On appeal from The New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 1998-22563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
In this workers' compensation matter, the New Jersey Commissioner of Labor, as custodian of the Second Injury Fund, appeals from a final order determining that petitioner Garry Quick was totally and permanently disabled, and apportioning seventy percent of the disability to a work-related accident and thirty percent to a pre-existing psychological condition, for which the Second Injury Fund was held liable. On appeal, the Fund makes the following arguments:
THE JUDGE OF COMPENSATION MADE AN ERROR OF LAW IN FAILING TO DISMISS THE SECOND INJURY FUND PURSUANT TO N.J.S.A. 34:15-95(a) BECAUSE THE LAST COMPENSABLE ACCIDENT RESULTED IN TOTAL AND PERMANENT DISABILITY.
A. The Decision of the Judge of Compensation Must Be Reversed Because There Is Not Sufficient Credible Factual Evidence in the Record to Find Second Injury Fund Liability.
B. The Judge of Compensation made an Error of Law in Failing to Dismiss the Second Injury Fund Pursuant to N.J.S.A. 34:15-95(a).
As the result of our review of the record and the parties' arguments, we reverse.
The Second Injury Fund (SIF) is the source of worker's compensation benefits for workers already partially disabled who subsequently experience a second work-related injury and who are rendered totally disabled by the two work-related injuries taken together. The SIF encourages employers to hire disabled workers by limiting, in the case of further injury, the last employer's liability for compensation payments to amounts only applicable to the last injury. [Senate Budget and Appropriations Committee Statement, Senate, No. 2008--L. 1999, c. 408.]
See also Walsh v. RCA/General Elec. Corp., 334 N.J. Super. 1, 6-7 (App. Div. 2000) (discussing purpose of Fund).
The Second Injury Fund statute, N.J.S.A. 34:15-94 to -95.5, provides for an annual surcharge upon all policyholders and self-insured employers for the purpose of providing moneys to the Second Injury Fund. N.J.S.A. 34:15-95 provides in pertinent part that compensation payments shall be made from the Fund to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause . . . provided further, however, that no person shall be eligible to receive payments from the Second Injury Fund:
(a) If the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of this Title.
(b) (Deleted by amendment.)
(c) If the disease or condition existing prior to the last compensable accident is progressive and by reason of such progression subsequent to the last compensable accident renders the person totally disabled within the meaning of this Title.
In the present matter, petitioner Garry Quick, who was hired in September 1997 by respondent, Discount Oil Company, as a primary lead heating and air conditioning installation mechanic, seriously injured his lower back on June 3, 1998 when a boiler that he and co-workers were carrying down a flight of steps slipped, pinning Quick against a concrete wall. Quick sustained a fractured vertebra and several ruptured lumbar discs as the result of the accident. After the period of time necessary to permit his fracture to heal, Quick underwent a right L5 hemilaminectomy with L5-S1 discectomy on November 3, 1998. The surgery did not relieve Quick's symptoms, and on August 11, 1999, he underwent a left L5 hemilaminectomy, re-exploration of the L5-S1 interspace, and bilateral hemilaminectomies at L4 with removal of the L4-L5 disc. Further surgery occurred on April 21, 2000, at which time Quick underwent an exploratory laparotomy with retroperitoneal exposure of the lumbar spine, insertion of bone dowels at L4-L5 and L5-S1, and an anterior lumbar interbody fusion at L4-L5 and L5-S1. Quick's symptoms continued, including severe pain radiating into the right leg, as the result of significant epidural fibrosis and arachnoid scarring. He was evaluated for pain management and, at the time of trial, was taking 5 mg. methadone ...