RESERVED DECISION

BETTY A. RYAN, Petitioner

vs.

TRUMP TAJ MAHAL, Respondent.

CLAIM PETITION
NOS. C.P. 97-029407
C.P. 98-031877
C.P. 98-031917

BEFORE:
HONORABLE SHELLEY B. LASHMAN
Judge of Compensation

APPEARANCES:
SALTZER, KUSHINSKI & DEVINCENS, L.L.C.
By: RICHARD R. KUSHINSKI, ESQ.
Attorney for the Petitioner

COOPER, PERSKIE, APRIL, NIEDELMAN, WAGENHEIM & LEVENSON, P.C.
By: JAMES P. PAOLI, ESQ.
Attorney for the Respondent

ISSUE

This is respondent's Motion to Dismiss a partially heard Motion for medical and temporary benefits, during trial, in three occupational claims, for failure of petitioner to give notice to respondent pursuant to statute.

There is an additional respondent's Motion to strike petitioner's brief as being beyond the prescribed time. That particular Motion is denied herewith, for good cause shown.

PROCEDURAL HISTORY

Petitioner filed three denied occupational claims for low back injuries. Claim Petition 97-029407 alleges an occupational injury to October 1995. Claim Petition 98-031877 alleges an occupational injury to petitioner January 1995 through July 1997. Claim Petition 98-031917 alleges an occupational injury to petitioner October 1996.

There have been three substitutions of petitioner's counsel, and three substitutions of respondent's counsel. Hearings were transferred from Edison, New Jersey by Judge Bolstein on petitioner's change of residence to Atlantic City, Atlantic County; and by me to Toms River, Ocean County, on petitioner's subsequent change of residence.

Petitioner, born January 25, 1943 and originally age 52, was a cage cashier and accounting clerk at the Taj Mahal Casino. She originally alleged "lifting various articles over a period of weeks" in October 1995; alleged "bending, lifting, twisting, stooping, carrying in the course of employment" in October 1996; and again January 1995 through July 1997.

During the trial, bifurcated by me as to notice and knowledge, testimony was taken on five days. Testimony of petitioner was taken before me on 9/16/98 and 10/7/98; of respondent's subpoenaed casino accounting manager and the casino accounting supervisor on 2/10/99 and 7/23/99; and petitioner again on 4/30/99 and 7/23/99.

There is a $4,408 State of New Jersey lien for disability during unemployment benefits for "low back pain, severe degen." from 12/21/97 through 5/30/98, which petitioner agreed to repay out of any Workers' Compensation benefits by her application on 1/14/98.

FACTS

At the outset of hearings, respondent admitted employment but moved to dismiss for lack of notice under Brock v. P.S.E. & G. Co., 149 N.J. 378 (1997). I reserved decision on that Motion until after testimony.

Petitioner testified to employment with respondent from January 1995, starting as a cage cashier dealing with customers at a window, exchanging chips for coins and bills, with constant bending and lifting from under the counter. The chips and coins were placed there by petitioner from a coin bank by a cart. She was there at the start of the day, and she returned once more if needed. The coins came in six racks weighing three to four pounds, and she carried three at a time, placing them in a cabinet under her counter, starting on the second shelf up so they were one shelf below her waist. The carts were three feet by four feet or waist high, a two-level cart on rollers. At the end of the shift, she loaded the cart with the remaining chips and coins and wheeled the cart to the coin bank into the chip bank. She estimated the cart weighed 60 to 80 pounds fully loaded. She had two 15-minute breaks and one hour for lunch from her constant standing and bending for the five and a half hours of her seven-hour shift.

She testified she first went to a doctor for her right foot once in April 1995 because her heels were hurting. Dr. Guttman, as recommended by a few of her co-workers. She testified there was "no need" to advise her employer. She went under her job medical third-party coverage.

She subsequently was seen at Medical One June 30, 1995 for back pain. She testified she spoke to her immediate supervisor Mrs. Walker who is no longer employed there but had been in charge of coin cashiers. He signed a paper to go to the casino nurse. He did not have her fill out any incident forms, the nurse sent her to Medical One. She told Mr. Walker she was hurting and wanted to go to the nurse. She was on the "grave shift," 11:00 P.M. to 7:00 A.M. That discussion occurred in the middle of the cage cashier area. He said "Go to Medical One." There were no witnesses close by. She went to Medical One in Northfield, New Jersey. It was in the morning. She told the doctor there that she had right hip pain and across her back.

