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Joseph Manes v. Tri-Seal/Tekni-Plex

February 22, 2011

JOSEPH MANES, PETITIONER-APPELLANT,
v.
TRI-SEAL/TEKNI-PLEX, RESPONDENT-RESPONDENT.



On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Case No. 2007-26234.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 3, 2011 - Decided: Before Judges Axelrad and R. B. Coleman.

Petitioner Joseph Manes appeals from an April 20, 2010 judgment of the Division of Workers' Compensation (Division), following trial, dismissing his claim petition because he failed to prove his injury was causally related to work. We affirm.

On September 28, 2007, petitioner filed a claim petition with the Division, claiming "pulmonary impairment" due to "exposure to deleterious chemicals and air borne agents" throughout the course of his employment with respondent, TriSeal/Tekni-Plex, from 1970 to the present. In its answer, respondent conceded covered employment but denied petitioner suffered an injury arising out of and in the course of employment.

A four-day trial commenced on June 25, 2009 and concluded on February 19, 2010. Petitioner testified and called Dr. Malcolm H. Hermele, who was accepted as a pulmonary expert, though not board-certified in the field. Dr. Adam J. Rowen, accepted as an expert in pulmonology and board-certified in internal medicine and pulmonary disease, testified for respondent. The judge of compensation issued an oral decision on April 19, 2010, finding petitioner's proofs failed to establish a compensable injury, memorialized in an order of April 20, 2010. This appeal ensued.

I.

Sixty-six-year-old petitioner testified that he had been employed with respondent or its predecessors for forty-three years. At the time of trial, petitioner's position was quality assurance technician, which he had occupied since approximately 1989, except for a two-year period around 1997 or 1998 when he hurt his back and worked in the press room, operating a laminating machine. He explained that respondent operates a manufacturing facility for cap liners and pharmaceutical grade tamper-proof packages. Petitioner described the overall air quality of the manufacturing plant as "very dusty" and moldy.

As a quality assurance technician, petitioner was responsible for testing samples to ensure there was a proper seal. He explained he was exposed on a daily basis to the following chemicals and their fumes: acetone; Deuben, a mixture of fifty percent alcohol, ten percent toluol and forty percent ammonia and hydroxide; and Vinyl Seal, a sealant used to prevent other chemicals from penetrating seals. While working in the "very stinky" press room, petitioner was exposed to ethyl acetate, methyl ethyl ketone, and occasionally toluene.

According to petitioner, his pulmonary problems began shortly after respondent purchased the company from the previous owners, around 1999 to 2000. He often found himself short-winded during work, became dizzy when he was exposed to the Vinyl Seal, and left work each day feeling tired. Petitioner elaborated that he would lose his breath numerous times during the day and continued to be short-winded while bending or walking. He treated in December 2006 and January 2007 with Dr. Martin Lansang of the Hunterdon Pulmonary Critical Care Center. Petitioner was prescribed an Albuterol inhaler, which he continued to use as necessary up through trial, such as when he went upstairs or before he went to bed.

Petitioner conceded he smoked cigarettes from ages nineteen to twenty-three and again from ages twenty-nine to thirty. Petitioner testified he lost thirty-eight pounds and was currently five feet eight inches tall and weighed 268 pounds. He also suffered from hypothyroidism, a partially paralyzed hemidiaphragm, cirrhosis of the liver, and sleep apnea. He discussed his medical history, which included bouts of pneumonia.

Dr. Hermele, who examined petitioner on July 30, 2007, testified he noticed poor chest wall movement on maximum inspiratory effort; however, due to petitioner's obesity, the expert was unable to determine what petitioner's normal chest wall movement should have been. Dr. Hermele diagnosed petitioner with "a combination of obstructive and restrictive pulmonary disease with interstitial fibrosis, and a right paralyzed diaphragm." He did not causally relate the paralyzed diaphragm with petitioner's occupational exposure but opined that it might have been due to nerve damage or might have been congenital. Petitioner's expert generally opined that "the pulmonary conditions are causally related to, initiated or exacerbated by the exposure to the [] pulmonary noxious agents while employed by [respondent]."

Respondent's expert, Dr. Rowen, discussed the results of his October 30, 2008 examination of petitioner. He also characterized petitioner as obese, testifying this condition was consistent with petitioner's restrictive pulmonary disease and a contributing factor to his symptoms as it caused his abdomen to press upward and reduce his lung volume. He diagnosed petitioner as also having a multifactorial restrictive lung disease, interstitial lung disease, paralyzed right hemidiaphragm, obstructive sleep apnea, history of pulmonary embolism, and hypothyroidism. He found no evidence of obstructive lung disease in petitioner and explained how petitioner's lung capacity test results were consistent with a diagnosis of restrictive pulmonary disease, as opposed to obstructive lung disease. According to Dr. Rowen, petitioner's condition was consistent with congenital and non-occupational causes, such as multiple bouts with pneumonia, a prior pulmonary embolism, a paralyzed right hemidiaphragm, and obesity.

Dr. Rowen further explained that the chemicals petitioner was exposed to are generally only harmful when a person is exposed to huge quantities or actually ingests the chemicals; however, in smaller quantities, the chemicals only act as an irritant. He elaborated that if petitioner had been exposed to such high ...


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