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Thursday, November 21, 2013

Occupational pulmonary case dismissed by court for lack of evidence

A New Jersey Appellate Court dismissed an occupational pulmonary claim for lack of credible evidence. The court reversed an award of 5% permanent partial pulmonary disability of a claim filed by employee loaded and unloaded baggage for US Airways.

In its decision, the court found that there was a lack of credible evidence proving both exposure as well as medical findings and factual evidence that would be able to meet the criteria to establish a claim for an occupational disability. The worker alleges that between 1987 and 2008 he worked in areas that lacked ventilation and there was an exposure to two fumes.

The petitioner testified that his condition did not affect his ability to work and that he was able to volunteer for overtime work. Over the 10 years that the claimant worked for the employer he did not report a condition to his employer, did not seek medical treatment from an allergist or a pulmonologist.
Furthermore, the medical expert who testified on behalf of of the petitioner, Dr. Malcolm Hermele, relied only upon x-ray findings demonstrating"Increased interstitial markings," and pulmonary function testing. There were no clinical signs by way of wheezing, rales or rhonchi.

Respondents medical expert, Dr. Benjamin Saperstein, reported that the physical examination of the petitioner was "perfectly normal." Dr. Saperstein also testified that Dr. Hermele’s X-ray was of poor quality.

In reviewing the record below, the appellate tribunal, concluded that the judges decision below lacked credible findings to sustain a claim for Workers’ Compensation benefits. The court focused upon the statutory authority of N.J.S.A. 34:15-36 that defines permanent disability and quality impartially character."Injuries such as minor lacerations, minor contusions, minor springs, and scars which do not constitute significant disfigurement, an occupational disease of the minor nature such as mild dermatitis and mild bronchitis show not constitute permanent disability within the meaning of this definition.”
The court relied upon the sentinel case of Fiore v. Consolidated Freightways, 140 NJ 452, 470 (1995) we're in the New Jersey Supreme Court interpret the occupational disease definition as established under N.J.S.A. 34:15-31, as "designated to compensate "diseases arising out of the workplace, and not the ordinary diseases of life.” 

Anthony DiFrabrizio v US Airways, ___A.3d___, 2013 WL 601534 (NJ App. Div. 2013) docket number 8-1497-12T4
Andrea Graf, Esq. (Appellant-US Airways)
Ricky E. Bagolie, Eq. (Appellant-Anthony DiFrabrizio)
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.