Akef v. BASF Corp.

702 A.2d 519, 305 N.J. Super. 333, 1997 N.J. Super. LEXIS 456
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 21, 1997
StatusPublished
Cited by3 cases

This text of 702 A.2d 519 (Akef v. BASF Corp.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akef v. BASF Corp., 702 A.2d 519, 305 N.J. Super. 333, 1997 N.J. Super. LEXIS 456 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

PAUL G. LEVY, J.A.D.

We first considered this matter in 1994 when we held that liability for petitioner’s permanent disability, based on acute bronchial asthma and its associated psychiatric disabilities, was solely the responsibility of Celotex, as his last employer, not subject to apportionment between or among BASF or The Second Injury Fund. We also held then that petitioner had proved a claim for azoospermia (sterility) and its associated psychiatric disability, for which BASF was solely responsible. Akef v. BASF Corp., 275 N.J.Super. 30, 645 A.2d 158 (App.Div.1994), aff'd 140 N.J. 408, 658 A.2d 1252 (1995). We remanded to the judge of compensation to find “the extent of petitioner’s permanent pulmonary and associated psychiatric disabilities, and for the entry of an award of such compensation benefits as well as any temporary and medical benefits to which petitioner might be entitled.” Id. at 46, 645 A.2d 158. Also to be considered on remand were petitioner’s azoosper[336]*336mia and related psychiatric disability claims against BASF for an appropriate award of compensation. Ibid.

The judge of compensation complied with the remand directions. He found that “petitioner suffered no permanent disability ... from the azoospermia because he suffered no functional loss in the workers’ compensation sense of the word.” The judge did find, however, that petitioner suffered “some psychiatric disorders in the form of depression because of the azoospermia, and therefore that is related to his employment and does have a functional loss.” He concluded that petitioner was not totally and permanently disabled, and granted a judgment of a partial pulmonary disability for bronchial asthma of forty percent of partial total and his “overall neuropsychiatric disability” from both the pulmonary and azoospermia disabilities to be ten percent of partial total. The judge found that the disability became fixed on July 5, 1989, his most recent examination by Dr. Susan Daum. The final result was a dismissal of the petition against BASF and a judgment against Celotex of 50% of partial total for petitioner’s asthma and neuropsychiatric disabilities.

On appeal, petitioner contends he should have received an award of partial total disability against BASF based on his azoospermia; he should have received temporary disability benefits from Celotex, for his asthma condition, for the period from May 5, 1988 through July 4, 1989; and the counsel fee award of $10,000, divided 60% to Celotex and 40% to petitioner was erroneous and we should make a revised award.

I.

The petition was dismissed as to BASF when the judge determined petitioner suffered no permanent disability due to azoospermia. In his oral opinion, the judge said:

Petitioner has proven that he had a condition called azoospermia, which was related to his work. The azoospermia, which means he cannot produce children, has no other effect upon him. And my review of the medical testimony leads me to believe that petitioner suffered no permanent disability in the workers’ compensa[337]*337lion sense from the azoospermia because he suffered no functional loss in the worker’s compensation sense of the word.

Petitioner appeals, claiming his reproductive capacity had been obliterated, and BASF is liable because this is an “injury [that] substantially interferes with other, nonwork-related aspects of petitioner’s life.” See Perez v. Pantasote, Inc., 95 N.J. 105, 116, 469 A.2d 22 (1984).

Dismissal of this claim and limiting compensation to the psychiatric component, based on the finding that the azoospermia condition does not affect petitioner’s ability to work, is too harsh. We reverse and remand for reconsideration of a proper award, and we hold that petitioner’s azoospermia is compensable as a permanent partial total disability even though it did not diminish his earning capacity, because the record contains credible evidence that the azoospermia impaired his ability to carry on the ordinary pursuits of life.

In Stepnowski v. Specific Pharmaceuticals, Inc., 18 N.J.Super. 495, 87 A.2d 546 (App.Div.1952), the employee sued his employer on a tort theory, arguing that he suffered sexual impotency as a result of being exposed to chemicals at his workplace. Justice (then Judge) Jacobs held that the petitioner’s exclusive remedy was under the workers’ compensation laws because such an injury was compensable under that system. He explained that the plaintiff had not suffered any diminution in his working or earning capacity as a result of these injuries. Despite this,

[o]ur courts have held, however, that a permanent injury which involves a loss of physical function and detracts from the former efficiency of the body or its member in the ordinary pursuits of life, is compensable, even though there he no diminution in earning power or capacity to work.
Id. at 499 [87 A.2d 546] (emphasis supplied).

More to the point, however, the petitioner in Stepnowski was exposed to dust particles of stilbestrol, a chemical containing female sex hormones, and he suffered permanent impairment by biological change so that he had permanent sexual impotency. Because the Workmen’s Compensation Act had been amended effective January 1, 1950 to embody every “compensable occupa[338]*338tional disease,” it was held that the “deliberately comprehensive language [of the Act] includes the disease and injury alleged in the plaintiffs complaint; they arose out of and in the course of his employment and were due to the presence and his inhalation and absorption of stilbestrol dust particles, a cause or condition which was peculiar to the defendant’s chemical trade, and to which the plaintiff had been exposed by virtue of his work.” Id. at 498, 87 A.2d 546. Accord Gibson v. Todd Shipyard Corp., 45 N.J.Super. 283, 291, 132 A.2d 337 (Co.1957), aff'd o.b., 48 N.J.Super. 535, 138 A.2d 543 (App.Div.1958)(slow developing ventral hernia held compensable as an occupational disease).

That holding was supported by Everhart v. Newark Cleaning & Dyeing Co., 119 N.J.L. 108, 111, 194 A. 294 (E. & A.1937)(bodily disfigurement which did not affect ability to work was compensable) and Sutkowski v. Mutual Chemical Co. of America, 115 N.J.L. 53, 178 A. 71 (Sup.Ct.1935)(despite worker’s continuing ability to work at previous job held, injury was compensable). See also Hercules Powder Co. v. Morris County Court of Common Pleas, 93 N.J.L. 93, 95, 107 A.

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Bluebook (online)
702 A.2d 519, 305 N.J. Super. 333, 1997 N.J. Super. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akef-v-basf-corp-njsuperctappdiv-1997.