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Simmons v. Federated Logistics

January 15, 2008

SYLVIA SIMMONS, PETITIONER-APPELLANT,
v.
FEDERATED LOGISTICS, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Docket No. 2003-3076.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2007

Before Judges Weissbard, Gilroy and Baxter.

This is a workers' compensation occupational disease case. Petitioner Sylvia Simmons appeals from the October 26, 2006, order of the Division of Workers' Compensation, dismissing her claim petition for physical and psychiatric injuries allegedly arising out of her employment with respondent Federated Logistics. We affirm.

I.

Respondent is a division of Federated Department Stores, Inc. Respondent owns and operates warehouse distribution centers where: retail items of clothing and other merchandise are received directly from the manufacturers; retail price tags for the destination stores are affixed to the merchandise; and the merchandise is re-boxed or placed in plastic bags, and shipped directly to Federated-owned department stores, such as Macy's or Bloomingdales. Petitioner worked for respondent from February 1, 1999, to May 15, 2002, at respondent's warehouse in Secaucus, a 670,000 square-foot facility. No manufacturing is performed onsite, nor is merchandise stored at the facility. Merchandise arrives from the manufacturers by truck and is unloaded at a docking platform on the first floor of the building, and then moved throughout the building by rolling racks connected to either an overhead towline, or by rolling conveyors and electric forklifts.

Generally, the workers at the warehouse are divided into job classifications: "checker/markers" and "material handlers." Checker/markers are responsible for inspecting cartons, racks of clothing, and other merchandise brought into the warehouse, ascertaining whether each carton or package contains the correct merchandise. The checker/marker then affixes price tags for the destination stores on the items of merchandise and repacks the items for shipping to that store. Material handlers are responsible for the loading and unloading of trucks, moving the merchandise throughout the warehouse, and the lifting of all heavy packages.

Petitioner was employed by respondent from February 1, 1999, to May 15, 2002, as a checker/marker. On January 21, 2003, petitioner filed her claim petition against respondent, alleging, through date of termination, occupational exposure to "dust, fumes, pulmonary irritants, bending, lifting, stress, strain, repeated manipulations, adverse environment, causing occupational conditions and diseases." Petitioner described the extent and character of her injuries as: "[d]isability involving chest, lungs, nose, throat, back, orthopedic system, internal system, nervous system, neurosis, and complications arising therefrom."

Following respondent's denial of petitioner's claim, a trial was conducted in the matter over the course of eight days, commencing November 17, 2005, and concluding August 20, 2006. Testifying on behalf of petitioner were: petitioner; Judith Hernandez, petitioner's former co-employee; Dr. Sidney E. Friedman, an internist; and Dr. I. Ahmad, an orthopedic surgeon. Testifying on behalf of the respondent were: Geri Vasquez, respondent's Human Resource Manager at the Secaucus warehouse facility; Dr. Samuel Kahnowitz, a physician specializing in pulmonary diseases; and Dr. Arthur T. Canario, an orthopedic surgeon. On October 12, 2006, the Compensation Judge issued a twenty-one-page written decision, dismissing petitioner's claim for failure to sustain her required burden of proof. A confirming order was entered the same day.

II.

Petitioner, born January 20, 1942, commenced working at age eighteen. Initially, petitioner worked in different factories where she was exposed to dust and performed labor that required bending and lifting. In October 1986, petitioner commenced working for Speedmark, respondent's predecessor at the Secaucus warehouse, as a checker/marker, where she primarily checked and tagged approximately 500 coats a day. She continued in that position until she was terminated from employment by respondent on May 15, 2002.

