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Levas v. Midway Sheet Metal

November 17, 1998

MICHAEL LEVAS, PETITIONER-RESPONDENT,
v.
MIDWAY SHEET METAL, RESPONDENT-APPELLANT, AND D & M SHEET METAL, MIDDLESEX SHEET METAL CO., ELMSFORD/INDEPENDENT JOINT VENTURE #IV, ALLIED VENTILATION, INC., RARITAN VALLEY SHEET METAL, INC., FOLANDER SHEET METAL CO. AND THE SECOND INJURY FUND, RESPONDENTS-RESPONDENTS, AND BONLAND INDUSTRIES, INC. AND HAYDEN SCHWEITZER CORP., RESPONDENTS.



Before Judges Baime, Conley and Rodr¡guez.

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

[9]    Argued October 21, 1998

On appeal from Division of Workers' Compensation, New Jersey Department of Labor.

Michael Levas, the workers' compensation petitioner in the present matter, was a sheet metal worker from 1957 to 1991 during which, the competent evidence reveals, he developed an occupational pulmonary condition from which he was found by the workers' compensation Judge to be totally disabled. During this time period, particularly from the early months of 1990 to February of 1991, petitioner was exposed to a significant amount of pulmonary irritants while working at a renovation project at a Ford Motor Company plant in Edison under the employment of a number of different employers, including respondents D & M Sheet Metal, Elmsford/Independent Joint Venture #IV, Allied Ventiliation, Inc., Raritan Valley Sheet Metal, Inc. and Folander Sheet Metal Co. Respondent Middlesex Sheet Metal Co. was his employer prior to the Ford plant employments. Appellant, Midway Sheet Metal, was his last employer and for whom he worked approximately one week. Applying Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308 (1964), the compensation Judge imposed the entire responsibility for petitioner's occupational pulmonary disability upon Midway. Midway appeals contending:

POINT I.

THE PETITIONER HAS FAILED TO MEET HIS BURDEN OF PROOF.

POINT II.

THE DECISION OF THE JUDGE OF WORKER'S COMPENSATION IS WITHOUT SUFFICIENT SPECIFICITY AND SUFFICIENT FINDINGS OF FACT.

POINT III.

ALLOCATION OF DISABILITY.

POINT IV.

ASSUMING THE PETITIONER IS TOTALLY DISABLED THE COURT SHOULD HAVE APPORTIONED LIABILITY TO THE SECOND INJURY FUND.

We have carefully considered these contentions in light of the entire record and applicable law. Points I and II are without merit and we treat them only briefly. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We agree, however, that points III and IV have merit and require a remand.

I.

Before addressing these contentions, we set forth the facts. At the time of trial petitioner was fifty-seven years of age and had been employed as a sheet metal worker for thirty-eight years as a union laborer working out of Sheet Metal Local 20. As a result of his membership in the union, petitioner worked for numerous different employers over the years, including the employers involved in this appeal.

As described by petitioner the work he performed involved going into plants, both old and new, ripping out old duct work in the ceilings and installing new duct work if necessary. He also worked with old and new pipes and various types of insulation, drilling holes in concrete walls and floors and welding metal.

He was employed by Middlesex Sheet Metal initially for five to six consecutive years and then intermittently for a long period of time between 1961 and 1980. While working for Middlesex, petitioner fabricated and cut metal and also worked in a shop area with transite pipe, which contained asbestos. *fn1 He was exposed to a great deal of dust. Petitioner was also sent out by Middlesex to various jobs at factories and plants removing and installing duct work, working on exhaust systems and roofs, and performing other work indicative of the sheet metal worker profession. Petitioner claimed that each of the job sites Middlesex sent him to exposed him to dust and fumes. Despite these various exposures during his employment with Middlesex, there is no medical evidence that petitioner's subsequent occupational pulmonary condition manifested itself while working for Middlesex or that he required medical attention for pulmonary problems during that employment.

Union records placed in evidence during the trial indicate that petitioner worked next for D & M Sheet Metal at the end of December 1989 for varying periods of time through March 31, 1990. Sometime in early 1990, D & M sent him to the Ford plant in Edison, although the president of D & M testified at trial that his company was never contracted to work at the Ford plant.

Petitioner described the conditions at the Ford plant as follows:

Q. Now, during the time of D & M in 1990 in the Ford plant, what were the working conditions like?

A. Worse I've ever seen as far as being on a construction site for over 30 years. It's the worst working ...


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