SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2986- 21 JEFFREY BELLO, Petitioner-Appellant,

v. UNITED P AN AM FINANCIAL CORP., Respondent-Respondent.

____________________________

Submitted February 7, 2024

– Decided March 6, 2024 Before Judges Accurso and Walcott-Henderson. On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2018-10081 and 2018 -10084. Jeffrey Bello, appellant pro se. Lois Law Firm, LLC, attorneys for respondent (Gregory Lois, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2986

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Petitioner Jeffrey Bello appeals from a New Jersey Division of Workers' Compensation order entered on April 19, 2022, follo wing a bifurcated testimonial hearing finding petitioner's alleged in juries were not causally related to his employment with respondent United PanAm Fina ncial Corporation. Petitioner contends the court erred in qualifying r espondent's expert witnesses and finding them credible while finding his expert lacked credibility. We disagree and affirm for the reasons stated in Judge R. Louis Gallagher's comprehensive written opinion. By way of brief background, petitioner filed two c laim petitions, 2018

- 10081 and 2018-10084, seeking medical and temporary workers' compensation benefits from respondent. Petitioner claims he suf fered numerous injuries related to exposure to chemical fumes from the air conditioning system in his personal car, which was also being used for work. Petitioner was hired by respondent in January 2016 as an area sales manager for Philadelphia with the primary responsib ility of sell ing prime auto financing at various car dealerships. He testified that he was required to use his

own car

— a 2014 Cadillac

— for work, but that respondent provided a gas card, a credit card, and GPS-enabled company phones.3 A- 2986

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Approximately three months after petitioner starte d working for respondent, he had his personal car serviced at Hol man Cadillac. Petitioner testified that when he picked up the car, he notice d a "chemical odor in the car, and . . . was concerned." One week later, petition er turned on the car's air conditioner and "noticed a much stronger chemical o dor . . . ." Petitioner testified that he opened the car windows because of the strong odor , and "noticed what felt like a hot pepper on [his] tongue." He t hen turned off the air conditioner, stopped to see a client, got back into the car, and proceeded to stop at a fast-food restaurant to rinse his mouth. While in the restaurant, petitioner testified that he was "coughing and spitting up blood

. " He then called the dealership where the car had be en serviced and arranged to drop it off the next day. Later th at same evening, petitioner went to the emergency room of a nearby hospital wit h complaints of eye pain, throat pain, headache, and numerous other symptoms. Hospital records from that evening reveal ed that petitioner was diagnosed with chemical exposure which was consistent with h is complaints to the medical providers. He was advised to rest, drink plenty of fluids, and follow up with his doctor. The next day, petitioner returned his car to the s ervice department at Holman for inspection and was informed that they co uld not duplicate the4 A- 2986

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chemical odor he was complaining about. Petitioner t hen hired Eagle Industrial Hygiene Associates to test the air quality inside his vehicle. Eagle prepared and released a report indicating it had detected "an aromatic (sweet) chemical type odor " after operating the air condition ing system for over one and a half hours. Several weeks after Eagle conducted its initial te sting, a different Eagle employee authored a second report, which included i nformation based on a safety data sheet provided to him by petitioner "fo r the product reportedly used for the repair/treatment" of his car

. In the report, Eagle noted that the safety data sheet listed several of the product's ingredie nts as "dangerous components"

— specifically: coconut diethanolamide, bis (2-ethyl hexyl) phosphate (1:1), and ammonia. 1 For the next several weeks, petitioner continued t o dr ive his car at various times without using the air conditioner until an es pecially hot day when he said he had to turn it on. He testified that within a s hort time of turning on the air conditioner, even with the windows down, he began e xperiencing severe abdominal pain, burning, and tingling in his mouth. Petitioner went to the

1 The safety data sheet obtained by plaintiff was for the product AirSept cooling coil coating. It is unclear how petitioner concluded th is product was used in his car when it was serviced at Holman as there is no e vidence in the record to support this conclusion.5 A- 2986

