In a decision that focuses attention on the risk of harm to reproductive systems caused by exposure to toxins in the workplace, a state appeals court has ordered a judge to award compensation to an industrial employee for sterility, even though the condition did not affect his ability to work. Workers’ Compensation Judge Melvin Shteir had ruled that Ahmed Akef, a chemical worker at a BASF Corp. plant in Middlesex County, suffered no loss "in the workers’ compensation sense."
But the three-judge panel reversed on Nov. 21, finding that Akef qualifies for compensation under rules that permit recovery for impairment of his ability to carry on the ordinary pursuits of life. They sent the case back to Shteir to set compensation. Akef v. BASF Corp. and Celotex Corp., A-3732-95T1.
The decision, written by Judge Paul Levy and joined by William Dreier and Barbara Wecker, does not make new law. In Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the state Supreme Court ruled that injuries affecting the worker’s body or its members in the ordinary pursuits of life—not just work—are compensable.
And since Stepnowski v. Specific Pharmaceuticals, Inc., 18 N.J. Super. 495 (App. Div. 1952), New Jersey courts have permitted compensation for sexual dysfunction and reproductive disorders caused by exposure to chemicals.
"I don’t think it’s anything new," says BASF’s lawyer, John Jasieniecki, an associate in the Florham Park firm of Thomas Green.
Even so, workers’ recoveries for loss of reproductive function are relatively rare, lawyers for petitioners and defendants say; Akef serves as a reminder that such disorders are compensable.
"The courts message in this case is that these reproductive disorders are real and real in a workers’ compensation setting," says Akef’s lawyer, David Tykulsker, of Montclair’s Tykulsker & Associates.
Another lawyer who represents petitioners, Wayne solo practitioner Jon Gelman, says, "the decision addresses what you have to look for in the 1990s," Gelman says.
A Case With a History
Akef is a good vehicle for such reminders because an earlier proceeding involving the same petitioner is well known among workers’ compensation practitioners. That proceeding did establish a legal principle: workers who make misrepresentations about prior employment history and physical condition are not barred from compensation.
Akef was exposed to more than 50 chemicals while working as a chemist at BASF from 1977 to 1986 and the exposure was later found to have caused his sterility and exacerbated an asthmatic condition. He filed a workers’ compensation claim against BASF in 1987.
He worked at another chemical company in 1987, and finally found work as a security guard with Celotex, a manufacturer of roof shingles. But chemicals at Celotex worsened his conditions, he said in another workers’ compensation claim filed two years after the original claim.
Shteir dismissed all the claims, finding, among other things, that Akef had failed when he was hired to give Celotex all the facts about his medical and employment history.
An appeals court ruled, however, in Akef v. BASF Corp., 275 N.J. Super. 30 (1994), that misrepresentations by a petitioner cannot be used as an affirmative defense under New Jersey workers’ compensation law, and the case was sent back to Shteir.
Now it’s going back for a third time, and Shteir is under orders to set the compensation for Akef’s sterility.
The Cost of Proof
Even if the case does serve as a reminder that such injuries are compensable, there are economic constraints to bringing such a case, says petitioners’ lawyer Patrick Caufield, of Edison’s Levinson, Axelrod, Wheaton, Grayzel, Caufield, Marcolus & Dunn.
The cost of the proofs, particularly the epidemiological evidence needed to prove such a case, may be more expensive than the likely recovery, Caufield says.
Lawyers who represent companies say they see no evidence that the Akef decision will spur more reproductive disorder cases.
"I don’t see any changes," says Richard Jones, a partner at Morristown’s Bressler, Amery & Ross.
"This doesn’t create any new cause of action," he says and those sentiments are echoed by fellow defense lawyers, Ira Sukoneck, of Livingston’s Braff, Harris & Sukoneck and Gerald Rotella, of South Orange’s Rotella & Soriano.
By Jon L. Gelman, Attorney at Law
This article is reprinted with permission from the December 1, 1997 issue of the New Jersey Law Journal. c. 1997 American Lawyer Media.