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Sanko v. Wawa


January 10, 2008


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2002-40549.

Per curiam.


Submitted December 17, 2007

Before Judges S.L. Reisner and Gilroy.

Petitioner Barbara Sanko appeals from an October 19, 2006 order entered by the Division of Workers' Compensation dismissing her petition for lack of prosecution and with prejudice on the merits. We affirm.


These are the most pertinent facts. Petitioner, a customer service leader and management trainee at a Wawa store in Glendora, New Jersey, filed a claim petition in December 2002, contending that she injured her back at work on October 19, 2002. She filed two amended petitions elaborating on her injury. Respondent Wawa filed an answer on or about January 21, 2003, denying that any injury petitioner may have suffered was work related. Petitioner also filed a motion for temporary medical and disability benefits on February 21, 2003. Respondent's answer to the motion also contested that the injury was work-related. Petitioner filed an amended motion in August 2003, seeking an MRI and physical therapy.

Respondent's answer to the amended motion denied that petitioner was injured at work and contended that an examination by respondent's doctor revealed no objective findings of injury. Respondent requested "that this matter be set down for a full hearing on the merits." Petitioner filed another motion for temporary benefits; respondent again asked either that the motion be denied or that a full hearing be held on the merits of the underlying claim.

A hearing on the claim for medical and temporary benefits began on October 5, 2006. At that time, respondent's counsel indicated that respondent denied that the petitioner was injured at work and put petitioner to her proofs. Judge Zane presided over three days of testimony held on October 5, 2005, October 26, 2005, and November 16, 2005. During those hearings, the judge heard extensive testimony on the underlying merits of petitioner's claim, including testimony from fact witnesses and from petitioner's medical expert.

Petitioner testified that her job required her to move and stack heavy milk crates and to drag heavy trash bags to a dumpster outside the store. She contended that her back began hurting her soon after she started the job, and that she complained to her manager, but was told she had to do the heavy work because it was part of the job. She testified that on October 18, 2002, she experienced a very sharp pain in her back while putting out the trash at work. She did not complain to anyone because she was overseeing the store on that shift. She went home, slept on the floor to try to relieve the pain, and went back to work the next day. While bending down to open the safe, she experienced a terrible pain in her back. She told a supervisor about it, left work, and went to the emergency room of a local hospital. When confronted on cross-examination with ER notes that appeared to indicate she told ER staff that she hurt her back by sleeping on the floor, she contended the notes were inaccurate.

However, according to respondent's witness Patricia Ligatti, who also worked at Wawa, petitioner came in to work on October 19, 2002, complaining that her back hurt because she had slept on the floor:

She said that she had slept bad the night before, because she fell asleep on the floor by accident, and that she must have laid on a nerve. So, she was crying and limping when she came in [to work].

Ligatti testified that petitioner did not say that she was injured at work, but rather told her she accidentally fell asleep on the floor while watching television. If petitioner had told Ligatti about a work-related injury, Ligatti would have called her supervisor, Cindy Ervin, and an accident report would have been filled out. Ligatti also had no recollection of petitioner ever complaining about having to do heavy lifting on the job. She agreed that petitioner was in too much pain to open the safe on October 19, so Ligatti opened it for her. Since petitioner was in considerable pain, Ligatti called Ervin, who came to the store to substitute for petitioner.

Lucinda (Cindy) Ervin was the manager at the Wawa. She was the person to whom work-related accidents would be reported. Petitioner never reported to Ervin that she was injured at work, nor did petitioner ever complain about having difficulty lifting milk crates or trash bags at work. Ervin specifically denied that petitioner told her on October 19, 2002, that she had injured her back at work the previous day. Contrary to petitioner's testimony about dumping trash bags in a dumpster, Ervin testified that there was no dumpster at the Glendora Wawa store. Ervin also testified that a management trainee employee such as petitioner would not be expected to move the milk crates by herself, but would only check them in when they were delivered and would then delegate the job of unloading and stacking them to a subordinate employee. Like Ligatti, Ervin testified that on October 19, 2002, petitioner said that her back hurt because she fell asleep on the floor. When petitioner returned to work after October 19, petitioner told Ervin that her doctor "said, it [the back injury] could have been from her picking up her kids."

Dr. Henry David examined petitioner at her attorney's request, on June 11, 2003, and December 8, 2004. Based on his review of an MRI taken on November 10, 2004, he diagnosed petitioner as having a herniated disc at L5-S1, lumbar strain and sprain with radiculopathy. Based on what petitioner told him about her work, he concluded that the cause of her injury was "occupational exposure from repetitive use of lifting and the two episodes of October 18, 2002 and October 19, 2002." However, he also admitted that picking up a child could cause a herniated disc. He also agreed that his review of petitioner's medical records revealed that she had had no treatment for back problems since December 2002.