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emergency room for a second time with complaints of illness related to chemical exposure and was diagnosed with severe abdominal pain, chemical inhalation, and chemical exposure. Several weeks later, petitioner purchased a replac ement car after GM denied his request to remedy the alleged toxic cond ition or replace his car. Petitioner testified that he continued to experienc e "numerous symptoms," including pain in his "left hand, where [his] hand generally rests on the steering wheel," liver pain indicative of "suspected possibl e fatty liver disease," as well as swelling of breast tissue, memory problems, thro at swelling, and lung damage. Several months later, as a result of petitioner's reported injuries, respondent filed a worker's compensation claim with its insurance carrier on petitioner's behalf

. However, petitioner was terminated from his employ ment with respondent prior to receiving a determination on his worker's compensation claim. In August 2017, respondent's insurance carr ier notified petitioner that his claim had been denied. Petitioner subsequently filed the within claim petitions. Approximately three years after his alleged initia l exposure to the chemical odor, petitioner retained Research Triangl e Park Laboratories (RTP)6 A- 2986

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to analyze a sample of GM 's cooling c oil coating

— the product petitioner confirmed Holman had used to service his car in 201 6. 2 With this report in hand, petitioner retained Eagle to author a third report based in part on the RTP findings. To prove causation, petitioner retained toxicology expert, Dr. Lawrence Guzzardi. While acknowledging that he spends one-h alf of his time on toxicology issues in drunk driving defense cases, D r. Guzzardi also admitted that most of his income was derived from his real estate business , and not the practice of medicine. The doctor had not been not affiliated with any hospital since at least 1996 and was no longer treating pati ents. 3 Nevertheless, Dr. Guzzardi authored several reports and opined th ere were "numerous chemicals" identified in the cooling coil coating liquid teste d by RTP and that petitioner' s injuries were consistent with exposure to high conc entrations of those chemicals. Additionally, he concluded that petitio ner's reported eye and throat

2 Th e GM cooling c oil coating product was not used in the earlier tests conducted by Eagle. The first report authored by Ea gle contained an analysis of a different product, AirSept c ooling coil coating. The record is unclear why these products have different names and whether the y are in fact the same product.

3 When asked if he was treating petitioner, Dr. Guzza rdi stated, "you can argue yes, you can argue no."7 A- 2986

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injuries were consistent with exposure to the chemi cals in the cooling coil coating liquid

. Dr. Guzzardi also testified that the ch emicals identified in the cooling coil coating liquid have household uses, are routinely found in persona l hygiene products, and admitted that he could not opine on t he exact levels of any of the chemicals that were present in petitioner’s car on the two occasions when he became ill. Furthermore, Dr. Guzzardi's maintained that his conclusions were "partially" based on the limited information provid ed to him by petitioner, and the RTP and Eagle reports. Respondent called two experts

— Dr. Howard Kipen, a toxicologist who is board-certified in occupational, preventative, and internal medicine, and Dr. Samuel Kahnowitz, a pulmonologist. Neither expert found a causal link between petitioner's extensive complaints and diagn oses and alleged exposure

to chemical fumes from his car's air conditioner. Dr. Kipen testified that he reviewed the RTP and E agle reports and determined that causation was not evident from peti tioner 's two alleged incidents of chemical exposure. He also testified there were many different compounds in the products petitioner had tested and in rendering his opinion he "primarily rel[ied] upon the fact that some of them are used commonly in8 A- 2986

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cosmetics, in particular the diethycocomide, and th at many of the others were present . . . in our environments in trace concentr ations as part of our lives." He further addressed the point made by Dr. Guzzardi : that the presence of the smell in petitioner's car was indicative of toxic levels of chemical exposure, stating it is "well established that one can smell things that are odor ous . . . at far [,] far lower levels than they are manifested through toxic ity." Dr. Kipen also stated, "the emphasis for [him] was on the short durations of exposure, the necessarily low concentrations, be cause there was not a major source of [the compounds] that were identified." Dr. Kipen further challenged petitioner's theory of medical causation

— that exposure to chemical odors on two occasions in his car could cause petitioner's l ong list of medical complaints and diagnoses

— by pointing out that "many of the important symptom s predated the exposure at issue." In addition, h e disputed petitioner's reliance on hospital records as proof that he was exposed to toxic chemi cals from his car's air conditioning system because he found that the emerg ency room personnel relied on petitioner's complaints of chemical exposure, ra ther than their own independent diagnosis. Ultimately, Dr. Kipen concl uded within a reasonable degree of medical certainty that it is highly unlik ely for plaintiff to have the numerous diagnoses complained of from t wo alleged chemical exposures.9 A- 2986

