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Johnson v. Sabretts Food

December 5, 2008

SHARON JOHNSON, PETITIONER-APPELLANT,
v.
SABRETTS FOOD AND SECOND INJURY FUND, RESPONDENTS-RESPONDENTS.



On appeal from Department of Labor, Division of Workers' Compensation, Claim No. 98-03095.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2008

Before Judges Parrillo, Lihotz and Messano.

This appeal follows a trial on the merits of petitioner Sharon Johnson's workers' compensation occupational exposure claim. The judge found petitioner's disability to be "30% of partial total allocated as follows: 15 [percent] partial total disability for restrictive pulmonary disease[;] 7.5 [percent] partial total disability for adjustment disorder with depression[;] and 7.5 [percent] partial total disability for cervical sprain."*fn1 He also determined petitioner was not totally and permanently disabled, N.J.S.A. 34:15-36, and entered a second order dismissing petitioner's application for benefits from the Second Injury Fund (the Fund). N.J.S.A. 34:15-95. Petitioner contends that the judge "failed to make proper findings" based upon the significant medical evidence she produced and incorrectly concluded that she was not totally and permanently disabled. Respondents Sabretts Food (Sabretts), petitioner's employer, and the Fund counter by arguing that the judge's factual findings and legal conclusions were adequately supported by sufficient credible evidence and are entitled to our deference upon review.

We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

On August 27, 1998, petitioner filed a workers' compensation claim petition alleging occupational exposure to "dust, fumes, pulmonary irritants, bending, lifting, changes of temperature, dampness, standing, stress, strain, [and an] adverse environment[.]" She further alleged "total permanent disability involving [her] chest, lungs, nose, throat, neck, back, knees, arthritis, orthopedic system, internal organs, cardiovascular system, gastrointestinal system, nervous system, neurosis, and complications arising therefrom." On September 10, 2001, the Fund was added as a party. On July 25, 2003, petitioner filed an amended petition containing the same allegations and complaints.

Trial commenced on April 25, 2005 and continued over several days during the ensuing months. The claim against the Fund was not bifurcated, and it participated fully at trial. N.J.A.C. 12:235-5.1. The parties stipulated that the sole issue to be determined at trial was the nature and extent of petitioner's disability.

Petitioner worked as a packer for Sabretts, a frankfurter and hamburger manufacturer and distributor, beginning in 1964 and ending in 1997, when she could no longer stand up and perform her job as required. The temperature at petitioner's work station in the refrigerated portion of the plant was thirty-seven degrees Fahrenheit. During the peak season each year, from April to September, petitioner worked ten hours a day, six days a week. During the rest of the year, she worked full-time a minimum of forty hours per week.

Petitioner's meat packing work required her to push four-tier "trees" filled with hanging frankfurters to her work station, remove them, and package them. Petitioner testified that the "trees" weighed between 400 to 800 pounds each, and because they were tall, she had to climb onto them to reach the upper tiers. Because the "trees" would come directly from the smokehouse, steam would escape toward petitioner's workstation and she developed congestion, heavy breathing, and shortness of breath as a result. At the time of trial, breathing difficulties made it impossible for her to walk more than one block at a time.

With each passing year, and with constant exposure to the cold, wet air in the refrigerator, petitioner's ailments worsened. She visited various doctors for treatment of a swollen right knee, which included injections to remove fluid that had accumulated on the joint. She also received injections in her hands because they began to hurt from the cold working conditions. In addition to her breathing, knee, and hand problems, petitioner also testified that she experienced lower back and shoulder pain, and, at the time of trial, was receiving injections for her back pain. Petitioner also suffered from hypertension, which was diagnosed in the early 1980s, and diabetes, diagnosed in 2000.

During cross-examination, petitioner testified that she had first injured her back in 1977 and had pain injections at that time, though she did not file a permanency claim petition. Petitioner also conceded that she was in a motor vehicle accident in 2003 and received treatment for her shoulder after the accident. In 1986, petitioner had surgery to repair a hernia and, also in that year, she had a hysterectomy.

Dr. I. Ahmad, an orthopedic and hand surgeon, examined petitioner on September 30, 1998, seven years before trial.*fn2 He testified that petitioner had significant arthritic changes to her back, neck, and upper and lower extremities and suffered from muscle spasms resulting in substantial restrictions of her range of movement. He found petitioner to be permanently and totally disabled as a result of her arthritis, bursitis in her shoulders, a partial ...


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