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Peterson v. Hermann Forwarding Co.

Decided: October 13, 1993.


On appeal from New Jersey Department Of Labor, Division of Workers' Compensation.

Shebell, Long and Landau. The opinion of the court was delivered by Shebell, P.J.A.D.


This is an appeal from an Order of Judgment entered by the Judge of Compensation finding petitioner one hundred percent totally and permanently disabled, with seventy-two and one-half percent of the total disability assessed against appellant, Yellow Freight System, Inc. ("Yellow Freight"), and twenty-seven and one-half percent of the total disability assessed against the Second Injury Fund.

On October 1, 1984, John Peterson ("petitioner") filed a claim petition in the Division of Workers' Compensation against Hermann Forwarding Company ("Hermann Forwarding"), alleging injuries as a result of an accident on October 1, 1982. On October

30, 1984, Hermann Forwarding filed an answer to this claim petition admitting the accident.

Over two years later, on November 6, 1986, petitioner filed a Notice of Motion to Join the Second Injury Fund. An Order to that effect was granted on February 18, 1987. Thereafter, petitioner filed claim petitions against several employers alleging aggravation of petitioner's injuries by occupational exposure subsequent to the October 1, 1982 accident. Claims were filed against Mid-Florida Mining ("Mid-Florida"), Yellow Freight, Pilot Trucking ("Pilot Trucking"), McLean Trucking Company ("McLean Trucking"), P.I.E. Nationwide, Inc. ("P.I.E."), and McDonnell Douglas Truck Services, Inc. ("McDonnell Douglas"). All of these respondents filed answers denying petitioner sustained any workrelated disability.

The claims were consolidated for trial and the matter was tried over the course of five days. The Judge rendered a written decision on May 18, 1992, wherein she found that petitioner was one hundred percent permanently and totally disabled. She assessed seventy-two and one-half percent of the total disability against respondent, Yellow Freight, and twenty-seven and one-half percent of the total disability against the Second Injury Fund. An Order for Judgment was entered on June 4, 1992. Respondent, Yellow Freight, filed this appeal.

We describe in detail the facts presented at trial. On October 1, 1982, petitioner was involved in an accident while employed as a tractor-trailer driver by Hermann Forwarding. He had completed a delivery and while getting back into the tractor, his foot slipped off the fuel tank. He held onto the grab rail with his right arm extended up, and felt severe pain through his shoulder and neck. When he released his grip on the grab rail he dropped to the ground, landing with his total weight on his right leg. He stated, "I took the shot of that up through my leg into my hip and I went to the ground as a result of it." Petitioner sought emergency medical treatment at the Saint Peters Medical Center, where he complained of pain in both shoulders, neck and down the

low back. He received follow-up care from a Dr. Zawadsky on one occasion, and a Dr. Troncoso on approximately seven occasions. Petitioner missed one month of work.

Petitioner attempted to return to work in November 1982, but found that Hermann Forwarding had ceased operations. Petitioner then went to his union to find work. He sought work out of economic necessity because he had a family to support. He did not get an assignment until March 1983, when he obtained a position with Mid-Florida Mining as a truck operator. Petitioner was at Mid-Florida until October 1983.

Petitioner's job activities at Mid-Florida included driving back and forth from New Jersey to Florida and local routes as well. At Mid-Florida, petitioner complained of "empty trailer bouncing" which would cause his right leg to get numb and require him to make stops on his route to walk around a bit. Petitioner was required to re-palletize twenty-five pound bags of kitty litter. This caused him to bend down in a squat position and his lower back would tighten up. He testified that at this job "you take a beating" and at the end of the day you do not feel like you want to do any more work. In describing the pain he felt while at Mid-Florida, petitioner testified:

The neck would stiffen up in through the shoulder area. The lower back would hurt. The hip, I would have to sit sideways sometimes too at the end of the day to come back. It was just outright pain. There is no other way to describe it. It's just something I had to live with.

Petitioner testified that he left Mid-Florida because he could no longer take the long hours of driving, and could not tolerate the bouncing up and down in the truck.

