AND WORKFORCE DEVELOPMENT

DIVISION OF WORKERS’ COMPENSATION

C.P. No.’s 2008-15181, 2008-17175, 2008-17177

GLENN A. STEIGER,

Petitioner

v.

BOROUGH OF RUTHERFORD,

Respondent

BEFORE: Jill M. Fader, 
             Judge of Compensation

DECISION

This is the Court’s decision in the matter of Glenn A. Steiger v. Borough of Rutherford, Claim Petitions 2008-15181, 2008-17175 and 2008-17177, which have been consolidated for purposes of the trial.  These matters came before the Court as a Motion for Medical and Temporary Benefits filed on behalf of the Petitioner when Respondent cut off authorized treatment and temporary disability benefits in June 2008.  At the commencement of the trial, Respondent stipulated that the Petitioner was in its’ employ on the dates alleged.  The parties also stipulated that Petitioner has a disability to his back and is in need of treatment.

Respondent denies, however, that Petitioner sustained an injury that “arose out of and in the course of his employment” pursuant to N.J.S.A. 34:15-7. Respondent contends that Petitioner has made too many inconsistent statements as to how and when he injured his back.  At issue is the fact that Petitioner allegedly reports one accident date, and then arrives for treatment reporting a second and different accident to the medical staff. Subsequent doctor notes then discuss one accident, not both, and allegedly have Petitioner recounting differing versions of the accident. Respondent contends these inconsistent statements make Petitioner “not credible.”  It appears Respondent’s theory of the case is that Petitioner abuses alcohol which cause him “balance problems.”  Respondent apparently believes Petitioner’s drinking is what has really caused him to fall and injure his back, outside of the workplace.  Respondent also implies that Petitioner harbors a vendetta against the Borough that has led him to file false claims calling into question Petitioners’ credibility.[1]

The parties agreed to a bifurcated trial as to the issue of liability only.  The Court heard the testimony of the Petitioner and fourteen fact witnesses.  Both parties submitted proposed Findings of Fact and Conclusions of Law as requested by the Court (see C-2 and C-3 in evidence.)    

Petitioner testified that on March 13, 2008 he was riding on the back of a garbage truck when it was involved in an accident with another vehicle[2].  The impact caused Petitioner to twist his back but he did not think he had hurt himself as a result of the accident and continued to work the rest of the day.  Petitioner testified that he did notice his back bothering him as the days and weeks went on, but because he worked in a physically demanding job, he attributed it to the nature of the work.[3] Petitioner testified that he did not seek, nor receive, any medical treatment to his back during these ensuing weeks.  Petitioner testified that by the end of the day Friday, May 9, he was noticing more pain in his back. According to Petitioner’s testimony, the Borough had been short staffed that day and because it was raining the loads were heavier than usual. Petitioner rested over the weekend and returned to work that Monday May 12th.  By the end of the day Monday, May 12, Petitioner’s back was again bothering him after lifting and pulling water-laden cans of recyclables[4].  Petitioner called in sick on Tuesday due to back pain, and, on Wednesday May 14, when he couldn’t get out of bed due to his back pain, was advised by the Borough to call Bergen Risk[5]. 

Robert McGuire, Manager of Bergen Risk, took Petitioner’s call at approximately 7 am on the morning of May 14^th.  Petitioner’s testimony is rather vague about this phone call, and he admits that he doesn’t really recall the conversation because he was in so much pain.  Petitioner testified that he told Mr. McGuire about both the March 13, 2008 MVA and the May 12, 2008 accident.  Mr. McGuire was adament, however, that Petitioner only reported sustaining an injury to his back as a result of a March 13, 2008 MVA (See T. RM p. 83 lines 8-22) The Court notes that on cross-examination, Mr. McGuire acknowledges that he asked Petitioner when his symptoms first started (Court’s emphasis) and not about any subsequent accidents.  Mr. McGuire testified that his questioning of Petitioner followed the information requested on the First Report of Accident (FROI) which all claimants are required to complete (see T. RM p. 96 lines 7-23).  Given the totality of the testimony, I find Mr. McGuire’s version of the events more credible and that Petitioner initially reports only the March 13, 2008 MVA rather than both work accidents.

Mr. McGuire did refer Petitioner to the Center for Occupational Medicine for immediate treatment for the 3/13/08 accident. Upon arriving at the Center for Occupational Medicine, Petitioner is asked to fill out a registration sheet and Bergen Risk form where he indicates he also injured his back while at work on May 12.  According to Mr. McGuire, the first time Bergen Risk learns of a May 12, 2008 accident is when he receives a call from the Center for Occupational Medicine reporting the discrepancy in the injury dates. Mr. McGuire’s “red flags” go off.

