NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Respondent U.S. Airways appeals from the order of the Division of Workers' Compensation (Division), in favor of petitioner Frank Ascione on the merits of his occupational exposure claim. The Division awarded petitioner seven and one-half percent permanent partial total disability for his pulmonary injury. For the reasons that follow, we reverse.
We discern the following facts and procedural history from the record on appeal. Petitioner has worked for U.S. Airways at Newark Liberty International Airport (Newark Airport) as a fleet service agent since 1981. In this capacity, his job responsibilities over the years have included: loading and unloading baggage on and off planes, working in the bag room, putting the baggage in carts, driving tugs (both diesel and gas), driving the equipment to push back planes from the ramp area, de-icing planes, and customer service.
Petitioner often worked in the "bag room" where one of his primary responsibilities was to transport baggage to and from the plane; the bag room is a large open room with a large garage door that is generally open except it is "closed a little during the winter." Additionally, at times he assisted in the de-icing of planes with the chemical, glycol; he estimated he had de-iced planes on approximately twenty occasions during his years of employment.
Petitioner testified much of the airline equipment he uses is old; the diesel tugs he frequently drives release smoke that enters the cab of the tug, leaving heavy soot on the vehicle floor and making it difficult to breathe. Petitioner stated that, at times, the smoke inside the tug accumulates to the point he has to stick his head out the window to breathe. Additionally, petitioner described the baggage conveyor belt system as old, often jamming, causing him and his co-workers to crawl into the system to remove baggage. When this occurs, dust, dirt, and asbestos would fall on him. Next, regarding the loading and unloading of the baggage onto the planes, petitioner testified when a plane's engine would "spool down," a black cloud of smoke often comes out of the engine while he waits to unload the plane.
At trial, petitioner testified he continues to work full-time for U.S. Airways, doing the "mail run," which requires him to bring the mail to and from the airport, driving a diesel tug. He admitted he is still able to perform all the physical duties of his job. Petitioner also said he continues to regularly work over-time, "probably like once a week or once every two weeks;" however, there have been occasions when he did not work overtime for health reasons, although he never told anyone at work he was declining overtime because of a pulmonary condition.
Petitioner testified he suffers from a lack of energy, a persistent cough, and shortness of breath. He stated the shortness of breath and lack of energy prevents him from engaging in physical exercise, like playing flag football or basketball with his friends.
Petitioner also has a medical history of heart problems. In 2009, he underwent cardiac catheterization because of chest pain. Since then, he has been taking hypertension medication and has been under the care of a cardiologist; at one point, he was required to wear a heart monitor. Petitioner also stated he had used an Albuterol inhaler about six or seven years earlier.
Petitioner filed his worker's compensation claim petition in October 2009, alleging occupational injuries, described as "pulmonary lungs," from exposure to "deleterious substances" during his employment with U.S. Airways over the previous twenty-eight years. A five-day trial was held before a judge of compensation, starting on February 23, 2011 with petitioner's testimony and concluding on April 1, 2013 with the testimony of Al Antao, the U.S. Airways station manager at Newark Airport.
Malcolm Hermele, M.D. testified on behalf of petitioner on May 23, 2012 and was accepted as an expert in internal medicine.
Dr. Hermele interpreted the chest x-ray as showing damaged alveoli, which can be attributed to exposure to fumes, dust, and pulmonary irritants; damaged alveoli can consequently cause shortness of breath and restrictions in performing physical activities. Importantly, Dr. Hermele conceded petitioner's heavy weight could cause fatigue, shortness of breath, and difficulty stooping or bending down, all symptoms of which petitioner complains. He further noted if petitioner were to lose weight, the severity of his symptoms could decrease and he might be able to take a lower dose of hypertension medication. Nevertheless, Dr. Hermele concluded petitioner suffers from "chronic bronchitis and probable restrictive pulmonary disease ... [and] the chest condition is causally related to, initiated or exacerbated by the exposure to the above pulmonary noxious agents while employed by U.S. Airways Newark." Dr. Hermele determined petitioner had a permanent disability rating of thirty-five percent of total.
Benjamin Safirstein, M.D.
Notably, Dr. Safirstein tested petitioner with a different test from that used by Dr. Hermele. Dr. Safirstein specifically measured spirometry, lung capacity, and diffusion rates whereas Dr. Hermele's test only measured spirometry. According to Dr. Safirstein, spirometry is preliminary in nature and only used for screening purposes; it cannot be used to diagnose pulmonary diseases. Dr. Safirstein testified he used Morris standards in analyzing the test results because they are most reliable and a superior standard; Dr. Hermele used Knudson standards, which Dr. Safirstein considers less reliable.
