Akef v. BASF Corp.

• Decision Date: 07 July 1994
• Citation: 275 N.J.Super. 30,645 A.2d 158
• Parties: Ahmed N. AKEF, Petitioner-Appellant, v. BASF CORPORATION, Celotex Corporation, Chemo Dynamics, Inc. and the Second Injury Fund, Respondents-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 30

275 N.J.Super. 30

645 A.2d 158

Ahmed N. AKEF, Petitioner-Appellant, v. BASF CORPORATION, Celotex Corporation, Chemo Dynamics, Inc. and the Second Injury Fund, Respondents-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted May 24, 1994.

Decided July 7, 1994.

Ball, Livingston & Tykulsker, Newark, for appellant (David Tykulsker and Lynne P. Kramer, on the brief).

Thomas H. Green, Florham Park, for respondent BASF Corp. (John J. Jasieniecki, on the brief).

Magazzu, Speziali & Indyg, Cardiff and Tucker, Biegel & Goldstein, East Brunswick, for respondent Celotex Corp. (David A. Speziali, East Brunswick, and Louis N. Magazzu, Cardiff, on the brief).

Cunneen & Rotella, South Orange, for respondent Chemo Dynamics, Inc. (Thomas W. Polaski, on the brief).

Deborah T. Poritz, Atty. Gen., for respondent Second Injury Fund (Nancy J. Shebell, Deputy Atty. Gen., on the statement in lieu of brief).

Before Judges PRESSLER, DREIER and BROCHIN.

The opinion of the court was delivered by

DREIER, J.A.D.

Petitioner Ahmed Akef appeals from the dismissal of his workers' compensation claim petitions against three of his former employers, BASF Corp., Chemo Dynamics, Inc., and Celotex Corp. The judge of compensation determined that under Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 200 A.2d 322 (1964) petitioner's claim for a cumulative occupational disease was properly brought against the current employer when, as Bond states, the disease is disclosed "by medical examination, work incapacity, or manifest loss of physical function." Id. at 311, 200 A.2d 322. The compensation judge determined that Celotex, petitioner's final employer, satisfied this test. However, since petitioner materially misrepresented his prior employment history and physical condition to Celotex, the compensation judge determined that petitioner was barred from claiming compensation from Celotex and dismissed the petition. Our consideration of this misrepresentation defense is a case of first impression. For the reasons hereafter stated, we reject this defense and remand the matter for a determination of the extent of petitioner's disability.

On January 5, 1987, petitioner filed a claim petition alleging that he had sustained neurologic, pulmonary, internal, reproductive and neuropsychiatric injuries from his exposure to various deleterious substances while employed by BASF. Over two years later, he filed a new petition alleging an aggravation of the preexisting conditions arising out of his employment with Celotex. During the pendency of this claim, Celotex joined Chemo Dynamics as an additional respondent, and the claim petitions were consolidated for trial.

When petitioner rested his case, Celotex moved for a dismissal of the consolidated petition on the ground that petitioner had materially misrepresented his medical condition on his Celotex employment application. Celotex contended that it had relied upon the misrepresented information, and that there was a direct causal relationship between the misrepresentation and petitioner's condition. Initially, the trial judge denied the motion. But following the conclusion of the hearing, and even though petitioner had some permanent pulmonary disability resulting from exposure to deleterious and noxious irritants while in the employ of all three respondents, and also suffered some acknowledged minimal permanent psychiatric disability, the judge determined that the extent of disability could not be fixed or apportioned among the respondents. He found that the rule in Bond v. Rose Ribbon & Carbon Mfg. Co., supra, required a dismissal of the petitions against BASF and Chemo Dynamics. The judge then reversed his previous ruling on the affirmative defense of misrepresentation, and dismissed the remaining claim petition against Celotex.