The judge repeatedly directed petitioner's counsel to file a second petition if petitioner intended to make a claim for occupational injury occurring over time, as well as accidental injury occurring on one specific date.

On March 2, 2006, when petitioner was unable to produce his witness at the hearing, the judge advised both counsel that she intended to hold one more hearing day, at which time all remaining witnesses must be available to testify. She advised petitioner's counsel "[t]he case has to move forward, either you have witnesses or you don't." She also indicated that she would render a decision on that last hearing day.

After numerous adjournments of the scheduled final hearing date due to petitioner's counsel's asserted unavailability, petitioner attempted to withdraw the motion for medical and temporary benefits before the judge could decide it. At the judge's direction, the parties briefed the issue of whether petitioner had the right to withdraw her motion over respondent's objection. Petitioner contended that she had an absolute right to withdraw her motion and start the entire process over on a later adjudication of her underlying claim petition. Respondent contended that the judge had already heard the merits of the underlying claim and that it would be unfair to respondent and a waste of judicial resources to require that the entire matter be re-litigated at a later point. On or about June 26, 2006, respondent also filed a motion to dismiss the petition for lack of prosecution.

The judge finally directed both counsel to appear on October 19, 2006, which was a peremptory date. She also indicated her preliminary inclination to dismiss the matter on the merits, based on the evidence she had heard, and to dismiss for lack of prosecution based on counsel's prior failure to appear for scheduled hearing dates. Despite notice, petitioner's counsel failed to appear for the October 19, 2006 hearing date, and the judge placed a brief opinion on the record dismissing the case. Plaintiff filed her notice of appeal on December 11, 2006.

On January 30, 2007, Judge Zane issued a supplemental written opinion. In this opinion, she concluded that petitioner did not have an absolute right to withdraw the motion after the judge had heard virtually the entire case on the underlying merits of the claim. She also set forth at some length her reasons for finding that petitioner was not a credible witness and that her proofs were unconvincing, and for concluding that petitioner's injury was not work related:

Petitioner herself was not credible having claimed an accident at work by moving milk cartons and throwing trash in a dumpster. Subsequent credible witnesses set forth that no dumpster even exists at the premises. And, several credible witnesses had already testified that petitioner had told them that Petitioner had hurt her back while sleeping at home on the floor - nothing to do with work . . . . [O]ne of [those witnesses] was clear that she did not want to testify or hurt the petitioner's case as the petitioner was best friend[s] with her daughter-in-law. Those witnesses . . . testified easily and credibly. Petitioner did not have candor, . . . and just was not, frankly, believable.

Therefore, the judge dismissed the underlying petition on the merits, with prejudice. She clarified that she had not intended to dismiss the case without prejudice for lack of prosecution, but rather had dismissed it on the merits because plaintiff had failed to prove that she had "an underlying compensable incident."


On this appeal, petitioner raises the following points for our consideration.


In her reply brief, she also improperly raised the following new argument for the first time:


Having reviewed the record, we conclude that all of these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Zane's decision to dismiss the petition on the merits was supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(A); Close v. Kordulak Brothers, 44 N.J. 589, 599 (1965). We add the following comments.

As Judge Zane correctly observed in her written opinion, the prerequisite for a motion for medical and temporary benefits is a compensable, work-related accident. See N.J.S.A. 34:15-7; Snoden v. Watchung, 29 N.J. Super. 41, 45 (App. Div. 1953) ("N.J.S.A. 34:15-7 requires that in order to establish a compensable injury by 'accident' it must be shown that the alleged accident arose not only in the course of employment, but also out of the employment."), aff'd, 15 N.J. 376 (1954). In this case, the respondent put petitioner to her proofs on that issue, and the judge convened a plenary hearing directed to the issue, which went to the heart of petitioner's underlying compensation claim. After hearing several days of testimony, the judge properly rejected petitioner's attempt to short-circuit the process by withdrawing her motion for medical benefits.

It was within the compensation judge's discretion to determine how best to adjudicate the claim petition. In this case, where the respondent denied that the injury was work-related, the judge properly began with a hearing directed to deciding that issue. Proceeding in that fashion was consistent with judicial efficiency, since the issue was common to both the temporary benefits motion and the underlying claim petition. Petitioner's attorney was not entitled to unilaterally terminate the hearing by attempting to withdraw the motion or by failing to appear for the last court-ordered hearing date.*fn1

Based on the evidence presented at the hearing, the judge determined that petitioner was not credible and that she was not injured at work. We find no basis in this record to disturb those findings, see Close, supra, which justified dismissing both the motion and the petition on the merits.


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