Dr. Safirstein also described the x-ray as completely normal with clear lung fields, although he did note petitioner has an enlarged heart. Thus, based on the test results, Dr. Safirstein concluded, in March 2010, petitioner's lung function, diffusion, lung volume, and flow rates were all normal.
Dr. Safirstein examined petitioner again on August 23, 2012 and testified that, according to petitioner's statements, he fulfilled the "historical definition" of chronic bronchitis, defined as a chronic cough for three months of each year for more than two years. Dr. Safirstein again performed a physical examination and did not find adventitious breath sounds. Dr. Safirstein also performed another pulmonary function testing and the results were essentially the same; there was a mild decline in his vital capacity although his lung volumes were the same. According to Dr. Safirstein, this change, however, could be attributed to petitioner's lack of effort during the test, his weight, or cardiac enlargement. Regardless, Dr. Safirstein testified the reduced vital capacity was not a significant finding considering his other pulmonary function testing was normal, as was his physical examination. As such, Dr. Safirstein concluded the results were essentially unchanged. Therefore, he concluded petitioner did not suffer from pulmonary dysfunction or any respiratory disease, and had no permanent disability.
Dr. Safirstein also testified he had an opportunity to review Dr. Hermele's report and, while he agreed petitioner has chronic bronchitis, he disagreed with the diagnosis of restrictive pulmonary disease. Dr. Safirstein explained that petitioner does not have obstructive lung disease because his lung function studies were normal. He further asserted no board certified pulmonologist would rely on the test upon which Dr. Hermele relied because it is not a true test of lung function. Although Dr. Safirstein admitted one can have a pulmonary disease and still have normal results from pulmonary function testing, he explained one must consider the patient's entire examination, in addition to the diagnostic studies and pulmonary function studies, to properly assess a worker's alleged condition.
Nevertheless, Dr. Safirstein consistently concluded that although petitioner's results in the pulmonary function testing may, to some, appear abnormal, the remainder of petitioner's pulmonary function testing was normal which is indicative he does not suffer from a pulmonary disability. Finally, he testified there are a number of conditions that could cause shortness of breath including:
On June 10, 2013, the judge of compensation issued a written decision in favor of petitioner but only made factual findings regarding his work environment; in the decision, the judge largely recited the expert testimony. The judge did acknowledge "[b]oth medical experts in this matter agreed that [p]etitioner suffers from chronic bronchitis, although they disagreed on their reasons for diagnosing [p]etitioner with chronic bronchitis and on its etiology." Nevertheless, she further found this "diagnosis to be consistent, logical and probable in the context of petitioner's workplace exposure and complaints." The judge found petitioner had "met his burden of proof by a preponderance of the objective medical evidence, supported with consistent subjective complaints, to support a finding of partial permanent disability ... of 7 1/2 % partial total for the residuals of the chronic obstructive pulmonary disease of chronic bronchitis[.]"
Generally, reviewing courts "give `substantial deference' to administrative determinations."
We defer to the judge of compensation's factual findings and legal determinations, "unless they are `manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'"
U.S. Airways argues the June 10, 2013 order warrants reversal because the judge of compensation, in her decision, failed to make critical findings concerning the conflicting testimony of the medical expert in the case. We agree.
To obtain benefits for such a disability under the workers' compensation statute, a claimant must first make "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs."
A workers' compensation judge should "carefully explain why he [or she] considered certain medical conclusions more persuasive than others."
This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions.
Here, we cannot discern the specific conclusions of fact for petitioner's pulmonary disability "in order to be able to determine whether [it] `could reasonably have been reached on sufficient credible evidence in the record,' with due regard for the compensation judge's ability to weigh credibility and for his [or her] expertise[.]"
While Dr. Hermele performed lung function tests that measured only spirometry, Dr. Safirstein administered additional tests including diffusion analysis. Dr. Safirstein testified that Dr. Hermele's test "measures air flow, it does not measure lung volumes" and is "used purely as a screen[;]" if there is an abnormality, a doctor is obligated to do further testing. Dr. Hermele concluded that petitioner "had chronic bronchitis and probable restrictive pulmonary disease" which was exacerbated by the exposure to various pulmonary noxious agents while employed at U.S. Airways; in contrast, Dr. Safirstein concluded petitioner has normal lung function, with "no evidence of obstruction, restriction or impairment in diffusion."
As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele. Faced with disparate expert opinions, the judge, who had the opportunity to evaluate the conflicting testimony, was required to utilize her "expertise with respect to weighing the testimony of competing medical experts" in appraising the validity of petitioner's compensation claim.
On remand, the judge shall make detailed findings, including specific findings as to expert witness credibility, and determine on the present record whether petitioner has proven "by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease ... [and] that the employment exposure substantially contributed to the development of the disease."
The order of the Division is reversed. We remand the matter for further proceedings in accordance with this opinion. We do not retain jurisdiction.