However, when he performed a PFT test on January 17, 2005 it revealed a normal FVC of 81.81%. As Dr. Kahnowitz indicated this normal reading was corroborated by all of the other parameters of the PFT that he performed. Of course, this is consistent with the proposition that all medical experts agree; namely, that when one is no longer exposed to pulmonary irritants the lung has a remarkable ability to repair itself. Of course, that is why doctors indicate that it is never too late to stop smoking. In this case, the fact that the petitioner has reduced the amount of cigarettes since she had her cerebral stroke is consistent with this generally accepted theory and explains her improved PFTs.
As the petitioner’s normal FVC was consistent with all of the other parameters of her PFT’s, the petitioner’s normal X-rays is also consistent with her normal pulmonary function test. I quote from Dr. Kahnowitz’s testimony at length because it explains by sound medical reasoning the relationship between the various aspects of a pulmonary function test and why he found no objective medical evidence of pulmonary pathology.
Q Doctor, did you perform any other diagnostic type tests when you examined Mss. Simmons?
A Yes. She had pulmonary function tests which were really unremarkable. There was no evidence for any respiratory dysfunction and her oxygen saturation was 98 percent. That’s normal.
THE JUDGE: Is that consistent with the pulmonary function test?
THE WINTESS: Is what?
THE JUDGE: The—
THE WITNESS: Oxygen saturation?
THE JUDGE: Yes.
THE WITNESS: Yes. Yes. Absolutely. Pulmonary function test is normal and oxygen saturation is normal.
THE JUDGE: Well, you say they’re normal but if you look at the second test, 75 percent.
THE WITNESS: It’s normal. Normal in everybody’s books. It’s a statistical construct, it has no relevance at all. The 80, 100, 70, et cetera, is a statistical construct and it has never been accepted in medical. The 100 percent is standard deviation. The 20 percent is deviation. It has con concept in evidence at all. There are tons of articles, lots of books. Look anyplace, 70 percent is totally acceptable and normal in spirometry. It’s a non issue, at least for pulmonologists. Continuing…
Q Doctor, can you explain why you concluded that her pulmonary function tests are normal?
A. She had normal flow rates. There was no obstruction to low. So far as I can tell from spirometry, there is no restriction present. There’s no obstruction. There’s no pattern of obstruction. There’s no pattern of restriction. In any event, isolated decreases in numbers, no matter what they are, especially in forced vital capacity, probably mean nothing because they can be artifactual, they can simply be present for a variety of non thoracic (sic) reasons. Sao the pattern is really what counts. The numbers themselves are normal, in any event, but you can’t make a diagnosis of pulmonary disease from an isolated – from one isolated spirometric parameter, and certainly not from FVC, which is amongst the most nonspecific of them all.
Q When you say the pattern is wrong, can you tell me from the nerve tests what the pattern show?
A If I wanted to say that, believe that, there was a pattern of obstruction here I would probably see a decrease in FVC and FEV1 percent, and FEV1 over FVC, that’s FEV and EFF25-75. The peak rate would also be reduced. But in those cases the FVC would probably be normally or at least significantly higher than the FEV1 percent for a pattern of obstruction. If I saw a pattern of restriction, what I would see is significant decreases in FVC and FEV1, probably in FEV3, as well. But the FEV1 over FEV ratios and FEV1, EF25-75 would both be normal, so there is no pattern. There is no pattern of obstruction. There is no pattern of restriction on these tests.
Thus, because the petitioner has failed to prove that she was exposed to pulmonary irritants and because the diagnostic tests do not reveal any objective medical evidence of a pulmonary disability I dismiss her claim for pulmonary disability for failure to sustain the burden of proof.
I now turn to petitioner’s claim that her employment with the respondent from 1999 to May 15, 2002 the date she was “laid-off” as a checker/marker either aggravated or accelerated her preexisting cardiovascular or cerebrovascular pathology, which in turn caused an increase in her disability in these spheres.
While I agree with petitioner’s theory that noise can aggravate or accelerate cardiovascular pathology by increasing hypertension, and that this can lead to an increase of disability from a prior cerebral infraction, I reject Dr. Friedman’s opinion that the increase in petitioner’s pathology in these areas was aggravated or accelerated by her work for the respondent for two reasons: One, Dr. Friedman’s conclusion is not based upon the facts and evidence produced at this trial. Two, any increase in the petitioner’s cardiovascular pathology was caused by her genetic makeup and her continued smoking and not by her employment with the respondent. My reasons for these findings follow.
