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Levas v. Midway Sheet Metal2/23/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2001 –
This appeal returns to us following our remand to the workers' compensation judge on the issues of whether petitioner's respective employments with various successive employers from early 1990 to February 1991 (the Ford plant employers), during which he was exposed to pulmonary irritants, contributed in a degree substantially greater than de minimis to his permanent total pulmonary disability and whether that contribution could be apportioned among those successive employers whose employments did so contribute. Levas v. Midway Sheet Metal, 317 N.J. Super. 160, 174, 176 (App. Div. 1998) (Levas I). In so remanding, we found sufficient credible evidence to support the compensation judge's conclusion that petitioner was permanently totally disabled from his occupational exposure to various pulmonary irritants. Id. at 170. Although respondents-appellants Elmsford/Independent Joint Venture #4, Raritan Valley Sheet Metal, Inc., Folander Sheet Metal Co., Inc., and Bonland Industries, Inc., seek to relitigate that issue, we decline to do so.
On remand, the compensation judge found that each of the respective employments did contribute to a material degree to petitioner's overall disability. In this respect, the judge said in his oral decision of March 29, 1999, supplementing his written January 4, 1999, decision:
his was a series of exacerbations and aggravations of the disease by subsequent employment until the petitioner finally became total. This was not a matter of an initial exposures at D&M;producing the illness and then the illness progressing on its own. . . . I'm satisfied from Dr. Freedman's testimony and Mr. Levas' testimony that he was exposed each day to a significant amount of pulmonary toxins to the extent that they aggravated his condition which manifested itself with D&M;and when he last worked at Midway, the condition evolved into a permanent total situation.
We are satisfied that the record provides ample support for this conclusion and, therefore, reject point I of appellants' brief.
Also on remand, the judge apportioned the responsibility for petitioner's permanent total disability award equally against each of the Ford plant employers. He did so based entirely upon the notion of "equity." It is this aspect of the judge's decision that concerns us. Before addressing it substantively, we note some troubling procedural aspects of this appeal and the two related appeals. The allocation issue, the main issue that should concern the respondents, is not raised by respondents in this appeal. While addressed by Allied Ventilation in its separate appeal, it is responded to only by the four respondents-appellants here and respondent D & M Sheet Metal. The primary employer who benefits from the judge's allocation and who might be hurt most by a reversal is Midway Sheet Metal. Midway has not participated at all in this appeal, although it did participate in the remand "proceeding."
As for that "proceeding," it consisted of no more than oral argument, attended only by counsel for Allied Ventilation and Midway Sheet Metal, along with counsel for Local 27 Health and Welfare Fund Sheet Metal Workers which had a lien on petitioner's award. At this "proceeding," counsel for Midway argued in part:
On behalf of Midway, the employment with Midway was a brief, unsuccessful last-ditch effort by the petitioner to try to eke out a living. He already put in papers for Social Security and had represented to the Social Security Administration that his disability commenced approximately November of 1990 before trying to w
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