Petitioner proceeded to receive authorized treatment to his back and temporary disability payments until on or about June 12, 2008.  Ultimately, Bergen Risk determined that the medical reports forwarded by the authorized doctors contained too many inconsistencies, calling into question the Petitioner’s veracity. All benefits were terminated on or around June 12, 2008.  This motion ensued.

Respondent’s position is that the Court should not find Petitioner credible because of what it characterizes as “inconsistent statements” regarding the cause of his back pain. However, on the very first visit to the Center for Occupational Medicine on May 14, 2008 Petitioner notes the most recent incident on May 12, 2008.  He also notes the initial onset of his symptoms was the March 13, 2008 MVA.  (See P-11 in evidence)[6] Whenever asked about the onset (Court’s emphasis) of his pain, Petitioner informs the questioner, whether it was Robert McGuire, Dr. Newman, Dr. Vingan or Dr. Haliczer, of the March 13, 2008 MVA.  Respondent makes much of the fact that the doctors’ notes don’t contain anything about the May 12, 2008 injury, yet the witnesses all acknowledge that they questioned Petitioner about when the pain started (Court’s emphasis) and not about recent aggravations. 

Respondent also highlights the fact that Petitioner never filed a First Report of Injury (FROI) regarding the March 13, 2008 MVA. In fact, the first time Respondent is put on notice that Petitioner injured his back in this MVA is during the phone call to Bergen Risk on May 14^, 2008. When Mr. McGuire inquires why Petitioner had not notified Bergen Risk earlier of the March 13, 2008 incident, Petitioner responded, “I didn’t know.” (See T. RM p. 83 lines 16-22)  When Mr. McGuire is specifically questioned by the Court as to whether Petitioner meant that he “didn’t know” he was injured or that he “didn’t know” the protocol for reporting the injury, Mr. McGuire replied that he assumes everyone knows the protocol and Petitioner said nothing about not knowing the protocol.  (See T. RM p. 131 lines 4-23)

Our Supreme Court specifically addressed this issue, as it relates to the notice provisions of our statute, in Panchak v. Simmons Co., 15 N.J. 13 (1954).  The Court discussed the rationale behind statutes, such as New Jersey’s, which date the notice or claim period from the occurrence of an injury (Court’s emphasis), rather than the accident itself.  A contrary interpretation would impose an undue burden on an employee to report, and an employer to investigate every little, trivial, bruise or slip in a days work.  Id. at 23,24.   Furthermore, “This avoids the bizarre result of disallowing a compensation claim because the workman failed to give notice before he even knew or had reason to know that he had a compensable injury…”  Panchak at 23.   Such seems to be the case with the March 13, 2008 MVA.

The Court does not find credible the only possible evidence offered by Respondent to prove that Petitioner has filed false claims. Respondent implies that Petitioner has really injured himself at home due to “balance problems” from drinking alcohol.  They point to an 8/14/08 emergency room visit by Petitioner.  The medical records in evidence indicate, however, Petitioner reported to the hospital after finding blood in his urine (See R-11 in evidence).  Petitioner may, in fact, have a drinking problem.  His primary care physician records (see P-12 in evidence) do note a Past Medical History of “ETOH abuse.”  R-11 does note Petitioner refused an ETOH screen.  In the Court’s opinion, whether Petitioner drinks outside of the workplace is completely irrelevant.  Respondent does not allege an Intoxication Defense with respect to the accidents that are the subject of this trial.  Respondent also highlights conversations with Thomas O’Hara, driver of the garbage truck involved in the 3/13/08 MVA.  Respondent contends Petitioner discussed the filing of a lawsuit, and, specifically, a workers compensation suit.  However, when specifically question by the Court, Mr. O’Hara denied that Petitioner suggested filing a workers’ compensation claim (See T. TO p. 64 lines 7-14).  Furthermore, it was clear to the Court from Mr. O’Hara’s testimony, the conversation with Petitioner about an unsolicited letter from an attorney regarding the 3/13/08 accident was all in a joking manner.

