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Natale v. Celanese

December 19, 2008

MARIA R. NATALE, PETITIONER-RESPONDENT,
v.
CELANESE, INC., A/K/A CNA HOLDINGS, INC. AND AGFA CORPORATION,*FN1
RESPONDENT-APPELLANT, AND SECOND INJURY FUND, RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Docket Nos. 2002-4357, 2004-21705, and 2004-23033.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 5, 2008

Before Judges Winkelstein and Gilroy.

This is a workers' compensation case. Petitioner Maria R. Natale worked for AGFA from August 19, 1978, through April 8, 2001. During the course of her employment, petitioner performed repetitive tasks that caused erosive osteoarthritic conditions in her hands, neck and shoulders, rendering her permanently and totally disabled.

Petitioner filed three claim petitions with the Division of Workers' Compensation (Division) against AGFA and six separate workers' compensation insurance carriers that insured AGFA throughout petitioner's employment. The six insurance carriers were: Chubb Insurance Company (Chubb) from January 1, 1980 through January 1, 1989; AIG Insurance Company (AIG) from January 1, 1989 through April 30, 1989; Reliance Insurance Company (Reliance) from May 1, 1989 through May 1, 1997; Lumbermen's Mutual Insurance Company (Lumbermen's) from July 1, 1989 through July 1, 1991; ACE USA Insurance Company (ACE) from October 22, 1989 through October 22, 2000; and Travelers Indemnity Company (f/k/a St. Paul Travelers Insurance Company) (Travelers) from October 1, 2000 through April 8, 2001.*fn2

The matter was tried on diverse dates between May 15, 2006 and January 22, 2007. On May 7, 2007, Compensation Judge Litowitz issued a written decision, determining that: 1) petitioner is 100% totally and permanently disabled as a result of her employment with AGFA; 2) petitioner demonstrated three separate physical manifestations of disability during the coverage periods of Reliance, ACE and Travelers; 3) each of those three carriers are to pay one-third (150 weeks) of petitioner's total disability; 4) the same three carriers are equally responsible for any future medical treatment resulting from petitioner's disability; and 5) petitioner is entitled to receive Second Injury Fund benefits. Lastly, the judge dismissed the complaints as to Chubb, AIG, and Lumbermen's.

On September 10, 2007, the Compensation Judge entered a confirming order as to ACE, Reliance, Travelers, and the Second Injury Fund. On the same day, the judge also entered three separate orders dismissing the petitions as to Chubb, AIG, and Lumbermen's. On September 15, 2007, and December 3, 2007, the judge entered amended orders as to ACE, Reliance, Travelers, and the Second Injury Fund, clarifying the dates the three carriers and the Fund are to pay petitioner's permanent disability benefits.

Reliance and ACE appeal from the September 10, 2007 order determining that they are equally responsible with Travelers for petitioner's future medical expenses.*fn3 We affirm.

Because appellants do not contest the Compensation Judge's determination that petitioner was rendered totally and permanently disabled as a result of her employment or that they are equally responsible with Travelers to pay one-third of her permanent disability benefits based on the judge's determinations of when petitioner's medical condition manifested itself during the term of her employment, we do not need to address the medical evidence in detail. Suffice it to say that as a result of the evidence presented by the parties, the judge determined that petitioner's medical condition manifested itself only during the periods when appellants and Travelers insured AGFA. The judge found that the medical condition first manifested itself in December 1994 when AGFA was insured by Reliance; the condition next manifested itself in 2000 when AGFA was insured by ACE; and lastly, the condition manifested itself in 2001 when AGFA was insured by Travelers.

Relying on Bond v. Rose Ribbon, 42 N.J. 308, 324 (1964), "which imposes liability on the last employer in occupational disease cases unless there is a manifestation of the condition during a prior period of employment", the Compensation Judge reasoned that, because petitioner's condition manifested itself during three periods of employment, only "those three entities through their respective carriers will be responsible".

On appeal, appellants argue:

POINT I. THE WORKERS' COMPENSATION COURT IMPROPERLY APPLIED LEGAL PRINCIPLES TO THE FACTS OF THE CASE.

POINT II. THE PAYMENT OF TREATMENT BY ALL THREE (3) CARRIERS AS SUGGESTED BY JUDGE LITOWITZ WOULD NOT BE FEASIBLE AND WILL ...


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