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WORKERS’ COMPENSATION — Expert Testimony — Firefighters — Occupational Disease A-92 September Term 2001; Supreme Court; opinion by Coleman, J.; decided February 11, 2003. On certification to the Appellate Division. [Sat below: Judges Braithwaite and Coburn in the Appellate Division.] DDS No. 39-1-2808 In 1993, petitioner Dennis Culbert filed a claim petition against his employer, the Jersey City Fire Department, alleging that he had sustained pulmonary disability as a result of his occupational exposure while working as a firefighter since 1968. Petitioner was 53 years old when he testified in 1997, and had smoked one-half pack of cigarettes daily between 1964 and 1992. As a firefighter, petitioner responded to structural, rubbish, car and warehouse fires. He was required to enter burning buildings to turn off electricity and gas, and to ventilate the structures and perform search and rescue. He was exposed to many pulmonary irritants, including smoke, plastics, wood, household and industrial chemicals, gases, rubber tires, dust and diesel fuel from idling fire trucks. The combustion of such items emitted toxic fumes and smoke. He frequently did not wear his protective gear because it was too cumbersome or ineffective and interfered with execution of his duties. He would spend on average 30 to 45 minutes fighting structural fires and five to 10 minutes suppressing car fires. Although petitioner was never hospitalized for smoke inhalation, he was given oxygen at the scene of a fire from time to time. He sought treatment from his family physician in 1995 for breathing problems and a productive cough. Dr. Henry Velez, board-certified in internal and pulmonary medicine, testified for petitioner. He examined petitioner in 1992 and 1996. Petitioner’s initial complaints of a cough and occasional wheezing were unchanged in 1996. An X-ray taken at each examination showed moderate bronchovascular markings consistent with long-term exposure as a firefighter and as a cigarette smoker. Pulmonary function studies revealed “obstructive airways disease.” Velez diagnosed chronic bronchitis and peribronchial fibrosis, which is an “[o]bstruction of the airways of the lungs.” He concluded, based on his professional training and experience from examining many firefighters as well as his review of unidentified journals and articles, that the obstructive pulmonary disease was caused by both the occupational exposure and by smoking cigarettes. Although he could not apportion that disability between job-related exposure and smoking, he stated that the job-related exposure materially contributed to the disease process. Respondent presented testimony by Dr. Douglas Hutt. Hutt, board-certified in internal, pulmonary, and critical-care medicine, examined petitioner in 1996. A chest X-ray revealed a slight abnormality. Pulmonary function studies revealed a “mild reduction in FEV1 and his FVC,” a result that “may be indicative or consistent with obesity without any air flow obstruction.” When petitioner’s “exposure flow rates” improved after using a bronchodilator, Hutt concluded that he has “some mild degree of air flow obstruction,” and “early development of emphysema” caused by cigarette smoking. He buttressed his medical causation opinion on the fact that “there’s data that show that somewhere between 85 and 95 or so percent of patients that have emphysema, have it from smoking.” He never identified the data or studies. On cross-examination, Hutt said that petitioner’s work as a firefighter could be a material cause of his lung disease in addition to his smoking. He said, “Certain studies have shown there’s airflow obstruction that could occur with firefighters. Several other studies have shown that it doesn’t seem to happen.” The studies were not identified. Hutt admitted that firefighters’ work exposure can exacerbate their lung problems, and that he has “many cases of firefighters that [he] treat[s] as patients that have significant lung injury from their exposures, but that doesn’t indicate that all firefighters have injury and or the bulk of them” have injury. On redirect, though, he said he was unaware of any study linking nonsmoking firefighters with emphysema. The Judge of Compensation concluded that petitioner’s occupational exposure as a firefighter contributed to the development of his chronic obstructive pulmonary disease. The judge awarded him a permanent partial disability of 25 percent. The judge rejected Hutt’s assertion that petitioner’s pulmonary disability is attributable in part to his excessive weight. In rejecting Hutt’s opinion that petitioner’s pulmonary condition was caused exclusively by smoking, the judge found persuasive the fact that Hutt admitted that “there are studies that conclude that there is an increased risk of lung obstruction related to exposures to diesel exhaust [and that] there are studies that have shown air flow obstruction resulting from firefighters’ occupational exposures.” The Appellate Division reversed, concluding that petitioner’s proofs on causation were insufficient. Relying on Fiore v. Consolidated Freightways, 140 N.J. 452, 472-73 (1995), it found that “[p]etitioner has not presented evidence that his work exposure to smoke exceeds the exposure caused by his cigarette smoking . . . . Petitioner failed to establish that his exposure to his work environment was such that without that exposure, his pulmonary disease would not have developed.” The panel also rejected petitioner’s reliance on the firefighters’ presumption, 34:15-43.2, concluding that it should be restricted to volunteer firefighters. Held: The judgment of the Appellate Division is reversed for the reasons in Lindquist v. City of Jersey City Fire Dep’t, decided today. Had the Appellate Division not misapplied Fiore and instead applied the appropriate standard of appellate review, Hutt’s concessions would have compelled an affirmance of the Judge of Compensation. Reversed. The judgment of the Division of Workers’ Compensation is reinstated. Chief Justice Poritz and Justices Long, Verniero, LaVecchia, Zazzali and Albin join in Justice Coleman‘s opinion. — Digested by Judith Nallin [The slip opinion is 12 pages long.] For appellant — James Koblin (Horn Shechtman). For respondent — John H. Geaney (Capehart & Scatchard). For amici curiae: New Jersey State Firemen’s Mutual Benevolent Association — Craig S. Gumpel (Fox & Fox; Gumpel and Jennifer E. Walker on the brief); New Jersey State Council of Machinists, International Association of Machinists and Aerospace Workers, AFL-CIO, and New Jersey Advisory Council on Safety and Health — Alan R. Levy (Ball Livingston; Levy and Craig H. Livingston on the brief).

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