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Wednesday, October 15, 2014

Benzene Exposure Claim: Court Dismisses Alleged Fatal Multiple Myeloma

A NJ Judge of Compensation recently dismissed a fatal claim for dependency benefits arising out of an alleged exposure to benzene. The decedent worked as laboratory technician from 1998 through 1998 in a quality control laboratory where he worked with liquid chemicals such as "benzene." The decision provides is primer on trial preparation.

The Court ruled that even though a de bene esse deposition was taken of the employee, the deposition was lacking as to proof of adequate and sufficient exposure:

"...The judge noted that decedent did not testify how many times he worked with benzene, whether he ever spilled this chemical, or the number of times he may have smelled it. Decedent never testified he was exposed to benzene the 100 to 150 times a year necessary, according to petitioner's expert, to become a causal factor for his multiple myeloma. Decedent's “blood tests[,] taken after his alleged exposure from 1977 to 1982, ... [showed] no evidence of benzene exposure presenting itself.”Under these circumstances, the judge concluded that decedent did not prove “sufficient exposure to benzene” to have caused his multiple myeloma.

During the trial the Court did not permit the wife to testify as to the circumstance of the on the job exposure:

"We also reject petitioner's argument that the judge erred in not permitting her to testify concerning decedent's job duties. Petitioner testified in order to establish that she qualified as decedent's dependent for purposes of filing a dependency claim. During her testimony, petitioner stated that she knew decedent “worked in the chemical department. That's the only thing I know.”She was not sure
what labs he worked in during his employment with respondent. Respondent objected to this testimony and the judge ruled that petitioner's testimony should be limited to whether she was dependent upon decedent for purposes of pursuing her claim.

Additional incomplete discovery responses by the employer was not an error for reversal on appeal since the petitioner's attorney did not seek enforcement sanction at the trial level.

"....petitioner argues respondent failed to answer certain interrogatories. However, N.J.A.C. 12:235–3.7(b) requires that discovery be completed within 180 days from the filing of the respondent's answer. Respondent filed its answer on July 31, 2009, but petitioner did not file her motion seeking to suppress respondent's defenses until February 23, 2011, well after the expiration of the discovery
period. Moreover, in opposition to plaintiff's motion, respondent certified that it provided petitioner with all of the documentation in its possession concerning decedent, including his personnel file. We therefore conclude that this argument lacks merit.

Hallquist v. E.I. DuPont De Nemours, 2014 WL 5048950 (N.J.Super.A.D.) Decided October 10, 2014

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.