B E F O R E:

HONORABLE PHILIP A. TORNETTA
JUDGE OF COMPENSATION

A P P E A R A N C E S:

GEORGE GOCELJAK, ESQ.
ATTORNEY FOR THE PETITIONER

          

BIANCAMANO & DI STEFANO, ESQS.
BY:  MATTHEW GITTERMAN, ESQ.
ATTORNEYS FOR THE RESPONDENT

            This is the decision of the court in Anna Daley v. Weis Markets, Inc., Claim Petition  2006-32594.

            This matter comes before the  court by Notice of Motion of petitioner, Anna Daley, for Temporary and/or Medical Benefits resulting from the effects of an injury petitioner alleges to have suffered to her back on November 23, 2006, while employed by the respondent. The respondent has denied that petitioner has suffered a compensable accident arising out of and in the course of her employment

             The court granted the joint application of petitioner and respondent for  bifurcation of the trial of the motion for the court to only determine at this time if the petitioner has suffered a compensable accident arising out of and in the course of her employment.

FACTS

            The parties have stipulated  that the petitioner was in the employ of the respondent on November 23, 2006. At that time, petitioner was earning an average weekly wage of $175.90.

             On Thursday, November 23, 2006, Thanksgiving Day, petitioner was working for  respondent as a cashier. Her shift started at  7:00 a.m. and ended at 1:00 p.m. Petitioner testified that at approximately 9:00 a.m., she was lifting a 24 pack case of  bottled water in an attempt to scan the case  over the cash register scanner and heard a pop in her back. Petitioner further testified that she continued to work and finished her shift, but never  returned to work after November 23, 2006. However, petitioner’s time card (R-3 Evid) indicates that petitioner did in fact work on Friday,  November 24, 2006 from 8:01 a.m. to 2:00 p.m. and had taken a lunch break from 12:35 p.m. to 1:04 p.m.

             Petitioner was scheduled to work on Monday, November 27, 2006, but did not report for work on that day because she began noticing pain in her lower back and went to Hackettstown Community Hospital emergency room where tests were performed, including an MRI, blood work, urine analysis and X-rays.

Although Petitioner testified that she never had any back pain prior to November 24, 2006,  the Hackettstown Community Hospital emergency room records for petitioner dated November 27, 2006, (R-4 Evid)  indicate that petitioner stated that she started having  lower back and left gluteal pain and left sided back pain radiating to the front and pain going down the left leg two weeks prior to November 27, 2006.

            Jessica  Hansen testified on behalf of respondent. Ms. Hansen is a cashier employed by respondent and a co-worker of petitioner. Ms. Hansen  testified that she recalls working with petitioner on November 24, 2006. Ms. Hansen further testified that in October, 2006 or early November 2006, petitioner had been out sick for a couple of days and when petitioner returned to work Ms. Hansen asked petitioner what happened. Ms. Hansen testified that petitioner told her that her back had been bothering her and she needed to take a couple of days off. Ms. Hansen testified further that there were other occasions, over the course of time, when petitioner would complain about her back.

            Christopher Schetting testified on behalf of respondent. Mr. Schetting is employed as a front end manager by respondent. Approximately three to four days subsequent to November 23, 2006, Mr Schetting became aware of petitioner’s allegation of being injured.  Mr. Schetting prepared an accident report (R-1 Evid)  and obtained a computer print out of the cash register journal for the cash register being used by petitioner on November 23, 2006.(R-2 Evid)  Mr. Schetting testified that  the cash register journal shows every item scanned through and transaction recorded on petitioner’s cash register on November 23, 2006 from 7:00 a.m. to 1:00 p.m. Mr. Schetting reviewed the register journal three times and observed that on November 23, 2006, between 7:00 a.m. and 1:00 p.m. petitioner did not scan  a 24 pack case of bottled water through her cash register .                                   

            Rachel Henley testified on behalf of respondent. Ms. Henley was employed by respondent in November, 2006 as a front end lead manager. Ms. Henley received a telephone call from petitioner on Monday morning, November 27,2006 in which petitioner stated to Ms. Henley that she hurt her back, but did not know how, that it had to have happened at work, because she did not do anything at home, but she did not know what she did to cause it. Later that day petitioner came to the Weis Market to see Ms. Henley about papers that needed to be completed for Workers Compensation benefits. Petitioner arrived at the store at approximately 3:00 p.m. Ms. Henley told petitioner she would see her in about fifteen minutes. Petitioner responded that she would finish doing her shopping and continued to walk through the store pushing a shopping cart.

