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Superior Court of New Jersey, Appellate Division.

GERARD MCGLINSEY, Petitioner-Appellant, v. GEORGE H. BUCHANAN COMPANY, Respondent-Respondent.

DOCKET NO. A-4653-08T3

Decided: October 08, 2010

Before Judges R.B. Coleman and J.N. Harris. Thomas W. Polaski, argued the cause for appellant (J. David Nemeth, attorney;  Mr. Polaski, of counsel and on the brief). Christopher J. Saracino argued the cause for respondent George H. Buchanan Company (Pietras, Saracino, Smith & Meeks, LLP, attorneys;  Mr. Saracino, on the brief). Michael Huber argued the cause for respondent Kemper Insurance Company (Freeman, Barton, Huber & Sacks, attorneys;  Mr. Huber, on the brief). Angela Y. DeMary argued the cause for respondent Centre Insurance Company (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys;  Ms. DeMary, on the brief). Alexis C. Ouseley argued the cause for respondent Rockwood Casualty Insurance Company (The Chartwell Law Offices, LLP;  Ms. Ouseley, on the brief). Paula T. Dow, Attorney General, attorney for respondent Second Injury Fund (Cheryl B. Kline, Deputy Attorney General, on the statement in lieu of brief).

In this workers' compensation case, we affirm -- on jurisdictional grounds -- the dismissal of petitioner's claim for benefits due to an occupational injury.   We agree with Judge Jose A. LaBoy that petitioner did not satisfactorily demonstrate that the New Jersey Division of Workers' Compensation (Division) had subject matter jurisdiction based upon approximately sixteen months of exposure in New Jersey that antedated approximately twenty-seven years (1974 to 2001) of previous exposure in Pennsylvania.   Applying the principles of Williams v. Port Auth. of N.Y. & N.J., 175 N.J. 82 (2003) to the undisputed facts, we are firmly convinced that petitioner's remedies, if any, lie elsewhere.


Petitioner Gerald McGlinsey, a lifelong resident of Pennsylvania, was employed as a manual laborer from 1974 until 2001 in that state.   In that span of years he performed many different job functions for several employers in the printing business, including acting as a general laborer, flyboy, baler, forklift driver, carpenter, and pressman.   Starting in September 1995, petitioner became employed by respondent George H. Buchanan Co. (Buchanan) as a pressman.   From that date until June 1, 2001, petitioner's place of work, as noted, was in Pennsylvania.   Thereafter, however, when his employer moved to New Jersey, petitioner performed the duties of pressman for Buchanan in New Jersey until September 13, 2002, a total of approximately sixteen months.

In order to function as a pressman, petitioner was obliged to engage in strenuous physical activity.   As the judge of compensation found, “as a pressman, these machines require him to climb, bend, lift, jump, hop up and down to make settings as the machines ran, to reach, pull and push hand-trucks or dollies into place under the press.”   Judge LaBoy also found that for the two decades of petitioner's work-life before joining Buchanan, petitioner “performed these job duties since [1974] in Pennsylvania for different employers.”

In 1987, due to severe back problems, petitioner underwent spinal surgery that included L4-5 decompressive laminectomy, bilateral L5 foraminotomies, and L4-5 disc excision.   In 1996, he underwent a magnetic resonance imaging (MRI) examination of the cervical spine, which revealed four moderate to small disc herniations.   Another MRI was performed in 1997, this time examining petitioner's right knee and left shoulder, which revealed degenerative joint disease and a torn meniscus.   Thereafter, arthroscopic surgery was performed on petitioner's right knee to effect partial and medial lateral meniscectomies and chondral debridement.   According to his answers to interrogatories, petitioner was advised by a representative of Buchanan in 1999 that he “could have pursued a workers' compensation claim” relating to some or all of these conditions.

The medical records available to the judge of compensation indicated that petitioner began a series of extensive medical examinations relating to his neck beginning in May 2002, which culminated in cervical spine surgery in September of that year.   In the following May, petitioner underwent a right total knee arthroplasty.   Further treatment to his neck, back, and knee continued until early 2005, when he reached a plateau and no further treatment was indicated.

Also available to the judge of compensation was petitioner's Second Injury Fund petition, which sought remedies relating to petitioner's cervical, lumbar, and right leg problems.   Attached to the Second Injury Fund petition was an unauthenticated letter from Dr. Ralph G. Cataldo, D.O. that outlined petitioner's medical history and summarily stated, “[a]s a result of the occupational stress and strain of the patient's job activities from 1995 to September 13, 2002, this patient has [ ] permanent disabilities based on a reasonable degree of medical probability.”   The report went on to list the five body parts affected, including the cervical spine, lumbar spine, right leg, left leg, and pelvis (iliac crest).