Petitioner testified that over the years she was exposed to dust, engine fumes, and loud noise. She stated that engine fumes emanated from tractor trailer trucks that were left with their engines idling while being unloaded and reloaded at the docking platform, which was approximately thirty feet away from the area where she worked. She also detected an odor of gasoline from the motors that operated the overhead towlines. Petitioner described the air as containing dust, which she believed came from the clothes and packing materials. The noise that she claimed she was exposed to came from the conveyor rollers that ran throughout the facility. Petitioner described herself as being exposed to the dust, fumes, and noise five days a week, seven hours a day. On days when there were slowdowns in deliveries, petitioner was reassigned to the jewelry cage in the mezzanine area, where she placed security tags on shirts, pocketbooks, jewelry, and miscellaneous items, placing the merchandise in boxes for shipping to the destination stores. Petitioner estimated that she handled approximately 500 to 1,200 items a day when assigned to the jewelry cage, and that at the end of the day her hands felt tired "with pain and soreness."

Petitioner has suffered from hypertension for approximately forty years. In July 1997, petitioner suffered a stroke, for which she was hospitalized one week, and underwent several months of rehabilitation at the Kessler Institute in West Orange. After petitioner returned to work, respondent acquired the warehouse facility, and petitioner continued to work for respondent as a checker/marker until May 15, 2002, under the same working conditions. As a result of the stroke, petitioner continues to suffer weakness of her left arm and hand, numbness in her lip, and walks with a limp.

On February 11, 2000, petitioner filed a claim petition against Speedmark, alleging that through February 1999, she had been exposed to "dust, fumes, irritants, chemicals, lint, stress, strain, arduous effort, repetitive motion, repeated bending and lifting, causing multiple occupational conditions." Petitioner described the extent and characteristics of her injuries as: "pulmonary, arthritic, orthopedic, hypertensive, cerebrovascular, cardiovascular, ontological, chest, lungs, nose, throat, arthritis, neck, back, both hands, both legs, hypertension, cardiovascular, hearing loss, neurological, [and] psychiatric." On September 25, 2001, petitioner settled her claim against Speedmark for $4,800, pursuant to N.J.S.A. 34:15-20. A confirming order, dismissing the case with prejudice, was entered that day.

Petitioner testified that presently she suffers pain in her neck; her left hand is always weak; and she has shortness of breath to where, on a good day, she can walk approximately eight blocks, but on a bad day she can only walk approximately 100 to 200 feet. Although she testified that she suffers breathing difficulties, petitioner admitted that she continues smoking cigarettes but "[n]ot a pack a week."

Judith Hernandez, a former co-employee of petitioner who was also terminated in May 2002, and presently has a similar claim petition pending against respondent, testified that she worked at the Secaucus warehouse facility for nineteen years. She described the air as containing dust, including dust from construction work that Federated performed in the facility during 2000 - 2001. She described the area where she worked with petitioner as noisy because of the conveyors. During her testimony, she identified several photographs taken by petitioner, which she described as showing dust on top of the overhead towline rails and on plastic garment bags. It was her opinion that the working conditions remained constant throughout her nineteen years of employment at the facility.

Dr. Sidney E. Friedman testified on behalf of petitioner. Friedman first examined petitioner on February 25, 2000. Petitioner's medical history disclosed that she suffered from high blood pressure for forty years, had suffered a stroke in July 1997, had coronary artery disease since 1997, had chronic back pain for three years, and had difficulty hearing for ten years. Petitioner's complaint, at the time of examination, consisted of: a chronic cough; pain; tightness; pressure in the chest; and shortness of breath "when walking, climbing stairs, lifting, bending and carrying." Friedman stated that a review of petitioner's pulmonary function tests (PFTs) disclosed evidence indicating a restrictive pulmonary disease.

Friedman's diagnosis was that petitioner suffered from chronic bronchitis with evidence for obstructive airway disease, for which he estimated a disability of 30% of total. He opined that the disability was a result of dust, fumes, and other irritants in the workplace. Friedman also diagnosed petitioner as suffering from hypertensive arteriosclerotic heart disease, probable coronary artery disease, and post-cerebral infarction with left hemiparesis for which he estimated a disability of 60% of total. He opined that this ...


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