On appeal from the Division of Workers' Compensation.
King and O'Brien. The opinion of the court was delivered by King, P.J.A.D.
This appeal is taken from a judgment of the Division in favor of petitioner's employer denying temporary disability benefits totaling about $2,600. Petitioner also claims that he is entitled to the 25% penalty under N.J.S.A. 34:15-28.1 for unreasonable delay or refusal to pay benefits.
Petitioner, who was 64 years old at the time of his testimony, was injured on September 4, 1981 while moving furniture during the course of his employment with respondent. Petitioner had only been employed by respondent for several days when the accident happened. Petitioner had been a construction carpenter since 1960 and normally built concrete forms, scaffolds and plywood decking. His job duties with respondent required him to unload office furniture from trucks and place the furniture in different rooms throughout an office building.
On September 4, 1981 petitioner was attempting to lift a dolly loaded with furniture onto a platform when he felt a sharp pain or tear in his side. Petitioner immediately reported the incident to his foreman, Charley Smith, and told him that he thought he had sustained a hernia. Smith sent petitioner home for the day and told petitioner not to "bother" him. Petitioner
returned to work the next day wearing a "jock strap." Although petitioner attempted to work, his side "bothered" him and he left after putting in only a half day.
Petitioner returned to work the following day and tried to discuss the problem with his foreman. However, Smith once again told petitioner not to bother or "push" him. Petitioner attempted to work on several more days, but continued to experience pain in his groin area. The pain was especially severe if he coughed, sneezed or tried to lift anything.
Petitioner was examined by Dr. Fessler on September 16, 1981. Fessler diagnosed petitioner's condition as a left inguinal hernia and advised surgical correction of this condition. Petitioner said that Fessler advised him not to perform construction work until his hernia was repaired. Petitioner did not return to work following Fessler's examination. Petitioner explained that respondent did not have any "light work" available. The only duties which respondent had available were moving furniture, loading dollies and bolting furniture to the ground. Following Fessler's examination, petitioner informed his foreman that he needed surgery. Smith once again told petitioner not to "push" him.
Petitioner contacted his union's business agent and obtained the telephone number and address of respondent's insurance company. Petitioner notified respondent's insurance company that he needed surgery approximately one or two weeks following Fessler's examination. According to petitioner, the insurance company told him to have the operation "as soon as possible." While petitioner was waiting for his operation, he "[h]ung around the house," got "drunk," went fishing, visited friends, and engaged in his hobby of painting trinkets and taking children's bicycles apart and repainting them. Petitioner did not look for employment during this period since the only type of work he knew was construction work.
Petitioner was re-examined by Dr. Fessler on December 11, 1981 and at this time, surgery was scheduled at the Helene
Fuld Medical Center. Although petitioner maintained that respondent's insurance company did not authorize him to have surgery until January 1, 1982, he was admitted to the hospital on December 28, 1981 and Fessler performed a left inguinal herniorrhaphy on December 30, 1981.
Petitioner maintained that his condition worsened from the time he first saw Dr. Fessler on September 16, 1981 and the time of his entry into the hospital. The hospital records indicate that petitioner experienced "increasing amounts of distress" during this period. Petitioner's surgery was successful and he was discharged from the hospital on January 8, 1982 in "good condition," to be followed as an outpatient by Dr. Fessler. Petitioner returned to work on March 14, 1981. As of the time of his testimony, petitioner was performing construction work and maintained that he was in "[f]irst class" shape.
Dr. Ruderman, an orthopedist, testified as an expert witness on petitioner's behalf. He examined petitioner on April 25, 1983. Ruderman's examination disclosed that petitioner had a full range of motion of the left leg and hip area. His stance and gait were normal. A ten-centimeter scar in the left inguinal area was noted. Petitioner experienced discomfort on digital pressure and when asked to cough heavily.
As a result of his examination and a review of petitioner's hospital records, Ruderman diagnosed petitioner's condition as a postoperative left inguinal hernia. He felt that petitioner had a permanent partial disability of five percent of total based on the presence of a postoperative scar which caused burning and pain on effort and coughing. Ruderman explained that the scar irritated petitioner's soft tissue and nerve endings.
Ruderman opined that petitioner's ability to continue working between September 1981 and the time of his operation depended on the severity of his symptoms and the working policies of his employer. Ruderman explained that he would have advised petitioner not to return to his duties as a furniture mover or carpenter until his hernia was repaired because there was a
danger that petitioner's hernia may have strangulated as a result of exertion. Moreover, Ruderman felt that it would not have been advisable for petitioner to have performed sedentary work which required him to sit at a desk or stand for eight hours a day, since even these activities might have aggravated his condition. Although Ruderman acknowledged that some people work with unrepaired hernias, he felt that this was inadvisable since stress and strain are involved even with sedentary jobs. He would not have advised petitioner to repair bicycles while awaiting surgery.
A letter written by Dr. Fessler, addressed to petitioner's attorney, was admitted into evidence on petitioner's behalf. In this letter, ...