On appeal from a Final Judgment of the Division of Workers' Compensation.
Approved for Publication June 11, 1997.
Before Judges Dreier, D'Annunzio and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by
VILLANUEVA, J.A.D.(retired and temporarily assigned on recall).
The Second Injury Fund ("SIF") appeals from the final decision of the Workers' Compensation Division which concluded that the accident was compensable and petitioner, Felipe Ramos, was totally and permanently disabled, with 66-2/3% fault apportioned to M & F Fashions, Inc. ("M & F"), and the balance of 33-1/3% apportioned to appellant SIF. We reverse. Petitioner was hired as a presser by M & F in approximately 1986. He worked forty hours per week, from 8:00 a.m. to 4:00 p.m., at a rate of $5.00 per hour. On May 13, 1988, petitioner arrived at work at 7:00 a.m., approximately one hour before the workplace opened and he was scheduled to begin work. Petitioner indicated that he arrived at 7:00 a.m. every day and would wait for his employer to arrive at 8:00 a.m. to open the fourth floor facility. Petitioner was able to gain entrance to the first floor of the building when another tenant opened the outside door.
When petitioner approached the elevator on that morning, he noticed that the door was slightly ajar, about one and one-half feet. Petitioner testified that the interior light was off, and after he pushed the door open and stepped in, he fell into the elevator shaft. At his deposition, petitioner indicated that he backed into the elevator, but during his trial testimony he testified that he entered face forward. Petitioner sustained injuries to his left wrist, back, neck, head and left hip and pelvis, and underwent corrective surgery for the wrist injury.
The elevator was located on the first floor of a five-story building, and was used by other tenants as well as M & F. M & F was one of several tenants located on the fourth floor of the multi-tenant building.
Petitioner filed a Workers' Compensation claim alleging various orthopedic, neurologic and neuropsychiatric injuries, alleging total and permanent disability as a result of the injuries suffered in the May 13, 1988 accident, coupled with a pre-existing injury to his left hand.
The Amended Claim Petition also indicated that M & F appeared to not have Workers' Compensation insurance. M & F failed to answer the Claim Petition or make any appearances in court during the course of these proceedings. Additionally, petitioner filed a liability lawsuit against the owner of the building, and received a $100,000 settlement on those claims.
The claim against respondents M & F and SIF was initially bifurcated pursuant to N.J.A.C. 12:235-7.1. Petitioner, accompanied by counsel, testified before the Judge of Compensation on four dates. Then, on May 10, 1995, the Judge, due to SIF's prior absence from the proceedings, requested that the SIF deputy participate in cross-examination of petitioner. Medical experts testified on three subsequent dates.
Petitioner testified that there was also a stairwell on the first floor which went upstairs, but that he mostly used the freight elevator to reach M & F. The elevator was located about twenty feet down a hallway from the entrance to M & F.
According to petitioner, passengers in the building used the freight elevator for transport, and he denied seeing any signs forbidding usage of the freight elevator for passenger use. Petitioner also denied knowing of the existence of a passenger elevator in the building. Petitioner indicated that he would sometimes use the freight elevator to transport garments for M & F. He also testified that his colleagues and bosses used the stairs to get to M & F.
After hearing testimony from experts on behalf of petitioner and SIF, the Judge concluded that the accident was compensable and petitioner totally and permanently disabled, with 66-2/3% fault apportioned to ...