C.P. # 2005 - 13683 Allen v. A & P
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
C.P. No. 2005-13683
A & P
HONORABLE DIANA FERRIERO
Judge of Compensation
This is the court’s decision in the matter of James Allen v. A & P, Claim Petition 2005-13683. Respondent stipulated to all jurisdictional issues such that there are two issues before the court:
1.-Is petitioner totally and permanently disabled pursuant to the criteria of N.J.S.A. 34:15-36?
2.-If petitioner is totally and permanently disabled, is it due solely to the last compensable accident or is it due to a combination of the last compensable accident and pre-existing disability?
The court had the parties submit post-trial briefs. Respondent, in its post-trial brief, conceded that the petitioner is totally and permanently disabled.
THERE IS NO SECOND INJURY FUND PARTICIPATION
The Second Injury Fund (hereinafter “the Fund”) is established by statute, N.J.S.A. 34:15-95, which provides, in part:
Compensation payments in accordance with the provisions of para-
graph (b) of R.S. 34:15-12 shall be made to persons totally dis-
abled, as a result of experiencing a subsequent permanent injury
under conditions entitling such persons to compensation therefor,
when such persons had previously been permanently and partially
disabled from some other cause; provided,…further, however, that
no person shall be eligible to receive payments from the Second
(a)If the disability resulting from the injury caused by the person’s
last compensable accident in itself and irrespective of any previous
condition or disability constitutes total and permanent disability
within the meaning of this Title.
(Emphasis added.) Simply stated, “the Fund is liable when a partially
permanently disabled worker becomes totally and permanently disabled as a result of a work-connected accident…that, in combination with the preexisting physical impairment, results in permanent total disability.” Lewicki v. N.J. Art Foundry, 88 NJ 75, 83 (1981). (Emphasis added.)
There is no question that James Allen (hereinafter “Allen”) suffered injuries prior to February 4, 1999, the date of the last compensable accident. Specifically, while serving in Vietnam, Allen was shot in the right shoulder which required surgery and a 10 month rehabilitation. Allen’s Vietnam service also left him suffering from post-traumatic stress disorder. In 1994, Allen had an injury to his lumbar spine which resulted in him undergoing an L5-S1 discectomy.
A petitioner must satisfy two criteria to prove that a disability is “permanent in quality and partial in character.” Perez v. Pantasote, Inc., 95 NJ 105, 116-117 (1984); N.J.S.A. 34:15-36. First there must be a showing of “demonstrable objective medical evidence of a functional restriction of the body, its members or organs.” Id. at 116. This first prong of Perez requires more than the petitioner’s subjective complaints. Id. The second prong of Perez requires the petitioner to show a “material lessening” of his “working ability” or an “impairment in carrying on the ‘ordinary pursuits of life.’” Id. at 116-117.
The Fund is not remedial in nature and therefore, is not liberally construed in favor of the party seeking to impose it. Katz v. Twp. Of Howell, 68 NJ 125, 131 (1975). Liability will only be attributable to the Fund “when the statutory requirements have been fully met,” Lewicki, 88 NJ at 84, and the burden of proving Fund liability rests on the party seeking to impose it.” Katz, 68 NJ at 132.
Here, respondent argues that Allen had pre-existing orthopedic and psychiatric disabilities. However, the existence of pre-existing injuries alone is not legally significant because none of the pre-existing conditions limited Allen’s ability to work, maintain his home or pursue his hobbies or interests.
Allen testified that prior to the last compensable accident, he continued to work full-time in a very demanding job
“…I was averaging a week of 55 to 70 hours a week, plus
when I come home, I’m a programmer and I had software
company that I was writing construction programs and
selling those on the side. Also, I worked a lot at the
church. I was a busy guy.”
Allen 9/24/08 T. 25, L. 12-17. Allen worked as a director of construction for two divisions Atlanta and New Orleans. He traveled an average of 100,000 miles per year. As director of construction, he was in charge of all construction projects taking place in those two regions. This entailed budgeting, working with the developer, realtor, architect and engineers. He often hired the architect and engineer. Allen also prepared the bid, hired the contractors and bought all the equipment. Allen also was responsible for conducting job inspections, which required he climb onto the roof of the stores being constructed.