R-1 in evidence, the records for Medical One for June 30, 1995 indicate she had been winding a vacuum cleaner cord leaning over, and felt a twinge of pain in her low back yesterday, June 29, 1995. She testified it was not at work, she was attempting to vacuum at home. "I wasn't about to complain, it was my job." She testified the back pain started a couple of months prior.

Most importantly, she did not tell anybody at Medical One that it happened at or from work because "I just had to take it. I had to keep working." She did not tell Medical One that the back pain was at work in addition to the vacuuming. "Because I thought it would go away." They said it was muscles, gave her medication, ordered no diagnostic tests, and did not tell her to stay out of work, and she continued to work.

On cross-examination:

Question: The physician, the first time you had pain with your back as a result of work correct you didn't tell the examining doctor at that time?

Answer: No. I told nobody nothing.

 

 

The next time she got medical treatment for her back was in October of 1995 at Medical One, while she was still working. She testified it got worse and she would live on aspirin plus the medication from Medical One for muscle pain. There were no specific accidents before June 1995 nor until October 1995. She continued to work.

She had no further discussions from January to October 1995 with her supervisor or anybody else at work about her back pain, only co-workers. She could not recall any specific co-workers.

The records of her second visit to Medical One on October 27, 1995 (R-2 in evidence) indicate she complained of "lower back pain two days, while lifting leg onto a bus." No other history of trauma. The bus was a shuttle bus to the parking lot. She lifted her leg to get on the shuttle bus, coming out of the casino door employees use for that. "I lifted my leg and saw stars and it just hurt worse than it was before." It hurt the "right leg, right hip more so than across the back." They examined her, gave her medication, but did not put her out of work and she continued to work at the same job. She did not report this incident to anyone at work. When asked why not she testified "I'm not going to complain about what happened. That's all."

The third occupational claim involved a visit to the Atlantic City Medical Center, Pomona, New Jersey Emergency Room on December 14, 1995 (R-3 in evidence). She testified she went on her own. She handed the five day out-of-work slip to another supervisor. She did not indicate to anyone she felt her back pain was due to work. Pain allegedly worsened prior thereto at work. She went to the doctor on her day off. She received x-rays, medication and a note to keep her out of work five days, which she had to present at work, to which she returned after the five days until she requested and obtained a changed job in the Accounting Department. The lifting was heavier, but different, involving cardboard file boxes from room to room, bags of paperwork, computer paperwork from downstairs to upstairs, from 25 to 45 pounds daily, plus calculating and filing upstairs.

The one or two bags were full of paperwork and were obtained from the master coin bank downstairs and taken upstairs three times a week. There was an average of two trips per day. The bags were two feet square with handles, carried in a cart if one was available, about once per week. She carried the bags across the casino floor to the elevators, into the office.

The boxes were lifted from her desk, down the hall, to another file room, three times a week. The boxes weighed eight or nine pounds, being lighter than the canvas bags.

She testified to wearing a back brace at all times as prescribed by Dr. Fox in 1996, sometime after she became an accounting clerk in March of 1996. She testified she wore the brace only in the Accounting Department; she did not receive it while she was a coin cashier. The sitting in accounting was worse than the lifting or so she testified.

She next saw a doctor in October 1996 at the Atlantic City Medical Center Mainland Emergency Room on November 2, 1996. They gave her medication and referred her to Dr. Fox, an orthopedic surgeon. That was the first time anybody sent her to Dr. Fox and she saw him on November 7, 1996. He had x-rays from the hospital and he took x-rays there in his office. He ordered and she took an MRI. He put her out of work in November 1996 for two months. She requested to return to work on January 1997. She testified, "He didn't want to but I had to work. I had to keep my job." She went to respondent one day and "told him I was going to be out." She met with her supervisors on the thirteenth floor, Alice, Teri, and the manager, Betty. They asked her to sign papers for state disability. The papers apparently included the standard agreement for repay out of any Workers' Compensation award. "She said you'll never get your money so I signed for state at that point for two months." She collected state disability for the two months while she was out of work. Then she went to the doctor and asked that he allow her to go back to work. "I needed this for January 1, 1997. That's when I requested the document, and Dr. Fox released her to return to work. She stopped seeing him and returned to work to the identical job in the Accounting Department until July 1997, when "I called up the boss and told her I have another job." She spoke to Betty, her supervisor about July 2 or July 3, 1997.

Thereafter she went to work for one month for Perskie and Wallach, Esqs., as a secretary. It did not involve any lifting, and she did not injure herself there. However, she testified her leg kept getting worse, the numbness in the right leg and hip. She could not sleep on that side. She described the worse pain level as seven when she left the casino and four at the least, on a scale of 0 to 10, 10 being the worst. She has not worked since.

