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Akef v. BASF Corp.

November 21, 1997

AHMED N. AKEF, PETITIONER-APPELLANT,
v.
BASF CORP. AND CELOTEX CORP., RESPONDENTS-RESPONDENTS, AND THE SECOND INJURY FUND, POTENTIAL PARTY RESPONDENT.



On appeal from the Division of Workers' Compensation.

Approved for Publication November 25, 1997.

Before Judges Dreier, P.g. Levy and Wecker. The opinion of the court was delivered by P.g. Levy, J.A.D.

The opinion of the court was delivered by: Levy

The opinion of the court was delivered by

P.G. LEVY, J.A.D.

We first considered this matter in 1994 when we held that liability for petitioner's permanent disability, based on acute bronchial asthma and its associated psychiatric disabilities, was solely the responsibility of Celotex, as his last employer, not subject to apportionment between or among BASF or The Second Injury Fund. We also held then that petitioner had proved a claim for azoospermia (sterility) and its associated psychiatric disability, for which BASF was solely responsible. Akef v. BASF Corp., 275 N.J. Super. 30, 645 A.2d 158 (App. Div. 1994), aff'd 140 N.J. 408, 658 A.2d 1252 (1995). We remanded to the Judge of compensation to find "the extent of petitioner's permanent pulmonary and associated psychiatric disabilities, and for the entry of an award of such compensation benefits as well as any temporary and medical benefits to which petitioner might be entitled." Id. at 46. Also to be considered on remand were petitioner's azoospermia and related psychiatric disability claims against BASF for an appropriate award of compensation. Ibid.

The Judge of compensation complied with the remand directions. He found that "petitioner suffered no permanent disability ... from the azoospermia because he suffered no functional loss in the workers' compensation sense of the word." The Judge did find, however, that petitioner suffered "some psychiatric disorders in the form of depression because of the azoospermia, and therefore that is related to his employment and does have a functional loss." He concluded that petitioner was not totally and permanently disabled, and granted a judgment of a partial pulmonary disability for bronchial asthma of forty percent of partial total and his "overall neuropsychiatric disability" from both the pulmonary and azoospermia disabilities to be ten percent of partial total. The Judge found that the disability became fixed on July 5, 1989, his most recent examination by Dr. Susan Daum. The final result was a dismissal of the petition against BASF and a judgment against Celotex of 50% of partial total for petitioner's asthma and neuropsychiatric disabilities.

On appeal, petitioner contends he should have received an award of partial total disability against BASF based on his azoospermia; he should have received temporary disability benefits from Celotex, for his asthma condition, for the period from May 5, 1988 through July 4, 1989; and the counsel fee award of $10,000, divided 60% to Celotex and 40% to petitioner was erroneous and we should make a revised award.

I.

The petition was dismissed as to BASF when the Judge determined petitioner suffered no permanent disability due to azoospermia. In his oral opinion, the Judge said:

Petitioner has proven that he had a condition called azoospermia, which was related to his work. The azoospermia, which means he cannot produce children, has no other effect upon him. And my review of the medical testimony leads me to believe that petitioner suffered no permanent disability in the workers' compensation sense from the azoospermia because he suffered no functional loss in the worker's compensation sense of the word.

Petitioner appeals, claiming his reproductive capacity had been obliterated, and BASF is liable because this is an "injury [that] substantially interferes with other, nonwork-related aspects of petitioner's life." See Perez v. Pantasote, Inc., 95 N.J. 105, 116, 469 A.2d 22 (1984).

Dismissal of this claim and limiting compensation to the psychiatric component, based on the finding that the azoospermia condition does not affect petitioner's ability to work, is too harsh. We reverse and remand for reconsideration of a proper award, and we hold that petitioner's azoospermia is compensable as a permanent partial total disability even though it did not diminish his earning capacity, because the record contains credible evidence that the azoospermia impaired his ability to carry on the ordinary pursuits of life.

In Stepnowski v. Specific Pharmaceuticals, Inc., 18 N.J. Super. 495, 87 A.2d 546 (App. Div. 1952), the employee sued his employer on a tort theory, arguing that he suffered sexual impotency as a result of being exposed to chemicals at his workplace. Justice (then Judge) Jacobs held that the petitioner's exclusive remedy was under the workers' compensation laws because such an injury was compensable under that system. He explained that the ...


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