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Respondent's second expert, Dr. Kahno witz examin ed petitioner and testified based on his examination, as the court lat er summarized, that he "could not find anything that defined the presence of pulm onary disease." Dr. Kahnowitz stated, "as a pulmonologist, [he] found n o specific evidence for actual pulmonary disease, asthma, or anything else

. . . ." With respect to whether toxic exposure from inhalation seemed likel y in the absence of indicators of lung or airway disease, Dr. Kahnowitz tes tified, " [n]ot in terms of pulmonary disease, no." In its thirty-five-page written decision, the work ers' compensation judge addressed a total of fifty medical complaints made by peti tioner purported to be related to his exposure to chemicals from his perso nal car 's air conditioning system. The court noted that petitioner also has an extensi ve list of complaints, diagnoses, and medical conditions predating his all eged work-related exposure. The court considered the evidence presented by both parties and began its analysis by addressing the testimony of Dr. Guzzard i, who the court did not find credible, specifically not ing petitioner's evidence had little or no weight and

[a]lthough this court qualified Dr. Guzzardi as an expert in toxicology, his testimony and reports fai l to persuade this court on the issue of causation for t he following reasons. Dr. Guzzardi relies on hearsay medical reports . . . that parrot what the petition er tells medical officials. He confuses symptoms for medica l10 A- 2986

- 21 diagnosis and [downplays the] amount of chemical exposure and length of time of chemical exposure. The court found respondent's experts, Dr. Kipen an d Dr. Kahnowitz credible and expressly relied on Dr. Kipen's testim ony in support of its conclu sion that "it is highly unlikely for petitioner to have all these problems from a chemical exposure." The court also relied u pon Dr. Kahnowitz's testimony and findings wherein he found petitioner' s x-rays did not show the presence of meaningful lung tissue disease

. The court concluded petitioner failed to establish a causal relationship between his work and alleged injuries by a preponde rance of the credible evidence on each and every element of his claim. P erez v. Pantasote Inc., 95 N.J. 105, 116- 19 (1984). And, it did not believe petitioner's "testimony represent[ed] competent evidence that sustain[s] hi s complaints." This appeal followed. "Our review of decisions from the workers' compens ation court is decidedly deferential," Ripp v. Cnty. of Hudson, 47 2 N.J. Super. 600, 606 (App. Div. 2022), based on the "compensation court's expe rtise and the valuable opportunity it has had in hearing live testimony." Hager v. M&K Constr., 246 N.J. 1, 18 (2021). Thus, "our review of workers' c ompensation decisions is 'limited to whether the findings made could have be en reached on sufficient11 A- 2986

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credible evidence present in the record.'" Ibid. (quoting Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014)).
A trial court's decision as to whether an expert is q ualified to testify is entitled to "considerable latitude," and is only review ed for abuse of discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015). Thus , the decision should only be disturbed on appeal if necessary to prevent "man ifest error or injustice." State v. Jenewicz, 193 N.J. 440, 455 (2008). Moreover, a compensation judge is considered to have expertise "with respect to weigh ing the testimony of competing medical experts and appraising the validi ty of [a] . . . compensation claim ." Ramos v. M F Fashions Inc., 154 N.J. 583, 598 (1998)

. Petitioner argues the compensation court erred in dismissing his claim petitions based on the court's qualification of res pondent's experts and acceptance of the experts' testimony. With regard to Dr. Kipen, petitioner maintains he held no qualifications or certificatio ns in the field of toxicology and never examined him. Petitioner also asserts bo th experts offered impermissible net opinions that the court relied on in dismissing his claims. Petitioner finally contests the court's finding tha t his expert, Dr. Guzzardi, was not credible.12 A- 2986

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Respondent highlights the deferential standard of review applicable to our review of workers' compensation matters

. It maintains that given the facts of this case, the opportunity of the court to consider the expert te stimony, and the deferential standard of review, petitioner has fail ed to demonstrate that reversal is warranted.
T his case required expert testimony to prove a causal link between the alleged exposure to the chemicals and the petitione r's diagnoses. See Pantasote Inc., 95 N.J. at 116

