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Akef v. BASF Corp.

June 13, 1995

AHMED N. AKEF, PETITIONER-RESPONDENT,
v.
BASF CORPORATION, CHEMO DYNAMICS, INC. AND THE SECOND INJURY FUND, RESPONDENTS-RESPONDENTS, AND CELOTEX CORPORATION, RESPONDENT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 275 N.J. Super. 30 (1994).

Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

AHMED N. AKEF V. BASF CORPORATION, ET AL. (A-119-94)

Argued May 2, 1995 -- Decided June 13, 1995

PER CURIAM

The issue on appeal is whether an employee's material misrepresentation of a preexisting medical condition bars a claim for workers' compensation.

On October 24, 1977, Ahmed Akef began employment as a "process development chemist" at BASF Corporation (BASF). He remained in that position until June 23, 1986. During the course of his employment at BASF, Akef was exposed to toxic solvents and chemicals. Fumes were routinely generated from chemical reactions and ventilation was inadequate in the BASF plant.

Akef began experiencing respiratory problems and complained of tightness in the chest as early as 1981. He was prescribed inhalers, a bronchodilator and medication to alleviate his symptoms. Akef received additional medical care for his condition in 1983 and 1986.

In 1986, Akef left Basf and began working for a temporary agency. Through that agency, Akef was assigned employment as a chemist with Chemo Dynamics, Inc. (Chemo Dynamics). Akef worked at Chemo Dynamics from January 26, 1987 through February 15, 1987. During that employment, Akef was exposed to hazardous materials in poorly ventilated rooms.

On January 5, 1987, Akef filed a claim for workers' compensation benefits against BASF. His injuries were characterized as neurological, pulmonary, internal, reproductive, and neuropsychiatric. On March 17, 1987, Akef's claim was denied by the Judge of Compensation, without findings.

On August 10, 1987, Akef began employment as a security guard with Celotex Corporation (Celotex), a company that manufactures roof shingles. In the manufacturing process, hazardous dust and fumes are generated. At the time he applied for the position at Celotex, Akef neither disclosed his previous employment history as a chemist nor his prior illnesses or medical conditions.

After working for Celotex for nine months, during which time he was exposed to hazardous dust and fumes, Akef was hospitalized for acute bronchial asthma. Thereafter, Akef was rendered totally disabled and was hospitalized numerous times between 1990 and 1992. Although Akef has one child, he also has become sterile.

Akef filed a workers' compensation claim against Celotex, alleging aggravation of preexisting conditions arising out of his employment with Celotex. Chemo Dynamics was also joined in the matter. This claim and the prior claim against BASF were consolidated for trial. Celotex moved for a dismissal of Akef's petition on the ground that he had materially misrepresented his medical condition on his employment application and that there was a causal relationship between that misrepresentation and Akef's condition.

The Judge of Compensation determined that Akef had suffered a disabling occupational disease from exposure to hazardous fumes while employed by BASF, Chemo and Celotex. However, the Judge found that the extent of the disability could not be apportioned among the three companies and dismissed the petitions against Akef's prior employers, BASF and Chemo Dynamics. The Judge of Compensation also barred Akef's claim against Celotex because of his material ...


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