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Viera v. Level Line

Decided: November 1, 1994.


On appeal from judgment of the Division of Workers' Compensation.

Before Judges Dreier, Villanueva and Wefing.


The opinion of the court was delivered by VILLANUEVA, J.A.D.

The Level Line, Inc. appeals from a workers' compensation judgment granting partial total permanent disability to petitioner, Enrique Viera. We remand for reconsideration and for the Judge of Compensation to make specific findings.

Petitioner filed a workers' compensation petition alleging orthopedic and pulmonary injuries and hearing loss related to his employment with Level Line. Petitioner was employed by The Level Line, Inc. (Level Line) for twenty-eight years until it closed in 1990, when he was 57 years old. He then collected unemployment benefits for three years until he found a job at a recycling company. He worked at his new job for one and one-half months until he was laid off because he was having trouble lifting things.

Petitioner worked as a helper and later a journeyman. He would lift, bend and carry various window products manufactured and assembled by Level Line, and he also worked in the mill, priming and glazing departments. He would assemble, sand and paint wooden windows. Petitioner testified that the environment in which he worked was very dusty. Black dust would accumulate in his nose and in the paper mask he was given. He also experienced nosebleeds.

Petitioner stated that he was also exposed to fumes from the treatment of the windows. He testified that the paper mask did not alleviate the fumes, and there was no ventilation equipment and no window in the room where they assembled the windows. He claimed that the wood, which was treated with a substance called "Woodlife," gave off fumes smelling like rotten eggs and would cause a rash on his hands and itchiness if gloves were not used.

Petitioner received a workers' compensation award in 1976, for 2 1/2% of partial total permanent disability for the residuals of a left temporal puncture scar due to a 1975 accident involving a staple gun. In 1980, he received an award of 20% partial total permanent disability of the right leg for residuals of a meniscectomy for a 1979 accident in which he fell off a box. In 1987, he received an award of 15% partial total permanent disability for residuals of a lumbosacral sprain and bulging discs at L4-L5 and L5-S1 with right-sided radiculopathy resulting from a 1985 accident in which he injured his lower back while moving a heavy window.

Petitioner testified that the back pain he now experiences has been the same since his award in 1987. He has difficulty lifting and bending. He also cannot run and experiences trouble sleeping at night. Petitioner claimed that his right leg has worsened since the 1980 award.

He also testified to having shortness of breath when sleeping, climbing stairs or lifting. Petitioner further stated that when he cleans the yard of leaves or takes out the garbage he becomes fatigued and has difficulty breathing.

In 1988, petitioner was involved in a non work-related bus accident in which he injured his right arm and neck for which he received treatment. Petitioner also admitted to smoking a pack of cigarettes every two to four days since the age of 25 until he quit in 1989.

Dr. Silberner testified that when he examined petitioner on June 13, 1991, he asserted the following complaints:

First, progressive shoulder pain on the exertion so he had difficulty in breathing. On performing ordinary tasks of the ordinary living, such as walking two blocks, climbing one flight of stairs, or keeping up with peers. And he had a cough with sputum. His occupational history involved employment by Level Line Company from 1962 until September of 1990. He stated that in the course of that employment he had been exposed to chronic inhalation of irritating dust particles, chemical fumes, and other noxious elements which made him cough and feel short of breath. He did wear a protective mask when the dust was heavy. He stopped smoking during 1989. He does have diabetes which is being treated by diet alone.

Silberner also testified that petitioner had "some obstruction in the bronchial tubes" and large amounts of sputum. He agreed that petitioner's smoking was a factor in his bronchial problems but he could not apportion the problem between the smoking and exposure at Level Line. He concluded that the pulmonary disability was causally related to petitioner's exposure to black dust and fumes while at Level Line.

Dr. David Jay Scott, who examined petitioner on behalf of Level Line on August 11, 1992, stated that petitioner had no specific chief complaint but claimed he had pain in his back, right knee, neck and chest. He reported that the examination revealed "a well-developed, well-nourished male in no acute distress." He stated that petitioner had diabetes mellitus dating back to 1977 and hypertension manifesting more recently, but that "neither of these involvements and consequences of his diseases are in any way related by virtue of aggravation, exacerbation, causation or precipitation of his employment activities." He also stated that petitioner's knee and back injuries were related to or exacerbated by his 1988 auto ...

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