On appeal from the Division of Worker's Compensation.
R. S. Cohen and Landau. The opinion of the court was delivered by Landau, J.A.D.
This is an appeal by one employer, Somerset County Head Start (Head Start), from a judgment entered in the Division of Workers' Compensation in favor of Ane J. Kozinsky, apportioned equally against Mayfair Supermarket (Mayfair), and two successive employers, Somerset County Head Start (Head Start) and Edison Products, Inc. (Edison).
The Compensation Judge believed that it was appropriate to apportion the contributive share equally among these employers, under the theory of Quinn v. Automatic Sprinkler Co., 50 N.J. Super. 468, 480 (App.Div.1958), and a recent unreported opinion of this court. Appellant Head Start argues that there was an insufficiency of medical evidence to show occupational aggravation of an injury suffered by Kozinsky while working at Mayfair and that an employer should be liable only for the degree of aggravation shown to be attributable to its work by reasonable medical or lay evidence. Edison, the non-appealing respondent, filed a brief urging that we consider any recurrence of symptoms at the subsequent employment to be "innocent aggravations" of the original injury under Selak v. Murray Rubber Co., 8 N.J.Misc. 838 (Sup.Ct.1930) and Hartman v. Federal Shipbuilding & Dry Dock, Co., 11 N.J. Super. 611 (Cty.Ct.1951).
The initial compensation claim was filed against Mayfair alleging an injury and consequent disability arising from a fall in a meat locker on January 27, 1983. According to Kozinsky's physician, the fall rendered symptomatic a previously asymptomatic congenital back condition. Kozinsky notified promptly Mayfair, which refused to sanction the chiropractic treatment she initially secured. In June 1983, she entered a course of treatment with a medical physician, Dr. Van Horn, about the same time as she stopped working for Mayfair. From June to July 1983 she worked 10 hours a day as a nail polish packer with a nonparty. In September 1983, after having received authorization from Mayfair to secure a back brace prescribed
by Dr. Van Horn in June, Kozinsky commenced what proved to be a six week employment with Head Start. During this employment she wore the back brace, received physical therapy three times a week, and was under the continued care of Dr. Van Horn.
Kozinsky initiated a compensation claim against Head Start contending that repeated bending and lifting of small children associated with her job aggravated the earlier back injury suffered in January. The proofs established no specific incidents on the job identified as causing pain. On recommendation of Dr. Van Horn, Kozinsky discontinued employment with Head Start at the end of October 1983. Thereafter, she was recalled by Edison from layoff status which antedated the Mayfair employment. She worked at Edison as an assembler and "brazer" from December 1, 1983 to February 1984, when she filed for temporary disability. She later returned in June 1984 only to leave again because of back problems in December 1984. Kozinsky filed a compensation claim against Edison for aggravation of her injury.
The three compensation petitions were consolidated.
According to Kozinsky's undisputed testimony, she was no longer able to ski or to engage in other customary athletic activities following the fall at Mayfair in January 1983. Even standing, housework and modest activity brought on recurrence of the back symptoms first experienced after the Mayfair accident.
The following excerpts from Kozinsky's testimony are illuminating:
Q. You indicated in your earlier testimony that you would have periods of exacerbation or aggravation in your back where it would be worse than other times; is that correct?
Q. So that certain types of movement or prolonged standing or lifting or certain activities on your part would make your condition worse?
Q. And then after there would be periods of rest. Then it would come back to where it was?
A. Well, I wouldn't say a period of rest. If I didn't do the same type of activities that caused the pain it would ease off, but if I had to keep doing the same thing, it would just be constant pain on and ...