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Longo v. Roadway Express

January 28, 2008

MICHAEL LONGO, RESPONDENT,
v.
ROADWAY EXPRESS, APPELLANT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2007

Before Judges Sapp-Peterson and Messano.

In this appeal, respondent in the underlying matter, Roadway Express, appeals from the order of judgment entered by a judge of the Division of Workers' Compensation (Division) on October 31, 2006, finding that petitioner, Michael Longo, suffered a compensable injury on February 14, 2006, and directing respondent to (1) reimburse State Temporary Disability Insurance (TDI) for payments made to petitioner, (2) pay the difference between those TDI benefits and compensation benefits to petitioner, (3) pay any additional temporary disability benefits due, and (4) provide medical benefits. We affirm in part and reverse in part.

Petitioner filed a claim petition with the Division on March 3, 2006, as a result of an alleged injury to his left leg that occurred on February 14, 2006 when he slipped on ice. In the petition, petitioner also sought benefits for "an injury to [his] right and left leg, which took place on February 18, 2006 as a result of an innocent aggravation"*fn1 that occurred when his "left leg gave completely out and [he] fell on [his] right leg and [he] couldn't walk." The parties agreed to bifurcate the case and have the judge first decide the issue of whether petitioner suffered a compensable injury.

At oral argument before us, the parties agreed that the sole issue that was litigated before the workers' compensation judge over the course of the two-day hearing was whether petitioner sustained a compensable injury on February 14, 2006, and the judge's oral opinion, delivered on October 31, 2006, confirms that the limited issue before the court was "whether or not petitioner sustained a compensable injury to his right knee."*fn2 Despite the limited issue, the judge, after finding that petitioner sustained a compensable injury, concluded that respondent should pay the necessary reasonable temporary disability, if there [was] still any owing. There is a differential between this and the earlier injury or TDI. It will have to make that up. There is a State TDI and they will have to reimburse State TDI and pay petitioner the difference and they will also be responsible for providing the appropriate medical care.

In view of the limited issue before the judge, we reverse that portion of the order directing the reimbursement of TDI, payment of any differential, and payment of additional TDI. We also reverse that portion of the court's decision finding that petitioner sustained a compensable injury to his right leg, which, during oral argument before us, the parties also agreed was not before the judge. We affirm, however, the judge's determination that petitioner sustained a compensable injury to his left knee on February 14, 2006.

The relevant facts presented to the judge during the hearing revealed that on February 14, 2006, petitioner arrived for work at respondent's Farmingdale location at about 6:00 a.m. Petitioner testified that when he began the actual work at approximately 6:10 a.m., he used a forklift to lift a pallet out of a truck and the pallet fell over. As he was going around the base of the pallet to re-wrap it with shrink wrap, he slipped on a piece of ice and twisted his left knee. He testified that immediately following the slip, he had difficulty bending his knee and could not climb on the forklift. He attempted to continue working, but his knee started to swell up about twenty minutes later. He then reported the incident to his supervisor, who salted the area where he slipped. Petitioner continued to attempt to work, but the swelling of his left knee continued and the pain he was experiencing intensified. Petitioner was initially treated by respondent's doctor, but the treatment discontinued after respondent disputed that petitioner had in fact slipped on ice.

Respondent's employees Dean Fink (Fink) and David Gutshall (Gutshall) testified on behalf of respondent. In addition, respondent provided the court with surveillance videos dated February 14, 2006 that depicted the area where the alleged incident occurred that morning. The tapes covered three camera angles.

Fink testified that on the day of petitioner's accident, he was the terminal manger at respondent's Farmingdale location and it was mid-morning when he was informed of the incident. Although he was located in respondent's Millville terminal on that particular day, he testified that he returned to the Farmingdale terminal either a day or two later. He testified that his knowledge of petitioner's alleged injury came from reviewing footage recorded by the security cameras that were located on the dock and from talking with a supervisor named Dave.

During his testimony, Fink detailed how respondent's security system operated. Specifically, Fink testified that although there were nine cameras at the Farmingdale location, he only saved three camera angles because he thought they were the only angles pertaining to petitioner's injury since they were the only angles from which petitioner was visible at the time the alleged accident occurred. He explained that the footage is routinely saved for thirty days, at which point it is overwritten by the security system. Fink also testified that the camera angles he saved were complete from start to finish, as he did not edit out anything in the middle. He indicated that he was alone when he "[downloaded] the stuff onto the disks" and it was his decision as to which camera angles to save. During questioning from the judge, Fink could not remember the time period covered in the videos or at what point he cut them off. When questioned as to why he did not save the angle that would have shown petitioner as he reported for work and whether he walked normally or with a limp at that time, as opposed to how he walked when he left work after the injury, Fink responded that he did not save that angle because he did not "see it as relevant."

Gutshall, respondent's operations supervisor, testified that he was present on the day petitioner's claimed accident occurred. Petitioner reported the injury to him around 6:30 a.m. He advised petitioner to stretch the leg out a bit and let him know "how it goes." He also testified that petitioner came back to him sometime between eight or nine o'clock, requested to see a doctor, and filled out medical information paperwork. After completing the paperwork, petitioner left work.

Gutshall testified that as operations supervisor, his duties included clearing ice and snow. He acknowledged that he cleared snow on the morning of the accident and did not see any ice, just a damp spot. He described the spot where the injury allegedly occurred as five inches wide and ten inches long. He did not salt the area where petitioner was reportedly injured until after petitioner left work. Gutshall also testified that he reviewed petitioner's timecards just prior to testifying ...


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