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Difabrizio v. U.S. Airways

Superior Court of New Jersey, Appellate Division

November 20, 2013

ANTHONY DIFABRIZIO, Petitioner-Respondent,
v.
US AIRWAYS, Respondent-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 21, 2013.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-18185.

Andrea M. Graf argued the cause for appellant (Rawle & Henderson, LLP, attorneys; Ms. Graf, on the brief).

Ricky E. Bagolie argued the cause for respondent (Bagolie-Friedman, LLC, attorneys; Mr. Bagolie, on the brief).

Before Judges Parrillo, Kennedy and Guadagno.

PER CURIAM.

Respondent, U.S. Airways, appeals from the order of the Division of Workers' Compensation (Division), which determined petitioner Anthony DiFabrizio suffered a compensable injury while in respondent's employ. The Division awarded DiFabrizio five percent permanent partial total disability. For the reasons that follow, we reverse.

I.

Anthony DiFabrizio began working for U.S. Airways at Newark Airport as a part-time employee in 1985. In 1987, he was hired to work full-time as a customer service agent, handling bags, freight, and mail. He loaded and unloaded baggage from planes, trucks and belt conveyers, and drove equipment to push back planes from the ramp area.

In 1995, DiFabrizio was transferred to LaGuardia Airport, where he worked until 2008. For his first two years at LaGuardia, he loaded and unloaded planes at the freight facility. He then worked in the "bag room" from 1996 to 1999. DiFabrizio described the freight facility as stuffy due to lack of ventilation, and because the truck engines would be turned on and off inside to load and unload. He described the bag room as "stuffier than the freight house because it was a smaller building." From 1999 to 2008, he worked on the "ramp, " driving trucks to push back planes, directing planes, and occasionally de-icing planes with glycol.

DiFabrizio returned to Newark Airport in 2008. We were informed at oral argument that he continues to work there. Although most of his work was on the ramp, he also worked in the bag room. Otherwise, his duties have been loading/unloading mail, freight, and baggage, cleaning planes, air-starting planes, and pushing back planes.

DiFabrizio testified that in around 2001, he began to experience shortness of breath and noticed that he could not play basketball at the speed that he was used to and could not exercise as long on the treadmill. He mentioned the condition to his physician, Dr. Andrew Anisko, but the doctor did not perform any tests. DiFabrizio saw Dr. Anisko approximately three times for upper respiratory conditions and was prescribed medication on one occasion. On another occasion, he was told he was suffering a viral infection.

On cross-examination, DiFabrizio conceded that the condition he described did not affect his ability to work and he continued to volunteer to work overtime and switch with other employees to get extra shifts. Although he claims to have suffered this condition for over ten years, DiFabrizio never reported it to his employer before he filed his claim petition. DiFabrizio did not seek treatment from an ...


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