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Vastino v. MAN-Roland

April 15, 1997

NICHOLAS VASTINO, PETITIONER-RESPONDENT,
v.
MAN-ROLAND, INC., AS INSURED BY ALLIANZ INSURANCE COMPANY, RESPONDENT-APPELLANT, AND MAN-ROLAND INC. AS INSURED BY NEW JERSEY MANUFACTURERS INSURANCE COMPANY, RESPONDENT-RESPONDENT.



On appeal from the Division of Workers' Compensation.

Approved for Publication April 15, 1997.

Before Judges Dreier, D'Annunzio *fn1 and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by

VILLANUEVA, J.A.D.(retired and temporarily assigned on recall).

Allianz Insurance Company ("Allianz") appeals from a Workers' Compensation decision holding it solely responsible for the petitioner's twenty-five percent pulmonary disability suffered as a result of occupational exposure to irritants and foreign substances during his employment with MAN-Roland, Inc. from August 18, 1971 through October 16, 1992. We affirm.

Petitioner filed a claim petition on December 3, 1992 alleging pulmonary disability as a result of occupational exposure to pulmonary irritants and foreign substances during his employment with MAN-Roland, Inc. from August 18, 1971 through October 16, 1992.

Prior to July 1, 1992, MAN-Roland was covered under a policy of insurance issued by Allianz. As of July 1, 1992, New Jersey Manufacturers Insurance Company ("NJM") provided Workers' Compensation coverage to MAN-Roland. Accordingly, petitioner filed a second claim petition, naming NJM. The two claim petitions were consolidated for trial. The only issues before the court involved the nature and extent of permanent disability, if any, and a determination of the responsible insurance carrier, Allianz or NJM, if permanent disability was established.

As of June 30, 1992 MAN-Roland ceased all manufacturing operations. Within three working days of June 30, 1992, namely July 6, 1992, the petitioner was examined by Dr. Malcolm Hermele, who diagnosed the various lung illnesses the petitioner had which led to the award of compensation. Dr. Hermele not only diagnosed the actual conditions which afflicted petitioner, but also quantified the extent of petitioner's impairment at 50% of total disability. The July 4, 1992 holiday weekend intervened between June 30, 1992, the last day of Allianz's period of coverage, and July 6, 1992, the date of Dr. Hermele's examination.

Dr. Hermele's testimony made clear that there was no material contribution by the subsequent exposure between June 30 and the date of his examination. To the contrary, as the doctor said, the exposure "participated to a very, very minimal extent."

Furthermore, the minimal exposure petitioner faced during the period of NJM's coverage after July 1, 1992 was significantly reduced as compared to his prior exposure due to the fact that MAN-Roland's plant was no longer manufacturing product. Rather, its activities were confined to cleaning up the shop with the intention of closing it down.

After hearing all the evidence, Judge Bolstein found Dr. Hermele's testimony on behalf of petitioner to be more credible, and found petitioner's disability to be 25% of partial total. Moreover, Judge Bolstein found that petitioner's employment prior to July 1, 1992 solely caused the disability, and therefore imposed liability entirely upon Allianz. The court dismissed the claim petition against NJM.

For purposes of this appeal, the fact that the petitioner has a pulmonary disability compensable under the Workers' Compensation Law is conceded. The Judge of Compensation who tried this matter made the specific findings required by N.J.S.A. 34:15-31 and ...


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