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Calabro v. Campbell Soup Co.

Decided : September 18, 1990.

SAMUEL J. CALABRO, PETITIONER-RESPONDENT,
v.
CAMPBELL SOUP CO., RESPONDENT-APPELLANT. LEON S. BIALKOWSKI, PETITIONER-RESPONDENT, V. CAMPBELL SOUP CO., RESPONDENT-APPELLANT. JAMES MALANDRO, PETITIONER-RESPONDENT, V. CAMPBELL SOUP CO., RESPONDENT-APPELLANT



On appeal from Division of Workers' Compensation.

Michels, Deighan and Brochin. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

[244 NJSuper Page 151] This is an appeal from determinations in three workers' compensation cases. Petitioners Samuel J. Calabro, Leon S. Bialkowski, and James Malandro (petitioners), were employees of Campbell Soup Company (Campbell) who were exposed to

loud occupational noises over a period of years. They each filed claim petitions against Campbell for the resulting loss of hearing. Campbell was insured with N.J. Manufacturers Insurance Co. (NJM) from 1912 to July 31, 1979 at which time Liberty Mutual Insurance Co. (Liberty Mutual) became the insurance carrier. Liberty Mutual was found liable for the full amount of the award to each petitioner. This appeal essentially involves a dispute between the carriers. Liberty Mutual contends that the awards should be apportioned between the carriers.

On November 20, 1981, petitioner Calabro filed two workers' compensation claim petitions against respondent Campbell. On September 23, 1983, petitioner Bialkowski also filed two claim petitions against Campbell. Lastly, on June 11, 1984, petitioner Malandro also filed two claim petitions against Campbell. The petitions alleged that Calabro, Bialkowski and Malandro had sustained hearing losses due to occupational exposure to loud noise.

Claim Petition No. 81-36929 sought benefits related to Calabro's hearing loss due to exposure during the period from June 24, 1941 to July 31, 1979. Claim Petition No. 81-36928 sought benefits related to Calabro's hearing loss due to exposure during the period from August 1, 1979 to November 20, 1981. Claim Petition No. 83-23675 sought benefits related to Bialkowski's hearing loss due to exposure during the period from March 20, 1956 to August 1, 1979. Claim Petition No. 83-23674 sought benefits related to Bialkowski's hearing loss due to exposure during the period from August 1, 1979 to September 20, 1983. Claim Petition No. 84-14847 sought benefits related to Malandro's hearing loss due to exposure during the period from July 29, 1940 to August 1, 1979. Claim Petition No. 84-14848 sought benefits related to Malandro's hearing loss due to exposure during the period from August 1, 1979 to January 31, 1983.

During the periods covered in claim Nos. 81-36929, 83-23675 and 84-14847, Campbell was insured by NJM; during the period covered in Nos. 81-36928, 83-23674 and 84-14848, Campbell was insured by Liberty Mutual. Both insurance companies answered the respective claim petitions, denying liability.

Both Calabro and Bialkowski were tried together on various dates before a Workers' Compensation Judge. On January 28, 1989, the judge incorporated his findings and found that both petitioners had suffered bilateral hearing loss due to prolonged occupational exposure to hazardous noise. He made the following awards. On No. 81-36928, the judge found petitioner Calabro had a partial permanent disability in the amount of 27%, and on No. 83-23674 petitioner Bialkowski had a partial permanent disability of 42%. The court awarded to petitioner Calabro $2,538, which represents $47 per week (using 1981 rates) for 54 weeks. The court awarded petitioner Bialkowski $5,292, which represents $63 per week (using 1983 rates) for 84 weeks. The court dismissed claim Nos. 83-23675 and 81-36929.

The Malandro case was tried on various dates before another Workers' Compensation Judge. On June 30, 1989, the judge found petitioner Malandro had a partial permanent disability of 65% for bilateral hearing loss due to prolonged occupational exposure to hazardous noise on No. 84-14848. The court awarded petitioner Malandro $8,938, which represents $68.75 per week (using 1983 rates) for 130 weeks. The court dismissed No. 84-14847.

Liberty Mutual appealed from the decision under Nos. 81-36928 (Calabro); 83-23674 (Bialkowski) and No. 84-14848 (Malandro). Liberty Mutual does not challenge the amount of the awards to petitioners Calabro, Bialkowski and Malandro; rather, it challenges the court's decision which requires Liberty Mutual to pay the full awards.

The essential facts are not in dispute. Petitioner Calabro began working for Campbell on June 24, 1941, and retired on March 31, 1982. During his employment, Calabro worked for

only Campbell. He left Campbell for two years to serve in the armed forces during World War II and states that he was exposed to artillery firing during that time, leaving him with a ringing in his ears.

Calabro began working for Campbell as a laborer stationed in Building 26, which was part of Campbell's canning line where soup cans traveled over the laborers' heads. To communicate among themselves, the laborers had to shout to one another. Calabro worked in Building 26 for seven or eight years, and then he was transferred to Building 21. Although canning lines were still present, the noise was less. After another ten or twelve years, Calabro was transferred to the salvage room where more canning lines were present. Eventually, Calabro became a cook and was moved to another area.

Petitioner Bialkowski began working for Campbell on March 20, 1956, and continued to work for Campbell at least until April 23, 1986. Bialkowski also worked in the canning division, where the noise was substantial. Although he served in the National Guard, Bialkowski never served full-time military duty. Also, Bialkowski had a mastoid operation prior to working for Campbell, but testified his hearing was unaffected by the operation.

Petitioner Malandro began working for Campbell on July 28, 1940, and continued to work for Campbell until he retired on January 31, 1983, except for 34 months during which he served in the armed forces in World War II. Malandro worked in the pressroom in the canning division, where the noise was also substantial.

While employed at Campbell, petitioners were required to submit to audiogram testing. Campbell's medical supervisor, Mary T. Budusky, R.N., testified concerning the method of conducting hearing examinations. Prior to March 24, 1983, Campbell used a Maico machine to perform the hearing tests. After that date, it used a more sophisticated Tractor 400 microprocessor, a computerized audiometer which provided a

more accurate reading. She also questioned the soundness of the earlier tests because it was not certain that, prior to 1981, the employees were consistently tested prior to commencing work.

Petitioners also underwent audiogram testing performed by August P. Ciell, M.D.

(a) Calabro

The audiogram tests performed on Calabro while NJM insured Campbell indicated the following results:

March 3, 1971 0% hearing loss

March 14, 1971 0% hearing loss

January 6, 1975 15.4% hearing loss

The tests performed on Calabro while Liberty Mutual insured Campbell indicated the following:

September 20, 1979 45% hearing loss

May 23, 1981 50% hearing loss

The tests performed on Calabro on September 22, 1981 by Dr. Ciell indicated a 27% hearing loss. The test performed on Calabro on May 11, 1982 by James M. Sumerson, M.D., Dr. Ciell's associate, indicated that there was little change. Based on the evidence, the compensation judge found Calabro was entitled to an award of permanent disability in the amount of 27% for bilateral hearing loss.

(b) Bialkowski

The audiogram tests performed on Bailkowski while NJM insured Campbell indicated the following results:

April 18, 1973 19% hearing loss

April 17, 1978 34% hearing loss

April 19, 1978 40% hearing loss

April 24, 1978 40% hearing loss

The tests performed while Liberty Mutual insured Campbell indicated the following:

November 6, 1979 40% hearing loss

January 26, 1981 40% hearing loss

January 28, 1982 39% ...


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