Following the filing of the petition for workers' compensation benefits in New Jersey and the conclusion of several months of procedural maneuverings by various insurers, Buchanan filed a motion to dismiss for lack of subject matter jurisdiction, and expressly relied upon Williams.   Petitioner responded with opposition that likewise cited Williams.   At no time did the parties seek an evidentiary hearing on the question of the Division's subject matter jurisdiction.

In an oral decision rendered on March 26, 2009, Judge LaBoy applied his understanding of the Williams three-part test,1 and concluded:

[petitioner's] occupational disease, in fact continued to get worse prior to his employment in New Jersey and therefore, his [fifteen-]month employment in New Jersey for Respondent was de minimis and insubstantial taking into consideration, my findings of fact regarding his employment history and preexisting medical findings, treatment and notice given to Respondent while working in Pennsylvania.

The judge further held:

[b]y his own admission in [a]nswers to [i]nterrogatories he disclosed his occupational claim to his boss in 1999.   Petitioner failed to pursue his occupational claim in Pennsylvania and continued to work in Pennsylvania for Respondent for two more years before continuing his employment with Respondent in New Jersey.

Therefore, it is clear that manifestation of his occupational exposure took place in Pennsylvania not in New Jersey.   Furthermore, Petitioner failed to provide this Court with any medical evidence[, an] expert's opinion, to support his argument that the [fifteen-]month exposure in New Jersey aggravated the [ ] already existing occupational condition derived from more than [twenty-five] years of employment history in Pennsylvania.

In a post-appeal supplementary letter-opinion dated June 25, 2009, Judge LaBoy amplified his oral decision by noting, “the most important factual issue in this case was [p]etitioner's knowledge of his occupational injuries for more than two years in advance of the filing of the claim on [April 28, 2003,] and his knowledge that said injuries were in fact related to his work activities.”   Fortifying this determination, the judge wrote:

I find that the alleged occupational conditions arose out of and in the course of [p]etitioner's occupation since 1975, conditions which are or were characteristic of his occupation as a pressman and construction worker since the beginning of his occupation in these fields.   The conditions to his knees, legs, low back, cervical area, etc., that he was suffering from were disclosed to petitioner during his employment in Pennsylvania and despite these disclosures and in spite of his disabilities resulting there from [p]etitioner continue[d] his employment with [r]espondent in Pennsylvania.   Petitioner's argument that these conditions became progressively wors[e] in the [fifteen] months that he worked for [r]espondent in New Jersey is non-persuasive.   Petitioner knew of his occupational disabilities and its relation to his employment while in Pennsylvania but failed to take appropriate actions in said state.   I find that such knowledge became fixed in 1999 when he openly reported his condition to [r]espondent, when he was informed to file a claim in Pennsylvania.   Therefore, he not only had two years from 1999 but possibl[y] prior thereto to proceed with his occupational claims.

This appeal followed.


We start with the basic principle that courts are not at liberty to enlarge the statutory grant of limited jurisdiction to the workers' compensation courts.  Bey v. Truss Sys., Inc., 360 N.J.Super. 324, 327 (App.Div.2003) (stating, “[the] jurisdiction [of the workers' compensation court] is limited to that granted by the Legislature and therefore ‘cannot be inflated by ․ judicial inclination’ ”) (citation omitted).   This notion is not tempered by the admonition that courts must bear in mind that the language of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142, is to be liberally construed in favor of employees.  Cannuscio v. Claridge Hotel & Casino, 319 N.J.Super. 342, 349 (App.Div.1999).   The Act is “remedial social legislation,” and its “beneficent purposes” should be realized whenever appropriate.  Zahner v. Pathmark Stores, Inc., 321 N.J.Super. 471, 477 (App.Div.1999).

Petitioner bears the burden of demonstrating his right to workers' compensation benefits in this State.  Williams, supra, 175 N.J. at 90.   In order to satisfy this obligation, a petitioner must present adequate competent proofs for one of the three disjunctive prongs of the Williams paradigm.2  From our comprehensive review of the record, we find that the evidence presented to Judge LaBoy simply did not satisfy this burden.

