Michelle Lomet and Dennis Lomet Sr. v. Lawes Coal Company

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark

This is another very recent appellate division case addressing the trial court acting as the gate keeper dismissing a case where the plaintiff (here a workers’ compensation petitioner in comp court) was not able to causally connect his cancer diagnosis to the ‘alleged’ work related exposure. In fact, here, the Judge of Compensation ruled the petitioner did not prove there was actual asbestosis chemical exposure which could have –caused—the cancer he ultimately died from. In another case decided this week the appellate court overturned a jury verdict when the plaintiff testified about his own erectile dysfunction being ‘related’ to a car crash without the necessary medical expert. Here the Judge of Compensation correctly acted as the gate keeper dismissing the claim when the claimant failed to satisfy the causation element of the case.

The facts are as follows. Plaintiff, Dennis Lomet Sr., was employed by defendant Lawes Coal Company from 1987 until 2012 when he died of lung cancer. Plaintiff never smoked but his job duties at Lawes included installing, removing, or repairing heating and air conditioning equipment. Prior to his death, plaintiff’s treating physician informed him he had been exposed to chemicals, soot, and asbestos. Plaintiff’s coworker testified he and Dennis were regularly exposed to asbestos during that five year period they worked together. Plaintiff’s wife testified, “she often observed him blowing his nose, and saw black material come out of his nose.” However, there was no medical records, work records, incident reports or similar documented evidence confirming plaintiff was exposed to any chemicals including asbestos during his employment.

Plaintiff hired an expert oncologist to regarding his cancer and its relation to chemical exposure however, the doctor agreed there was no documented medical evidence to support his causation conclusions. On the other hand, defendant’s expert stated, “if asbestos fibers enter the lung and cause cancer, neural plaques and “B readers” are visualized on radio-graphical films’ and there were none found on plaintiff’s radio-graphic films. The Workers Compensation Judge found defendant’s expert to be more persuasive and concluded there was no objective medical evidence such exposure caused or contributed to the onset of plaintiff’s lung cancer. Plaintiff appeals the judge’s decision.

On appeal, plaintiff argues there was enough evidence to prove there was an exposure to asbestos or other chemicals to cause lung cancer. The Appellate Court concurs with the Judge of Compensation’s finding that there was no medical evidence that links the petitioner’s lung cancer to asbestos or other chemicals during his period at work. The Appellate Court considered the judge’s findings were also supported by credible evidence related to the facts of the case and as a result the Court affirmed.