CP# 2003-3076 (2006). Sylvia Simmons Petitioner vs. Federated Logistics Respondent.

CourtNew 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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