LEGAL ANALYSIS

            N.J.S.A. 34:15-15 provides in part:

                        “ The employer shall furnish such medical, surgical and

                        other treatment…as shall be necessary to cure and relieve

                        the worker of the effects of the injury and to restore the

                        functions of the injured member or organ where restoration

                        is possible…”

            The issue in this Motion for Temporary and/or Medical Benefits is whether the petitioner suffered a compensable accident and resulting injury arising out of and in the course of her employment and thereby whether the need for medical treatment is causally related to her occupation as a cashier employed by respondent.

               It is undisputed that in a Worker’s Compensation case, the burden rests upon the petitioner, who must persuade the trier of fact by a preponderance of the credible evidence on each and every element of his or her claim. Perez v. Pantasote, Inc., 95 NJ 105 (1984). It is also undisputed that respondent is subject to the same evidentiary standard on those elements of the case where it bears the burden of proof. Fiore v. Consolidated Freightways, 140 NJ 452 (1995).

            Thus pursuant to N.J.S.A. 34:15-7, the burden is upon the petitioner to prove by a preponderance of the evidence, that she suffered an accident which arose out of and in the course of employment. The statutory requirement that a compensable accident arise out of employment “looks to a causal connection between the employment and the injury.” Coleman v. Cycle Transformer Corp., 105 NJ 285, 290 (1986).

                    In this case, I find petitioner’s testimony not to be credible and expressly and impliedly contradicted by respondent’s credible and un-rebutted evidence.

              The computer print out of the cash register journal for the cash register being used by petitioner on November 23, 2006 (R-2 Evid) conclusively shows that petitioner did not scan  a 24 pack case of bottled water through her cash register while working on November 23, 2006 so as to cause her to injure her back. The  Hackettstown Community Hospital emergency room records,  dated November 27, 2006 (R-4 Evid),  which indicate that petitioner’s lower back and left gluteal pain, left sided back pain and pain going down the left leg  started two weeks prior to November 27, 2006, contradict  petitioner’s  testimony that she never had any back pain prior to November 24, 2006. Petitioner’s time card indicating that she worked on Friday,  November 24, 2006 from 8:01 a.m. to 2:00 p.m. (R-3 Evid) contradicts her testimony that she never  returned to work after November 23, 2006.

             The testimony of respondent’s employees Jessica Hansen and Rachel Henley makes petitioner’s credibility even more problematic and dubious.  I was impressed with their candor and  I found their testimony on direct examination to be credible and truthful  and unwavering under cross-examination.

            Ms. Hansen testified  that she recalls working with petitioner on November 24, 2006, which  contradicts petitioner’s testimony that she never returned to work after November 23, 2006.  Ms. Hansen also  testified that in October, 2006 or early November 2006, petitioner had been out sick for a couple of days and when petitioner returned to work Ms. Hansen asked petitioner what happened. Petitioner told Ms. Hansen that her back had been bothering her and she needed to take a couple of days off. Ms. Hansen testified further that there were other occasions, over the course of time, when petitioner would complain about her back.

              Ms. Henley testified that she received a telephone call from petitioner on the morning of November 27, 2006 and petitioner stated to Ms. Henley that she would not be reporting for work because she hurt her back, but she did not know how it happened.

            Based upon all of the above, I find that petitioner’s allegation that she injured her back on November 23, 2006 while lifting a 24 pack case of bottled water is without merit.

CONCLUSION

            For all of the aforesaid reasons, I conclude that petitioner has failed to sustain her burden of proving by a preponderance of the credible evidence that she suffered an accident which arose out of and in the course of her employment. Petitioner’s Motion for Temporary and/or Medical Benefits is denied and the claim petition is dismissed, with prejudice, for lack of jurisdiction.  A copy of this decision and transcripts of the proceedings will be provided to the Director/ Chief Judge of the  Division Workers Compensation to determine if this matter should referred to the insurance fraud prosecutor.       

            Respondent is ordered to pay to O’Brien Court Reporting a stenographic fee of  $600.00. 

  A copy of the order denying the motion and  a copy of the order dismissing the claim petition are being submitted to the parties with a copy of this decision.

DATED: August 6, 2007    
 
Philip A. Tornetta
Judge of Compensation