Petitioner also worked at McLean Trucking on the following occasions: eight hours in October 1983; eight hours in March 1984; eight hours in April 1984; forty hours in May 1984; and forty-eight hours in June 1984. He drove forty to forty-five thousand pound loads in a stripped-down tractor trailer with no power steering, and was required to palletize the freight. He testified that in doing this work, he suffered pain in his back, right

hip, and right leg. He would also get pain in his neck and it would stiffen up.

Petitioner worked for Pilot Trucking, as a truck and tractor operator. There, he worked for two days in November 1983, two days in December 1983, three days in January 1984, and nine days in February 1984. He said that the work had the same effect on him as the work at the other companies and described some of the "runs" as punishment.

During 1984, petitioner briefly worked for McDonnell Douglas, but he cannot recall for how many days. He testified that while there he delivered and palletized loads, and on occasion had to use a hand jack. This work also affected his condition.

Petitioner worked for Yellow Freight for one day in April 1984, for four days in May 1984, and on June 18, 1984. Petitioner testified that his work at Yellow Freight was the same as at the other companies, stating:

[A]s a shape up, you usually get loads to go out and deliver and pick up; so, in essence, it would be the same thing; lifting, moving freight, backing in, hooking up and dropping.

Petitioner never worked after June 18, 1984, thus Yellow Freight was his last employer. He asserted that he could no longer take the pain. However, after leaving Yellow Freight, petitioner collected unemployment benefits for six months. He also contacted the union seeking employment. On cross-examination, petitioner recognized that this was holding himself out as ready, willing and able to work, but replied that he had no money and no choice. He testified that he had no accidents after the October 1, 1982 accident with Hermann Forwarding.

Dr. Paul B. Shapiro, petitioner's orthopedic expert, first examined petitioner on October 16, 1984. He re-examined petitioner on June 4, 1986 and November 6, 1990. Dr. Shapiro testified that his October 16, 1984 examination showed the following with regard to petitioner's neck and shoulder area:

He had flattening of the cervical curve, which is certainly an objective finding; marked limitations of motion in, really, all directions. Flexion lacking 25 degrees

out of a normal range of 45 degrees, a decrease greater than 50 percent. Extension lacked 20 degrees, again, almost a 50 percent reduction. Bending to the right lacked 25 degrees, to the left 15, bending to the right, of course, again, was a greater than 50 percent reduction in range; to the left, a 30 percent reduction. Twisting both right and left were significantly decreased. As far as in regard to the result [sic] shoulder, the elevation was restricted by approximately 10 percent. His external rotation lacked a quarter, essentially a quarter of the range as internal rotation; again, another 25 percent of the normal range.

With regard to petitioner's low back, Dr. Shapiro testified:

[W]e have flattening of the normal curve, which is objective; increased firmness and hardness of musculature which is likewise an objective finding, and limitation of motion in all directions. To a significant degree the right hamstring spasm was significant, of course, and the absence of the Achilles reflex on the left. Straight leg raising limitations, the positive Lasegue's sign bilaterally, and the weak Patrick's test bilaterally is not terribly meaningful, but was present.

During this examination, Dr. Shapiro elicited petitioner's medical history and reviewed petitioner's hospital records. Based on this examination, he diagnosed "residuals of contusions and strains of the cervicodorsal, right shoulder and lumbar areas, with aggravation of underlying osteoarthritis." Dr. Shapiro estimated disability at forty percent permanent partial total.

On June 4, 1986, Dr. Shapiro took an interim medical history of petitioner and learned that petitioner had been under the care of a Dr. Friedman, who had referred petitioner for an MRI. In addition, petitioner sought treatment with a chiropractor. Dr. Shapiro increased his estimate to sixty-six and two-thirds percent permanent partial total disability.

Dr. Shapiro testified that although his examination only revealed a slight worsening, he now had the benefit of MRI studies, and, therefore, increased the disability percentage. The MRI showed the presence of two herniated discs and "annulus bulging at C4-5," which were not apparent at the 1984 examination. Dr. Shapiro's diagnosis was residuals of contusion and strains of the cervicodorsal, right shoulder, and lumbar areas with aggravation of ...

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