Our mode of review obliges us to accord substantial deference to the compensation judge's findings of fact.   Our task is to examine “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole.”  Sager v. O.A. Peterson Constr.   Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).   In doing so, we give due regard to the Division's expertise in the field of workers' compensation.  Ibid. However, our review of the judge's legal interpretations is de novo.  Estate of Hanges v. Metro.   Prop. & Cas. Ins. Co., 202 N.J. 369, 382-383 (issue of law is subject to de novo plenary appellate review regardless of the context);  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Judge LaBoy characterized petitioner's work exposure in New Jersey as “de minimis.”   He based this factual conclusion not only upon the employment history of petitioner with Buchanan, but under the lens of petitioner's entire work experience performing similar job functions.   This was an appropriate approach to the jurisdictional calculus.   We recognize that compared to Williams 's facts, petitioner's employment-exposure ratio with his last employer is much larger than Mr. Williams, and differs insofar as Mr. Williams worked in New Jersey at the beginning of his career where petitioner's experience in New Jersey was at the end of his service.   However, these differences do not tip the jurisdictional balance in petitioner's favor.

In Williams, the petitioner suffered a four-month exposure to strong cleaning chemicals and exhaust fumes from motor vehicles in New Jersey in 1973, and then worked for the next twenty-one years in New York enduring similar chemical and airplane exhaust fumes.  Williams, supra, 175 N.J. at 85.   Thus, his arithmetic ratio of exposure in New Jersey to New York was approximately 1.6%. Id. at 92.   By contrast, petitioner's arithmetic ratio for Buchanan-related exposure is approximately 13%, almost a ten-fold increase over Mr. Williams's ratio.   However, the judge of compensation rightly examined the totality of petitioner's work experiences, dating back to 1974, and recognized that petitioner's exposure must be measured using all similar job performances.   The arithmetic exercise of computing petitioner's overall employment-exposure ratio thereupon reveals a New Jersey ratio of only approximately 5%.

We do not suggest that there is a mandatory mathematical formula that judges of compensation should apply in calculating the employment exposure of a petitioner as part of Williams 's jurisdictional test.   Although we might quibble with Judge LaBoy's description of petitioner's exposure as “de minimis,” we nevertheless conclude that the sixteen-month exposure was not sufficiently substantial under the totality of the circumstances to constitute injury-conferring jurisdiction in the Division.

Judge LaBoy was also concerned that petitioner did not take advantage of information he obtained as early as 1999, which would have enabled a claim for benefits in Pennsylvania.   Our takeaway from Judge LaBoy's conclusions in this regard is his unassailable finding that the manifestation of petitioner's multiple conditions occurred long before he set foot in this state to operate a press for Buchanan.   We find the record barren of competent evidence that petitioner's employment thereafter actually contributed to or aggravated his multiple pre-existing conditions.   The letter of Dr. Cataldo that was submitted as part of petitioner's Second Injury Fund petition was both merely hypothesis and lacking factual foundation regarding the whys and wherefores of how petitioner's continuation as a pressman in New Jersey for Buchanan exacerbated his already-manifested injuries.   See generally Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) (affirming the net opinion principle that conclusory statements by an expert will be inadmissible unless tethered to factual evidence and an explanation of how the facts relate to the opinion).

To the extent that we have not directly addressed the balance of petitioner's arguments, including his assertion that the dispositive motion to dismiss in the Division was actually a stealth motion for summary judgment, we find that those arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).



FN1. Id. at 90 (“[I]n order to invoke the jurisdiction of the Division in extraterritorial occupational disease cases based on the occurrence of injury in New Jersey, the petitioner must demonstrate either that (1) there was a period of work exposure in this State that was not insubstantial under the totality of circumstances and given the nature of the injury;  (2) the period of exposure was not substantial but the materials were highly toxic;  or (3) the disease for which compensation is sought was obvious or disclosed ‘by medical examination, work incapacity, or manifest loss of physical function,’ while working in New Jersey.”)..  FN1. Id. at 90 (“[I]n order to invoke the jurisdiction of the Division in extraterritorial occupational disease cases based on the occurrence of injury in New Jersey, the petitioner must demonstrate either that (1) there was a period of work exposure in this State that was not insubstantial under the totality of circumstances and given the nature of the injury;  (2) the period of exposure was not substantial but the materials were highly toxic;  or (3) the disease for which compensation is sought was obvious or disclosed ‘by medical examination, work incapacity, or manifest loss of physical function,’ while working in New Jersey.”).

FN2. Prong two of Williams relates to the circumstances of exposure to “materials [that] were highly toxic,” a situation not involved in this case.  Ibid..  FN2. Prong two of Williams relates to the circumstances of exposure to “materials [that] were highly toxic,” a situation not involved in this case.  Ibid.


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