. Applying our decidedly deferential standard, we discern no error in the compensation court's qualification of Dr. Kipen as an expert in toxicology and its acceptance of his testimony to conclude "it is highly unlikely for petitioner to have all these problems from a ch emical exposure" because of the limited time the body retains these particular substances. Similarly, we conclude the compensation court's qu alification of Dr. Kahnowitz as an expert in pulmonology is entitled t o deference, and petitioner has failed to establish any basis to disturb the co urt's decision. Petitioner acknowledges Dr. Kahnowitz is a pulmonologist but a rgues he has "no expertise in the study or science of [t]oxicology . . . " and that "[m]ost concerning regarding Dr. Kahnowitz, is the fact that he did no t complete or order any respiratory testing of the [p]etitioner . . . ." The compensation court found Dr.13 A- 2986

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Kahnowitz was an expert and that "after examining p etitioner, reviewing his medical history and x-rays [Dr. Kahnowitz] found no specific evidence of actual pulmonary disease, lung disease, and oxygen saturat ions were normal." He re too, we see no reason to disturb the court's qualif ication of Dr. Kahnowitz as an expert and its acceptance of the doctor's testimony

. W e also disagree with petitioner's contention that res pondent's experts offered mere net opinions. "The net opinion rule is a 'corollary of [Rule 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Townsend v. Pierre , 221 N.J. 36, 53-54 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). Expert opinions must "be grounded in 'fac ts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessa rily admissible in evidence but which is the type of data normally relied upon by experts.'" Id. at 53 (quoting Polzo , 196 N.J. at 583 ). Accordingly, an expert is required to "'give the wh y and wherefore' that supports the opinion, 'rather t han a mere conclusion.'"
Cr ispino v. Township of Sparta, 243 N.J. 234, 257 (20 20) (quoting Townsend , 221 N.J. at 54).14 A- 2986

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Here, Dr. Kipen testified that it is highly unlikel y for plaintiff to have these alleged diagnoses from a chemical exposure at the level complained of, and Dr. Kahnowitz offered that "as a pulmonologist, [he] found no specific evidence for actual pulmonary disease, asthma, or a nything else . . . ." Both experts testified regarding the why and wherefores i n support of their respective conclusions, and we reject petitioner's claims that the experts offered net opinions that should have been disregarded by the court. We likewise do not disturb the compensation court's decision to discredit the testimony of petitioner's expert, Dr. Guzzardi, after finding that he "relied on unsubstantiated testing reports . . . ," acknowl edged that the original cooling coil was mislabeled, and relied upon several report s procured by petitioner that the court found to be incompetent evidence because there was no "chain of custody, " and "[t]here was no verification of how the testing was done, [or whether] the testing was done in a reliable manner .

. . ." 4 Critically, the court's

4 The court specifically referenced Dr. Guzzardi 's reliance on the RTP report and the third Eagle report

— the results of which were based on samples provided to RTP by plaintiff, and then forwarded to Eagle an d used in its conclusion. The court, citing State v. Chun, 194 N.J. 54 (2008) and State v. Wojtkowiak, 174 174 N.J. Super. 460 (App. Div 1980), noted that the testing performed by RTP was done two years after the alleged incidents and that there was "no chain of custody, reliable testing procedures, testing mater ial presented or the qualification of the person(s) testing."15 A- 2986

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credibility findings with respect to respondent's e xperts' and their respective opinions are entitled to deference and as our Supreme Court has held, "an appellate court's review of a cold record is no sub stitute for the [] court's opportunity to hear and see the witnesses who testi fied on the stand." Balducci v. Cige, 240 N.J. 574, 595 (2020); see also Ra mos, 154 N.J. at 598. Significantly, the court also concluded that petiti oner was not a credible witness despite his personal belief that exposure t o chemicals released from his car's air conditioning system was the cause of his fifty medical complaints. Having reached that conclusion, the court separatel y address ed each of petitioner's complaints and diagnoses and determine d that he had not met his burden of pro of

establishing that they were causally related to hi s alleged exposure to fumes from his car. Applying the appropriate deferential standard to the workers' compensation court's credibility determinations and conclusions based on the evidence, w e discern no basis on which to disturb the court's order and aff irm its April 19, 2022 order essentially for the reasons e xpressed in Judge Gallagher's thorough and well-reasoned written opin ion. Affirmed.