On appeal from a Final Decision of the New Jersey Department of Labor and Workforce Development, Board of Review, Docket No. 2003-20446.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
This is a workers' compensation case. Petitioner Sarbjit Singh appeals from the order of November 27, 2006, which: 1) denied his claim for permanent partial disability; 2) directed him to reimburse respondent Cream-O-Land Dairy $1,350 for court-reporting fees; 3) directed him to return the previously paid voluntary tender of permanent disability in the amount of $12,600, together with interest from October 18, 2006; and 4) directed him to reimburse respondent temporary disability benefits from January 3, 2003, through March 24, 2003, in the amount of $7,278.42, together with interest from October 18, 2006. We affirm.
Petitioner, a truck driver, suffered a compensable injury on May 2, 2002, when he slipped and fell in the back of a delivery truck and sustained injuries to his right shoulder and arm. The accident was reported to his employer that day. Following treatment at the Rancocas Hospital by Dr. Vincent Pierce, petitioner underwent a cervical MRI on June 3, 2002. The MRI disclosed "a right lateral disc herniation at the C5-6 level" with "compression of exiting nerve root and the lateral aspect of the spinal cord on the right," with a disc protrusion at the C6-7 level.
On July 11, 2002, petitioner was examined by Dr. Frederick J. McEliece, a neurosurgeon, who was referred by Dr. Pierce and respondent's insurance carrier. Dr. McEliece's diagnosis was "cervical radiculitis secondary to the herniated disc at, I believe, C5 - 6, although there is a significant degenerative change and protrusion at C6 - 7 as well." On that date, McEliece discussed alternate courses of treatment with petitioner, including an aggressive course of physical therapy and surgery.
On September 11, 2002, petitioner was examined by Dr. John D. Tydings, an orthopedic surgeon, at the request of respondent's insurance carrier. Tydings diagnosed petitioner as suffering from "herniated nucleus pulposus [at the] C5-6 and C6-7" levels. On October 8, 2002, Dr. McEliece scheduled petitioner for surgery, following petitioner's continued complaints of pain. On October 18, 2002, petitioner underwent anterior cervical disc excisions at the C5-6 and C6-7 levels. After the two discs were removed, a bone graft from the right hip was placed at each of the disc spaces. A metal plate was then screwed in position, to stabilize the fusion.
On January 3, 2003, petitioner underwent a physical examination by Dr. Frank P. Santucci to obtain a United States Department of Labor physical examination certificate. The certificate was needed to apply for employment as a truck driver with Banibal Trucking Co., a company owned by petitioner's cousin. Following the physical examination, Dr. Santucci determined that petitioner was physically able to drive trucks, and petitioner received the certificate. Petitioner was employed by Banibal as a tractor-trailer driver from April 2003 through June 2004, during which time he shared the driving of a tractor trailer with his cousin. Petitioner's 2003 tax return disclosed that he had incurred expenses for 195 nights of over-the-road lodging while employed by Banibal and driving for himself part time.
Petitioner purchased his own tractor-trailer and commenced driving for Wills Trucking, Inc., in August 2004. To do so, petitioner underwent a physical examination on July 17, 2004, and denied suffering any disabilities or injuries in the last five years. The examining physician did not note any "previous surgery, deformities, limitation of motion [or] tenderness" to the "spine or other musculoskeletal." It was the examining physician's opinion that petitioner was "in [a] good physical condition." Petitioner continued to work as an independent truck driver from that time forward. Petitioner's 2004 tax return disclosed 276 nights of over-the-road lodging, and a gross income of $86,776.
Contrary to petitioner's employment history since April 2003, he continually professed to his treating and workers' compensation examining physicians that he was unable to work as a truck driver because he could not sit for long periods of time without incurring severe pain. Prior to trial, respondent paid petitioner temporary disability benefits at the maximum rate for 46.37 weeks, for a total payment of $29,203.57. Respondent also made a good faith tender of 12-1/2% of 75 weeks permanent disability at the rate of $168 per week, or $12,600. During a five day trial, the court was presented with testimony from: petitioner; Dr. Irwin Moskowitz, petitioner's orthopedic expert; Dr. Richard Rubin, petitioner's neurological expert; Dr. Timothy Pinsky, respondent's orthopedic expert; and Dr. Erin Elmore, respondent's neurological expert.
On September 14, 2004, petitioner testified that he was limited in the types of activities he was able to perform because of recurring pain in his neck, and that he had not been employed since May 2, 2002, by anyone other than his cousin. Petitioner stated that he worked for his cousin ten to fifteen hours per week, driving his cousin's truck for an hour at a time, on local trips to Pennsylvania and the like, earning approximately $200 to $300 per week. When asked whether he would be able to work more if his cousin had work available, petitioner stated "[n]o, I won't be able to work because of my pain."
On June 1, 2005, petitioner testified again; however, this time, having been confronted with employment records and tax information from Banibal Trucking and Wills Trucking, petitioner acknowledged that he had begun working as a long distance over-the-road trucker for his cousin in April 2003. Petitioner stated that he left Banibal in June 2004, because he was not able to drive a truck long distances. Notwithstanding, petitioner acknowledged that he purchased his own tractor trailer and commenced working for Wills Trucking as an over-the-road truck driver. Petitioner testified next on September 6, 2005, and was confronted with the per diem lodging expenses he claimed on his 2003 and 2004 income tax records when he had previously testified on September 14, 2004, that he had not worked for anyone other than his cousin at Banibal Trucking.
Dr. Moskowitz examined petitioner on February 11, 2004. Petitioner informed the doctor that although he never returned to work for respondent, he was then working part-time as a truck driver. Moskowitz opined that petitioner suffered a 75% partial total permanent disability, secondary to the cervical spine injury. Moskowitz also gave an ...