On appeal from the New Jersey Department of Labor and Work Force Development, Division of Workers' Compensation, Nos. 95-22307, 98-12045, 98-12040 and 98-12572.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Sabatino.
Petitioner, Peter R. Delli Santi, appeals as insufficient a March 26, 2007 final judgment of the Division of Workers' Compensation awarding him certain benefits. The judgment was entered after a multi-day trial, at which petitioner testified and the parties presented five medical experts. We affirm.
Petitioner is a fifty-nine-year-old man who worked for almost thirty years in the garbage hauling business. At the age of nineteen he started his own company, Newark Disposal Services, Inc. ("Newark Disposal"). In the early 1980's, he formed a second related company, Essex Recycling & Fibers, Inc. ("Essex Recycling"). Petitioner was involved in virtually all non-clerical aspects of the businesses, including driving the trucks, loading and unloading garbage, sorting recyclables, and repairing the equipment.
In April 1992, petitioner injured his back at work while replacing the wheel bearings on a loader. Based upon post- accident medical examinations and an MRI study taken in the fall of 1993, petitioner's doctors concluded that he had suffered a herniated disc between the fourth and fifth lumbar vertebrae ("L4-5"). Another MRI taken in August 1993 showed that petitioner also had degenerative disc disease, as well as bulging discs, in several other lumbar vertebrae. A later MRI study taken in 1995 showed that the L4-5 herniated disc had resolved. That 1995 MRI also showed that petitioner had developed mild spinal stenosis at the L3-5 levels, as well as mild to moderate degenerative changes and several bulging discs intermittently within the L2-S1 levels.
In June 1996 petitioner filed a workers' compensation disability claim based upon his 1992 accident. Petitioner and Essex Recycling reached a settlement on that claim, which was approved by the compensation court on January 21, 1998. Petitioner received a 37.5% partial total disability, for what was specified in the settlement order as "orthopedic and neuro-psychiatric residuals of a herniated disc [at] L4-5 in remission with stenosis and left radiculopathy and adjustment disorder with depression." As a result of the settlement, petitioner received $218 weekly for 205.5 weeks, or $43,164.
Petitioner also filed a claim for disability benefits with the Social Security Administration. After his initial claim was rejected in 1994, he re-filed in December 1998. Following a hearing, a Federal administrative law judge (ALJ) deemed petitioner "disabled," for purposes of Social Security law, after August 1, 1997. This finding was largely based on the ALJ's determination that petitioner had injuries in his back and his right knee.
Petitioner alleges that his health declined following the April 1992 accident that led to his initial workers' compensation claim. A May 1998 MRI showed that he had a new herniated disk at the L1-2 level. Another MRI performed in July 1998 showed annular tears of multiple levels, a cervical disc herniation at C4-5, and a chronic disc osteophyte complex at C5-6. Further MRI testing showed that petitioner had developed severe spinal stenosis and other degenerative problems with his back. Eventually, petitioner underwent back surgery in March 2002, which fused the discs at the L2-3, L3-4, and L5-S1 levels.*fn1
Petitioner also contends that he has developed asthma and other pulmonary illnesses and his knee condition has worsened. He also began seeing a psychiatrist in the late 1990's and was prescribed various antidepressants, which he continues to take. He has sold his two garbage businesses, and he alleges that he has not worked since 1992. Since that time, petitioner has become a full-time commercial landlord. He contends that he only does incidental chores, such as driving monthly to collect rent checks from his tenants and helping his wife with her limousine business by occasionally taking cars to the car wash or gas station.
On April 7, 1998, petitioner filed three new claim petitions seeking workers' compensation from his former employers, Essex Recycling and Newark Disposal. These claims were identical in nature, alleging that petitioner was totally disabled due to injuries to his pulmonary system, ears, nose, throat and eyes. Petitioner further alleged that these injuries were caused by "[exposure] to dust[,] fumes, noxious substances, industr[ial] waste, asbestos, hazardous [hospital] disposal chemicals, and other deleterious substances," as well as exposure to loud and repetitive noises.
Two of these new claim petitions, 98-12040 and 98-12045, were filed against Essex Recycling. The first claim listed Liberty Mutual Insurance as Essex Recycling's insurer and pertained to the dates of that insurance coverage, from August 22, 1989 to October 1, 1991. The second petition listed CIGNA WCC as an insurer for the ensuing policy period. The third claim petition, 98-12572, was filed against Newark Disposal, which was insured by New Jersey Manufacturers. Respondents opposed these claims. On August 16, 2001, petitioner amended his three claims to add injuries to his neck, back, knees and legs, and to claim neurological and psychiatric injuries. Petitioner specifically alleged that he had become "totally disabled."
Petitioner also filed an application in December 1999 seeking a review and modification of his original award from January 1998 under claim 95-22307. Petitioner alleged that the pain in his back and legs, since the time of the settlement, had worsened, forcing him to take more medication, and causing ...