CP# 2003-3076 (2006). Sylvia Simmons Petitioner vs. Federated Logistics Respondent.
Court | New Jersey |
New Jersey Worker's Compensation
2006.
CP# 2003-3076 (2006).
Sylvia Simmons Petitioner vs. Federated Logistics Respondent
CP# 03-3076 Simmons v. Federated Logistics NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE
DEVELOPMENT DIVISION OF WORKERS' COMPENSATION ESSEX
COUNTY DISTRICT 124 Halsey
Street, 2nd Floor Newark, New Jersey 07101 Telephone:
973-648-2785; Fax 973-648-7780Claim Petition
No. 2003-3076Sylvia Simmons Petitionervs.Federated
Logistics Respondent
DECISIONBEFORE:Stephen
Tuber Judge of CompensationAppearances:.Freeman and Bass, Esqs.
BY: Samuel Bass, Esq. 24 Commerce Street Newark, New
Jersey 07102 Attorney for PetitionerBraff, Harris and Sukoneck, Esqs. BY:
Daniel A. Lynn, ESQ. 570 Mt. Pleasant Avenue Box
657 Livingston, New Jersey 07039 Attorney for
RespondentThis is a written decision on Claim Petition 2003-3076, which
alleges that the petitioner, Sylvia Simmons, is totally disability as a result
of a plethora of occupational disabilities that were caused, aggravated or
accelerated while working for Federated Logistics.
The petitioner commenced her employment with Speedmark in 1986.
Federated Logistics became the successor company of Speedmark during January of
1999. Petitioner continued working for Federated Logistics, Speedmark's
successor entity, until she was "laid off" on May 15, 2002.
During her entire career with Speedmark and Federated Logistics
as a "checker/marker" petitioner testified that she was exposed to the same
types and intensities of occupational orthopedic, pulmonary and cardiovascular
substances and activities. Specifically, petitioner testified that she was
exposed to dust, fumes from tow motors and trucks, which according to her
testimony were approximately thirty feet from one of the locations that she
periodically worked. Petitioner also testified that she was also exposed to
noise from trucks and conveyors that carried the clothes that she was required
to pack. Concerning her expose to noise and fumes from the trucks, the
petitioner candidly admitted that most of the time she worked "upstairs" and
therefore was not exposed to noise and fumes from the trucks which made their
deliveries on the ground floor.
Petitioner's job description was substantially the same during
her entire career at Speedmark and Federated. That is, the majority of her time
was spent packing clothes. However when "things got slow" she was required to
do other activities. For example, she should but buttons on jewelry and put the
finished product into boxes and put security tags on items. All of these
functions required repetitive use of both hands, bending and lifting of items
ranging from ounces to two to four pounds.
The petitioner did have a cerebral vascular accident during July
1997 while working for Speedmark. After treatment at Kessler Institute she went
back to work for Speedmark doing the same type of work without any
restrictions. I quote.
Q When you came back to work after you were treated at Kessler,
did you do the same thing in the same factory?
A Yes, sir.
Q Did you work with coats again?
A Well, they tried to put me with what they call breaking down
which I had to separate the clothes, but my mind wasn't right. There as a lot
of paperwork that I can't do that because my mind is bothering me, so I went
back with the coats.
Q So you weren't able to do the paperwork?
A No.
Finally, petitioner testified that while working for Speedmark
and Federated she was laid off "once a year" for a period of time ranging from
two weeks to approximately two months during which time she collected
unemployment.
On February 22, 2000 the petitioner filed Claim Petitioner
2000-5516 against Speedmark alleging occupational "Pulmonary, arthritic, ortho,
hypertensive, cerebrovascular, cardiovascular" disabilities to February 00,
1999. Petitioner represented by her current attorneys settled that claim on
August 23, 2001, under N.J.S.A. 34:15-20 for $4800.00.
Petitioner alleges that during her employment with Federated
Logistics from January 1999 until May 15, 2002 when she was "laid-off" she
continued to be exposed to pulmonary, orthopedic, cerebrovascular and
cardiovascular occupational exposures and as a result she is now totally and
permanently disabled.
Petitioner called Ms. Judith Hernandez as a witness to
corroborate her testimony concerning the nature and extent of her occupational
exposures. Ms. Hernandez testified that the areas that she and the petitioner
worked in were dusty and noisy. She also indicated that the pictures that were
introduced into evidence accurately depicted the condition of the atmosphere
that was prevalent in the areas in which she and the petitioner worked.
Paradoxically, neither the petitioner nor her only fact witness
testified that they ever complained to management about any of the deleterious
environmental conditions which they testified about. Notwithstanding the fact
that Ms. Vasquez, the Human Resource Manager for the respondent testified that,
"We run employee events. Things such as round tables for the associates to met
with an HR Manager. We get together as a group and they can explore any kind of
problems, suggestions, or issues that they may want to bring to
management."
Finally, as to petitioner's allegation that the noise was the a
competent factor in increasing her cerebrovascular pathology I find it curious
that petitioner offered no proof that the so-called noise pollution was at a
level that OSHA required ear protection. Furthermore, neither the petitioner
nor Ms. Hernandez testified that they or anybody else asked for ear protection.
To be sure in my own mind that petitioner never complained about the noise
level I asked Ms. Vasquez, respondent's Human Resource Manager, "Did you find
any complaint about anything from Ms. Simmons?" To which she responded, "No,
sir."
While several of the pictures do depict some dust in the air,
several do not. What is troubling is the fact that petitioner's highly
experienced attorney did not ask whether the photographs depicted the condition
that existed throughout the entire work day, or just portions of the day. For
example, when the garbage can were emptied by the porters or when the area was
swept. I quote Ms. Vasquez's testimony because it would indicate that the
photographs may have been taken at the end of the work day when the workers
swept their work station. This would explain why some photographs did not
reveal dust and some did show dust particles.
Q Do they ever sweep up any dust?
A There is probably dust.
Q How do they catch - fetch that up?
A Each department has cleaning utensils. They have brooms and
dust pans.
THE JUDGE: How often where Ms. Simmons worked from 1999 to 2002
would that activity take place?
THE WITNESS: Well, what's supposed to take place, at the end of
the day about ten minutes before quitting time everyone would normally just sop
working and clean up their work area.
As I have said, this explanation perhaps could explain the reason
why some pictures depict dust in the air and some do not show any dust in the
work environment. Indeed, the pictures refute both Ms. Hernandez's and
petitioner's impression that their testimony implied, namely, that dust
permeated the work area during their entire shifts.
Furthermore, while it is true that the photographs reveal dust on
the overhead pipes there was no testimony about how long is took for that dust
to form. If the dust on the...
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