The Court does find credible evidence of the following undisputed facts:  First, Petitioner has a herniated disk as evidenced an MRI performed on May 17, 2008 (See the medical records introduced in evidence as P-3).  Second, Petitioner was involved in a motor vehicle accident on March 13, 2008 while standing on the back of a garbage truck (see  P-1 in evidence).  At the time of the accident, Petitioner was not aware that he had hurt his back and, in fact, told his employer that he was not hurt and continued to work.  However, Petitioner testified that he did notice that his back was sore over the coming weeks although he did not seek any medical attention for it.  Respondent’s witness, Christopher Seidler, testified that Petitioner complained to him several times between March and May about his back, which corroborates this. (See T. CS p. 69 lines 11-14). Third, Respondent undertook an investigation regarding an alleged incident with Petitioner’s back while working on May 12, 2008.  This investigation resulted in a report that concluded that the incident did happen. (See P-2 in evidence)  Respondent’s own fact witness, Christopher Seidler, testified that when he signed this report he was satisfied that the accident had occurred as it was reported and that he would not have signed the report had he not completed his own independent investigation first. (See T. CS p. 75 line 13-25, p. 76 lines 17-25).  In addition, Anthony Donadio, a Junior Loader who worked with Petitioner on May 12, 2008 testified that Petitioner had complained to him about his back that day (See T. AD p. 23 lines 5-17).  Fourth, Petitioner’s job as a loader is a physically demanding job.   Finally, Petitioner had complaints regarding his back before March of 2008.  Petitioner testified that the last time he had any treatment to his back was in March 2005 when he injured it lifting his child out of a highchair and he received an injection. The records of Petitioner’s primary care physician, Dr. Poppa, introduced as P-12, corroborate this.  Respondent makes much of the fact that on cross-examination Petitioner does not immediately recall that he had given complaints to Dr. Poppa in the year 2000, some eight years earlier (Court’s emphasis) regarding his back and neck.  When presented with the records, Petitioner acknowledges that he must have had complaints to his back and neck in 2000. In the Court’s opinion, the fact that Petitioner may have had a prior functional loss with respect to his back is only relevant to the Abdullah credit Respondent may be entitled to at the time of determining Petitioner’s overall permanency. It does not absolve Respondent from liability for an aggravation, exacerbation or acceleration of a previously quiescent injury.

In conclusion, Petitioner has an objectively verified herniated disk.  The March 13, 2008 MVA in which Petitioner twisted his back, the work incident on May 12, 2008, or, the occupational exposure, either alone or in combination with each other, could all be a competent cause of the present disability.  Respondent’s own witness, Dr. Abe Haliczer, responded on direct examination when questioned, Q. Doctor, does one have to have a trauma in order to have a herniated disc? A. “Absolutely not.”  Q. Can you give the Court an explanation of the different modalities by which one can get a herniated disc? A. From a simple sneeze, bending, twisting the wrong way.  Many patients don’t even have any explanation for what brought the onset of the pain…forward.  It can be many things, but trauma is just one of the many things that can cause a disc to herniate.”  (See T. AH p. 10 lines 6-17) 

Moreover, and perhaps most significant, Respondent did not introduce any evidence that Petitioner has had any recent accidents or injuries to his back outside of work that could be a competent cause of Petitioner’s recent disability.  The Court specifically asked Petitioner whether he had any accidents at home where he injured his back between March 2008 and May 2008.  He replied, “No.”  (See T. GS p. 72 lines 19-22)  The Court specifically asked Petitioner whether he had any treatment for his back between March 2005, when he injured his back lifting his child, and May 2008.  He replied, “No.” (See T. GS; p. 73 lines 4-12) The Court specifically asked whether he had ever been to a chiropractor.  He replied, “No.” (See T. GS; p. 73 lines 13-15)  Respondent has not produced any evidence to contradict this testimony, or the medical records introduced, that corroborate Petitioner’s testimony that he’s had no treatment to his back since March 2005 (see P-12 in evidence).

Therefore, after listening to the testimony of Petitioner and fourteen fact witnesses, and upon careful review of the medical records and reports in evidence, I find Petitioner is credible, and that by a preponderance of the credible evidence before me, that he does have a disability to his back that arose out of and in the course of his employment thereby entitling him to all the benefits under our Statute.  Because of his intractable pain, Petitioner elected to get treatment through his private medical carrier, United Healthcare, with Dr. Bernard Newman who performed a surgery during the pendency of this Motion.  Respondent shall authorize Petitioner to continue treatment with Dr. Newman and shall reimburse United Healthcare for the cost of all related and necessary treatment provided since his termination of benefits in June, to date, pursuant to Statute.

The Borough of Rutherford does not to participate in the State of New Jersey Temporary Disability Plan.  Unfortunately, Petitioner declined to participate in a private disability plan at the time of his rehire.  As such, Petitioner has been without any income source since he used up the last of his sick and vacation time on or around the first week of August 2008.  Petitioner testified that he has been unable to work since being cut off of temporary disability, despite his attempt to return to work on June 30 and July 15.  Since the parties did not have an opportunity to present medical proofs concerning Petitioner’s ability to work following the termination of benefits on June 12, 2008, the Court directs the following:  Respondent shall immediately commence temporary disability payments, retroactive to the date of Petitioner’s surgery with Dr. Newman, and continuing until further Order of the Court.  Petitioner’s attorney shall have once cycle to supplement the record and present medical proofs regarding Petitioner’s inability to work from June 12, 2008 up until the date of his surgery.

Respondent will pay a stenographic fee of $1,175 to Global Court Reporting Services. A fee to Petitioner’s attorney shall be held in abeyance. The case will be returned to the Pre-Trial list.

Jill M. Fader

Judge of Compensation