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Sanko v. Wawa

January 10, 2008

BARBARA SANKO, PETITIONER-APPELLANT,
v.
WAWA, RESPONDENT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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, ...


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