Allen built his prior home which was 4300 square feet. In his “earlier life” (pre-February 4, 1999), he was a residential builder. Allen 9/24/08 T. 29, L. 21-24.
Prior to February 4, 1999, Allen was an avid fisherman and hunter. He often fished for mullets and built a smoker out of an old refrigerator. He and a friend often would get a 100 mullets per trip and smoke them. He hunted using gun and bow for deer, squirrels and doves. For years, he kept bird dogs because he hunted so much.
Prior to February 4, 1999, Allen taught Sunday school and served as an associate pastor at a church 25 miles from his home. He also “totally remodeled the whole place [the church].” Allen 9/24/08 T. 35, 1-5.
In fact, Allen worked consistently following his honorable discharge from the military in 1968. His first post-service job was with Kroger initially as head clerk, then manager. Kroger then sent Allen to management school. After Kroger, Allen worked for his uncle-in-law, a concrete contractor, pouring cement. Allen then worked for Cohn Community as a building superintendent. After being laid off by Cohn, Allen borrowed $107,000
and became a residential builder. During this time period, Allen worked full-time and overtime, if available, and he did not take any medication for either the right shoulder injury or the post-traumatic stress disorder.
After the discectomy in 1994, Allen went “back to work and doing what I wanted to do. I didn’t miss a lick…” Allen 9/24/08 T. 9, L. 20-21. Nor was Allen taking any medication or getting any ongoing treatment following the discectomy in 1994. However, in the few months prior to the subject accident, Allen had some radiating pain in his legs, but he continued working his regular schedule and continued participating in his church and other social activities.
Allen’s post-traumatic stress disorder manifested itself through recurring nightmares regarding his military service. He suffered the nightmares since being discharged. However, the nightmares and anxiety did not significantly or frequently affect his life until he was no longer able to work following the subject accident. Allen 9/24/08 T. 56, L.13-20. When asked how the post-traumatic stress disorder affected him before the accident, Allen stated:
“Back then basically I was busy all the time and tried to keep it
buried. After the accident, when I was home and everybody
was telling me you can’t work anymore and the doctor saying it’s
not going to happen, I just almost went over the deep end with it
Allen 9/30/08 T.53, L. 24-25; T. 54, L. 1-5.
Respondent did not present one piece of evidence establishing that Allen’s pre-existing conditions caused a “material lessening of [Allen’s] working ability” or an “impairment in [his] carrying on the ‘ordinary pursuits of life.’” Perez, 95 NJ at 116-117. Allen was the sole witness regarding his functional loss pre- and post-accident. The court found Allen to be a most credible witness. He spoke in an honest, forth-coming manner without any exaggeration or histrionics. Absent any evidence that Allen was precluded from carrying on the ordinary pursuits of life, Allen’s pre-existing conditions do not qualify as pre-existing permanent partial disability.
Respondent relies on the testimony of the evaluating doctors to establish that Allen’s pre-existing injuries qualify as pre-existing permanent partial disability. The court readily acknowledges that respondent satisfied the first prong of Perez, namely that there is objective medical evidence of prior functional loss. But as Allen’s counsel Mr. Ward persuasively and correctly argued, objective medical evidence of a functional restriction prior to the subject accident does not, standing alone, qualify as a pre-existing permanent partial disability. Both prongs of Perez must be satisfied to implicate the Fund. Respondent failed to meet its burden of proof to implicate Fund involvement.
Petitioner is found to be 100% permanently and totally disabled solely as a result of the last compensable accident of February 4, 1999, and pursuant to N.J.S.A. 34:15-95(a), the Fund is not liable to pay benefits to the petitioner. Petitioner’s counsel is ordered to prepare a form of order for total disability under the Five Day Rule. Upon receipt of the proposed form of order, fees will be assessed.
September 30, 2009 __________________________
Diana Ferriero, J.C.