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Ferrigno v. Tyco International

August 15, 2008

LEONARDO FERRIGNO, PETITIONER-APPELLANT,
v.
TYCO INTERNATIONAL, LTD., AND B&F MASON CONTRACTORS, INC., RESPONDENTS-RESPONDENTS.



On appeal from the New Jersey Department of Labor, Division of Worker's Compensation, Claim Petition Nos. 2002-7572 and No. 2005-13092.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2008

Before Judges Winkelstein and LeWinn.

Petitioner appeals from two orders of the Workers' Compensation Court: (1) the October 20, 2006 order denying petitioner's motion for medical and temporary disability benefits; and (2) the January 25, 2007 order approving settlement with dismissal.

On appeal, petitioner raises six claims of trial error and a seventh claim that the permanency award was flawed. We find these claims to be without merit. We affirm substantially for the reasons set forth in the decision of the Workers' Compensation judge, which is based on "findings of fact . . . adequately supported by [the] evidence[.]" R. 2:11-3(e)(1)(D).

Petitioner sustained a work-related injury on July 26, 2001, when he was employed as a fire alarm inspector for respondent, Tyco International, Ltd. (Tyco). Petitioner was sitting in his company van, with his back to the driver's side door, preparing a report on his laptop, when the van's side airbag deployed. An independent medical examination on August 1, 2001, resulted in a diagnosis of "neck and back strain." Petitioner was approved to return to work on October 8, 2001. He worked until January 7, 2002, when he informed Tyco that he "was going back on compensation" because he was "still hurting."

Dr. Peter Blumenthal examined petitioner on March 1, 2002, and diagnosed him with "[r]ecurrent cervical and lumbosacral strain" and "[p]ain behavior." Dr. Blumenthal noted: "Mr. Ferrigno is a difficult man to work with. He is concerned with one thing; namely a note that declares him disabled so that he 'can collect.'" When Dr. Blumenthal told petitioner to produce his prior medical records before any further treatment could be ordered, petitioner "immediately balked," stating that his records were held by a former attorney with whom he no longer spoke. Dr. Blumenthal concluded that petitioner had "good shoulder movements without impingement"; he was "definitely not a surgical candidate" and was "not totally disabled."

Petitioner filed a compensation claim against Tyco on March 19, 2002. He received physical therapy until April 27, 2002, when he was discharged, all work restrictions were lifted, and his disability benefits ended.

After his disability benefits ended, petitioner applied for and received unemployment compensation benefits for nine months, during which time he repeatedly certified that he was able to work and was seeking employment. The day after petitioner's unemployment benefits expired, he went to work for his cousin, a masonry contractor. In that job, petitioner powerwashed bricks, drove a forklift and a truck and "[o]nce in awhile" would "pick up a couple of planks or pick up a couple of bricks."

A December 13, 2002 medical evaluation for the airbag accident resulted in a finding of "permanent disability of 2 percent of total secondary to the cervical sprain and 2 percent of total secondary to the lumbosacral sprain." Petitioner continued working for his cousin until August 2003.

At the end of August 2003, petitioner began to work for another cousin who owned B&F Masonry. He sought no further medical treatment related to the airbag accident after physical therapy ended in April 2002.

A hearing was scheduled to settle the airbag accident matter based on the permanency evaluations. Trial was scheduled for August 23, 2004.

However, on May 6, 2004, while working at B&F Masonry, petitioner was hit on the head by a piece of a steel bar. An MRI scan showed "no intracranial process." Petitioner experienced "post concussive headaches" for several months, for which he was treated with Naproxen, Elavil and Topomax. Although petitioner had not seen a doctor since April 2002 for any treatment related to his airbag accident, immediately after his May 6, 2004 accident he began to see a series of doctors for pain in his neck, ...


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