Question: And at the time that you left your employment did you tell anybody at the casino that your leaving had anything to do with your work?

Answer: No.

Question: Why not?

Answer: I just told my boss I had another job.

 

She testified she earned a dollar an hour more.

Regarding her two months out of work, after physical therapy, about once a week she would limp or drag her left foot in 1996. None of her supervisors noticed it.

Question: You never told them anything about it?

Answer: No.

She went on her own time during the evening hours. She did not tell anyone at work or get authorization to see Dr. Fox. She used her health insurance to pay him.

On the temporary disability form she indicated it was not work connected. She testified, "I wouldn't dare put that."

Regarding the form to go out of work she also testified that she did not tell her supervisor had anything to do with work. The girl gave her a paper to fill out for the health insurance.

Regarding the podium incident, on cross-examination when she went to Atlantic City Medical Center on November 2, 1996 (R-4 in evidence)

Question: Did you report that incident to anyone?

Answer: No, sir.

Petitioner testified to an accident injuring her lower back on a Sunday in the latter part of October 1996. She was going from the main bank with the bags. She was at the security podium. She "bent over, turned as white as a ghost. I had to hold so I could stay up. Even the girl, security girl, said to me, you all right? I said I can't lift anymore. I thought I was going to pass out but I just had to keep working." She did not know the name of the girl at the security podium. "They changed ever so many hours." She was "African-American." She continued to work after that "I had to, yes."

Question: Did you mention to anybody at work the incident with the podium?

Answer: No.

 

 

She applied for and received unemployment and subsequently Social Security disability August 12, 1998 and there is a filed lien on the Workers' Compensation file. She had told state disability it was job related and that she had a Workers' Compensation case pending. She had declined surgery in November or December 1996 as recommended by Dr. Fox, the orthopedic surgeon to whom her then attorney sent her. In April 1998, she also saw Dr. Sagransky, a rheumatologist, on her own, who "really doesn't recommend surgery."

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I found the petitioner, as well as respondent's two subpoenaed witnesses, completely credible. In fact, I found petitioner completely honest - - too much so! However, no amount of legal sophistry can convert a candidly admitted intention not to notify an employer and an authorized third-party medical treater of a subsequently alleged work-related occupational injury - - - - into "constructive" notice sufficient to satisfy the legislative intent, and requirement of actual notice as required by section 33 of our act. The fact that she was in pain, needed the money, and was afraid she would lose her job, does not obviate the need for the legislatively prescribed notice.

The very obvious basis of section 33 is the opportunity of the employer to timely investigate and to cure if possible an occupational injury. Petitioner here has deliberately failed to do so, and cannot later cure that failure of meeting her burden of proof, by testimony that the employer was inadvertently "aware" - - by whatever deliberately concealed facts - - of an actual accident or occupational injury.

The principal thesis of petitioner's brief is that the employer has a legal duty to inquire and to investigate as to whether or not a medical leave, or medical attention at an in-house facility, or a doctor's note excusing an employee from work due to a medical condition - - is causally related to the employment.

The petitioner's brief's reliance on Panchak v. Simmons Co., 15 N.J. 13 (1954) is misplaced because Panchak was actually observed by the employer to have actually draped himself over the bench feeling feverish and faint during work, which he immediately reported to his supervisor.

Similarly, petitioner's reliance is misplaced on Goldstein v. Continental Baking Co., 38 N.J. Super. 55 (App. Div.) rev'd. 16 N.J. 8 (1954) because the doctor's note there mentioned back pain related to petitioner's work for respondent, contrary to the case here.

To hold respondent liable here for "constructive notice" would be to create a new duty on employers, not intended by our legislature, or it would have so stated in the statute. It is not the function of this statutory trial court to create new law.

Again, no amount of legal sophistry can convert a candidly admitted intention not to notify an employer and its authorized medical facilities of a subsequently alleged work-related occupational injury - - - into "constructive" notice sufficient to satisfy the legislative intent and requirement of actual notice required by section 33 of our act.

Accordingly, this prolonged, expensive, time consuming, and delayed Motion for medical and temporary benefits is dismissed with prejudice after trial for failure of petitioner to satisfy her burden of proof of notice or knowledge of her alleged occupational work-related disability.

The stenographic fee is $800 to State Shorthand Reporting Service, all payable by respondent.

Respondent's attorney shall submit an appropriate Judgment forthwith.

____________________________________

Shelley B. Lashman

Judge of Compensation

February 22, 2000