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Taylor v. Engelhard Industries

Decided: February 9, 1989.

SOLOMON TAYLOR, DECEASED, BY HIS WIDOW AND DEPENDENT, ANNIE TAYLOR, PETITIONER-APPELLANT,
v.
ENGELHARD INDUSTRIES, RESPONDENT-RESPONDENT. ANNIE LIZZIE TAYLOR, PETITIONER-APPELLANT, V. ENGELHARD INDUSTRIES, RESPONDENT-RESPONDENT



On appeal from Division of Workers' Compensation.

J. H. Coleman and D'Annunzio. The opinion of the court was delivered by J. H. Coleman, P.J.A.D.

Coleman

In this workers' compensation appeal, the significant issue raised is whether a worker who has been adjudicated totally and permanently disabled and found to be entitled to benefits from the Second Injury Fund (Fund) is entitled to an award increasing the percentage of disability payable by the employer. We hold that unless there has been additional employment and another accident or occupational exposure, there can be no award for any increase in the disability.

The facts are not complicated. Solomon Taylor, now deceased, was employed by Englehard Industries between 1945 and August 24, 1976. During the course of that employment, he was exposed to smoke, dust, fumes and other pulmonary irritants. Prior to the termination of employment, decedent suffered with severe cardiovascular disease and severe hypertension. On November 29, 1977, he was found to be totally and permanently disabled from all causes. He was awarded 55% of total permanent disability for chronic bronchitis and pulmonary emphysema payable by Englehard. He was also found eligible to collect benefits from the Fund effective November 20, 1981. Decedent died on September 18, 1981 while still collecting the 55% pulmonary disability. He never worked after August 24, 1976.

Decedent's widow Annie Lizzie Taylor filed an application for an increase in decedent's compensable pulmonary disability alleging that the disability worsened between November 29,

1977 and the time of death. She also filed a claim for dependency benefits. The two claims were consolidated for trial. An autopsy revealed the cause of death was a ruptured arteriosclerotic abdominal aortic aneurysm. At the conclusion of the trial, the judge dismissed both claims. This appeal followed. We now affirm.

On September 16, 1981 decedent went to the emergency room of St. James Hospital complaining of pains in his back and stomach. He also said he had vomited and suffered from diarrhea which was dark. The judge found the following occurred at the hospital:

A diagnosis of gastrointestinal bleeding and history of chronic lung disease was made.

Tests were ordered by Dr. Contreras, and the patient placed on a stretcher and admitted.

Dr. Pugliese, the decedent's family physician, was notified at 6:30 p.m., spoke to Dr. Contreras, and a surgical consultation was ordered.

The first consulting examination was done by Dr. Yepez on September 16th, whose report appears in Exhibit P-2, the St. James Hospital records of September 16th to 18th, 1981.

That report includes the following impressions of Dr. Yepez: Peptic ulcer disease, rule out gastritis, rule out ...


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