Petitioner, an Egyptian by birth, was a chemist trained in Cairo. He emigrated to the United States in 1969 and took graduate courses in chemistry at the New Jersey Institute of Technology. He then worked for several chemical companies before being hired as a process development chemist by BASF for whom he worked from October 1977 through June 1986. During this employment he inhaled a variety of esoteric chemicals which precipitated an asthma condition and apparently also sterilized him. From 1981 to 1985 petitioner suffered from bouts of dizziness, shortness of breath, and coughing and chest pain for which he was treated by various physicians. By late 1985 he equated the effect on his breathing and his more frequent dizzy spells with the atmosphere in the BASF plant. His physician prescribed inhalers and pulmonary medication. On his last assignment for BASF, petitioner was in charge of a process which generated fumes aggravating his breathing difficulty and chest tightness. Fearing that he would be overcome by the fumes, he asked his supervisor to be relieved of the assignment and transferred to another area. When his request was denied, he left the job with BASF because he could not breathe. Immediately thereafter he returned to his physician and, while his chest x-ray was normal, the physician diagnosed asthma and prescribed various asthma medication.

While employed by BASF, petitioner was exposed to more than fifty chemicals and, although he had already fathered a child, a later examination disclosed that he was sterile. Petitioner's expert compared the list of chemicals to which petitioner had been exposed with the literature available on spermatoxic compounds. The expert determined that one or more of the chemicals to which petitioner was exposed at BASF constituted the major cause of petitioner's azoospermia (sterility). The expert ruled out other possible causes such as heredity, mumps, radiation exposure, or endocrine, urologic or pituitary problems, and stated that petitioner's azoospermia is a permanent condition. When the condition was first disclosed after petitioner left BASF, his treating physician attempted steroid treatments, but later semen analysis continued to reveal azoospermia.

Petitioner's employment with Chemo Dynamics as an organic chemist lasted for only three weeks in early 1987. However, his employment there required work on reactions producing sulfur dioxide in a poorly ventilated area. The resultant coughing, chest tightness and dizziness necessitated continued medical treatment and his use of inhalers and bronchodilators. When petitioner was asked to work with prohibited chemical substances, he quit, but the termination of this employment was unrelated to his asthma.

Thereafter petitioner went from job to job, working as a security guard and then a store manager. Finally, in August 1987, he applied for employment as a security guard with Celotex. He claimed that he had been an assistant manager of a food store from 1973 through 1987, and did not list BASF or Chemo Dynamics as prior employers. He did not actively misrepresent his medical condition on the application, but rather merely failed to answer the question asking him to describe any physical limitations. The employee relations representative of Celotex was thus unaware that petitioner had asthma. As petitioner appeared qualified for the job, he was referred to the company doctor for a physical. Petitioner filled out a questionnaire in the doctor's office, but again failed to answer questions concerning chief complaints, symptoms and previous doctors. Furthermore, he misrepresented to the doctor that he was not taking any medication and had no somatic complaints other than being short of breath while climbing stairs. Petitioner claims that he did tell the doctor that he had asthma, but the doctor noted that petitioner stated he had asthma as a child. The physical examination revealed a clear throat and lungs, and the x-ray taken at the time was normal. The doctor cleared petitioner for employment, and he began working as a security guard for Celotex in August 1987.

As a security guard, petitioner was required to walk long distances inside and outside the Celotex plant regardless of whether it was cold and windy or hot and muggy. When a sprinkler system was activated, a Celotex security guard was required to run through the plant to determine whether there was a fire. Although respirators were available for security guards, petitioner did not wear one, nor did the chief of security remember any occasion when a security guard had worn a respirator. The Celotex plant manufactured roof shingles and petitioner was constantly exposed to dust from hot asphalt and fumes from trucks entering and leaving the plant. He requested a mask, and his wearing the cloth mask helped him to some extent. After nine months of employment, petitioner was admitted to the hospital for treatment of an acute bronchial asthma attack and exacerbation of chronic obstructive pulmonary disease. He had bilateral inspiratory and expiratory wheezing, but a normal x-ray. When he was hospitalized he reported his asthmatic condition to Celotex and as a result was laid off.

Petitioner's present symptoms include depression, mood swings, lack of concentration, social withdrawal, confusion and even a suicidal preoccupation. He is filled with despair, emptiness and guilt which his experts relate to the loss of his job, his asthmatic condition and his azoospermia. He has a deteriorating relationship with his wife which began when he learned of his infertility, and although he had benefitted from psychiatric treatment in the past, he was forced to discontinue the treatment for financial reasons. He had additional hospitalizations and in October 1989 began receiving Social Security disability benefits.

Given the determination by the workers' compensation judge, we need not here evaluate petitioner's claim of complete disability or respondents' claims of minimal disability. The issue was never resolved by the trial judge and, as noted at the outset, we are remanding this matter and...