On appeal from the Division of Workers' Compensation.
Approved for Publication March 8, 1995.
Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
Appellant-respondent, H.M. Enoch, Inc. (Enoch), appeals from a final judgment of the Division of Workers' Compensation entered on June 23, 1993, which awarded petitioner-respondent, George V. Gulick, "100% total and permanent" disability based on three days of exposure to pulmonary irritants while in Enoch's employ as a plumber. Enoch also appeals the concurrent dismissal of the claim itimpleaded against Gulick's prior employer, The Proctor Company (Proctor), and the April 2, 1993 dismissal of the claim it impleaded against the Second Injury Fund (Fund). We reverse and remand.
Petitioner filed a claim petition on November 3, 1988, naming as the only respondent, Enoch, alleging "occupation exposure to dirt, dust, fumes building materials" from 1950 to November 20, 1987, resulting in "total disability resulting from pulmonary disease." On August 6, 1990, trial commenced with petitioner testifying that he worked as a pipefitter and plumber from 1950 to 1987. He maintained that he was subjected to dusty working conditions while working as a plumber and pipefitter in commercial buildings and homes. Over the years, his work involved mixing asbestos, covering boilers with asbestos, use of asbestos blankets, and removal of asbestos and other insulation. Removal of the insulation left particles in the air, causing dusty conditions. Petitioner also worked in chemical factories several weeks a year, where the air was heavy, almost greenish, and smelled bad. He sometimes worked with welders, subjecting him to smoke from the welding and from smoldering asbestos. Work at oil refineries exposed petitioner to dusty, "filmy" air that smelled bad. Petitioner did not wear a mask while working.
Petitioner worked three full days for Enoch on November 18, 19, and 20, 1987, installing refrigeration and heat lines. The work also included removing asbestos. The air was very dusty and dirty. Petitioner suffered from shortness of breath and had begun to spit up blood a short time before commencing his work at Enoch. He had last worked at Proctor, several weeks before the Enoch job. His symptoms while working at Enoch were described as worse than they had previously been. At the Enoch job-site, petitioner found that he was unable to climb scaffolds and carry equipment. He lost his breath and spit up blood.
Petitioner had smoked cigarettes for thirty-five to forty years, but stopped smoking before working at Enoch. He was twice hospitalized for bilateral pneumonia between 1979 and 1980. He gave a history of being treated for emphysema for two years prior to the second pneumonia bout. Petitioner did not consult hisdoctor between 1980 and 1986. During this period, petitioner worked approximately ten months a year. Petitioner first visited Dr. George Sollami, a pulmonary specialist, shortly before working at Enoch, because he was spitting up blood. At this visit, on November 2, 1987, according to Dr. Sollami, petitioner provided Dr. Sollami with a prior history of hypertension, severe osteoarthritis, removal of a cyst behind his right ear, a tic involving his left eye, and back and head injuries. He also gave the following pulmonary related history:
He was an active one-pack per day cigarette smoker for forty years and came to me primarily with the chief complaint of exertional dyspnea.
He reported to me that at the time of my initial visit he could walk only two blocks without experiencing shortness of breath, and after exposure to dust or fumes or exposure to extremes in temperature, he did note that his breathing was worse.
He also stated to me that over the last five years he was told of the diagnosis of emphysema and had been admitted to Community Memorial Hospital under the care of Dr. Cristal for treatment of bilateral pneumonia.
He has also reported to me that he noted occasional expectoration of blood and had been treated with medication called Theodur, one hundred milligrams twice daily for pulmonary reasons and stated to me there was little improvement in his respiratory complaints with treatment.
Petitioner told Dr. Sollami that he was working six months out of the year through his union, that he had been out of work for three weeks prior to the visit, and that he drank six cans of beer a day. The doctor found that petitioner was suffering from pulmonary problems. A chest X-ray revealed "interstitial markings, primarily at the bases. There were no pleural or diaphragmatic calcifications noted." A pulmonary function study performed in the doctor's office revealed "a very severe obstructive ventilatory defect, and there was no improvement noted post bronchodilator."
Dr. Sollami's Conclusion as to petitioner's condition was:
On the basis of the examination, chest X-ray and the review of the pulmonary function studies, it was my impression that the patient had evidence of advanced chronic obstructive pulmonary disease, primarily chronic bronchitis.
In addition there was evidence of fibrotic lung disease, which I felt mostly was on the basis of asbestosis, but also considered was scar tissue related to his previouspneumonia. He has a -- had evidence of hypertension, osteoarthritis and chronic alcohol use.
In addition, it was clear to me that his occupation as a pipefitter caused him to be exposed to agents which were triggering his lung problem, and I therefore advised that he consider applying for disability, as it was my impression he should be considered fully disabled on the basis of my findings.
Dr. Sollami explained his opinion that petitioner was totally disabled as of November 2, 1987:
Considering the fact that he worked as a plumber and pipefitter primarily -- as far as I know at this point, I believe that's the sole work that he performed over the years, and it was my opinion that he should no longer work as a plumber or pipefitter because of his degree of pulmonary dysfunction, exposure to dust fumes, having to work in conditions which would expose him to extremes in temperature, humidity, all of these factors were factors which were triggering his respiratory complaints.
In addition, he had been exposed to asbestos dust, and in my opinion he had evidence of asbestos-related pulmonary disease. He should no longer be exposed to asbestos dust.
So my opinion is he was fully disabled in regards to his employment as a plumber and pipefitter or any other job that would cause him to be exposed to those conditions, those environmental conditions which were triggering his complaints.
Dr. Sollami felt that petitioner's symptoms during his employment at Enoch were consistent with his opinion that petitioner was fully disabled. In regard to petitioner's exposure during his employment at Enoch, the doctor opined:
I do not believe that the symptoms that he had reported or the exposure that he undergone during that period of time resulted in a permanent -- any further permanent injury. It's in keeping with my medical opinion that he had -- prior to that employment, he had evidence of advanced chronic lung disease. The employment simply was triggering his symptoms relating to the preexisting disease. In other words, the symptoms represented an exacerbation of his disease.
On cross-examination, Dr. Sollami explained:
I'd rather use the terminology, his symptoms were exacerbated by the employment for those three days. I'd like you to look at his -- at George Gulick as having a preexisting condition, being chronic obstructive lung disease, and during that period of time when he was exposed to dusts and fumes, he was -- he had to perform strenuous activities. That employment resulted in an exacerbation of his symptoms, it triggered his symptoms.
He added: "I would have to conclude that these symptoms represented a transient exacerbation of his underlying lung disease and in all likelihood, this exacerbation did not lead to any further permanent lung injury." In fact, the doctor related that petitioner's symptoms improved between the examination prior to employment at Enoch and the December 10, 1987 examination following that employment.
Dr. Sollami acknowledged that he could not pinpoint the onset of petitioner's condition and that petitioner's various employments over the years added to the progression of his condition. Petitioner did not relate to Dr. Sollami any complaints regarding his previous employment at Proctor.
During the December 10, 1987 visit, petitioner informed Dr. Sollami that he had been out of work since November 20 for medical reasons. "He stated that since that time he noted an improvement in his shortness of breath and an improvement in his cough, and he noted this improvement after being out of work and also coinciding with the use of inhaled bronchdilators." The doctor found petitioner's condition "essentially unchanged" from the first examination, although his symptoms had improved. The doctor noted that since ...