Petitioner has submitted articles that support the hypothesis that noise and or smoking can aggravate cardiovascular disease and cardiovascular disease is a risk factor for the development of a cerebral infarction. Of course, unlike an occupational heart claim, under Lindquist v. City of Jersey City, 175 N.J. 244 (2003) all a petitioner has to prove is that the exposure was “a contributing cause” of her cardiovascular condition which caused or aggravated the cerebral stroke she had in 1997. “Medical causation means the injury is a physical or emotional consequence of work exposure. Stated anther way, proof of medical causation means proof that the disability was actually caused by the work-related event.” And “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact.” “Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”
In this matter, the petitioner has submitted abundant medical literature to prove that continued noise exposure can cause, contribute to, or aggravate hypertension which can cause cardiovascular pathology, which in turn can lead to a cerebral infarction. The literature also indicates that continued exposure can cause an increase in disability in these spheres. However, it must be remembered that the petitioner ceased to be exposed to the alleged noise pollution when she was “laid-off” on May 15, 2002. This was approximately nine months after she received a Section 20 award, and over three and one-half years before Dr. Friedman examined her on January 21, 2006 and found causal relationship between petitioner’s cardiovascular and cerebrovascular disabilities and her employment.
However, because the petitioner had ceased to be exposed to the alleged offending agent - noise pollution - for over three and one-half years when Dr. Friedman examined her on January 21, 2006, his opinion that petitioner’s employment caused a worsening of her cardiovascular condition [hypertension] which led to her increased cerebrovascular disability is not supported by the facts and evidence produced during this trial. I only add when Dr. Friedman examined petitioner on March 4, 2003 he did not indicate that petitioner’s employment caused, aggravated or accelerated either her cardiovascular or cerebrovascular preexisting pathology.
Although I have found that the petitioner was not exposed to noise pollution, as I did when I found that the petitioner was not exposed to pulmonary irritants I will discuss the medical reasons why I find that the petitioner’s alleged increase in her cardiovascular and cerebrovascular disability was the result of her continued smoking and genetic makeup and not her continued employment with the respondent from the time she received her Section 20 award on August 23, 2001, [or in 1999, the date she commenced working for the respondent], until she was laid off on May 15, 2002.
Although I disagree with Dr. Kahnowitz’s statement that high blood pressure “does not cause chronic changes” in blood pressure, the “acute” or “transient” elevations in blood pressure he admits “work, physical work” could cause are simply not present in this matter. Once again, this is because at the time of both Drs. Friedman and Kahnowitz’s examinations the petitioner had not worked for the respondent for over three years. Thus, even if petitioner’s cardiovascular and or cerebrovascular pathology and symptoms increased from 1999, the time she commenced her employment with the respondent, or from August 23, 2001, the time she received her Section 20 award until she was “laid off” on May 22, 2002 her employment was not the cause of the increase because petitioner was not exposed to the noise stimuli that Dr. Friedman indicated caused petitioner’s these changes.
In this regard, I agree with Dr. Kahnowitz’s opinion that the etiology and cause of petitioner’s present cardiovascular and cerebrovascular pathology is not the stimuli that she alleged that she was exposed to from 1999 to since 2002 – the year in which she was “laid-off,” but rather her continued chronic smoking habit and her genetic makeup.
For all of the foregoing reasons, I find that the petitioner has failed to prove by a fair preponderance of the evidence that she was exposed to causes and conditions that caused, aggravated or accelerated her preexisting cardiovascular and cerebrovascular pathology and any increase in disability in these spheres was caused solely by her chronic smoking habit and her genetic makeup.
C.P. No. 2003-3076 is dismissed for failure to sustain the burden of proof.
For the multiple hearings in this matter I assess a $1,250.00 stenographic fee payable by respondent to William C. O’Brien.
Respondent’s attorney is to prepare an Order of Dismissal which conforms to the terms of this written decision and serve it upon petitioner’s attorney under the Five-Day Rule.
 Of course, it may be argued that since the petitioner received a Section 20 settlement on August 23, 2001, which included cardiovascular and cerebrovascular disabilities that I should use that date to May 15, 2002, the last date of exposure to determine whether petitioner has sustained her burden of proof to prove that the objective medical evidence of her disability in these spheres was caused by her alleged occupational exposure from August 23, 2001 to May 15, 2002. However, because I have already found that petitioner was not exposed to any occupational conditions that caused, aggravated or accelerated her disability in these spheres and because for the reasons which I will go into at length in this opinion I find that any increase in petitioner’s symptoms was caused by her genetic makeup and her continued smoking habit this issue is moot.
 Although Respondent’s evaluator does not agree with petitioner’s evaluator or the studies submitted by petitioner that noise exposure can cause a “chronic” elevation in blood pressure, he does agree that noise can cause a “transient” increase. Based upon the studies admitted into evidence I disagree. My reason to accept the studies introduced into evidence that support petitioner’s hypothesis is based upon Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991). In pertinent part the Rubanick Court held, when “a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training and experience in the specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached.” I only add, although respondent’s evaluator indicated that many textbooks agreed with his position that noise can only cause a “transient” increase in blood pressure none were ever introduced in evidence.