On appeal from the New Jersey Department of Labor and Industry, Division of Workers' Compensation, Claim Petition Nos. 92-038534; 92-038545; 92-038535; 92-038486; 92-038538; 92-033984; 92-038542; 95-019631.
Before Judges Skillman, Conley and Lesemann.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2001 –
This appeal*fn1 returns to us following our remand to the workers' compensation judge on the issues of whether petitioner's respective employments with various successive employers from early 1990 to February 1991 (the Ford plant employers), during which he was exposed to pulmonary irritants, contributed in a degree substantially greater than de minimis to his permanent total pulmonary disability and whether that contribution could be apportioned among those successive employers whose employments did so contribute. Levas v. Midway Sheet Metal, 317 N.J. Super. 160, 174, 176 (App. Div. 1998) (Levas I). In so remanding, we found sufficient credible evidence to support the compensation judge's conclusion that petitioner was permanently totally disabled from his occupational exposure to various pulmonary irritants. Id. at 170. Although respondents-appellants Elmsford/Independent Joint Venture #4, Raritan Valley Sheet Metal, Inc., Folander Sheet Metal Co., Inc., and Bonland Industries, Inc., seek to relitigate that issue, we decline to do so.
On remand, the compensation judge found that each of the respective employments did contribute to a material degree to petitioner's overall disability. In this respect, the judge said in his oral decision of March 29, 1999, supplementing his written January 4, 1999, decision:
[T]his was a series of exacerbations and aggravations of the disease by subsequent employment until the petitioner finally became total. This was not a matter of an initial exposures at D&M producing the illness and then the illness progressing on its own. . . . I'm satisfied from Dr. Freedman's testimony and Mr. Levas' testimony that he was exposed each day to a significant amount of pulmonary toxins to the extent that they aggravated his condition which manifested itself with D&M and when he last worked at Midway, the condition evolved into a permanent total situation.
We are satisfied that the record provides ample support for this conclusion and, therefore, reject point I of appellants' brief.*fn2
Also on remand, the judge apportioned the responsibility for petitioner's permanent total disability award equally against each of the Ford plant employers. He did so based entirely upon the notion of "equity." It is this aspect of the judge's decision that concerns us. Before addressing it substantively, we note some troubling procedural aspects of this appeal and the two related appeals. The allocation issue, the main issue that should concern the respondents, is not raised by respondents in this appeal. While addressed by Allied Ventilation in its separate appeal, it is responded to only by the four respondents-appellants here and respondent D & M Sheet Metal. The primary employer who benefits from the judge's allocation and who might be hurt most by a reversal is Midway Sheet Metal. Midway has not participated at all in this appeal, although it did participate in the remand "proceeding."
As for that "proceeding," it consisted of no more than oral argument, attended only by counsel for Allied Ventilation and Midway Sheet Metal, along with counsel for Local 27 Health and Welfare Fund Sheet Metal Workers which had a lien on petitioner's award. At this "proceeding," counsel for Midway argued in part:
On behalf of Midway, the employment with Midway was a brief, unsuccessful last-ditch effort by the petitioner to try to eke out a living. He already put in papers for Social Security and had represented to the Social Security Administration that his disability commenced approximately November of 1990 before trying to work at Midway.
The petitioner's own proofs establish a manifestation and disability in 1990, early 1990, so that this case is, as the Appellate Division has already said, is really not a Bond case.
There is more than enough evidence to find one of the employers in this case, D&M, responsible for the bulk of the petitioner's disability and I don't want to bandy about numbers, but I think Dr. Hermele himself proffered a number, which I believe was 50% partial total. That's a good starting point, I believe.
There is subsequent employment with several employers [at the Ford plant] . . . .
. . . I believe the petitioner's description of the work environment at the Ford demolition project speaks for itself. His testimony was corroborated by several co- employees, and I found it very impressive that people with 40 plus years of experience in the sheet metal trade all testified that the Ford demolition project was one of the worst, if not the worst, employment they have encounter[ed]. That's astounding that several people with so many years of experience would testify to the same thing, so I find or I think that the Court should find that the workplace environment at the Ford demolition project with the various employers during that time period should be held responsible.
If the Court finds that D&M is responsible for something less than total disability, then I think the Court has ample evidence to support a finding that the employers involved in the Ford demolition project have an exposure so great that it did, in a material degree, contribute to the worsening of this man's lung condition.
I also feel that there are records of medical treatment throughout that time period in 1990 and again in early 1991 [during employment with Raritan Valley Sheet Metal] before the petitioner ever worked for Midway, so that there are medical manifestations of disability for that same time period, so I think under the case law, and I won't get into case names because they've been mentioned more than enough by this Appellate Division, by this court, by petitioner's attorney and respondents' attorneys, we know the cases, I think, but I do think that this Court should find that responsibility lies with the employers I have just mentioned. [Emphasis added.]
Midway, then, pointed the finger at D & M and Raritan Valley Sheet Metal. Neither they nor any other respondent made any effort to assist the judge, by way of additional medical testimony or otherwise, in an appropriate method of allocating the responsibility of petitioner's total disability. We find this somewhat troublesome as allocation of responsibility would seem to be the employers' burden where, as here, petitioner demonstrates a compensable disability substantially the product of respondent employers' exposure. We suppose respondents here were not concerned with that burden because their primary position was that petitioner's disability was not work related at all and that any contribution to it by the occupational exposure was de minimis. But, it should have been evident from our prior opinion that that battle was lost and that the focus was upon allocation of responsibility. Given respondents', at best, lackluster participation on the remand, we might simply saddle each with a pro rata share, as did the judge.
We do not believe, however, such a result is legally justified, given the existing case law in this State. We address the judge's equal allocation in some depth, despite respondents' lack of assistance. In doing so, we repeat much of what we said in our prior opinion. Because we conclude that the matter must again be remanded, we attempt to provide some better guidance for the compensation judge than we did previously.
There is no question that prior to commencing employment with the Ford plant employers petitioner had a latent pulmonary condition. Critical to our resolution of this appeal, we repeat here what we recited in Levas I as to the progression of this condition during the Ford plant employments:
During the first few months of working at the Ford plant, petitioner developed a bad cough and shortness of breath. On February 22, 1990, petitioner was hospitalized at St. Peters Medical Center for difficulty breathing. There, petitioner was diagnosed with bronchitis. He was then referred to the care of his family physician, Dr. Eugene Pirog, who began treating petitioner for his breathing problems. Following the initial diagnosis of a breathing problem, petitioner temporarily stopped working. He denied having any problems with his breathing prior to his various jobs at the Ford plant. [Levas I, 317 N.J. Super. at 166.]
We add here that it is clear from the record that at this point in time petitioner's prior latent condition became manifest, arrested and fixed to some degree. Respondent D & M was petitioner's employer at this time. That employment ended in March 1990.
Petitioner resumed employment at the Ford plant from May 1990 to the end of December 1990. As we ...