Court Affirms Dismissal of Occupational Pulmonary And Orthopedic Claims

Saturday, August 11, 2007 | 0

By John H. Geaney

Yogini Patel filed an occupational disease claim against Federated Logistics for injuries from alleged exposures to dust, fumes, and pulmonary irritants, as well as repeated bending and lifting from 1999 through Sept. 28, 2002.

Petitioner testified at trial that she worked as a checker/marker in a warehouse in Secaucus, N.J., removing and packing clothing from boxes, checking garments for tickets and putting tickets on garments. Previous to 1999, she had done the same work for a company called Speedmark, which was acquired by Federated. Petitioner alleged that she started to have trouble with her back, hands, elbows and shoulders, as well as with her breathing several months after she began working for Speedmark. (Note: Speedmark settled separately for $4,800 on a Section 20 basis).

Petitioner's witnesses included a co-employee who confirmed the dusty conditions at work. She also produced testimony from Dr. Ahmad, a board certified orthopedist,who diagnosed a spinal sprain and fibromyositis and estimated 25% of partial total. He later increased that estimate in 2003 to 42.5%.

Petitioner also produced testimony from Dr. Sidney Friedman, who is board certified in internal medicine. Dr. Friedman diagnosed chronic bronchitis with evidence of restrictive pulmonary disease. He estimated 30% of permanent partial disability. Later he increased that to 35%.

Respondent produced the company's human resource manager as its lay witness. She stated that there was no dust in the warehouse. She challenged petitioners description of the layout of the plant as well. Respondent also produced Dr. Arthur Canario, who said that petitioner had no permanent disability on an orthopedic basis. Lastly, respondent produced Dr. Samuel Kahnowitz, an expert in pulmonary medicine, who said that petitioner's chest x-ray and pulmonary function studies were all normal.

The judge of compensation decided against petitioner, noting that petitioner's description of the workplace was not credible. The judge added that petitioner's testimony"sounded coached." Lastly, the judge found that the experts for Federated were more credible than those of petitioner. The judge found no evidence of permanent disability, either on an orthopedic or pulmonary basis.

The Appellate Division reviewed the record below and stated that there was ample support in the record for the judge of compensation's conclusions that petitioner had notproven any permanent disability.

There are many cases like this in the Division of Workers' Compensation which generally end up on a Section 20 track.

What is noteworthy about this case is that respondent did something unusual at trial. It produced the human resource director, who disputed the physical layout of the plant as described by petitioner and disputed the alleged "dusty" conditions. This testimony was obviously important because it rebutted the petitioner's versions of "facts."

This is an approach that employers should utilize whenever possible in defending such claims.

This case can be found at Patel v. Federated Logistics, A-4659-05T3(App. Div. 1/18/07).

John H. Geaney is an attorney at Capehart Scatchard. This column first appeared in the law firm's case law newsletter. The law firm's Web site is http://www.capehart.com.

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.